The state of the debate on the origins of “judicial review” in US legal-historical literature, doubtless an obsession,46 arguably betrays how it may fashion as an exemplar of “working on myth.” Despite the best of efforts to shape a chronology, which is every anew pushed into the past – but then, if from Marshall it returns to Coke, it goes down to Moses –, to foreign eyes the historiographical discussion remains inconclusive, while the aura of meaningfulness endures. From the theoretical standpoint here advocated, much of its findings would concern the materials first-generation Justices ensembled together – one could almost say “naturally” – to bootstrap the Court’s operations in terms of its semantic apparatus.

Of particular interest is the practice of rendering unanimous (and after some years, also majoritarian, with concurrences and dissents) Opinions of the Court. As especially Mary Sarah Bilder has convincingly argued, both judicial review and the unanimous opinion had a precedent in the colonial law practice of “repugnancy.” This practice was epitomized in the requirement that lawmaking authority should be pursued “as neere as conveniently may, agreeable to the forme of the lawes & policy of England.” Such adequacy was ultimately under the control of the King’s Privy Council, whose unanimous opinions stood on the reasoning that as the King himself, it should have just one voice. As Bilder summarizes her findings, “the colonial American practice of bounded legislation under a repugnancy standard is causally responsible for the existence of American judicial review.”47

Yet, the practice and its script only came together as the Court “coalesced,” under the leadership of John Marshall. In the words of legal historian Katherine Fischer, the Court then attained the character of a “dignified, corporate and cohesive” institution. Marshall persuaded his associates “to board together [to Washington] without their families, creating a hothouse climate of negotiation.” In Fischer’s opinion, such an atmosphere paved the way for the “new custom of largely unanimous decisions, replacing the seriatim [ones],”48 like the ones of the King’s Privy Council, and in contrast to the practice of the King’s bench.

This variation, however, inspired as it could have been in the recent past, as it was directly motivated by the political opportunities in the middle of the clash between Federalists and Republicans as the presidency transited from John Adams to Thomas Jefferson,49 prompted stark contestation. The terms of the debate introduce much of the materials understood under the rubrics of “judicial supremacy” and “departmentalism,” both of which continue to stir controversy until today.50

Attacking the new custom heads on, Thomas Jefferson argued that “ultimately” what “must […] sustain the court in public confidence is the character and independence of the judges.” Henceforth, why should “they sculk from responsibility to public opinion, the only remaining hold on them, under a practice first introduced into England by Lord Mansfield?” Why not let every judge give “the only evidence they can give of fidelity to his constitution and integrity in the administration of its laws; that is to say, by every one giving his opinion seriatim and publicly on the cases he decides[?]” “Let him prove by his reasoning[,]” Jefferson underscored, “that he has read the papers, that he has considered the case, that in the application of the law to it, he uses his own judgment independently and unbiased by party views and personal favor or disfavor. Thrown himself in every case on God and his country; both will excuse him for error and value him for his honesty.”51

Jefferson found in Joseph Story’s Commentaries one fierce rebuke,52 just as Marshall was submitted to a process of ascension. Of course, Marshall’s reputation underwent oscillations across the years.53 Yet, as the correspondent of the American Law Register described, during the term of 1853-1854, as the US Supreme Court was established in the Capitol’s basement, “[i]n an alcove back of the seat of the Chief Justice and nearly up to the ceiling is a small portrait of Chief Justice Marshall – the only ornament… except a representation of the scales of justice worked in marble, on the opposite side of the room.”54  

Story’s Commentaries opens consecrating Marshall’s birth as an act of providence. More importantly, it mobilized much of the same resources hinted in Jefferson’s frivolous remissions to personality and God. It does so, however, in the complete opposite direction. Independently on how one assesses the sources concerning the relationship of the founding generation to religion, or how religiously or irreligiously they conceived of “the character of the Constitution and American republican government[,]”55 it appears to be certain that in the middle of the nineteenth century leading interpreters managed to paint the American Revolution, Constitution, and republican government in godly colors. Story is, arguably, one of its most prominent representatives, as he deploys a manifold of rhetoric instruments to promote “constitutional adjudication” as a mirroring of the convention of 1787, something which contributed to the stabilization of the court’s proceedings, centered on the ceremonial artifact of “constitutional personality,” and the applicability of stare decisis in the realm of constitutional adjudication.56

Of the many instances composing Story’s book, I would like to focus on two.

