Affirmative action, abortion, and LGBTQ rights: Americans debate the approach we should take to these issues along Constitutional, policy, and moral lines. Each matter holds distinct elements. However, when you strip the arguments for and against to their foundation, you find a common root. They all concern the meaning of the assertion, made in the Declaration of Independence, that “all men are created equal.”

This example displays a broader point. First principles wear many clothes. But they stably remain underneath, giving the essential form to the surface issue.

Benjamin Clark’s Contending for American Nationhood understands this relationship. The book primarily focuses on the debate in the Early Republic regarding the existence of a federal common law. But its main point concerns a more fundamental matter—the contest in that period over the origin and nature of the American nation. Clark highlights the federal common law debate as one suit of clothing, a manifestation of the broader, bigger argument over nationhood. In so doing, Clark’s discussion shows how much the question about American nationhood touches upon in our political history—and our political present.

The importance of this matter makes sense. It is hard to ask a more fundamental question than, “Who are you?” One’s principles, priorities, and a host of consequent issues flow from this inquiry. The same is as true of countries as it is of individuals or groups. Our understanding of the meaning of America says much about how we think and act as a political community.

Clark’s book looks at how these debates over nationhood played out in the first half of the nineteenth century. The book does so with a special emphasis on the writings of Joseph Story (born 1779), who served on the United States Supreme Court from 1812 until his death in 1845. Story was a powerful figure in this period, not only through his judicial decisions but in his teaching at his alma mater, Harvard. Moreover, Justice Story left a powerful legacy in his legal treatises, especially his three-volume Commentaries on the Constitution of the United States (1833), which might be second only to The Federalist Papers in its influence on the interpretation of our Constitution. Beyond these contributions, Story also made a sustained case for a federal common law as part of his broader view about American law and nationhood.

Regarding American nationhood, Clark lays out the two competing positions held during Story’s time. He describes these camps as adhering to either the “Compact Theory” or the “Nationalist Theory.” Both looked to America’s history to understand the nature of American nationhood. Their different answers to how America was formed resulted in distinct views of what America was.

These theories will look familiar to those who have studied the debates regarding secession that came to a head in the American Civil War. Clark argues that the two views he describes both had adherents going all the way back to the Founding. Therefore, the seeds of the secession contest went back to the original sowing, continuing into the nineteenth century.

Both theories were thoroughly republican, tracing America’s sovereign political power to the people. However, which people held this ultimate political power? In answering this question, the interlocutors first disagreed on the relative timing between the formation of the states and the formation of the “Union.” The Compact Theory argued that the states existed before the country. The Nationalist Theory, by contrast, claimed that the Union existed first.

If the states came first, before the Union, then America’s sovereignty resided in the people of the states. These peoples, separately constituted, held ultimate decision-making power within the republic. Moreover, the national government was the creation of the already-existing states, formed for their purposes and thus their benefit. Clark explains that, for this theory, America was “a voluntary confederation of distinct political units, each retaining its full sovereignty.”

By contrast, if the Union came first, before the states, then there existed a unitary American people who possessed sovereignty and thus ultimate decision-making authority. The American people, through the formation of the Union, then created the states out of the British colonies. Though possessing particular independent powers, the states existed as a means of benefiting the American people through their ability to carry out the essential purposes of government within their own geographical boundaries.

These differences held serious implications for what means legally existed for resolving disagreements within the political system. Interposition, nullification, and, of course, secession all sprouted from some iteration of the Compact Theory. Their opposition usually drew from Nationalist principles.

Clark correctly pegs Story as an able and influential articulator of the Nationalist Theory, especially through his Commentaries on the Constitution. Published in 1833, shortly after the Nullification Crisis, Story makes a forceful case for the Nationalist Theory of American nationhood. However, on this crucial point, the book’s narrative at times loses sight of its main protagonist. Story drops out for extended periods, making the book read more like a generalized history of how those in that period debated this topic rather than a focused articulation of Story’s important role in it. Story’s particular case gets made eventually, but could have been more front and center.

Nonetheless, Clark does an admirable job articulating the competing positions without stacking the argumentative deck either way. He clearly displays the strengths and weaknesses of both Compact and Nationalist talking points. Clark also makes sure to note the impressive tally of voices who split in their adherence to some form of the competing views. Most substantively, he shows that both theories had substantive claims to be the original understanding of America’s structuring of political power.

Clark sees the debate over the federal common law as one example of how differences over American nationhood played out. Common law as a subject can be a challenging one for a lay audience, especially an American one. Clark does well in focusing the discussion on how views about a federal common law partook of the Compact vs. Nationalist debate.

The common law, of course, originated in England. It provided a judicial train of precedent developing legal rules. The common law traveled to our shores with those who emigrated from the Mother Country to the colonies in the seventeenth and eighteenth centuries. But America’s declaring and obtaining its independence questioned the continuing role of the common law in the new nation.

As Clark explains, the states clearly continued to use the English common law. They adopted it formally in legislative and similar acts, though each state did so to varying extents based on the common law’s development within its own borders. In addition, nearly all persons in Story’s time saw some use at the national level for the English common law. It informed a number of provisions within the national constitution and certain statutes. As examples, consider the Constitution’s vesting of power over cases in “law and equity” to the federal judiciary, the mention of the writ of habeas corpus, or various references to it in Congressional legislation of the Early Republic. The common law gave content to these Constitutional and statutory texts and thus aided courts in legal interpretation.

But Compact Theorists thought the use of the common law on the national level should be limited to these narrow instances. All means for exercising political power came from the Constitution or Congressionally enacted statutes. Thus, there was no federal common law like that which existed in the states.

