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The Fount of Everything Just and Right? The Ten Commandments as a Source of American Law

Published online by Cambridge University Press:  15 October 2015

Steven K. Green
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One of the more beautiful and impressive structures in Washington, D.C., is the neo-classical Supreme Court building, located just east of the Capitol. Upon entering the marble columned courtroom, a hallowed place where notions of law and justice have been defined for more than sixty years, one's eyes are inevitably drawn to the frieze that borders the ceiling some fifty feet above. Encircling the courtroom from a lofty perch, as if symbolizing a heavenly host, are the carved images of eighteen great law-givers, ranging from Hammurabi and Justinian to Blackstone. In the very center of the relief, high over the seat of the Chief Justice, is a symbolic figure balancing a rounded tablet containing ten Roman numerals. The image is as unmistakable as the message it portrays: the Ten Commandments, a religious document central to Jewish and Christian faiths, is being offered as a primary source of American law.

It is axiomatic that many of the principles contained in the Ten Commandments are fundamental to the Western legal tradition. Prohibitions on murder, theft, and perjury are found in nearly every legal code. Notions of respect for one's parents and admonitions against adultery are also implicit, if not explicit, in the quasi-legal realm of normative rules that order many societies. Few people, if any, would dispute that the Ten Commandments—and its parallels from other ancient cultures—as well as other directives contained in the Pentateuch of the Hebrew and Christian Scriptures, inform our notions of right and wrong and, as such, have influenced the development of Western law of which the American legal system is part.

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Articles
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Journal of Law and Religion , Volume 14 , Issue 2 , 2000 , pp. 525 - 558
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Copyright © Center for the Study of Law and Religion at Emory University 2000

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References

1. Lawgivers, Wash Post, March 11, 1998, at H1, H4-5.

2. See Berman, Harold J., Law and Logos, 44 DePaul L Rev 143, 159–60 (1994)Google Scholar; Carter, Stephen L., The Culture of Disbelief 208 (Basic Books, 1993)Google Scholar (The Ten Commandments have had a “significant impact on the development of the secular legal codes of the Western World.”).

3. Committee Touts Constitution and Christianity 5, in Ariz Capitol Times (Oct 20, 1995).

4. Noonan, John T. Jr., The Believers and the Powers that Are 4 (Macmillan Pub Co, 1987)Google Scholar; Berman, Harold J., Religion and Law: The First Amendment in Historical Perspective, 35 Emory L J 777, 788–89 (1986)Google Scholar. Professor Berman has written extensively on the relationship between Christianity and the law while advocating greater integration of the two spheres. See The Interaction of Law and Religion (Abington Press, 1974)Google Scholar; Law and Logos, 44 DePaul L Rev 143 (1994)Google Scholar; The Religious Sources of General Contract Law: An Historical Perspective, 4 J Law & Relig 103 (1986)CrossRefGoogle Scholar; The Religious Foundations of Western Law, 24 Cath U L Rev 490 (1975)Google Scholar; The Influence of Christianity Upon the Development of Law, 12 Okla L Rev 86 (1959)Google Scholar.

5. Whitehead, John W., The Second American Revolution 77 (Crossway Books, 1982)Google Scholar. “[T]he common law has been present with us ever since the teachings of Moses, in that common law is essentially biblical principles adapted to local usage. It was an application of biblical principles—essentially the Ten Commandments—to the problems of everyday life.” Id at 194.

6. See Kuntz, Paul Grimley, The Ten Commandments on Schoolroom Walls? Why did the Supreme Court Reject the 1978 Statute (Stone v Graham)? Could Such a Law Succeed?, 9 U Fla J L & Pub Pol 1 (1997)Google Scholar; Gray, William P. Jr., The Ten Commandments and the Ten Amendments: A Case Study in Religious Freedom in Alabama, 49 Ala L Rev 509 (Winter 1998)Google Scholar.

7. See Taking the Commandments Public A3, in Wash Post (Feb 8, 2000) (documenting Ten Commandments proposals in ten state legislatures).

8. The initial case brought in federal court by the Alabama Freethought Association and ACLU was dismissed for lack of standing. See 893 F Supp 1522 (ND Ala 1995) (The suit also challenged Judge Moore's practice of having local Christian clergy deliver prayers at the beginning of each jury session). Following that dismissal, the Alabama Attorney General sued both ACLU and Judge Moore in state court seeking declaratory judgment on the constitutionality of the practices. On February 10, 1997, Circuit Court Judge Charles Price held both practices unconstitutional. No 95-919-PR (Ala Cir Ct Feb 10, 1997). After substantial briefing by the parties and a number of amici, the Alabama Supreme Court vacated the circuit court decision in January 1998, finding that the controversy was not justiciable. Ex parte State of Alabama v ACLU of Alabama, 711 S 2d 952 (Ala, 1998). See also Lubet, Steven, The Ten Commandments in Alabama, 15 Constitutional Comment 471 (Fall 1998)Google Scholar; Comment, Alabama v ACLU: A Missed Opportunity to Correct Flawed Establishment Clause Jurisprudence, 11 Regent U L Rev 193 (1999)Google Scholar.