First, Story quotes Marshall’s McCulloch v. Maryland (1819)57 recurrently, in support of most of the semantic incisions he is developing. He does so openly not only when discussing technical questions, such as the implied powers doctrine laid in McCulloch, but also indirectly when engaging the question of the nature of the Constitution as an instrument, and, consequently, what is its “object,” or “design,” which should be the “constant reference” for its interpretation. Not surprisingly, then, McCulloch v. Maryland is framed as one “solemn occasion,” the kind of occasion that calls for expressive language.58 The Constitution, Story contends, is a fundamental law, “as the people have named and called it, truly a constitution; and they properly said, ‘We, the people of the United States, do ordain and establish this constitution,’ and not, we, the people of each state.’ And this exposition has been sustained by the opinions of some of our most eminent statesmen and judges.”59 Although the people’s opinion was properly said, there is a second form of opinion we must attend to, the opinion of the Constitution’s visible saints.

Consider an exemplar of an editorial genre whose popularity is beyond doubt, namely, books written by consolidated legal scholars who account for a Supreme Court’s performance in a time span of more or less fifteen years, having as their loadstar each Justice’s “personality’s” contribution to constitutional law. The famous US constitutional scholar Lawrence Tribe alongside then Supreme Court clerk Joshua Matz wrote one of those books. It comprehends right past the cover three pages of “additional praise” with excerpts stemming from different readerships. At a certain point, Tribe and Matz state apropos of the First Amendment how certain Justices forged its values into “constitutional dogma” from “fragments of text and history, their own experiences, and some bold ideals.”60 I approach this way of framing the outcome of the relationship between constitutional text and constitutional adjudication as having in a judge’s personality its main semantic artifact, which centers the attention of Court observers and organizes their interpretive efforts. I show that this can be traced61 to the reoccupation masterfully enforced and endorsed by Joseph Story of the singular Puritan view on how the human domain and the divine realm stood vis-à-vis each other.

As US historian Edmund S. Morgan tells us, the Puritans broke with Calvinist doctrine on the separation between the two cities. The exercise of religion in New England’s shores prompted the emergence of the belief on how certain members of a godly community presented to their brethren a touch of saving faith, the coming of the Kingdom of God. They do so through their life long strive for justification, the subject of a ritual later named the “conversion narrative.” Of crucial importance for the narrative, to the point of attaining the status of a liturgical morphology, was the emphasis on one’s sins, failures, and imperfection – the acknowledgment of which provided the testimony of one’s deep belief in God’s providence.62

That Story was well-versed in these semantic patterns can be easily verified in many of his publications, among which History and Influence of the Puritans, a discourse pronounced in 1828 to the Essex Historical Society. The text is particularly interesting by dint of how Story manages to transform the history of New England, the records of which “li[e] far within the reach of the authentic annals of mankind,”63 into a foundational myth by way of framing it precisely as a conversion narrative. The Puritans, Story underlies, are “frail, fallible men” who left “behind solid claims upon the reverence and admiration of mankind[,]” in reason of how “they acted up to their principles, and followed them out with an unfaltering firmness. […] Amidst the temptations of human grandeur, they stood unmoved, unshaken, unseduced.” Because of their “moral courage,” “present dangers” looked “as though they were distant or doubtful[.]”64

Accordingly, as Story had before him the strife between Andrew Jackson and John Marshall,65 the significance of consecrating the difference between the figures of the politician and the judge while advancing the latter’s importance for politics was beyond doubt. If not for the good works of the righteous, the “moral courage” judges inherited from the Puritan founders, those bulwarks of rights and liberties, who deserve the title of guardians of the Constitution, “the pestilential breath of faction may poison the fountains of justice.”66

Now, Joseph Story was perfectly aware of the doctrinal precedents concerning this simile. Some pages after, he quotes one of the most respectful testimonies, William Blackstone. According to Blackstone, the king “is as the fountain of justice and general conservator of the peace of the kingdom.” Blackstone moves quickly into unfolding the metaphor he just introduced to legally frame one of the king’s capacities.