Story disagreed, arguing that a federal common law did exist akin to that found in the states. In Clark’s telling, Story gives good reasons for the national government needing its own common law. He notes that for Story, “there was a palpable need for a more comprehensive set of guides and rules than the undeveloped corpus of statutory law would allow for.” Given the minimalist nature of existing federal law, judges needed a federal common law, adopted from England, though modified, to fill in gaps in written statutes into which cases coming before them would fall. At the same time, Story argued that the national government must include a federal common law because of its status as a real government at least equal to that of the states. Here, Clark sees the Nationalist Theory playing out through a particular issue. Real nations possessed “inherent powers” by their status as nations, regardless of constitutional or statutory grant. The states had these powers, only limited by the national constitution and guided by their own common law. The national government, given its status for Story, should have inherent powers guided and developed by a federal common law as well.

As with the nationhood discussion, Clark strives to fairly present the competing sides in their strengths and their weaknesses. Story, for instance, makes a good case regarding the need for a federal common law. His arguments about the logic of American nationhood lend additional persuasive power to his view. However, the Justice is at his weakest when trying to determine when and how the national government adopted the English common law. Congress never formally adopted it in some holistic fashion. Nothing in the Constitution does so, either. In fact, Clark recounts Story as never being able to pinpoint a national adoption of the common law.

Story’s opponents, for their part, make a strong case that our written constitution and its relationship to statutory law negate the existence of such a law. Moreover, their views about the formation of the Union and the location of sovereignty put the national government in a very different place than the states, further limiting the sources of national power. This limitation further precludes the existence of a federal common law as opposed to those existing in the states. Yet they have their own weaknesses, including in how to guide federal judges in matters where law is minimal or does not exist.

Clark’s discussion of the federal common law debate at the time keeps a more consistent focus on Story, even when describing the position of his opponents. While diving deeply into Story’s judicial decisions, the discussion avoids getting too technical or veering too far from the book’s stated intent of using the common law debate to point back to the one about American nationhood.

Interestingly, Clark then argues that Story largely lost the particular battle. The Supreme Court rejected most of his attempts to create a federal common law. Even his one major victory, establishing a kind of federal commercial common law in Swift v. Tyson (1842), eventually was overturned in Erie Railroad Co. v. Tompkins (1938). Yet Clark makes the case that Story won the underlying conflict over nationhood, especially as determined by the Civil War and its aftermath. The Nationalist view lost a particular battle but gained victory in the broader debate.

In his conclusion, Clark argues that Story continues to speak to contemporary issues. Here his examples could have been bolder. Yes, we still get some persons signing petitions for secession or calling for states to exercise something like nullification. Some today still call for a “national divorce” as well. But these declarations are more posturing than a real contestation of ideas. Our politics is thoroughly Nationalistic in practice, perhaps more so than even Story would like. Contrary ideas remain fringe in adherents and weakly vague or utterly impractical in actual plans. Clark also points to the current debate over the Electoral College. While it has some implications for the Compact versus Nationalist discussion, the link is pretty slim and subsumed.

Yet we do have serious divisions about what makes America a country, whether that be its ideals, its geography, its religious views, or other forms of communal formation. Today, we have greater agreement that we are more a single nation than a plural confederation. Thus, these discussions do not realistically threaten secession or nullification. But the men debating nationhood in Story’s time held broader and deeper agreement regarding the purpose of government as protecting natural rights as well as greater unity in religious faith. We argue less these days about our structural identity, but our battles over those other matters seem even more fundamental to answering who we are. In fact, these divides speak to whether America can pursue a truly common good or whether it must further balkanize along class, education, racial, and other lines.

Geographically, we still struggle to think about our relationship to a more particular community within the nation and our status as citizens of America or humans in the world more generally. To what degree is national community possible, much less one that fulfills human longings as social and political animals? Yet dangers also lurk in a re-localizing, dangers such as the factions that Federalist #9 and #10 warned us to avoid. These questions restate a tension as old as politics, one regarding the balance between the rights of the individual and the common interests that make a community. The Nationalist argument’s triumph has pushed us further toward the individual since national community is harder to obtain and thinner in experience than more local bonds. In our age of national markets, media, and regulation, the particularities of regional identities persist but only in defiance of broader trends.

Finally, Clark could push harder on the legal implications his book can have on current debates. The discussion about a federal common law had serious import for understanding separation of powers. Nationalists like Story thought it would help restrain judges by giving more standards for decision-making. Compact Theorists thought it would give the federal judiciary legislative power wrested from Congress. Today, we are having a significant debate over separation powers in relation to claims of an “Imperial Presidency,” the “Administrative State,” and “Judicial Supremacy.” All of those terms critique a particular part of the government based on that part taking power constitutionally granted to someone else.

Moreover, the issue of federal common law touched on the nature of the rule of law. With our written constitution and statutes, did any place exist for developing legal rules beyond those sources? The Nationalists thought so in a federal common law, while the Compact Theorists said no. These debates over the sources of our law in Story’s time hold implications for how we think the Constitution and statutes rule today. What is the relationship that legal text has to other sources such as natural law, evolving cultural mores, and government agency rulemaking? Clark does not ask these questions.

Thus, we find in Contending for American Nationhood a helpful contribution to our historical knowledge. It tells of how we have always debated the fundamental matter of who we are and of Justice Story’s important role in that debate. Yet, in what it tells us of America’s past, we can learn even more than this book lets on. The debate it recounts holds much of value as we ask anew a question of first principle: who we Americans are and what we should be.