Justice Joseph Story on Church and State and the Federal Bill of Rights (1833)

[EDITOR'S NOTE:  JUSTICE JOSEPH STORY ON CHURCH AND STATE AND THE FEDERAL BILL OF RIGHTS, including his Dedication and Preface to his Commentaries (1833).  The following is excerpted from:  Joseph Story, LL. D., Dane Professor of Law in Harvard University, Commentaries on the Constitution of the United States; with a Preliminary Review of the Constitutional History of the Colonies and States, before the Adoption of the Constitution.  Abridged by the Author, for the Use of Colleges and High Schools (Boston: Hilliard, Gray, and Company/Cambridge: Brown, Shattuck, and Co., 1833), pp. iii-viii, 693-703.

    United States Supreme Court Justice Joseph Story (1779-1845) was a famous jurist, and his Commentaries was a very influential treatise on United States constitutional law.  Story, first a Jeffersonian Republican and then (following his appointment to the Supreme Court of the United States by President James Madison), a Federalist, was one of the United States' most influential Supreme Court justices.  His tenure on the Supreme Court spanned three decades, from 1811 to 1845.   At the beginning of the twentieth century, Story was elected to the Hall of Fame.   His views on the Constitution of the United States are still widely respected.

    Justice Joseph Story's first wife, Mary Lynde Fitch Oliver (1781-1805), whom he married on December 9, 1804, was a descendant of Governor Jonathan Belcher's sister Elizabeth Belcher Oliver (1678-1736).





    I ask the favour of dedicating this work to you.   I know not, to whom it could with so much propriety be dedicated, as to one, whose youth was engaged in the arduous enterprises of the Revolution; whose manhood assisted in framing and supporting the national Constitution; and whose maturer years have been devoted to the task of unfolding its powers, and illustrating its principles.  When, indeed, I look back upon your judicial labours during a period of thirty-two years, it is difficult to suppress astonishment at their extent and variety, and at the exact learning, the profound reasoning, and the solid principles, which they every where display.   Other Judges have attained an elevated reputation by similar labours in a single department of jurisprudence.  But in one department, (it need scarcely be said, that I allude to that of constitutional law,) the common consent of your countrymen has admitted you to stand without a rival.  Posterity will assuredly confirm by its deliberate award, what the present age has approved, as an act of undisputed justice.   Your expositions of constitutional law enjoy a rare and extraordinary authority.   They constitute a monument of fame far beyond the ordinary memorials of political and military glory.  They are destined to enlighten, instruct, and convince future generations; and can scarcely perish but with the memory of the constitution itself.   They are the victories of a mind accustomed to grapple with difficulties, capable of unfolding the most comprehensive truths with masculine simplicity, and severe logic, and prompt to dissipate the illusions of ingenious doubt, and subtle argument, and impassioned eloquence.  They remind us of some mighty river of our own country, which, gathering in its course the contributions of many tributary streams, pours at last its own current into the ocean, deep, clear, and irresistible.

    But I confess, that I dwell with even more pleasure upon the entirety of a life adorned by consistent principles, and filled up in the discharge of virtuous duty; where there is nothing to regret, and nothing to conceal; no friendships broken; no confidence betrayed; no timid surrenders to popular clamour; no eager reaches for popular favour.  Who does not listen with conscious pride to the truth, that the disciple, the friend, the biographer of Washington, still lives, the uncompromising advocate of his principles?

    I am but too sensible, that to some minds the time may not seem yet to have arrived, when language, like this, however true, should meet the eyes of the public.  May the period be yet far distant, when praise shall speak out with that fulness of utterance, which belongs to the sanctity of the grave.

    But I know not, that in the course of providence the privilege will be allowed me hereafter, to declare, in any suitable form, my deep sense of the obligations, which the jurisprudence of my country owes to your labours, of which I have been for twenty-one years a witness, and in some humble measure a companion.   And if any apology should be required for my present freedom, may I not say, that at your age all reserve may well be spared, since all your labours must soon belong exclusively to history?

    Allow me to add, that I have a desire (will it be deemed presumptuous?) to record upon these pages the memory of a friendship, which has for so many years been to me a source of inexpressible satisfaction; and which, I indulge the hope, may continue to accompany and cheer me to the close of life.

                        I am with the highest respect,

                            affectionately your servant,

                                    JOSEPH STORY.

Cambridge, January, 1833.