By the fountain of justice the law does not mean the author or original, but only the distributor. Justice is not derived from the king, as from his free gift; but he is the steward of the public, to dispense it to whom it is due. He is not the spring, but the reservoir; from whence right and equity are conducted, by a thousand channels, to every individual. The original power of judicature, by the fundamental principles of society, is lodged in the society at large: but as it would be impracticable to render complete justice to every individual, by the people in their collective capacity, therefore every nation has committed that power to certain select magistrates, who with more ease and expedition can hear and determine complains; and in England this authority has immemorially been exercised by the king or his substitutes.67

That Joseph Story is dressing the judge in royal robes is, I believe, beyond doubt. However, what is perhaps most interesting comes into view when we consider one most probable antecedent to this semantic pattern: the organization of the relationship between fountain and spring, king and society, judges and “We, the people.” We read in the English of John Allen’s 1813 American translation of John Calvin’s Institutio Christianae Religionis, apropos of the sacrament of the Lord’s supper, the following:

For, as the water of a fountain is sometimes drunk, sometimes drawn, and sometimes conveyed in furrows for the irrigation of lands; yet the fountain does not derive such an abundance for so many uses from itself, but from the spring which is perpetually flowing to furnish it with fresh supplies: so the flesh of Christ is like a rich and inexhaustible fountain, which receives the life flowing from the Divinity, and conveys it to us.68

Furthermore, there is sufficient ground, I believe, to propose Story envisioned the Constitution and its exposition in the kinds and ways of the two protestant sacraments, baptism and the Lord’s supper. What other most solemn occasions he would have literally at hand, after all, being the son of a religious, but liberal man, “an Arminian in principle,” and the nephew of the minister of his church, “a warm, and, indeed, over-zealous Calvinist”?69 Just as baptism has as its design the redemption of sin, the framing of the Constitution has its intent in superseding the old confederation. The Lord’s supper testifies, through the flesh and blood of Christ the promise of immortality, our participation in the kingdom to come.70 The exposition of the Constitution, through the flesh and blood of the Court and its visible saints, preserves the people’s rights, property, and liberty.71 Indeed, it would be on this account “that our law is justly deemed certain, and founded in permanent principles.”72 As such, it accords with the Constitution’s rephrased intention: “to endure through a long lapse of ages, the events of which were locked up in the inscrutable purposes of Providence.”73

Here, the material, temporal, and social dimensions of the semantics of constitutional adjudication overlap, intertwist, and convolute into rather tight knots. In other words, constitutional adjudication becomes evident. As the same visual element to two distinct sacraments, the Constitution has a double design, connecting its framing to its construction. The metonymical relationship between one and the other appears substantial to ensure the effect of evidence on what the judicial opinion came to be in its appliance. It was also crucial to consolidate the scripts and schemes of action delineating how the judicial opinion should be uttered, that is, performed, and its referentiality, and how it frames and explains information when communicating it. What happens, as a Justice delivers the opinion for the Court, is to make us aspire “to that unity which [the People] enjoins upon us in [its]Supper; and as it makes us all be one in [it]self, so it should be our desire that we may all have one mind, one heat, and one tongue.”74

Likewise, if opinions should be staged in kinds and ways similar to the Eucharist, it hardly makes any sense to have them seriatim. Instead, they should be one, whole, fixed, uniform, and permanent. Dissents may be allowed, but as prophecy,75 in resemblance to the practice of the same name first favored by the Separatists, and then by the New England puritans “of supplementing (or, in the absence of a minister, replacing) the sermon with speeches by members of the congregation.”76 In the words of Saint Paul as rendered by the English of the King James Bible: “And he gave some, apostles; and some, prophets; and some, evangelists; and some pastors and teachers; for the perfecting of the saints, for the work of the ministry, for the edifying of the body of Christ.”77

If rupture and continuity can be written in and built as glass, what to say of the organization whose architecture is made thereof? The circumstances which shaped the political opportunity for the establishment of constitutional adjudication in post-war Germany are strikingly different from those prevailing in 19^th century United States of America. Interestingly, the very difference was often a theme of constituent discourse,78 answering to the pressure stemming from the Occupying Powers, that Germany of all places should forfeit its “authoritarian, eastern inclinations,” embracing instead the “Western tradition” of right, property and liberty.79

As the offspring of the semantic struggle briefly addressed in the last section, it has already become a matter of tradition – whether Western, British, or US American is an issue of geopolitics – that right, property and freedom have their champion in the constitutional judge. Conversely, up to this day scholarship underscores how the moral building of Verfassungsgerichtbarkeit was erected in strange soil. And this is despite the contentious plausibility of constitutional adjudication during the Weimar era, whose epitome is, of course, the clash between Hans Kelsen and Carl Schmitt on who should be the guardian of the Constitution. But that should also be considered alongside the earlier controversy over the judicial review of administrative acts.80 This emphasis on rupture may well speak to how attractive it was to entertain the notion of a lack of precedents to those involved in the German’s Stunde Null.81 Its persistence, in turn, suggests a sort of work on myth, pulling along those who later handled the early generation’s words, actions, and works.