9. H Con R 31, 105th Cong, 1st Sess (March 5, 1997). House Backs Ten Commandment Display B10, in NY Times (March 6, 1997). More recently, on June 16, 1999, in the wake of the student shootings at Columbine High School in Littleton, Colorado, the House of Representatives voted 248 to 180 allow for the posting of the Ten Commandments in public schools. See H.R. 1501, Consequences for Juvenile Offenders Act of 1999 106th Cong, 1st Sess (June 16, 1999).

10. Affidavit of Roy S. Moore, ex H, at 3; Brief of Appellant Roy S. Moore at xii. For an overview of the case and the arguments of the proponents, see Gray, The Ten Commandments (cited in note 6). See also Moore, Roy S., Religion in the Public Square, 29 Cumb L Rev 347 (1998–1999)Google Scholar.

11. 711 S 2d at 964. See also Suhre v Haywood Co, 55 F Supp 2d 384 (W.D. NC, 1999) (upholding constitutionality a courtroom base relief containing “Lady Justice” and the Ten Commandments on ground the “display touts nothing more than an effort to recall the origin of modern law, by reference to an ancient source of law and justice.”).

12. Taylor's Case, 3 Keble, 607, 621 (K.B., 1676); People v Ruggles, 8 Johns 290 (NY 1811); Updegraph v Commonwealth, 11 Serg. and Rawle 394 (Pa, 1822).

13. Howe, Mark deWolf, The Garden and the Wilderness: Religion and Government in American Constitutional History 28 (U Chi Press, 1965)Google Scholar. “This fact seems to me to constitute persuasive evidence that it was a common assumption in the first decades of the nineteenth century that state governments may properly become the supporters and the friends of religion.” Id.

14. Stone v Graham, 449 US 39, 41 (1980). Judge N. Williams, Jr., of the Franklin Co Ky Circuit Court upheld the statute writing:

The Legislature has declared the Ten Commandments to be the fundamental legal code of Western Civilization and the common law of the United States. There was proof submitted here that substantiates that declaration. The common law grew under the influence of men who were free to know and study the Ten Commandments and to adopt the principles of canon law as it related to various subjects under consideration.

Appendix to Petition for Writ of Certiorari in Stone v Graham, No 80-321, at 34.

15. 449 US at 41.

16. Id at 45 (Rehnquist, J., dissenting).

17. In his opinion in ACLU v Co of Allegheny, 492 US 573, 652 (1989), Justice John Paul Stevens referred to Moses on the frieze in the Supreme Court courtroom as one of the “great lawgivers” despite noting that his inclusion conveyed “an equivocal message, perhaps of respect for Judaism, for religion in general, or for law.” Id.

18. Compare Harvey v Cobb Co, 811 F Supp 669 (ND Ga 1993), aff'd mem., 15 F 3d 1097 (11th Cir), cert denied, 511 US 1129 (1994); Doe v Harlan Co Sch D, 2000 WL 562161 (E.D. Ky 2000); ACLU v McCreay Co, 2000 WL 562165 (E.D. Ky 2000); ACLU v Pulaski Co, 2000 WL 562168 (E.D. Ky 2000); Ring v Grand Forks Pub Sch D, 483 F Supp 272 (ND 1980); Baker v City of Manhattan, Kan, No 99-2159-KHV (D. Kan 1999); DiLoreto v Bd of Educ, 87 Cal Rptr 2d 791 (Ct App 1999); and Young v Co of Charleston, No. 97-CP-10-3491 (SC Com Pls 1997), with Books v City of Elkhart, 79 F Supp 2d 979 (ND Ind 1999); Suhre v Haywood Co, (cited in note 11); State v Freedom From Relig Found, 898 P 2d 1013 (Colo 1995); Anderson v Salt Lake City Corp, 475 F 2d 29 (10th Cir 1973); and Scott v Commonwealth, 497 SW 2d 561, 563 (Ky App 1973) (rejecting defendant's claim that jury was prejudiced by presence of Ten Commandments in courtroom). See also DiLoreto v Downey Unified Sch D, 196 F 3d 958 (9th Cir 1999) (upholding school district refusal to post Ten Commandments on high school baseball field); Shea v Blister, 26 F Supp 2d 943 (SD Tex 1998) (finding attorney lacks standing to challenge Ten Commandments posted in courtroom). Public schools, with their captive audiences of impressionable children, represent a unique context. It is generally understood that a Ten Commandments' display in a public school building is unconstitutional regardless of the justification. See Stone, Harlan County & Ring.

