One of the topics of a Libertas Project session concerned the maxim, “Christianity is part of the common law.” There is a fascinating debate between Thomas Jefferson and Joseph Story (both in their unofficial capacities) about the maxim, much of which concerns the accuracy of the translation from the French of the phrase, ancien scripture, as used by a fifteenth century judge named Sir John Prisot (Chief Justice of Common Pleas, as far as I have been able to determine). You can see the debate worked out in this fine volume edited by Professors Daniel Dreisbach and Mark David Hall. The maxim was invoked in 19th century American judicial decisions concerning violations of anti-blasphemy laws as well as Sunday closing laws. But what did the phrase mean, and when did it go out of usage, and why?

In a superb article, When Christianity Was Part of the Common Law, Professor Stuart Banner explores the use and the decline of the maxim. It seems to have been used relatively frequently in judicial decisions of the 19th century, far less frequently in the early 20th, and by mid-century have gone out of usage entirely. Indeed, the last use of the maxim that Banner records is in a 1955 Pennsylvania state court decision that I assign my students in criminal law–Commonwealth v. Mochan–involving a prosecution for “persistent, lewd, immoral, and filthy” phone calls. Banner concludes that the maxim had almost no tangible legal effect on the substance of the 19th century blasphemy and Sunday closing law prosecutions. Those cases were about disturbing the peace in general, not about specific injuries done to Christianity that the law could remedy.

Does this mean that the maxim was functionally useless. Not at all. The maxim did not go to the substance of law, but to its nature. And the fact that the maxim falls out of use in the early twentieth century has as much or more to do with our changing conception of the common law as it does with our changing views about religion. The common law in the older view had an existence independent of the particular statements of judges: it was founded on sources much broader than the positive commands of authorized government functionaries. Those sources, which included Christian sources, sacralized the common law; they rendered it greater and deeper than positive law. One can see this view in a nineteenth century Pennsylvania blasphemy case, Updegraph v. Commonwealth, in which the court said of the common law: “It is not proclaimed by the commanding voice of any human superior, but expressed in the calm and mild accents of customary law.”

What Edmund Burke saw as the political, legal, and constitutional value of establishment is quite similar to the functions that the maxim served in 19th century America. These both were ways in which law was sacralized. The idea was to remind officials that they are subject to a greater power, and that this greater power is founded on and drawn from sources of transcendence outside the law (see also Town of Greece v. Galloway, as I explained here). In the context of the exercise of judicial power, the sacralizing function of the maxim was to reject the claim that judicial will is all that exists. Just as, in Burke’s view, disestablishment destroys the sacralizing power of law, so, too, does the rejection of the maxim desacralize law in the American experience. Here is Banner:

Where the common law has this sort of existence independent of the statements of judges, it can include systems of thought otherwise external to the legal system without causing any tension. If the common law can be found in our architecture, in our dreams, in our manner of speech—and especially in our prerational judgments as to right and wrong—then there is nothing mystical about the notion that the common law incorporates Christianity.

This view of the common law simply died out. We no longer believe that judges discover the common law. We believe that they, and they alone, make it. When judges render a decision, that decision is not–as the old view had it–“the best evidence of the common law” but not itself the common law. The common law just is the judicial will. If judges recognize the doctrines of Christianity as part of the common law, they are making Christianity the law. That is exactly a reason that the maxim would raise Establishment Clause complaints today where in the past it would raise none.

And yet I wonder what fills the void in place of the sacralizing meta-doctrine that Christianity is part of the common law. There are two possibilities. The first is that the modern state is no longer in need of sacralization or consecration at all. We just know better today. This seems to be the view taken by Banner at the conclusion of his piece.

But a second possibility is very different. It posits that all states—and certainly all modern states whose ambit of power is large and ever-increasing—depend on sacralizing credos and maxims. If the maxim that Christianity is part of the common law is dead, other credos reflected in new maxims inevitably must take its place. No state, and especially no state whose jurisdiction is expanding into realms traditionally overseen by other social powers—can long survive without the consecration of its law.