Paradoxically, however, shoulder to shoulder with the emphasis on the novelty of the Constitution’s great offering, constitutional actors often plead for a return to the Christian, European, and Western tradition which Germany once was a proud representative of.82 Unprecedented as it was, Nazism should be seen as an exception and a departure from German-Christian traditions. A deviation that could be ascribed as being prepared, insofar as the legal profession – and the “legal tradition” – is concerned, to the (Jewish?) rootlessness of the Weimar Constitution and legal positivism.83 Those actors regularly painted the Grundgesetz with godly and traditional colors, its preamble being a shred of forceful evidence thereof84 – while occasionally and notoriously even printing it with the typography evocative of the German Empire.85 Accordingly, notwithstanding their novelty, constitutional justices would be modern-day Schöffen, as I pointed out above. In its turn, their milieu, an authentic constitutional court should be considered as the touching stone that enables the words of the Constitution to remain one with its spirit.86

Just as 200 years later 1787 still was the year of the Miracle at Philadelphia,87 the divine aura of the Grundgesetz didn’t wane over time. Consider the notorious example of Paul Kirchhof, Former constitutional justice, whose brother became later the Vice-president of the same court, and whose father was before a judge of the Bundesgerichtshof. Kirchhof is also the co-editor of the very influential, multi-volume handbook on Staatsrecht. Amidst his endeavors to attach the dogmatic image of “constitutional identity” to art. 79, paragraph 3 of the German Constitution, in order to subtend the expansion of its reach from constitutional amendments to “constitutional shifts” [Verfassungswandlungen],88 Kirchhof faces the issue of what endows a constitution with its validity.

For Kirchhof, the validity of a Constitution is a threefold phenomenon. The “realization and forms of the constitution in the sources of knowledge of the constitutional document are based on the constitution-giving authority.” Its enforcement, upon “the majoritarian agreement over a reliable constitution.” And “the function of the constitution as a stabilizer of the state and as a measure of control” would rather rely “on its rationality and righteousness.” What speaks for the evidence of this threefold sustenance? In Kirchhof’s words, the fact that “[t]he ten commandments came into validity because they were spoken with the authority of the Lord, written in the reliability of stone tablets, and their contents were evidently righteous.”89

Is it difficult to hear in such instrumentalization an echo of Rudolf Smend’s portrait of the Verfassungsrichter as akin to the judges of the Old Testament? For Smend, the Court’s praxis of “politically educating the German citizens” “adds stone after stone to the fundament of the basic law.”90 While Kirchhof’s contribution dates from 1987 and Smend’s from 1962, the fact is that more than 30 years before Smend would insist that a Court shouldn’t and couldn’t have anything to do with the bulwarks of constitutional law, even if it is a Court that signs its rulings “in the name of the People.”91

Between one and the other stands the Statusdenkschrift. In contrast to Marbury v. Madison, in line with a comparison occasionally pursued by German constitutional scholarship,92 the Bundesverfassungsgericht’s exertion towards self-empowerment is rarely the subject of celebration, scholarly or otherwise, while what it made possible, Karlsruhe as we know it, obviously is. One of its first steps in this direction was in the form of a report submitted to his judicial peers, written by the exiled constitutional scholar, and now constitutional judge Gerhard Leibholz.

Often described as the “last of the constitutional organs,” by dint of the fact the statutory regulation of its structure and procedure was the subject of strong controversy, its establishment taking place only on September 1951,93 it didn’t take long for the full implications of its status as such to become once again the matter of dispute. The manifold organizational consequences, ranging from procedural rules to administrative law, that Gerhard Leibholz managed to connect and frame as direct implications of the status of the Bundesverfassungsgericht as a constitutional organ is rather impressive. Interestingly, this very feature would also be the subject of contention, as the majority of the Court’s justices, following Leibholz’s reasoning, collide with Konrad Adenauer’s ministry of justice, especially as the latter claimed to exert some control on the Constitutional court’s administrative and financial affairs,94 having on its side none other the Weimar democrat Richard Thoma.