    I now offer to the public another portion of the labours devolved on me in the execution of the duties of the Dane Professorship of Law in Harvard University.  The importance of the subject will hardly be doubted by any persons, who have been accustomed to deep reflection upon the nature and value of the Constitution of the United States.  I can only regret, that it has not fallen into abler hands, with more leisure to prepare, and more various knowledge to bring to such a task.

    Imperfect, however, as these Commentaries may seem to those, who are accustomed to demand a perfect finish in all elementary works, they have been attended with a degree of uninviting labour, and dry research, of which it is scarcely possible for the general reader to form any adequate estimate.  Many of the materials lay loose and scattered; and were to be gathered up among pamphlets and discussions of a temporary character; among obscure private and public documents; and from collections, which required an exhausting diligence to master their contents, or to select from unimportant masses, a few facts, or a solitary argument.  Indeed, it required no small labour, even after these sources were explored, to bring together the irregular fragments, and to form them into groups, in which they might illustrate and support each other.

    From two great sources, however, I have drawn by far the greatest part of my most valuable materials.  These are, The Federalist, an incomparable commentary of three of the greatest statesmen of their age; and the extraordinary Judgments of Mr. Chief Justice Marshall upon constitutional law.  The former have discussed the structure and organization of the national government, in all its departments, with admirable fulness and force.  The latter has expounded the application and limits of its powers and functions with unrivalled profoundness and felicity.  The Federalist could do little more, than state the objects and general bearing of these powers and functions.  The masterly reasoning of the Chief Justice has followed them out to their ultimate results and boundaries, with a precision and clearness, approaching, as near as may be, to mathematical demonstration.  The Federalist, being written to meet the most prevalent popular objections at the time of the adoption of the Constitution, has not attempted to pursue any very exact order in its reasoning; but has taken up subjects in such a manner, as was best adapted at the time to overcome prejudices, and win favour.  Topics, therefore, having a natural connexion, are sometimes separated; and illustrations appropriate to several important points, are sometimes presented in an incidental discussion.  I have transferred into my own pages all, which seemed to be of permanent importance in that great work; and have thereby endeavoured to make its merits more generally known.

    The reader must not expect to find in these pages any novel views, and novel constructions of the Constitution.  I have not the ambition to be the author of any new plan of interpreting the theory of the Constitution, or of enlarging or narrowing its powers by ingenious subtleties and learned doubts.   My object will be sufficiently attained, if I shall have succeeded in bringing before the reader the true view of its powers maintained by its founders and friends, and confirmed and illustrated by the actual practice of the government.  The expositions to be found in the work are less to be regarded, as my own opinions, than as those of the great minds, which framed the Constitution, or which have been from time to time called upon to administer it.  Upon subjects of government it has always appeared to me, that metaphysical refinements are out of place.  A constitution of government is addressed to the common sense of the people; and never was designed for trials of logical skill, or visionary speculation.

    The reader will sometimes find the same train of reasoning brought before him in different parts of these Commentaries.  It was indispensable to do so, unless the discussion was left imperfect, or the reader was referred back to other pages, to gather up and combine disjointed portions of reasoning.   In cases, which have undergone judicial investigation, or which concern the judicial department, I have felt myself restricted to more narrow discussions, than in the rest of the work; and have sometimes contented myself with a mere transcript from the judgments of the court.  It may readily be understood, that this course has been adopted from a solicitude, not to go incidentally beyond the line pointed out by the authorities.

    In dismissing the work, I cannot but solicit the indulgence of the public for its omissions and deficiencies.  With more copious materials it might have been made more exact, as well as more satisfactory.  With more leisure and more learning it might have been wrought up more in the spirit of political philosophy.  Such as it is, it may not be wholly useless, as a means of stimulating abler minds to a more thorough review of the whole subject; and of impressing upon Americans a reverential attachment to the Constitution, as in the highest sense the palladium of American liberty.

    January, 1833.



    The present work is an abridgment, made by the author, of his original work, for the use of Colleges and High-schools.  It presents in a compressed form the leading doctrines of that work, so far as they are necessary to a just understanding of the actual provisions of the constitution.  Many illustrations and vindications of these provisions are necessarily omitted.  But sufficient are retained to enable every student to comprehend and apply the great principles of constitutional law, which were maintained by the founders of the constitution, and which have been since promulgated by those, who have, from time to time, administered it, or expounded its powers.  I indulge the hope, that even in this reduced form the reasoning in favour of every clause of the constitution will appear satisfactory and conclusive; and that the youth of my country will learn to venerate and admire it as the only solid foundation, on which to rest our national union, prosperity, and glory.

