The First and the 10: why the 10 Commandments shouldnt be displayed on government property
By George A. Ricker
With all the discussion about when and where it may be appropriate for a government agency to display the Ten Commandments, I thought it would be useful to discuss the question as it relates to the First Amendment and also to provide some historical background.
I am going to begin with a discussion of the Ten Commandments themselves and which version of the commandments is being put forth as The Ten.
Following that I want to discuss the establishment clause and why displaying the commandments on government property violates it.
Finally, Ill review some of the arguments put forth by those who favor such displays, and explain why I dont think they pass muster.
I. The story of the 10 Commandments
But first, lets review the basics of the story behind it all.
Moses, you may recall, had led the Children of Israel out of Egypt, and they had come to Mount Sinai. It should be noted that our only source of information about this is the Bible itself. There are no independent historical records that corroborate any of it. The Egyptians, who were fairly thorough record-keepers, have no record of a people called The Children of Israel or Israelites or Hebrews or Jews being held captive or being released. There is no mention of Moses, no mention of any of the plagues, including the one that claimed the first-born sons of every house of Egypt. There is no record of the pharaoh's army being lost or of the miraculous parting of the Red Sea. None of it.
According to Exodus, 600,000 men, their dependents and a mixed multitude along with flocks and herds and cattle made the trip. Most estimates put the total number of people suggested by the relevant biblical passages at somewhere around two million. Yet there is no record of their passage. Not a scrap of pottery or a mention of such a great multitude in any historical record. Nor is there any indication in the archaeological remains in the land of Canaan of the sudden arrival of such a great multitude of people. Indeed the historical and archaeological record suggests it is far more likely that the Israelites developed and lived in Canaan for many generations rather than leaving and then returning as part of a mass exodus from Egypt. So, even if there was an actual event on which the story of the Exodus is based, it seems highly unlikely that the Exodus happened the way the Bible says it happened. Most biblical scholars, including many of a religious persuasion, agree with that assessment.
However, for purposes of this discussion, Im assuming it did. The children of Israel, according to the Old Testament, had been freed from enslavement in Egypt, had entered the desert of Sinai and come to Mount Sinai where Moses would talk to Yahweh. Thats the story.
In chapter 20 of Exodus, the first version of the Ten Commandments is given. Please note, there has not, as yet, been any mention of stone tablets. It also should be noted that they are only part of a long string of commandments or mitzvot that would be delivered at Sinai. What is presented in verses 2-17 is not called the Ten Commandments, and it is not identified within the text as being any more important than the rest of the teachings delivered that day.
Writing on Judaism 101, Tracey R. Rich comments, According to Jewish tradition, G-d gave the Jewish people 613 mitzvot (commandments). All 613 of those mitzvot are equally sacred, equally binding and equally the word of G-d. All of these mitzvot are treated as equally important, because human beings, with our limited understanding of the universe, have no way of knowing which mitzvot are more important in the eyes of G-d.
Be that as it may, its clear that in Exodus 20 Yahweh begins to deliver a number of instructions to those who worship it. Its not entirely clear whether Yahweh speaks directly to the Israelites assembled around the base of Mount Sinai or whether Moses delivers the message as Yahwehs mouthpiece.
What is clear is that the material in Exodus 20:2-17 is the basis of the Ten Commandments in both Judaism and Christianity. What also is clear is that this material is delivered verbally by either Yahweh or Moses, acting as his agent, before any tablets are mentioned, let alone written.
2 I am the LORD thy God, which have brought thee out of the land of Egypt, out of the house of bondage.
3 Thou shalt have no other gods before me.
4 Thou shalt not make unto thee any graven image, or any likeness of any thing that is in heaven above, or that is in the earth beneath, or that is in the water under the earth.
5 Thou shalt not bow down thyself to them, nor serve them: for I the LORD thy God am a jealous God, visiting the iniquity of the fathers upon the children unto the third and fourth generation of them that hate me;
6 And shewing mercy unto thousands of them that love me, and keep my commandments.
7 Thou shalt not take the name of the LORD thy God in vain; for the LORD will not hold him guiltless that taketh his name in vain.
8 Remember the sabbath day, to keep it holy.
9 Six days shalt thou labour, and do all thy work:
10 But the seventh day is the sabbath of the LORD thy God: in it thou shalt not do any work, thou, nor thy son, nor thy daughter, thy manservant, nor thy maidservant, nor thy cattle, nor thy stranger that is within thy gates:
11 For in six days the LORD made heaven and earth, the sea, and all that in them is, and rested the seventh day: wherefore the LORD blessed the sabbath day, and hallowed it.
12 Honour thy father and thy mother: that thy days may be long upon the land which the LORD thy God giveth thee.
13 Thou shalt not kill.
14 Thou shalt not commit adultery.
15 Thou shalt not steal.
16 Thou shalt not bear false witness against thy neighbour.
17 Thou shalt not covet thy neighbour's house, thou shalt not covet thy neighbour's wife, nor his manservant, nor his maidservant, nor his ox, nor his ass, nor any thing that is thy neighbour's.