As carefully scrutinized by Oliver Lembcke, out of the documents composing the controversy on the status of the Federal Constitutional Court, notwithstanding Thoma’s challenge mentioned above, fellow justice Willi Geiger’s and the Court’s president Hermann Höpker-Aschoff’s stances should be considered as alternative “takes” to the significance and organizational outline of constitutional adjudication. Of interest is precisely why they were pretermined vis-à-vis Leibholz’s proposal.95

Notwithstanding the quality of Lembcke’s well-known analysis, to portrait the force of Leibholz’s argument as an upshot from its “middle ground” misses much. It overlooks the rhetoric of reoccupation fully operative as Dietrich Bonhoeffer’s96 brother-in-law pursues to anoint the Court as a kind of sanctorum communio,97 while here and there already submitting such efforts to rationalizations. In contrast, neither Höpker-Aschoff nor Geiger ventured into such enterprise.98 And even though Leibholz’s attempt to paint the Court as a sanctorum communio was highlighted and heavily criticized by Thoma, in hindsight one can hardly dispute his critique was to no avail.99 What speaks to the pregnancy of Leibholz’s vision of the Constitution Court as the main player in the process of political integration, with full autonomy in terms of administrative and financial matters? Once again, I turn now to just two instances of Leibholz’s rhetoric ensemble.

Amidst his engagement in the resistance to the Nazi regime, while writing his unfinished masterpiece Ethik, Bonhoeffer came to one bold conclusion. Both Christ and recent events – who and which, the theologist asserted, are always intertwined as history100 – demanded a confrontation with what he portraited as the “colossus” of a “great part of the traditional Christian-ethical thinking.”101 After the epoch of the New Testament, Bonhoeffer argues, the fundamental idea of Christian ethics pivoted on the collision of two spaces, “one godly, holy, supernatural and Christian, the other worldly, profane, natural and unchristian.”

As one of the major consequences of the “Two-Realms Doctrine,” which Bonhoeffer saw manifested in the stance advocated by the Lutheran Church after 1933, the Church should refuse itself to take responsibility for wrongs perpetrated in the political realm.102 This line of reasoning was denounced by Bonhoeffer as supporting the position that God’s will would bind his flock to the “natural order,” namely, “family, people, race (that means, a context of blood).”103 To him, this would reduce God’s reality [Wirklichkeit] to one among others. Therefore, as Christianity renounces the world, “it decays into the unnatural, the unreasonable, devilment and despotism.”104

For Bonhoeffer there were two realms, but not as two static, untouchable spaces. The challenge is how to think of this difference without falling back into its spatial, static representation.105 In Christ was posited “the unity between the reality of God and the reality of the World,” whose actualization “time after time” takes place in humans.106 “It belongs to the revelation of God in Jesus Christ the seizure of space in the world.” As God “in Jesus Christ claims space in the world,” “he envisages this narrow space alongside the whole reality of the world together, revealing their ultimate foundations.”107 And, due to how Christ and the Church are essentially bounded – as his body was transferred to and continued as the sanctorum communio – “hence the Church is the place – that means the space – of Jesus Christ in the world, whose sovereignty of Jesus Christ over the whole world is testified and pronounced.”108

The resonance of Bonhoeffer’s theological writings within the sphere of the law go beyond his family connections to Gerhard Leibholz. According to the political theorist Wilhelm Hennis, the pair Verfassung and Verfassungswirklichkeit would speak to an essential “passion.” This passion would be a constitutive part of German’s soil “since the reformation, the only German revolution.” It pivots on the centrality of the distinction between “faith and sins, salvation and depravation, light and darkness.”109

Hence, in Leibholz the connection between this passion and constitutional doctrine finds one stark articulation. As one reads Bonhoeffer’s ethical reflections in comparison to Leibholz’s report on the status of the Bundesverfassungsgericht, it is difficult to overstate their resonance. Leibholz affirms that the conflict between “the irrational dynamics” of politics and the “static-rational essence” of law, the collision between existentiality and normativity, nature and ethical reason would have in constitutional law and constitutional adjudication its “essential imprint.”110 In doing so, Leibholz questions the validity of a principle enunciated by Weimar’s Staatsgerichtshof. Following this principle, due to the Court’s concern with the application of objective law, adjudication shouldn’t have into consideration “the political consequences of its verdicts.”111 For Leibholz, the complete opposite is the case. And that is in reason of both Bonn’s Grundgesetz and the experience of the Weimar Republic.