19. See Brooks v City of Elkhart, 79 F Supp 2d 979 at 989 (ND 1999) (noting that the Ten Commandments has “great historical and legal significance in this country”); State v Freedom From Relig Found, 898 P 2d 1013 at 1018 (1995) (noting the uncontroverted testimony of expert witnesses “that the Ten Commandments are the basis for many of our secular laws.”). Accord Anderson, 475 F 2d 29 (1973) at 33.

20. People v Knapp III, 113 AD2d 154, 495 N.Y.S. 2d 985. 989 (App Div 1985).

21. See Everson v Bd of Educ, 330 US 1 (1947) (employing historical analysis); McCollum v Bd of Educ, 333 US 203, 212 (1948) (Frankfurter, J.) (same); Engel v Vitale, 370 US 421 (1962) (same); Marsh v Chambers, 463 US 783 (1983) (same); Lynch v Donnelly, 465 US 668 (1984) (same); cf. Abington Sch D v Schempp, 374 US 203, 234 (1962) (Brennan, J., concurring) (“[A]n awareness of history and an appreciation of the Founding Fathers do not always resolve concrete problems.”).

22. Ky Rev Stat Ann § 158.178(2) (Banks-Bladwin 1980) (repealed 1981).

23. Goebel, Julius Jr., King's Law and Local Custom in Seventeenth Century New England, 31 Columbia L Rev 416, 423–25 (1931)CrossRefGoogle Scholar; Haskins, George Lee, Law and Authority in Early Massachusetts 142–45 (Macmillian Co, 1960)Google Scholar; Berman, Harold J., Law and Revolution: The Formation of the Western Legal Tradition 65 (Harv U Press, 1983)Google Scholar; Berman, , 24 Cath U L Rev at 490–500 (cited in note 4)Google Scholar.

24. Haskins, , Law and Authority at 143 (cited in note 23)Google Scholar.

25. In a 1610 decision, Sir Edward Coke wrote that the “law of nature is that which God at the time of creation of the nature of man infused into his heart (which is also the moral law),” which was prior and superior to “any judicial or municipal law in the world.” This law, Coke asserted, “is part of the laws of England” and it “is immutable, and cannot be changed.” Calvin's Case, 7 Co 4b, 12a-12b (1610).

26. Levy, Leonard W., Blasphemy 205–37 (Alfred A. Knopf, 1993)Google Scholar; Blackstone, William, Commentaries on the Laws of England—Book the Fourth: Of Public Wrongs (1765-1769) 4:43(Beacon Press, Haar, Charles M., ed, 1962)Google Scholar.

27. Holdsworth, William Searle, A History of English Law 5:275–83 (Little, Brown & Co, 1924)Google Scholar.

28. Germain, Christopher St., The Doctor and Student, or, Dialogues between a doctor of divinity and a student in the laws of England (R. Clarke & Co, 1874)Google Scholar.

29. Id at 3, 10. St. Germain believed, however, that “the laws of evangelists (i.e. New Testament) were shewed in much more excellent manner than the law of the Old Testament was.” Id at 7.

30. Holdsworth, , History of English Law at 4:266-69; 5:275-76 & 279–80 (cited in note 27)Google Scholar; Goebel, , King's Law and Local Custom at 423 (cited in note 23), n 14Google Scholar; Haskins, , Law and Authority at 144 (cited in note 23)Google Scholar.

31. King v Boreston & Adams Noy 158, 161, 74 Eng Rpts 119 (1669). In Smith v Sparrow, 4 Bing 84, 13 CLR 411 (1827), the court wrote the common law “is founded in our holy religion, and no law can be good which is not.”

32. Chilton, Bradley S., Clioberntics, Christianity mid the Common Law 83 L Library J 355, 358–61 (1991)Google Scholar; Goebel, , King's Law and Local Custom at 423, n 14 (cited in note 23)Google Scholar.

33. Stout, Harry S., Word and Order in Colonial New England, in Hatch, Nathan O. and Noll, Mark A., eds, The Bible in America 19–22 (Oxford U Press, 1982)Google Scholar.

34. Morris, Richard B., Studies in the History of American Law 26–28 (Octagon Books, 2d ed 1974)Google Scholar; Haskins, , Law and Authority at 142–45 (cited in note 23)Google Scholar.

35. Ratcliff's Case, 3 Coke 37a, 40a (Queen's Bench, 1592).

36. Calvin's Case, 7 Coke 1, 12a-13a (King's Bench 1610).

37. Goebel, , King's law and Local Custom at 424–25Google Scholar (cited in note 23); Konig, David Thomas, Law and Society in Puritan Massachusetts, Essex County, 1629-1692 3–34 (U NC Press, 1979)Google Scholar.

38. Holdsworth, AHistory of English Law at 277–78 (cited in note 27)Google Scholar.

39. Gaustad, Edwin S., Liberty of Conscience: Roger Williams in America 80–85 (William B. Eerdmans Pub Co, 1991)Google Scholar; Morris, , Studies at 27 (cited in note 34)Google Scholar; Haskins, , Law and Authority at 145 (cited in note 23)Google Scholar.