Following the delivery of what is now regarded as the Ten Commandments, Yahweh instructs Moses to deliver a host of other commandments regarding everything from how to worship to how to treat slaves. I repeat, there is absolutely nothing to indicate that Yahweh regards the instructions delivered in the remainder of Chapter 20, and Chapters 21 through the end of 23 as any less important than those in the beginning of Chapter 20.
In Chapter 24 of Exodus, Yahweh tells Moses to come up with his brother Aaron and some other elders. Only Moses will be allowed to ascend the mountain and approach the deity. But before he does that, Moses writes down all the words of the Lord and presents them to the Children of Israel as the book of the covenant which he reads to them. They respond All that the Lord hath said will we do and be obedient.
Once this is done, Moses is ready for his meeting with Yahweh. After a few preliminaries, Moses is told to come up to meet with the Lord who will give him
tables of stone, and a law, and commandments which I have written; that thou mayest teach them. (Ex. 24:12) Moses goes up to the top of the mountain and meets with Yahweh for 40 days and nights. Beginning with chapter 25 and continuing through chapter 31, Yahweh tells Moses how the people are to worship him and describes in great detail the tabernacle they are to construct. At the end of that section the text reads And he gave unto Moses, when he had made an end of communing with him upon mount Sinai, two tables of testimony, tables of stone, written with the finger of God. (Ex. 31:18)
In the next chapter, Moses goes back down the mountain, discovers the people have made an idol and worshipped it and, among other things, breaks the stone tables which, according to verse 16
were the work of God, and the writing was the writing of God, graven upon the tables.
Now, it is unclear what was written on those two tablets. We know the material now regarded as the Decalogue had been delivered to the tribes of Israel before Moses ascended Mount Sinai. We also know that material had been written down by Moses in the book of the Covenant described in chapter 23. The indication in the text is that Yahweh will present new material on the stone tablets, material that thou mayest teach themsuggesting it would be unfamiliar to the Israelites. So what was on the two tablets is unclear. One could argue a number of options. There just is no way to know based on what is written.
Once Moses has destroyed the tablets, and after other events transpire, including the slaughter of some thousands who had offended Yahweh by worshipping the idol, Moses trudges back up the mountain to talk to his god. This time Moses is instructed to Hew thee two tables of stone like unto the first: and I will write upon these tables the words which were on the first two which thou brakest. (34:1). Again Moses stays on the top of the mountain for 40 days and nights.
This time, however, Yahweh instructs Moses to write down the words he has given him. Apparently he has changed his mind about writing them down himself. In the remainder of chapter 34 Yahweh says again he is making a covenant with the children of Israel and instructs Moses Observe thou that which I command this day
Later in this chapter Yahweh delivers another set of commandments. Some - like the first - are similar to those in the modern Decalogue. Others are much different. However, it appears, from the text, that this is the material Moses transcribed on the second set of stone tablets.
Here are the commandments Moses seems, according to the text, to have written down in that second session Ex 34:14-26:
14 For thou shalt worship no other god: for the LORD, whose name is Jealous, is a jealous God:
15 Lest thou make a covenant with the inhabitants of the land, and they go a whoring after their gods, and do sacrifice unto their gods, and one call thee, and thou eat of his sacrifice;
16 And thou take of their daughters unto thy sons, and their daughters go a whoring after their gods, and make thy sons go a whoring after their gods.
17 Thou shalt make thee no molten gods.
18 The feast of unleavened bread shalt thou keep. Seven days thou shalt eat unleavened bread, as I commanded thee, in the time of the month Abib: for in the month Abib thou camest out from Egypt.
19 All that openeth the matrix is mine; and every firstling among thy cattle, whether ox or sheep, that is male.
20 But the firstling of an ass thou shalt redeem with a lamb: and if thou redeem him not, then shalt thou break his neck. All the firstborn of thy sons thou shalt redeem. And none shall appear before me empty.
21 Six days thou shalt work, but on the seventh day thou shalt rest: in earing time and in harvest thou shalt rest.
22 And thou shalt observe the feast of weeks, of the firstfruits of wheat harvest, and the feast of ingathering at the year's end.
23 Thrice in the year shall all your menchildren appear before the LORD God, the God of Israel.
24 For I will cast out the nations before thee, and enlarge thy borders: neither shall any man desire thy land, when thou shalt go up to appear before the LORD thy God thrice in the year.
25 Thou shalt not offer the blood of my sacrifice with leaven; neither shall the sacrifice of the feast of the passover be left unto the morning.
26 The first of the firstfruits of thy land thou shalt bring unto the house of the LORD thy God. Thou shalt not seethe a kid in his mother's milk.
And the Lord said unto Moses, Write thou these words: for after the tenor of these words I have made covenant with thee and with Israel.
And he was there with the Lord forty days and forty nights; he did neither eat bread, nor drink water. And he wrote upon the tables the words of the covenant, the ten commandments. Ex 34:27-28
A much less ambiguous tale is told in Deuteronomy. This is from chapter 5:
1And Moses called all Israel, and said unto them, Hear, O Israel, the statutes and judgments which I speak in your ears this day, that ye may learn them, and keep, and do them.
2The LORD our God made a covenant with us in Horeb.
