Bible in American Law
To speak with precision of the Bible’s influence on American civil liberties is impossible because of its pervasive general presence in American culture during important formative periods of its history and jurisprudence. For centuries in Western civilization and in colonial America, the Bible was considered an integral part of the law, and therefore its foundational influence was systemic, organic, and often overt.
As law and society in the American Republic increasingly drew away from its biblical roots in the nineteenth and twentieth centuries, the authority behind biblical rules and the values expressed in biblical precepts came to figure less in technical legal expressions concerning civil liberties and judicial procedures. Many biblical concepts, concerning law, ethics, human nature, civil liberties, judicial procedures, government, and society, however, continued to provide significant ingredients in the American images of justice, mercy, rights, and duties. Although clearly present, its influence on statutes, judicial opinions, or the common law in general is not always possible to document explicitly.
Sometimes the Bible can be and has been cited both for and against the same legal proposition, and postmodern culture is often in tension with biblical rubrics. While biblical provisions do not, and in many cases should not, control American law, neither can nor should they be eliminated from the realities of American law, either as a part of the common law in general or with respect to civil liberties in specific. American perceptions of civil liberties and human rights are rooted not only in the Enlightenment, but also in Greek and Roman antiquity and in the Bible.
Colonial Laws and Liberties
The Bible had extensive and direct influence on law in America during the colonial period, especially in the North. Without any doubt, the ideal notion of civic order in Puritan New England thoroughly embraced divine words and intentions as revealed in the law of Moses. The Laws and Liberties of Massachusetts, an early Puritan document warned, ‘‘The more any law smells of man, the more unprofitable.’’
Calvinism held that the judicial language in the law of Moses was binding on all people and should be incorporated into the laws of the land. Accordingly, the list of fifteen crimes punishable by death within the jurisdiction of Massachusetts (printed in 1641) was collected and crafted from the texts of the Bible and cited chapter and verse following each law. These provisions against idolatry, witchcraft, blasphemy, manslaughter, sexual offenses, kidnapping, perjury in capital cases, and subversion, offered no protections for religious liberty, freedom of speech, or rights of the accused.
Laws enacted in Massachusetts (1647), Rhode Island (1647), New Haven (1656), Pennsylvania (1681), and elsewhere selectively built upon, modified, or adapted several biblical provisions, while also adopting various regulations not prescribed by the Bible. For example, in these laws, a twofold punitive damage penalty was exacted in the case of theft of an animal (compare Exod. 22:4); when the thief could not make restitution, whipping of no more than forty lashes resulted (as in Deut. 25:3). Two or three witnesses were required in capital cases (Deut. 19:15). Debt servitude in America was limited to seven years (compare Deut. 15:1). Examples of non-biblical ‘‘common liberties’’ afforded in Massachusetts (1641) included the rights of speaking in public meetings, fishing and fowling, water passage, and removing oneself and family from the jurisdiction.
Biblically motivated legal precepts and patterns had lasting influences on American jurisprudence in several ways. Religious and political institutions were seen as hand-in-hand partners, serving separate roles but working together to improve society. Lawmakers and judges cited explicit authority in support of their rulings. Biblical law was remarkable in that it expressly limited the powers of the king (see Deut. 17:14–20), a view of limited government that deeply influenced the development of constitutional law in America. As in biblical law, American law restricted the reach of governmental decisions, privileged the decisions of conscience, and guarded the basic values of individual choice. Codification, publication, and public education became parts of the fabric of committing the populace to the rule of law (compare Deut. 31:11), with Judges 21:25 being quoted in 1969 in Barnett v. State for the civic rule that ‘‘no individual may do simply what he will.’’ Laws came to be seen as principles, subject to wise adaptation, paraphrase, and restatement, while the legal system still maintained the confidence that an undergirding of law itself existed and unified the nation. In addition, the biblical concept of covenant influenced the early American concepts of compact and the commonwealth, uniting God, the people, and a ruler, and this union formed the original theoretical basis of American constitutionalism.