    April, 1833.

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      976.    We have already had occasion to take notice of some of the amendments made to the constitution, subsequent to its adoption, in the progress of our review of the provisions of the original instrument.  The present chapter will be devoted to a consideration of those, which have not fallen within the scope of our former commentaries.

      977.    It has been already stated, that many objections were taken to the constitution, not only on account of its actual provisions, but also on account of its deficiencies and omissions.   Among the latter, none were proclaimed with more zeal, and pressed with more effect, than the want of a bill of rights.  This, it was said, was a fatal defect; and sufficient of itself to bring on the ruin of the republic.  To this objection several answers were given; first, that the constitution did in fact contain many provisions in the nature of a bill of rights, if the whole constitution was not in fact a bill of rights; secondly, that a bill of rights was in its nature more adapted to a monarchy, than to a government, professedly founded upon the will of the people, and executed by their immediate representatives and agents; and, thirdly, that a formal bill of rights, beyond what was contained in it, was wholly unnecessary, and might even be dangerous.

      978.    It was further added, that in truth the constitution itself was, in every rational sense, and to every useful purpose, a bill of rights for the Union.  It specifies, and declares the political privileges of the citizens in the structure and administration of the government.  It defines certain immunities and modes of proceeding, which relate to their personal, private, and public rights and concerns.  It confers on them the unalienable right of electing their rulers; and prohibits any tyrannical measures, and vindictive prosecutions.  So, that, at best, much of the force of the objection rests on mere nominal distinctions, or upon a desire to make a frame of government a code to regulate rights and remedies.

      979.    Although it must be conceded, that there is much intrinsic force in this reasoning, it cannot in candour be admitted to be wholly satisfactory, or conclusive on the subject.  It is rather the argument of an able advocate, than the reasoning of a constitutional statesman.  In the first place, a bill of rights (in the very sense of this reasoning) is admitted in some cases to be important; and the constitution itself adopts, and establishes its propriety to the extent of its actual provisions.  Every reason, which establishes the propriety of any provision of this sort in the constitution, such as a right of trial by jury in criminal cases, is, pro tanto, proof, that it is neither unnecessary nor dangerous.  It reduces the question to the consideration, not whether any bill of rights is necessary, but what such a bill of rights should properly contain.  This is a point for argument, upon which different minds may arrive at different conclusions.   That a bill of rights may contain too many enumerations, and especially such, as more correctly belong to the ordinary legislation of a government, cannot be doubted.   Some of our state bills of right contain clauses of this description, being either in their character and phraseology quite too loose, and general, and ambiguous; or covering doctrines quite debateable, both in theory and practice; or even leading to mischievous consequences, by restricting the legislative power under circumstances, which were not foreseen, and if foreseen, the restraint would have been pronounced by all persons inexpedient, and perhaps unjust.  Indeed, the rage of theorists to make constitutions a vehicle for the conveyance of their own crude, and visionary aphorisms of government, requires to be guarded against with the most unceasing vigilance.

      980.    In the next place, a bill of rights is important, and may often be indispensable, whenever it operates, as a qualification upon powers, actually granted by the people to the government.  This is the real ground of all the bills of rights in the parent country, in the colonial constitutions and laws, and in the state constitutions.  In England, the bills of rights were not demanded merely of the crown, as withdrawing power from the royal prerogative; they were equally important, as withdrawing power from parliament.  A large proportion of the most valuable of the provisions in Magna Charta, and the bill of rights of 1688, consists of a solemn recognition of limitations upon the power of parliament; that is, a declaration, that parliament ought not to abolish, or restrict those rights.  Such are the right of trial by jury; the right to personal liberty and private property according to the law of the land; that the subjects ought to have a right to bear arms; that elections of members of parliament ought to be free; that freedom of speech and debate in parliament ought not to be impeached, or questioned elsewhere; and that excessive bail ought not to be required, nor excessive fines imposed, nor cruel or unusual punishments inflicted.  Whenever, then, a general power exists, or is granted to a government, which may in its actual exercise or abuse be dangerous to the people, there seems a peculiar propriety in restricting its operations, and in excepting from it some at least of the most mischievous forms, in which it may be likely to be abused.  And the very exception in such cases will operate with a silent, but irresistible influence to control the actual abuse of it in other analogous cases.

