Justice Joseph Story’s Commentaries on the Constitution of the United
States (1833) (available for free!) is a lively, opinionated, and rangy discussion of the original understanding of the Constitution. Story was a Supreme Court justice from 1811-1845, and for much of that period he was also a professor at Harvard Law School (one could do both in those days). Professor Michael Paulsen once aptly called Story’s 3-volume tour de force “comprehensive and brilliant, but often tendentious” and listed it as among the top five books of all-time about the Constitution. Chief Justice William Rehnquist once used some of Story’s discussion of the Establishment Clause in his dissenting opinion in Wallace v. Jaffree (the moment of silence case). Here is a good chunk of Story — sections 1865-1871 of his treatise — to give you a sense of his views and style:
§ 1865. 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 conscience.