Freedom and the American Republic
In the eighteenth century, American law began to regard and protect civil liberties and individual rights more widely. New England ministers frequently quoted Micah 4:4, ‘‘every man under his vine,’’ in support of the right to own private property. While the Massachusetts law in 1647 had banned Jesuits from its territory and laws against Sabbath violations and heresies were common, freedom of religion soon gathered strength. The first chapter of the laws enacted in Pennsylvania in 1705, for example, was headed, ‘‘The Law concerning Liberty of Conscience.’’ It provided that no persons, so long as they professed faith in the Trinity and acknowledged the divine inspiration of the Bible, ‘‘shall in any case be molested or prejudiced for his or her conscientious persuasion, nor shall he or she be at any time compelled to frequent or maintain any religious worship, place or ministry whatsoever, contrary to his or her mind, but shall freely and fully enjoy his or her Christian liberty in all respects, without molestation or interruption.’’
Americans often spoke of themselves in biblical images, as a New Israel having been delivered from the bondage of European kingship much as Israel had been delivered by Moses from slavery under the pharaohs of Egypt. Thomas Jefferson proposed a seal for the United States showing the Israelites being led by a pillar of fire, with the words ‘‘Liberty under God’s law—Man’s Inalienable Birthright of Freedom.’’ An oft-cited passage used polemically in behalf of freedom was ‘‘call no man your father’’ (Matt. 23:9). Commissioned in 1751, the Liberty Bell bore the inscription, ‘‘And proclaim liberty throughout the land unto all the inhabitants thereof,’’ a text from Leviticus 25:10. Flames of resistance against the Stamp Act were fanned by Galatians 5:12–13, ‘‘ye have been called unto liberty.’’ In this spirit, Andrew Jackson called the Bible ‘‘the rock on which our Republic rests.’’
During the early nineteenth century, no law book was more influential in American law than was William Blackstone’s often-reprinted Commentaries. Although offering primarily a re-statement of English common law, Blackstone drew on biblical fundamentals. For example, his justifications of the three absolute rights of personal security, liberty, and private property were based on Genesis accounts regarding Abraham, Abimelech, Isaac, and Lot.
During this era, rights were not equated with permissiveness. To the founding generation, as James Hutson has explained in Forgotten Features of the Founding, a right was understood in its fullest sense as a ‘‘power inherent in and owned by an individual to act in a way consistent with Christian morality.’’ Thus, John Adams rejected Rousseau’s line that Americans had given birth to the ‘‘science of rights,’’ explaining that they had simply found their rights ‘‘in their religion.’’
Many biblical precepts were influential in shaping the American Republic, inspiring much of its political theory and social values. For example, several biblical passages were cited in support of the separation of church and state (‘‘render to Caesar the things that are Caesar’s,’’ Mark 12:17). Originally, however, the separation between church and state was not as rigidly understood as it has recently become. Recent documentary research has led some to conclude that Jefferson’s ‘‘wall of separation’’ would better be described as a ‘‘swiss cheese.’’ At least, it should be perceived as a wall with doors and windows. This openness itself reflects various models of church– state independence and interdependence found in the Bible itself.
Because controversy existed over possible interpretations advanced by various Bible-believing churches and individuals, the Bible itself came to serve less and less in settling issues involving the public order, and legislation made little, if any, direct reference to the Bible. Formal disestablishment removed the religiously motivated Blue Laws, but court opinions continued to draw on the Bible as a source of authority. This had its upside as well as a downside, particular in the case of the debates over slavery, in which both sides invoked biblical authority in support of their views.
Well into the twentieth century, the Bible was used as a common source of legal language. In the 1920s, it went almost without saying that allusions to the Bible by legal practitioners were more frequent than to any other book outside of professional law treatises and previous case decisions. In 1943, H.B. Clark reported that ‘‘many provisions of biblical law are still seen in American statutes and court decisions.’’
After World War II, the concept of a legal right underwent extensive and sudden transformation. A right came to be seen as ‘‘a raw power to gratify a sweeping range of appetites in the name of vindicating individual equality and autonomy,’’ as Hutson has described. The Bible became an influential tool in the hands of some rights advocates. In the civil rights movement in the 1960s, for example, the speeches of Martin Luther King Jr. often invoked the Bible, and sit-ins cited Exodus 1:15–22 in praise of the Egyptian midwives who disobeyed Pharaoh to save Hebrew male children.