Following both, one must conclude it is the constitutional judge’s “duty” – one could say his Mandat Gottes112 – to have within his attention the political consequences and effects of his decisions. The Constitutional Court as a “Creature of the Constitution”113 is the Constitution’s place within the political realm, seizing it as a whole and laying down its ultimate foundations.114

Thoroughly operative therein, I would suggest, is the latent identity between the two ministries of Church and Justice, whose counterfeit absence from worldly, political affairs during the Weimar Republic led judges and priests into the madness of National Socialism.115 As Leibholz mobilizes “Weimar” as an argument, in line with what the scholarship has identified as the singular historical signature of this generation to its recent past,116 he suggests that what could be once obscured due to the Weimar constitution cannot be anymore. Namely, how the Bundesverfassungsgericht, although a judicial body, is equally an institution with its feet in the political domain, wherein it assumes its role of “the guardian of the Constitution.” As the Court intervenes into the “natural political process of integration,”117 it does so that although “[w]ir sehen jetzt durch einen Spiegel in einem dunklen Wort, dann aber von Angesicht zu Angesichte. Jetzt erkenne ich’s stückweise; dann aber werde ich erkennen, gleichwie ich erkannt bin.“118

Blasphemy, Sunday laws, and explicitly non-Christian organizations brought before 19^th century US courts, from local to state to the US Supreme Court itself, again and again, what pious and patriotic elites could hardly frame otherwise: is Christianity part, or even the foundation of the law of the land? Whether they answer it positively, praising the dignity of precedent or the benefits of public religion, or negatively, seeing in it a trace of the tyranny of the English crown (or even English judges), the atmosphere of careful rhetorical acrobatics – going from James Kent119 and Joseph Story120 to David Brewer121 – betrays how we are before the lock, stock, and barrel of reoccupations. 

Through the somehow belated fortune and subsequent disappearance of this common law maxim – “Christianity is part of the Common Law” –,122 one can read, on the one hand, the establishment of positivity as the main criterium of selection and, accordingly, the increasing autonomy of law as a partial social system.123 On the other, the intrinsic developments of the religious system as located in 19^th United States of America, with the multiplication of confessions, pivoting on general trends of professionalization, traditionalization (in the openly ambivalent sense of inventing new traditions and recovering lost ones), disciplinarization and the slow, but crucial disentanglement of some of the ties holding together religious institutions and landholders and slaveholders.124

Of concern to my purposes is how this issue appeared to an old foe of the maxim, who was both a landholder and a slaveholder, now resolutely secluded in his villa at Monticello.125 Although hardly the only one, Thomas Jefferson was an early and important contender of the maxim’s validity, attacking it as someone skilled in the common law would, namely, by tracing and challenging its supporting precedents. His challenge came with the publication of his letter to the diplomat and writer John Cartwright in the London Nation and the Boston Daily Advertiser.126

Commenting on Cartwright’s book The English Constitution Produced and Illustrated, Jefferson introduces the issue while remarking how he rejoiced in finding “a formal contradiction, at length, of the Judiciary usurpation of legislative powers; for such the judges have usurped in their repeated decisions that Christianity is part of the Common law[.]”127 As Jefferson reviews the “chain of authorities hanging, link by link, one upon another, and all ultimately on one and the same hook,” beginning on 1458 and reaching Mansfield in 1767, all of which would ultimately depend upon “a mistranslation,” he ends up defying “the best read lawyer to produce another scrip of authority for this judiciary forgery[.]”128

Now, while it is true US courts have been ruling over the persecution of blasphemy, confirming convictions with occasional reference to the maxim since 1811, the conduct was often proscribed through statutes across the colonies throughout the preceding century. In this vein, how could the maxim be an expression “of the Judiciary usurpation of legislative powers”?

Maybe Jefferson was hinting at something more comprehensive than mere blasphemy convictions. Arguably, the abruptness of the way he frames the issue gives room to suggest he felt the overlapping of the instrumentalization inherent to reoccupations and the consecration of constitutional adjudication, along with some of the features and undertones associated with “judicial supremacy.” Be that as it may, Joseph Story decided to openly address Jefferson’s challenge, although some years after the latter’s death. In a short essay published in American Jurist in 1833, Story begins by naming Jefferson, his letter, and the ultimate reference to “Year Book, 34 Henry VI. 38, 40.”

