The Principle
Joseph Story (1779-1845), Associate Justice of the Supreme Court from 1811 to 1845 and the founding Dane Professor of Law at Harvard, is the author of the Commentaries on the Constitution of the United States (1833) - the most important early treatise on American constitutional law. Story was explicit about the relationship between biblical morality and American law in a way that his contemporary, the more guarded Marshall, was not: he declared that "Christianity is part of the common law," argued that civic virtue was inseparable from biblical morality, and treated the protection of religious liberty not as a concession to pluralism but as a recognition that the biblical conscience undergirded the moral order on which law depended. His Commentaries remain an authoritative source for the original understanding of the First Amendment.
Biblical Foundation
Proverbs 14:34 - "Righteousness exalteth a nation: but sin is a reproach to any people" - was the text Story cited most readily to connect biblical morality with civic flourishing. For Story, republican government was possible only among a morally virtuous people, and moral virtue required the biblical conscience that Christianity cultivated. Romans 13:1 - "Let every soul be subject unto the higher powers. For there is no power but of God" - provided the theological grounding for civil authority that Story incorporated into his constitutional jurisprudence: government derives its authority from God and is accountable to divine moral standards. Deuteronomy 16:19 - "Thou shalt not wrest judgment; thou shalt not respect persons, neither take a gift: for a gift doth blind the eyes of the wise, and pervert the words of the righteous" - expressed the biblical standard of impartial justice that Story translated into constitutional requirements of procedural fairness and judicial integrity. Story's understanding of the First Amendment's establishment clause was that it prohibited the federal government from establishing any particular Christian denomination, not that it required the exclusion of Christianity from public life - a reading grounded in his conviction that the biblical moral order was the foundation of American republicanism.
Historical Transmission
Story was formed in the New England Federalist legal culture that directly inherited the Puritan synthesis of biblical covenant theology and English common law. His Harvard Law professorship made him the most influential law teacher of his generation, and his Commentaries shaped American constitutional interpretation for more than a century. His conviction that Christianity was "part of the common law" was not his idiosyncrasy: it reflected the view of Blackstone, Kent, and the majority of American jurists of his era. Story's decision in Terrett v. Taylor (1815), protecting church property rights, drew on the principle that religious institutions have legal standing rooted in their biblical character. His opinion in The Amistad case (1841) - holding that the captured Africans could not be re-enslaved - reflected the biblical principle of human equality before the law, even though Story remained personally ambivalent about the abolition movement.
Modern Application
Story's Commentaries are regularly cited by Supreme Court Justices interpreting the original meaning of constitutional provisions, particularly the First Amendment's religion clauses. His reading of the Establishment Clause - that it prohibits federal establishment of a particular denomination, not the acknowledgment of Christianity's place in the common law - has been cited by justices including Clarence Thomas in support of an accommodationist interpretation of the religion clauses. Contemporary debates about church-state separation, school prayer, religious symbols on public property, and faith-based government programs turn partly on whether Story's original understanding or a stricter separationist reading is the correct interpretation of the First Amendment. Story's insistence that republican government requires a morally virtuous citizenry formed by biblical religion remains a contested claim in a pluralist democracy.
Scholarly Debate
The principal scholarly debate concerns the coherence and contemporary validity of Story's claim that "Christianity is part of the common law." Philip Hamburger's Law and Judicial Duty argues that Story's natural law understanding of the judicial function, which required judges to apply moral principles derived ultimately from Scripture, was the original understanding of judicial review. Leonard Levy's The Establishment Clause provides the separationist counter-reading of the First Amendment's history. John Witte Jr.'s God's Joust, God's Justice traces the biblical and theological roots of American law from Story's generation back to the Puritan founding, demonstrating that the relationship between Scripture and law that Story articulated was not an aberration but the mainstream of American legal thought until the late 19th century.