Plentiful references to the Bible appear in judicial opinions down to the 1990s. The extensive study by Michael Medina located 150 such references in cases before 1970, 81 in the 1970s, and 115 in the 1980s. A presidential proclamation in 1983 announcing the year of the Bible extolled its role in inspiring concepts of civil government contained in the Declaration of Independence and U.S. Constitution. While it has been claimed that the Bible is the most influential book in American culture, Shakespeare is a close contender, judging by the times quoted in judicial opinions.
The Bible has been used for all kinds of judicial purposes. It has shaped substantive decisions. In Lopez v. United States, Chief Justice Warren took a broad meaning of the term ‘‘search’’ based on biblical meanings of this word. The Bible also influences interpretation, being quoted, for example, regarding the spirit and the letter of the law (2 Cor. 3:6). This rubric has had a vibrant life in the judicial rhetoric of American judges. The Bible also provides a wealth of proverbial wisdom and common sense. In cases involving conflicts of interest, judges have spoken against serving ‘‘two masters’’ (Matt. 6:24); see, for example, United States v. Mississippi Valley Generating Co. (1961) and Brickner v. Normandy Osteopathic Hospital (1988). American laws recognize the value of Good Samaritans.
Some parts of the Bible are quoted much more than others. Because the Bible deals with such a wide array of human concerns, it speaks to many legal issues. Even though it was not written to be read as a legal textbook or handbook, it has influenced legal opinions concerning many areas of civil liberty.
Judicial and Criminal Rights
All legal systems begin with certain rules, values, expectations, and entitlements regarding access to and treatment from the courts. By providing memorable narratives about several judicial trials, such as the proceedings involving Naboth (1 Kings 21), Boaz (Ruth 4), Jeremiah (Jeremiah 26), Susanna (Apocrypha, Daniel 13), Jesus (in the four Gospels), and Paul (Acts 21–27), the Bible shaped American social and legal expectations concerning due process, witnesses, and fairness.
The rules found in Exodus 23:1–3 and 6–9 have been styled by scholars as a decalogue for the administration of justice. These provisions require all participants in the legal process to be honest, to avoid collusion, to be impervious to social pressure, to be impartial towards the rich and the poor alike, to shun perjury, to execute none that are innocent, to take no bribes or gifts, and not to oppress a resident alien. Similar rules are found today in American codes of judicial and legal ethics. American courts, for example, Ex parte Kurth, have cited Deuteronomy 16:19 in support of judicial impartiality, not perverting justice nor showing favoritism.
The Bill of Rights guarantees many rights to parties accused of crimes. In some cases, these principles stem from the Bible.
The right against self-incrimination, now found in the Fifth Amendment, grew out of Roman, Canon, and Jewish law, but William Tyndale can be credited for launching its adoption into English law. His English translation of the Bible (1525) and exposition on ‘‘swear not’’ in Matthew 5–7 (1530) boldly asserted that scripture rejects the idea of compelling a person to bear witness against himself or herself. Following these precepts, the courageous judicial stand of John Lilbourne during the English Revolution in the early 1650s resulted in the elimination of self-incriminating oaths in the Star Chamber. The case of the adulteress in John 8 was also influential in showing that Jesus did not require her to testify for or against herself. From such developments, the right against self-incrimination found its way into the American Constitution.
In recent times, American decisions, such as Coy v. Iowa, have cited Paul’s assertion of rights under Roman law (Acts 25:16) in support of the civil right of due process, to confront one’s accusers and to answer charges with a personal defense. As legal precedent for the right to impeach accusing witnesses by separate cross-examination, Daniel’s detection of false witnesses (Apocrypha, Daniel 13) has been judicially cited, as in Virgin Islands v. Edinborough (1980).
The presumption of innocence until proven guilty does not prevail in all legal systems. C.S. Lewis has argued that this is a distinctively Christian attitude attributable to the concept of grace found in the New Testament. The necessity of affording a full and fair defense is found in Jonah 1:5–10 and Job 31:35 (‘‘Oh that one would hear me!’’), and the rule against double jeopardy has been supported by Nahum 1:9 (‘‘affliction shall not rise up the second time’’). In California v. Hodari D. and other cases, Proverbs 28:1 has been used in establishing evidentiary inferences from fleeing a crime scene; People v. Simmons draws on the silence of Jesus before his accusers.