40. Flaherty, David, Law and the Enforcement of Morals in Early America, in Friedman, Lawrence M. and Schneiber, Harry N., eds, American Law and Constitutional Order: Historical Perspectives 56 (Harv U Press, 1978)Google Scholar; King v Boreston & Adams, Noy 158, 74 Eng Rpt 119 Perspectives 56 (Harv U Press, 1978)Google Scholar; King v Boreston & Adams, Noy 158, 74 Eng Rpt 119 (1669).

41. Taylor's Case, 1 Ventris, 293; 3 Keble, 607, 621 (K.B. 1676). Taylor also claimed to be the younger brother of Jesus. Taylor's indictment is reprinted in Levy, Leonard W., Treason Against God: A History of the Offense of Blasphemy 313 (Schocken Books, 1981)Google Scholar.

42. 3 Keble at 621; Kenny, Courtney, The Evolution of the Law of Blasphemy, 1 Cambridge L J 127, 129–30 (1922)CrossRefGoogle Scholar.

43. Id; Levy, Treason Against God at 314 (cited in note 41).

44. See Woolston's Case, 2 Strange's Rpts, 832, 834; 1 Barnardiston, 162 (K.B. 1729). The court reporter in Woolston's Case wrote that the justices “would not suffer it to be debated whether to write against Christianity in general was not … punishable at common law.” Justice Hale had “settled the matter”: “Christianity in general is parcel of the common law of England,” Chief Justice Raymond summarily asserted, “and therefore to be protected by it.” Id See also The King and Curl, 1 Barn 29, 94 Eng Rpt 20 (K.B. 1727); De Costa v De Paz, 2 Swans 532, 36 Eng Rpt 715 (Ch 1754); Smith v Sparrow, 4 Bing. 84, 130 Eng Rpt 700 (C.P. 1827).

45. Chapin, Bradley, Criminal Justice in Colonial America, 1606-1660 at 4–15 (U Ga Press, 1983)Google Scholar. See generally Haskins, Law and Authority (cited in note 23); Scott, Arthur P., Criminal Law in Colonial Virginia 3–38 (U Chi Press, 1930)Google Scholar; Konig, , Law and Society in Puritan Massachusetts at 17–18 (cited in note 37)Google Scholar.

46. Chapin; Criminal Justice in Colonial America at 4-15 (cited in note 45); Rosezella Canty-Letsome, JohnWinthrop's Concept of Law in 17th Century New England, One Notion of Puritan Thinking, 16 Duquesne L Rev 331, 350–51 (1977–1978)Google Scholar.

47. Noll, Mark, The Image of the United States as a Biblical Nation, 1776-1865, in Hatch, and Noll, , The Bible in America 43–45 (cited in note 33)Google Scholar.

48. Winthrop, John, Christian Charilie: A Modell Hereof (1630), in Morgan, Edmund S., ed, Puritan Political Ideas, 1558-1794 at 92–93 (Bobbs-Merrill Co, 1965)Google Scholar.

49. Dunn, Richard S., et al, eds, History of New England—The Journal of John Winthrop, 1630-1649 at 1:314 (Belknap Press/Harv U Press, 1996)Google Scholar; Morris, , Studies at 33–35 (cited in note 34)Google Scholar; Morgan, Edmund S., The Puritan Dilemma: The Story of John Winthrop 124-25, 155–73 (Little, Brown & Co, 1958)Google Scholar.

50. Wright, Benjamin F. Jr., American Interpretations of Natural Law 15–18 (Harv U Press, 1931)Google Scholar; Morris, , Studies at 27–29 (cited in note 34)Google Scholar; Haskins, , Law and Authority at 123–27 (cited in note 23)Google Scholar.

51. Wright, , American Interpretations at 15, 17–18 (cited in note 50)Google Scholar; Cotton, John, A Discourse About Civil Government in Wilson, John and Drakeman, Donald, eds, Church and State in American History 7 (Beacon Press, 1987)Google Scholar.

52. Journal of John Winthrop, 1:380Google Scholar; The Colonial Laws of Massachusetts. Reprinted from the Edition of 1660 … containing also The Body of Liberties of 1641 (1889) (Fred B. Rothman & Co, 1995)Google Scholar.

53. Id at 55.

54. Haskins, , Law and Authority at 2, 142–43Google Scholar (cited in note 23); Canty-Letsome, , John Winthrop's Concept of Law at 343, 350 (cited in note 46)Google Scholar.

55. Journal of John Winthrop at 1:288 (cited in note 52)Google Scholar.

56. Canty-Letsome, , John Winthrop's Concept of Law at 349 (cited in note 46)Google Scholar; Konig, , Law and Society in Puritan Massachusetts at 150 (cited in note 37)Google Scholar.

57. Barnes, Thomas G., ed, The Book of the General Lawes and Libertyes Concerning the Inhabitants of the Massachusetts (Huntington Library, 1975) (facsimile reprint, 1648)Google Scholar.