      981.    In the next place, a bill of rights may be important, even when it goes beyond powers supposed to be granted.   It is not always possible to foresee the extent of the actual reach of certain powers, which are given in general terms.  They may be construed to extend (and perhaps fairly) to certain classes of cases, which did not at first appear to be within them.  A bill of rights, then, operates, as a guard upon any extravagant or undue extention of such powers.  Besides; (as has been justly remarked,) a bill of rights is of real efficiency in controlling the excesses of party spirit.  It serves to guide, and enlighten public opinion, and to render it more quick to detect, and more resolute to resist, attempts to disturb private rights.  It requires more than ordinary hardihood and audacity of character, to trample down principles, which our ancestors have consecrated with reverence; which we have imbibed in our early education; which recommend themselves to the judgment of the world by their truth and simplicity; and which are constantly placed before the eyes of the people, accompanied with the imposing force and solemnity of a constitutional sanction.  Bills of rights are a part of the muniments of freemen, showing their title to protection; and they become of increased value, when placed under the protection of an independent judiciary instituted, as the appropriate guardian of the public and private rights of the citizens.

      982.    In the next place, a bill of rights is an important protection against unjust and oppressive conduct on the part of the majority of the people themselves.  In a government modified, like that of the United States, (it has been said by a great statesman,) the great danger lies rather in the abuse of the community, than of the legislative body.  The prescriptions in favour of liberty ought to be levelled against that quarter, where the greatest danger lies, namely, that which possesses the highest prerogative of power.   But this is not found in the executive or legislative departments of government; but in the body of the people, operating by the majority against the minority.  It may be thought, that all paper barriers against the power of the community are too weak to be worthy of attention.  They are not so strong, as to satisfy all, who have seen, and examined thoroughly the texture of such a defence.  Yet, as they have a tendency to impress some degree of respect for them, to establish the public opinion in their favour, and to rouse the attention of the whole community, it may be one means to control the majority from those acts, to which they might be otherwise inclined.

      983.    The want of a bill of rights, then, is not either an unfounded or illusory objection.  The real question is not, whether every sort of right or privilege or claim ought to be affirmed in a constitution; but whether such, as in their own nature are of vital importance, and peculiarly susceptible of abuse, ought not to receive this solemn sanction.   Doubtless, the want of a formal bill of rights in the constitution was a matter of very exaggerated declamation, and party zeal, for the mere purpose of defeating the constitution.  But, so far as the objection was well founded in fact, it was right to remove it by subsequent amendments; and congress have (as we shall see) accordingly performed the duty with most prompt and laudable diligence.

      984.    Let us now enter upon the consideration of the amendments, which, (it will be found,) principally regard subjects properly belonging to a bill of rights.

      985.    The first is "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition government for a redress of grievances."

      986.    And first, the prohibition of any establishment of religion, and the freedom of religious opinion and worship.

    How far any government has a right to interfere in matters touching religion, has been a subject much discussed by writers upon public and political law.  The right and the duty of the interference of government, in matters of religion, have been maintained by many distinguished authors, as well those, who were the warmest advocates of free governments, as those, who were attached to governments of a more arbitrary character.  Indeed, the right of a society or government to interfere in matters of religion will hardly be contested by any persons, who believe that piety, religion, and morality are intimately connected with the well being of the state, and indispensable to the administration of civil justice.  The promulgation of the great doctrines of religion; the being, and attributes, and providence of one Almighty God; the responsibility to him for all our actions, founded upon moral freedom and accountability; a future state of rewards and punishments; the cultivation of all the personal, social, and benevolent virtues; --- these never can be a matter of indifference in any well ordered community.  It is, indeed, difficult to conceive, how any civilized society can well exist without them.  And at all events, it is impossible for those, who believe in the truth of Christianity, as a divine revelation, to doubt, that it is the especial duty of government to foster, and encourage it among all the citizens and subjects.  This is a point wholly distinct from that of the right of private judgment in matters of religion, and of the freedom of public worship according to the dictates of one's own conscience.

    987.    The real difficulty lies in ascertaining the limits, to which government may rightfully go in fostering and encouraging religion.  Three cases may easily be supposed.  One, where a government affords aid to a particular religion, leaving all persons free to adopt any other; another, where it creates an ecclesiastical establishment for the propagation of the doctrines of a particular sect of that religion, leaving a like freedom to all others; and a third, where it creates such an establishment, and excludes all persons, not belonging to it, either wholly, or in part, from any participation in the public honours, trusts, emoluments, privileges, and immunities of the state.  For instance, a government may simply declare, that the Christian religion shall be the religion of the state, and shall be aided, and encouraged in all the varieties of sects belonging to it; or it may declare, that the Catholic or Protestant religion shall be the religion of the state, leaving every man to the free enjoyment of his own religious opinions; or it may establish the doctrines of a particular sect, as of Episcopalians, as the religion of the state, with a like freedom; or it may establish the doctrines of a particular sect, as exclusively the religion of the state, tolerating others to a limited extent, or excluding all, not belonging to it, from all public honours, trusts, emoluments, privileges, and immunities.