After quickly expounding “the substance of the case,” Story turns to the statement pronounced by judge Prisot, upon which Jefferson built his case of judicial forgery, then in “law French,” once the ruling idiom throughout the King’s courts: “A tiels leys, que eux de sainte Esglise ont en auncien Scripture convenit pur nous a doner credence, quia ceo est comen ley, sur quell toutes maners leys sont fondues[.]” In Story’s self-styled “literal translation:” “As to those laws, which those of holy church have in ancient scripture, it behooves us to give them credence, for this is common law, upon which all manners of laws are founded[.]”129 For Jefferson, “auncien scripture” couldn’t refer to the Holy Scriptures, as subsequent cases assumed, “but if this be so,” Story countered, “how could Prisot have said that they were common law, upon which all manners of laws are founded? Do not these words suppose that he was speaking of some superior law, having a foundation in nature or the Divine appointment, and not merely a positive ancient code of the church?”130

Some years before, in 1829, as he delivered his inaugural speech as Dane Professor of Law at Harvard University, Story already seized the opportunity to touch upon the subject. As he then phrased it, in a sequence of laudations to the Common law and its study,

[o]ne of the beautiful boasts of our municipal jurisprudence is, that Christianity is a part of the common law, from which it seeks the sanction of its rights, and by which it endeavors to regulate its doctrines. And, notwithstanding the specious objection of one of our distinguished statesmen, the boast is as true as it is beautiful. There never has been a period in which the common law did not recognize Christianity as lying at its foundations.131

Should one substitute “Christianity” for, say, “Constitutionalism” at the outstart, from which one seeks the sanction of rights and by which one endeavors to regulate one’s doctrines, the very first sentence hardly would deserve any criticism from contemporary audiences. The very fact, however, that Story could conceive of Christianity as such, taking the Bible alongside the Constitution as he delved upon the expounding of the latter, thinking of Puritan saints as he thought and wrote about constitutional guardians, suggests the influence of such materials’ immanent rationality.

Be that as it may, as the maxim’s popularity vaned, Thomas Cooley could already state in 1868, as he dedicated an entire section of his treatise on the Constitutional Limitations, that while in a sense Christianity is part of the law of the land, in terms of its underlying morality, in another sense, as to the entitlement of courts “to take notice of and base their judgments upon [Christianity],” it is not. Yet, “except so far as they could find that [Christianity’s] precepts had been incorporated in, and thus become a component part of, the law.”132

When Justice White delivered the opinion for the Court in Bowers v. Hardwick,133 the audience assembled within the Marble Palace heard the following statement: “We first register our disagreement with the Court of Appeals and with respondent that the Court's prior cases have construed the Constitution to confer a right of privacy that extends to homosexual sodomy and for all intents and purposes have decided this case.”134 As some lines below show, in reference to the doctrine on the Fourteenth Amendment and the role of historical precedent in constructing which rights are covered therein, White underscored how “proscriptions against that conduct have ancient roots.” In his concurrence, in its turn, Chief Justice Burger felt the need for excavating them: “Condemnation of those practices is firmly rooted in Judeo-Christian moral and ethical standards. Homosexual sodomy was a capital crime under Roman law. See Code Theod. 9.7.6; Code Just. 9.9.31.” As Burges continued in his review of “millennia of moral teaching,"135 it is tempting to wonder whether he imagined each of the US Supreme Court’s bronze doors’ panels – among which Justinian can be found next to Marshall and Story – whispering in “constitutional terms” against the rights regarding private sexual conduct between consenting adults.

As we turn to Germany, the necessity of reoccupation went hand-in-hand with the mediality of the reoccupied claims, semantic patterns, and media. Either in anticipation or in the wake of the Grundgesetz, legal scholars clashed over the possibility of appealing to natural law principles, rules, and measures amidst the travails of constitutional adjudication. In line with the massive number of publications by many of the same actors preceding this particular debate, who mostly pleaded a “return to Christianity” in face of “the greatest sin of legal positivism”136 as the guiding ethical thread for Germany’s lawful future. Although some were more cautious in stating it, attempting to submit such thrust to the caveats of rationalization, there is hardly any doubt what the struggle over the features of the semantic apparatus meant materially, structurally and methodologically. The question, therefore, was: should we have the Bible opened alongside – or even over – the Constitution as we interpret the latter? Depending on the circumstances, should we maintain the first open while actually closing the latter?