58. Colonial Laws of Massachusetts at 129.

59. Haskins, , Law and Authority at 137 (cited in note 23)Google Scholar; Barnes, , Lawes and Libertyes at 8 (cited in note 57)Google Scholar.

60. Barnes, , Lawes and Libertyes at 9 (cited in note 57)Google Scholar; Haskins, , Law and Authority at 158–62 (cited in note 23)Google Scholar.

61. Barnes, , Lawes and Libertyes Episde (cited in note 57)Google Scholar.

62. Haskins, , Law and Authority at 137–40Google Scholar (cited in note 23); Canty-Letsome, , John Winthrop's Concept of Law at 350–51 (cited in note 46)Google Scholar.

63. Haskins, George L. and Ewing, Samuel E., 3d, The Spread of Massachusetts Law in the Seventeenth Century, 106 U Pa L Rev 413 (1958)CrossRefGoogle Scholar. See Cushing, John D., The Earliest Laws of the New Haven and Connecticut Colonies, 1639-1673 (Michael Glazier, Inc, 1977), passimGoogle Scholar; Cushing, , The Laws of the Pilgrims: The Book of General Laws of the Inhabitants of the Jurisdiction of New-Plimouth (Michael Glazier, Inc, 1977), passimGoogle Scholar.

64. Miller, Perry, Religion and Society in the Early Literature of Virginia in Miller, Perry, Errand into the Wilderness 99–140 (Harv U Press, 1956)Google Scholar; Chapin, , Criminal Justice in Colonial America at 4–15 (cited in note 45)Google Scholar; Scott, , Criminal Law at 3–38 (cited in note 45)Google Scholar.

65. Pratt, John Webb, Religion, Politics and Diversity: The Church-State Theme in New York History 29–37 (Cornell U Press, 1967)Google Scholar; Frost, J. William, A Perfect Freedom: Religious Liberty in Pennsylvania 15–18 (Cambridge U Press, 1990)CrossRefGoogle Scholar.

66. Chapin, , Criminal Justice in Colonial America at 4–15 (cited in note 45)Google Scholar; Morgan, Edmund S., Roger Williams: The Church and the State 102-04, 128 (Hartcourt, Brace & World, 1967)Google Scholar; Morgan, , Puritan Dilemma at 124–25Google Scholar (cited in note 48); Gaustad, , Liberty of Conscience at 66-68, 80–85 (cited in note 39)Google Scholar.

67. Osgood, Russell K., The History of the Law in Massachusetts 10–13 (S Judicial Ct Hist Soc'y, 1992)Google Scholar; Morris, , Studies in the History of American Law at 62–64 (cited in note 34)Google Scholar; Konig, , Law and Society at 158–90 (cited in note 37)Google Scholar.

68. Flaherty, , Law and Enforcement of Morals at 56 (cited in note 40)Google Scholar; Chapin, , Criminal Justice in Colonial America at 6–7 (cited in note 45)Google Scholar.

69. Hall, Kermit L., The Magic Mirror: Law in American History 22–23 (Oxford U Press, 1989)Google Scholar; Morris, , Studies in the History of American Law at 62–64 (cited in note 34)Google Scholar; Friedman, Lawrence M., A History of American Law 42–43 (Simon & Schuster, 2d ed 1985)Google Scholar.

70. Scott, , Criminal Law at 287 (cited in note 45)Google Scholar; Butler, Jon, Awash in a Sea of Faith: Christianizing the American People 98–102 (Harv U Press, 1990)Google Scholar.

71. Scott, , Criminal Law at 279–80, 290 (cited in note 45)Google Scholar; Flaherty, , Law and Enforcement of Morals at 56, 60–61 (cited in note 40)Google Scholar; Hall, , Magic Mirror at 33 (cited in note 69)Google Scholar; Murrin, John M., Magistrates, Sinners, and a Precarious Liberty: Trial by Jury in Seventeenth-Century New England in Hall, David D., Murrin, John M. & Tate, Thad W., eds, Saints & Revolutionaries: Essays on Early American History 152–206 (W.W. Norton & Co, 1984)Google Scholar. One study of criminal prosecutions in the Massachusetts Superior and General Sessions Courts between 1760 and 1774 has shown that while 51% of all offenses prosecuted fell within the category of “Offenses Against God and Religion,” a majority of these prosecutions were for sexual offenses: fornication, adultery, bastardy, cohabitation, indecent exposure, lewdness, and prostitution. Only 25% of the “religious” prosecutions were for offenses of Sabbath breaking, blasphemy, and profanity. Nelson, William E., Americanization of the Common Law 36–39 (Harv U Press, 1975)Google Scholar.

72. Wright, , American Interpretations at 36–61 (cited in note 50)Google Scholar; Le Boutiller, Cornelia Geer, American Democracy and Natural Law 109–30 (Columbia U Press, 1950)Google Scholar.