The right against cruel and unusual punishment is consonant with biblical scruples against vengeance (Rom. 12:19, cited in People v. Flynn). At the same time, the Bible is cited as authority for the legitimacy of the death penalty, especially in cases of premeditated, hateful homicide (Gen. 9:6, Exod. 21:12, Num. 35:16), although these usages are not without their conceptual difficulties and complexities, as Samuel Levine and also John Blume and Sheri Lynn Johnson have argued.
The Bible speaks powerfully of freedom, and thus it has served as a potent springboard for civil libertarianism. At the same time, this appropriation has its limitations, for freedom in the Hebrew Bible mainly means freedom from bondage, not freedom to act independently; in the New Testament freedom equates with Christ, the way that makes one free. Edward Gaffney’s exposition of The Interaction of Biblical Religion and American Constitutional Law rightly states: ‘‘Although concerned intensely with persons, the Bible does not view them as isolated atoms, but as interrelated, socially connected parts of a whole, or as members of a community.’’ Accordingly, freedoms in the Bible are never ends in themselves.
Freedom of speech in the Bible is not absolute, as the trial of the blasphemer in Leviticus 24 makes painfully clear. However, when Peter and John refused to be silenced by the Jerusalem Sanhedrin’s charge of blasphemy ordering them to desist from speaking of or teaching in the name of Jesus (Acts 4:17), their stand became a model of free speech, echoing the bold outspokenness of the Hebrew prophets in general.
Freedom of religion is constrained in the Bible by prohibitions against idol worship. Nevertheless, the Bible grants every person freedom to choose which god to serve (Josh. 24:15). The biblical loyalty that man owes to God is absolute; political loyalties are therefore secondary and separate. This rule is seen in the courageous exercise of religious freedom by Esther and Daniel, whose examples also served as critiques of the dominance of foreign rulers.
Jesus’ dictum about Caesar came to be used as an axiom of separation, but many Christian Nations, especially in the Middle Ages, did not read Jesus’ dictum that way. To the contrary, they saw in Isaiah 49:23 a mandate for kings and queens to be ‘‘nursing fathers and nursing mothers’’ to the church. Although wrongly interpreted by European monarchs from the time of John Calvin until the French Revolution, this scripture was a powerful justification for state churches and official persecution of those of other faiths.
Freedom of association is tacitly recognized in the popular assemblies that were mandated under biblical law. The New Testament presupposes the right of ‘‘two or three’’ to meet together for religious purposes (Matt. 18:20). Freedom of travel arises in conjunction with the Christian imperative to ‘‘go forth to every part of the world’’ (Mark 16:15), as exemplified by the missionary travels of Paul. Regarding the bearing of arms, Jesus warned that those who live by the sword will die by the sword, but his own disciples were armed with weapons when he was arrested on the Mount of Olives.
No issue of civil rights has been more important in American history than the question of slavery. That issue divided the nation; it also divided churches, such as the Baptists and Presbyterians. The slavery issue split the Baptists into two Conventions. Both sides grounded their views on sola scriptura. Although slavery in biblical times had nothing to do with race in a modern sense, biblical provisions supported various forms of slavery or servitude (Exod. 21:1–6, Lev. 25:39–55, Deut. 15:1–6, Eph. 6:5–9), economic institutions common throughout antiquity. The case of Pirate v. Dalby cited Leviticus and Deuteronomy to justify slavery during Pennsylvania’s period of gradual abolition. The Virginia case of Commonwealth v. Turner in 1827 looked to passages in Exodus 21 for guidance concerning the beating of a slave by his owner. By the 1830s, the fallacious so-called curse of Noah (Gen. 9:20–27) was used as a stock weapon by those advocating slavery; at the same time, the Abolitionists drew support from biblical injunctions regarding love, justice, freedom, and release from bondage.