To date, Birgit von Bülow has probably offered the most comprehensive account of this debate, notwithstanding the somewhat questionable choice to separate between “ethical and religious writings,” “State law contributions,” and “technical, doctrinal commentaries.”137 What Von Bülow paints as clear methodological frontiers are much closer to fault lines, which not rarely became the subject of fierce dispute across publications, but also during the meetings of the Vereinigung der Deutschen Staatsrechtslehrer [Association of German State Law Scholars].138 That notwithstanding, Von Bülow distinguishes three main positions on this quandary. From 1945 to 1952, scholars ranged between the enthusiastic, “moral-theological” assertion of the validity of referring to and deploying “super-positive values, maxims, and rules” in the course of constitutional interpretation and application,139 and its complete, “positivistic” denial.140 As a sort of middle ground, one would have the stance which entertained the restrained appeal to a “super-positive order,” insofar as it has been more or less incorporated by the Grundgesetz, especially by dint of its preamble and Article 1.141 Some of the most preeminent problems of the day were in one way or another touched upon within the gravitational field of this struggle over constitutional doctrine. Illustratively, as constitutional scholars clashed over the existence, content, and valence of an “unwritten Constitution” underlying and fulfilling the written one, the order of the day went from the ambiguous status regarding the sovereignty of and popular participation in the constitution-making process to the reasons for the failure of the Weimar constitution, alongside what should be the task of Staatsrecht, and even the issue of German’s remilitarization.

In hindsight, the tradition of commentary regarding both normative texts and much of the Bundesverfassungsgericht’s early decisions142 give little room for doubt over which position prevailed. As the compromise between the two extremes was settled, rather peculiar methodological requirements came to the fore. One reads in the preamble of the 1949 Grundgesetz, “the German people” exercised its verfassungsgebenden Gewalt (its constitution-giving power) “in conscience of their responsibility before God and humanity.”143 Consider the words of E.-W. Böckenförde, one worldwide famous constitutional scholar and former constitutional judge. Beyond the debate on the legal force of the preamble, as its writing suggests, the fact that the people are responsible before God entails they can minister their power of decision in one way or another. Hence, “[G]od’s will as the highest law has not in itself political or legal validity, but only when and as long as the people make the will of God also content of their will.”144 Undoubtfully, the issue as such and the phrasing of its solution may sound as strange and unproper to foreign ears. Interestingly, that it is a matter of hearing, and not reading, is something emphasized by Paul Kirchhof: “The presuppositions of the Constitution [Verfassungsvoraussetzungen] are not printed in the constitutional document, but they are addressed [angesprochen].”145

Underscoring the role played by such constitutional presuppositions, while also facing the methodological problem of where to find and how to work with them, is something rather common in authoritative literature on Staatsrecht. Quite often, this common place makes room for the rhetoric of worldification. The surmount of interpreting the Basic Law would demand something akin to the doctrine of faith, in the sense pleaded by Luther concerning biblical exegesis, according to Klaus Stern.146 In the words of the equally famous Konrad Hesse, in one much celebrated and discussed contribution, and in admittedly more secular terms, there is a need for willing the Constitution, subtending its normative power.147 Occasionally referring to the parliamentary debates over the drafting of the Grundgesetz, even contemporary doctrinal commentary underscores how the representatives understood the document’s fundamental rights’ articles as declaring, instead of constituting something, in reference to überpositiver principles. As one opens the authoritative Maunz/Dürig Kommentar, in the blink of an eye, one goes from the head of the page, stating the wording of the inviolability of human dignity which opens the Basic Law, to a discussion of how humanism and Christianism stand as the two main columns supporting the article, and finally to how Thomas Aquinas’ understanding of human dignity carries some weight over the meaning of this central, basic right.148

As recent and ongoing debates on the constitutional foundations underpinning the current German integration policy prove,149 a discussion pursued by way of footnotes full of historiographical monographs, Latin and historical sources, this goes beyond German scholarly erudition. Should “German” human dignity by will of its people (but then, the people who?) be “Christian” human dignity or even “Christian-Humanist” human dignity, then handshakes are an ingredient feature of being a German citizen. Consequently, the religious commandment to abstain from touching another person’s hands following marriage are impeditive to acquiring German citizenship.150 Following the theoretical armature therein proposed, one way of accounting for the conditions of possibility of this state of affairs is to grasp it as the bursting out of the religious undertones attendant to German constitutional semantics, the unfolding of immanent rationality.