73. Locke, John, A Letter on Toleration, Klibansky, Raymond, ed, 115-17, 123 (Clarendon Press, 1968)Google Scholar; Sandoz, Ellis, A Government of Laws: Political Theory, Religion, and the American Founding 80 (La State Press, 1990)Google Scholar; Kramnick, Isaac, The Discourse of 1787: The Constitution and Its Critics on Individualism, Community, and the State, in Belz, Herman, Hoffman, Ronald and Albert, Peter J., eds, To Form a More Perfect Union: The Critical Ideas of the Constitution 178 (U Va Press, 1992)Google Scholar.

74. Locke, John, Two Treatises of Government 408–12 (New Am Lib, 1965)Google Scholar; Hall, , Magic Mirror at 57–58 (cited in note 69)Google Scholar.

75. This is not to suggest that belief in a scriptural basis for the law disappeared during the eighteenth century. In a widely-read pamphlet, The Right of the Inhabitants of Maryland to the Benefit of English Laws (1728), Maryland Attorney General Daniel Dulaney advanced a more traditional higher law view of the law, writing that the common law “takes in the Law of Nature, the Law of Reason and the revealed Law of God; which are equally binding, at All Times, in All Places, and to All persons.” That “revealed Law of God” was contained in the bible. Dulaney, Daniel, The Right of the Inhabitants of Maryland to the Benefit of English Laws 3, 9–13Google Scholar, reprinted in Wright, , American Interpretations 57–61 (cited in note 50)Google Scholar.

76. Bailyn, Bernard, The Ideological Origins of the American Revolution 27, 30-31, 77–78 (Belknap Press/Harv U Press, 1967)Google Scholar; Wood, Gordon S., The Creation of the American Republic, 1776-1787 at 259–305 (W.W. Norton & Co, 1969)Google Scholar; Horwitz, Morton J. and Katz, Stanley N., eds, The Transformation of American Law 4–5 (Harv U Press, 1990)Google Scholar.

77. October 14, 1774, in Morrison, , Sources and Documents 119–20Google Scholar.

78. Eleven of the thirteen states adopted all or part of the common law. Friedman, , A History of American Law at 94–96 (cited in note 69)Google Scholar; Horwitz, and Katz, , The Transformation of American Law at 4 (cited in note 76)Google Scholar.

79. Delaware Constitution of 1776, article 25, reprinted in Thorpe, , Federal and State Constitutions, 1:566–67Google Scholar.

80. Referred to in Hale v Everett, 53 NH 9, 110 (1868).

81. Nathaniel Chipman, Sketches of the Principles of Government, reprinted in Miller, Perry, ed, The Legal Mind in America, From Independence to the Civil War 24–25 (Anchor Books, 1962)Google Scholar; Horwitz, and Katz, , The Transformation of American Law at 14–30 (cited in note 76)Google Scholar.

82. Root, Jesse, The Origin of Government and Laws in Connecticut (1798)Google Scholar, reprinted in id at 33.

83. Jefferson to Adams, January 24, 1814, in Cappon, Lester J., ed, The Adams-Jefferson Letters 421–25 (U NC Press, 1959)Google Scholar.

84. Id; see also Jefferson to John Cartwright, June 15, 1824, The Writings of Thomas Jefferson vol 16 at 42-52 (DC: Lib of Cong, 1903).

85. John Adams to Thomas Jefferson, March 14, 1814, in Adams, Charles Francis, ed, The Works of John Adams vol 10 at 90 (Little, Brown & Co, 1865)Google Scholar.

86. Adams to Jefferson, January 23, 1825 and November 4, 1816, in Cappon, , Adams-Jefferson Letters at 607–08, 493-95 (cited in note 83)Google Scholar.

87. See, for example, Kurland, Philip B. and Lerner, Ralph, The Founders Constitution 5:44–110 (U Chi Press, 1987)Google Scholar; see also Alley, Robert S., Memo to the U.S. Congress: Thou Shalt Not Bear False Witness, in Church & State 21 (06 1997)Google Scholar (noting that a computer search of the entire George Washington Papers revealed not a single reference to the Ten Commandments).

88. Representative Joe Scarborough of Florida stated: “The father of the Constitution, James Madison, stated while he was drafting the Constitution: ‘We have staked the entire future of the American civilization not upon the power of the government, but upon the capacity of the individual to govern himself, to control himself and sustain himself according to the Ten Commandments.’” Id; See Robert S. Alley, Public Education and the Public Good, 4 William and Mary Bill of Rights J 277, 316-18 (1995) (quoting editors of the Madison Papers as stating “We did not find anything in our files remotely like the sentiment expressed in the extract you sent us. In addition, the idea is inconsistent with everything we know about Madison's views on religion and government, views which he expressed time and time again in public and private.”).

89. See Gaustad, Edwin S., Faith of Our Fathers (Harper & Row, 1987)Google Scholar; Boiler, Paul F. Jr., George Washington and Religions Liberty, 17 Wm & Mary Q, 3d Ser 486–506 (10 1960)CrossRefGoogle Scholar.