With various results in cases involving resident aliens, courts have referred to such passages as Leviticus 24:22, ‘‘you shall apply the same law to the alien as you do for one of your own country.’’ See Memorial Hospital (1974); Rollins (1979); and Bhandari (1987).
Women and children found themselves in subordinate roles in the ancient world, and thus the Bible may be cited, on the one hand, in opposition to women’s equal rights. On the other hand, courts have noted that the Bible also presents strong instances of women exercising rights in buying property (Prov. 31:16), in serving prominently in the military (Deborah, used in Hill v. Berkman), and in other contexts.
Family and Private Law
Biblical law extensively regulated family rights and duties in ways that supported the prevailing norms of society in biblical times. Marriage, chastity, and children were the principal areas of concern.
Marriage was complex, involving negotiation of prenuptial agreements, dowry rights, formal engagement, solemnization, and celebrations. Marriages outside the clan were at times prohibited, but marriages and sexual relations with too close of kin were also outlawed (Lev. 18:6–8). Analogously, some American courts have upheld bans on first-cousin marriages. Polygamy was allowed in Israel (Deut. 21:15), but a New Testament bishop was to have one wife (1 Tim. 3:2). Language regarding rights within marriage in American law has stemmed from the Bible concerning the husband’s role as head of the family (Eph. 5:23), the right to recover consortium damages (Matt. 19:5), and spousal immunity (Gen. 2:24). The unity of person behind the concept of survivorship stems from Gen. 2:14 (see Freeman v. Belfer). Various statements in the Bible on divorce (Deut. 24:1, Matt. 5:32, 19:6, Luke 16:18) have been cited with legal influence in the past, such as Wolfe v. Wolfe (1976).
Biblical laws punishing adultery (Exod. 20:14, Deut. 22:22), incest, sodomy (Rom. 1:26–27, 1 Cor. 6:9), bestiality (Lev. 18:23), and prostitution (Deut. 23:17) have influenced American law over the years, as Patrick O’Neil demonstrates. Words such as ‘‘abominable’’ and ‘‘detestable crimes against nature,’’ however, have been held to be unconstitutionally vague, as stated in Stone v. Wainright (1973).
The Bible grants parents rights and responsibilities over their children. American law has been heavily influenced in regard to parental education of their children (Deut. 6:7), discipline (Prov. 23:13), and child labor (a father’s rights over fruits of his son’s labor have been upheld, citing Gen. 12:37). At the same time, biblical law made it a capital offense for a son to strike or curse a parent (Exod. 21:15, 17), but parents lacked the power to impose such a punishment (Deut. 21:19).
The Bible protects private property from theft, but in biblical times no property concept of fee simple absolute existed, for the land belonged to God with human owners as life tenants. This concept retains vitality in the environmental duties of human stewardship over the Earth. Hebrew law prohibits usury charged to another Hebrew (Exod. 22:25), but the New Testament seems to encourage making as much money as possible, as in the parables of the talents and of the wise steward. Klein v. Commonwealth cited the Matthew 20:1–16 on the fairness of agreed wages.
Concepts of redemption of property in foreclosure (Lev. 25:25) and forfeiture stem from the Bible. In United States v. Bajakajian, the Supreme Court traced the ‘‘guilty property’’ theory behind in rem forfeiture to Exodus 21:28, ‘‘which describes property being sacrificed to God as a means of atoning for an offense.’’ The seven-year rule for repeat bankruptcies derives from the biblical law of sabbatical release.
Reading the Bible for legal substance, however, is difficult. The Bible is not about law; it is about God. The Bible is not by people from the modern world; it must be read in historical contexts. Translating ordinary biblical passages into modern languages is hard enough; translating technical legal terms is almost impossible. Often, biblical rubrics can be cited on either side of a modern legal issue. Nevertheless, the Bible speaks profoundly on topics related to law, liberty, human nature, social predicaments, and civic obligations. It offers paradigms and precepts that have deeply influenced the development of civil rights and duties in the American experience.