      988.    Probably at the time of the adoption of the constitution, and of the amendment to it, now under consideration, the general, if not the universal, sentiment in America was, that Christianity ought to receive encouragement from the state, so far as it is not incompatible with the private rights of conscience, and the freedom of religious worship.   An attempt to level all religions, and to make it a matter of state policy to hold all in utter indifference, would have created universal disapprobation, if not universal indignation.

      989.    It yet remains a problem to be solved in human affairs, whether say free government can be permanent, where the public worship of God, and the support of religion, constitute no part of the policy or duty of the state in any assignable shape.  The future experience of Christendom, and chiefly of the American states, must settle this problem, as yet new in the history of the world, abundant, as it has been, in experiments in the theory of government.

      990.    But the duty of supporting religion, and especially the Christian religion, is very different from the right to force the consciences of other men, or to punish them for worshipping God in the manner, which, they believe, their accountability to him requires.  It has been truly said, that "religion, or the duty we owe to our Creator, and the manner of discharging it, can be dictated only by reason and conviction, not by force or violence."  Mr. Locke himself, who did not doubt the right of government to interfere in matters of religion, and especially to encourage Christianity, has at the same time expressed his opinion of the right of private judgment, and liberty of conscience, in a manner becoming his character, as a sincere friend of civil and religious liberty.  "No man, or society of men," says he, "have any authority to impose their opinions or interpretations on any other, the meanest Christian; since, in matters of religion, every man must know, and believe, and give an account for himself."  The rights of conscience are, indeed, beyond the just reach of any human power.  They are given by God, and cannot be encroached upon by human authority, without a criminal disobedience of the precepts of natural, as well as of revealed religion.

      991.    The real object of the amendment was, not to countenance, much less to advance Mahometanism, or Judaism, or infidelity, by prostrating Christianity; but to exclude all rivalry among Christian sects, and to prevent any national ecclesiastical establishment, which should give to an hierarchy the exclusive patronage of the national government.  It thus sought to cut off the means of religious persecution, (the vice and pest of former ages,) and the power of subverting the rights of conscience in matters of religion, which had been trampled upon almost from the days of the Apostles to the present age.  The history of the parent country had afforded the most solemn warnings and melancholy instructions on this head; and even New-England, the land of the persecuted puritans, as well as other colonies, where the Church of England had maintained its superiority, had furnished a chapter, as full of dark bigotry and intolerance, as any, which could be found to disgrace the pages of foreign annals.  Apostacy, heresy, and nonconformity have been standard crimes for public appeals, to kindle the flames of persecution, and apologize for the most atrocious triumphs over innocence and virtue.

      992.    It was under a solemn consciousness of the dangers from ecclesiastical ambition, the bigotry of spiritual pride, and the intolerance of sects, thus exemplified in our domestic, as well as in foreign annals, that it was deemed advisable to exclude from the national government all power to act upon the subject.  The situation, too, of the different states equally proclaimed the policy, as well as the necessity, of such an exclusion.  In some of the states, episcopalians constituted the predominant sect; in others, presbyterians; in others, congregationalists; in others, quakers; and in others again, there was a close numerical rivalry among contending sects.  It was impossible, that there should not arise perpetual strife and perpetual jealousy on the subject of ecclesiastical ascendancy, if the national government were left free to create a religious establishment.  The only security was in extirpating the power.  But this alone would have been an imperfect security, if it had not been followed up by a declaration of the right of the free exercise of religion, and a prohibition (as we have seen) of all religious tests.   Thus, the whole power over the subject of religion is left exclusively to the state governments, to be acted upon according to their own sense of justice, and the state constitutions; and the Catholic and the Protestant, the Calvinist and the Arminian, the Jew and the Infidel, may sit down at the common table of the national councils, without any inquisition into their faith, or mode of worship.

For further reading:

Justice Joseph Story on the Common Law Origins of the United States Constitution

Samuel West, [On Natural Law] (1776)

Samuel Stillman, The Duty of Magistrates (1779)

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