90. Handy, Robert T., A Christian America: Protestant Hopes and Historical Realities 24–56 (Oxford U Press, 2d ed 1984)Google Scholar; Way, H. Frank, The Death of the Christian Nation: The Judiciary and Church-State Relations, 29 J of Church and State 509–29 (Autumn 1987)CrossRefGoogle Scholar; Green, Steven K., The Rhetoric and Reality of the ‘Christian Nation’ Maxim in American Law (PhD dissertation, U NC, 1997)Google Scholar.

91. Davis, David Brion, Revolutions: Reflections on American Equality and Foreign Liberations (Harv U Press, 1990)CrossRefGoogle Scholar; Nash, Gary B., The American Clergy and the French Revolution, 22 Wm & Mary Q, 3d Ser 392–412 (1965)CrossRefGoogle Scholar; Kramnick, Isaac and Moore, R. Laurence, The Godless Constitution 88–109 (W.W. Norton, 1996)Google Scholar; Butler, , Awash in a Sea of Faith at 225–88 (cited in note 70)Google Scholar.

92. Beecher, Lyman, Lecture on the Republican Elements of the Old Testament, in Beecher's Works 189 (John P. Jewett & Co, 1852)Google Scholar.

93. Baird, Robert, Religion in the United States of America 261 (Blackie & Son, 1844)Google Scholar; Moore, Thomas V., The Christian Lawyer, or the Claims of Christianity on the Legal Profession 9–11 (MacFarlane & Fergusson, 1858)Google Scholar; Butler, , Awash in a Sea of Faith at 282–88 (cited in note 70)Google Scholar.

94. Blackstone, Commentaries on the Laws of England (cited in note 26). Blackstone's Commentaries were more popular in America than in England. Friedman, , A History of American Law at 88–89 (cited in note 69)Google Scholar.

95. Blackstone, William, Commentaries on the Laws of England—Book the Fourth: Of Public Wrongs (1765-1769), Haar, Charles M., ed, 55 (Beacon Press, 1962)Google Scholar.

96. Ratcliff's Case, 3 Coke 37a, 40a, 6 Eng Rpt 713 (1592); Taylor's Case, 1 Ventris 293, 3 Keble 607 (1675); Evans v Chamberlain of London, 2 Burn's Eccl L 218 (1767).

97. Blackstone wrote that there was a great body of law, termed municipal law, that derived its authority not from God, but from the “law of man.” “There is, it is true, a great number of indifferent points, in which both the divine law and the natural leave a man at his own liberty; but which are found necessary for the benefit of society to be restrained within certain limits. And herein it is that human laws have their greatest force and efficiency ….” Commentaries at 4:42 (cited in note 94).

98. The Value and Importance of Legal Studies (A discourse pronounced at the inauguration of the author as Dane Professor of Law in Harv U, Aug 25, 1829),” first published in 9 The American Jurist and Law Magazine 346-448 (April 1833) republished in Story, William W., ed, The Miscellaneous Writings of Joseph Story 517 (Charles C. Little & James Brown Pub, 1852)Google Scholar.

99. See Wakefield v Ross, 28 Fed Cas 1346 (D.R.I. 1827) (No 17,050) (where Story excluded a Universalist from taking an oath as witness).

100. Miller, , The Legal Mind in America at 93–94 (cited in note 81)Google Scholar; Newmyer, R. Kent, Supreme Court Justice Joseph Story: Statesman of the Old Republic 180–84 (U NC Press, 1985)Google Scholar; J. Story to Rev. John Brazer, Feb 16, 1832, in Story, W.W., ed, Life and Letters of Joseph Story 2:82–83 (Charles C. Little & James Brown, 1851)Google Scholar.

101. Story, Joseph, Commentaries on the Constitution of the United States 2:590–609 (Little, Brown & Co, 4th ed 1873)Google Scholar.

102. Hoffman, David, A Course of Legal Study 1:65–78 (Joseph Neal Pub, 1836)Google Scholar.

103. Id at 68.

104. Story, Joseph, Natural Law, in Lieber, Francis, ed, Encyclopedia Americana rev ed at 9:150–58 (Desilver, Thomas & Co, 1836)Google Scholar.

105. Story, Joseph, Value and Importance of Legal Studies (08 25, 1829), in Story, Wm W., ed, The Miscellaneous Writings of Joseph Story 533–35 (Charles C. Little & James Brown, 1852)Google Scholar.

106. Hoffman, , A Course of Legal Study at 66, 68, 71-72, 74–75 (cited in note 102)Google Scholar.

107. Hoffman, , A Course in Legal Study at 64, 68 (cited in note 102)Google Scholar.

108. People v Ruggles, 8 Johns 290, 297 (NY, 1811). As grounds for appeal, Ruggles had argued that New York did not have a statute outlawing blasphemy. In order to uphold the conviction, Kent was forced into finding that Ruggles' blasphemy violated the common law.