JOHN W. WELCH
References and Further Reading
- Blume, John H., and Sheri Lynn Johnson. ‘‘Don’t Take His Eye, Don’t Take His Tooth, and Don’t Cast the First Stone: Limiting Religious Arguments in Capital Cases.’’ William & Mary Bill of Rights Journal 9 (December 2000): 61
- Botein, Stephen. Early American Law and Society. New York: Knopf, 1982
- Clark, H.B. Biblical Law. Portland, OR: Binfords and Mort, 1943
- Falk, Ze’ev W. Hebrew Law in Biblical Times. 2nd ed. Provo, Utah: Brigham Young University Press, 2001
- Gaffney, Edward McGlynn, Jr. ‘‘The Interaction of Biblical Religion and American Constitutional Law.’’ In The Bible in American Law, Politics, and Political Rhetoric, edited by James Turner Johnson, 81–105. Philadelphia: Fortress, 1985
- Harrelson, Walter. The Ten Commandments and Human Rights. Philadelphia: Fortress, 1980
- Hutson, James. Forgotten Features of the Founding: The Recovery of Religious Themes in the Early American Republic. Lanham, MD: Lexington Books, 2003
- Katsh, Abrham I. The Biblical Heritage of American Democracy. New York: Ktav Publishing House, 1977
- Levine, Samuel J., Capital Punishment in Jewish Law and Its Application to the American Legal System: A Conceptual Overview, St. Mary’s Law Journal 29 (1998): 1037
- Medina, J. Michael, The Bible Annotated: Use of the Bible in Reported American Decisions, Northern Illinois University Law Review 12 (1991): 1:87–254
- Meislin, Bernard, The Role of the Ten Commandments in American Judicial Decisions, Jewish Law Association Studies 3 (1988): 187–209
- O’Neil, Patrick M. ‘‘Bible in American Constitutionalism,’’ and ‘‘Bible in American Law.’’ In Religion and American Law: An Encyclopedia, edited by Paul Finkelman, 29–34. New York: Garland, 2000
- Otto, Eckart. ‘‘Human Rights: The Influence of the Hebrew Bible.’’ Journal of Northwest Semitic Languages 25, no. 1 (1999): 1–20
- Rogerson, John W., Margaret Davies, and M. Daniel Carroll R., eds. The Bible in Ethics. Sheffield: Sheffield Academic Press, 1995
- Welch, John W., Biblical Law in America, Brigham Young University Law Review 2002, no. 3 (2002): 611–42
Cases and Statutes Cited
- Barnett v. State, 8 Md. App. 35; 257 A. 2d 466 (1969)
- Bhandari v. First Nat’l Bank of Commerce, 829 F.2d 1343 (5th Cir. 1987)
- Brickner v. Normandy Osetopathic Hospital, Inc., 746 S. W.2d 108 (Mo. App. 1988)
- California v. Hodari D., 499 U.S. 621 (1991)
- Commonwealth v. Turner (Va. 1827)
- Coy v. Iowa, 478 U.S. 1012 (1988)
- Ex parte Kurth, 28 F.Supp. 258, 264 (S.D. Cal. 1939)
- Freeman v. Belfer, 173 N.C. 581; 92 S.E. 486 (1917)
- Hill v. Berkman, 635 F.Supp. 1228, 1238–39 (E.D.N.Y. 1986)
- Klein v. Commonwealth, State Employee’s Retirement System, 521 Pa. 330; 555 A.2d 1216 (1989)
- Lopez v. United States, 373 U.S. 427, 459 (1963)
- Memorial Hospital v. Maricopa County, 415 U.S. 250, 261 (1974)
- People v. Flynn, 223 N.Y.S.2d 441, 445 (1962)
- People v. Simmons, 28 Cal. 2d 699; 172 P.2d 18 (1946)
- Pirate v. Dalby (Pa. 1786)
- Rollins v. Proctor & Schwartz, 478 F.Supp. 1137 (D.S.C. 1979)
- Stone v. Wainwright, 478 F.2d 390 (5th Cir. 1973)
- United States v. Bajakajian, 524 U.S. 321 (1998)
- United States v. Mississippi Valley Generating Co., 364 U.S. 520, 549 (1961)
- Virgin Islands v. Edinborough, 625 F.2d 472, 473 n. 3 (3rd Cir. 1980)
- Wolfe v. Wolfe, 46 Ohio St. 2d 399, 350 N.E.2d 413 (1976)