109. Updegraph v Commonwealth, 11 Serg and Rawle 394, 399, 401 (Pa, 1822).

110. Kilgour v Miles, 6 Gill and Johns 268 (Md, 1834) (Sunday law); City Council v Benjamin, 2 Strob 508 (SC, 1846) (same); Shover v State, 10 Ark 259 (1850) (same); State v Ambs, 20 Mo 215 (1854) (same); Jackson v Gridley, 18 Johns. 98 (NY, 1820) (oath); Atwood v Welton, 7 Conn 66 (1828) (same).

111. Lindenmuller v The People, 33 Barb 548, 567, 569 (NY Sup, 1861).

112. City Council v Benjamin, 2 Strob 508, 523 (SC, 1845). See also Commonwealth v Wolf, 3 Serg. and Rawle 48 (Pa, 1817).

113. People v Hoym, 20 How Prac 76, 78-79 (NY Super, 1860); accord Campbell v Int'l Ins Co, 4 Bos 312 (NY Super, 1859).

114. Fox v Abel, 2 Conn 541, 554 (1818).

115. Neal v Crew, 12 Ga 93, 100 (1852).

116. See People v Hoym, 20 How Prac 76 (NY Super, 1860); Kountz v Price, 40 Miss 341 (1866); Rosenbaum v State, 199 SW 388 (Ark, 1917).

117. See Green, Rhetoric and Reality appendix (cited in note 90); Banner, Stuart, When Christianity Was Part of the Common Law, 16 L & Hist Rev 27 (Spring 1998)CrossRefGoogle Scholar.

118. Sedgwick, Theodore, A Treatise on the Rules which Govern the Interpretation and Construction of Statutory and Constitutional Law 17 (J.S. Voorhies, 1857)Google Scholar.

119. State v Williams, 26 NC 400, 403 (1844); Melvin v Easley, 52 NC 356, 360 (1860); see also State v Brooksbank, 28 NC 73 (1845); Rodman v Robinson, 47 SE19, 21 (NC 1904) (“It is incorrect to say that Christianity is part of the common law of die land, however it may be in England where there is a union of church and state, which is forbidden here …. [I]t is by [its] influence that it acts, and not because it is a part of the organic law, which expressly denied religion any place in the supervision or control of secular affairs.”).

120. Andrew v NY Bible & Prayer Book Soc'y, 4 Sandf. 156, 182 (NY Super, 1850); Ex parte Newman, 9 Cal 502, 512-13 (1858) (Bennett, J.); Sparhawk v Union Passenger Railway Co, 54 Pa 401, 432-52 (1867) (Read, J.).

121. Pearce v Atwood, 13 Mass 324, 345-46 (1816).

122. Id. Noting that “some among our ancestors so far regarded the laws of Moses as of perpetual obligation,” none of the “rigid laws of Moses” held sway in the Commonwealth. Id at 346.

123. Id at 348.

124. State v Chandler, 2 Har 553, 556-557 (Del, 1838).

125. Id at 561. “By this it is meant, that the courts will judicially notice … what is the prevailing religion of the people.” Id at 562. “[T]he christian religion is a part of those laws, so far that blasphemy against it is punishable, while the people prefer it as their religion, and no longer. The moment they change it and adopt another, as they may do, the new religion becomes in the same sense, a part of the law, for their courts are bound to yield it faith and credit, and respect it as their religion.” Id at 572.

126. Specht v Commonwealth, 8 Pa 312 (1848). Specht insisted that to justify the Sunday law on the Fourth Commandment “compels all to observe Sunday as a sacred day …. The doctrine that the ‘Christian religion is a part of the common law,’ is, I suppose, the foundation and justification for this act. That doctrine was promulgated in the worst of times, and by the worst men of a government that avowedly united church and state; in times when men were sent to the block or the stake on any frivolous charge of heresy.” Id at 314-15.

127. Id at 321, 324.

128. Sparhawk v Union Passenger Railway Co, 54 Pa 401, 432-52 (1867) (Read, J. concurring). The significance of the decision and concurrence is highlighted by the court's reversal of a preliminary injunction issued by Justice William Strong, sitting at nisi prius, which had been based entirely on the maxim: “[I]f Christianity is a part of the common law, it carries with it a civil obligation to abstain on the Lord's day from all worldly labor and business, except works of necessity and mercy.” Id at 406.

129. See Theisen v McDaniel, 16 So 321, 323 (Fla, 1894) (“The fourth commandment of the Decalogue is, ‘Remember the Sabbath Day, to keep it holy.’ What would be said of the public morals of a city whose laws permitted the general conduct of all classes of business enterprises on that day?”); Schreifels v Schreifels, 287 P 2d 1001, 1005 (Wash, 1955) (remarking in a custody proceeding that “[a]dultery, whether promiscuous or not, violates one of the Ten Commandments and the statutes of this state.”).