3The LORD made not this covenant with our fathers, but with us, even us, who are all of us here alive this day.
4The LORD talked with you face to face in the mount out of the midst of the fire,
5(I stood between the LORD and you at that time, to shew you the word of the LORD: for ye were afraid by reason of the fire, and went not up into the mount;) saying,
6 I am the LORD thy God, which brought thee out of the land of Egypt, from the house of bondage.
7 Thou shalt have none other gods before me.
8 Thou shalt not make thee any graven image, or any likeness of any thing that is in heaven above, or that is in the earth beneath, or that is in the waters beneath the earth:
9 Thou shalt not bow down thyself unto them, nor serve them: for I the LORD thy God am a jealous God, visiting the iniquity of the fathers upon the children unto the third and fourth generation of them that hate me,
10 And shewing mercy unto thousands of them that love me and keep my commandments.
11 Thou shalt not take the name of the LORD thy God in vain: for the LORD will not hold him guiltless that taketh his name in vain.
12 Keep the sabbath day to sanctify it, as the LORD thy God hath commanded thee.
13 Six days thou shalt labour, and do all thy work:
14 But the seventh day is the sabbath of the LORD thy God: in it thou shalt not do any work, thou, nor thy son, nor thy daughter, nor thy manservant, nor thy maidservant, nor thine ox, nor thine ass, nor any of thy cattle, nor thy stranger that is within thy gates; that thy manservant and thy maidservant may rest as well as thou.
15 And remember that thou wast a servant in the land of Egypt, and that the LORD thy God brought thee out thence through a mighty hand and by a stretched out arm: therefore the LORD thy God commanded thee to keep the sabbath day.
16 Honour thy father and thy mother, as the LORD thy God hath commanded thee; that thy days may be prolonged, and that it may go well with thee, in the land which the LORD thy God giveth thee.
17 Thou shalt not kill.
18 Neither shalt thou commit adultery.
19 Neither shalt thou steal.
20 Neither shalt thou bear false witness against thy neighbour.
21 Neither shalt thou desire thy neighbour's wife, neither shalt thou covet thy neighbour's house, his field, or his manservant, or his maidservant, his ox, or his ass, or any thing that is thy neighbour's.
22These words the LORD spake unto all your assembly in the mount out of the midst of the fire, of the cloud, and of the thick darkness, with a great voice: and he added no more. And he wrote them in two tables of stone, and delivered them unto me.
Its clear in Deuteronomy that these are the commandments given to the children of Israel. Moreover its clear from what follows that these commandments are the ones written on the stone tablets on both of the occasions in which Moses went up the side of the mountain. In Deuteronomy, unlike Exodus, Yahweh does the writing both times.
This is the Cecil B. DeMille version of the story. Clearly there are conflicts between the accounts given in Exodus and Deuteronomy. Deuteronomy is supposed to be Moses retelling of the story. It was forty years later. Maybe he forgot.
At any rate, thats the story in the Bible. Its one many Christians arent familiar with. But then, many Christians dont read the book in any detail, anyway.
II. The Context
Those of us raised in a culture dominated by various Christian sects are accustomed to thinking of the Bible as a single document, standing unique and alone. However, it is really a collection of tales that draw on the various mythic strains common in the cultural milieu in which it developed.
In his Secret Origins of the Bible (an outstanding review of the subject), author Tim Callahan observes, Anyone reading this book who has even an amateur background in comparative mythology might well look at the title and ask, So where are the secrets? In fact, what I have revealed is for the most part known not only by Bible scholars but by many well-read lay persons as well. Yet many intelligent and otherwise well informed readers will find much of the material new and quite startling. In all probability the majority of the population is profoundly ignorant of the mythic origins of much of the biblical material. And therein lies the problem. Much of what is known is not communicated. I doubt this is intentional. Yet, just as in science, so it is with the Bible: increasingly our culture divides between the few who know and the many who do not. Too often those who believe have not read the Bible on their own, but have had it predigested by authorities intent on removing anything that might provoke controversy and questions. Failing to question, they fail to understand the mythic context of what they are reading. (Callahan; pp 428)
It is important for us to understand that the identification of biblical material as a compilation and expansion of the prevalent mythos of the time does not detract from its value. Far from it. Human myth reveals much about human nature. The stories told by the ancients and shaped and refashioned by succeeding generations contain much that is of interest, much that is important to the understanding of who we are and how we got that way. Paradoxically it is the biblical literalist who robs the document of its vitality and its usefulness. In insisting on the inerrant accuracy of everything in a book filled with variant retellings of the same stories, historical inaccuracies, contradictions and fables, the literalist destroys its value and forces it into a rigidity that subverts any credibility it might have as a record of human longing and aspiration.
Im also going to take exception with Callahans insistence that the failure to communicate what is actually known about biblical origins is not intentional. Frankly, it serves the purposes of priests, ministers, rabbis, etc., to keep their congregations ignorant of such matters. It serves a higher good, many of them believe, to preserve the faith of believers by glossing over or denying any effort to tell the truth about biblical material. There are Christians who believe quite sincerely that its perfectly appropriate to lie to promote the Kingdom of Heaven, the biblical injunction against bearing false witness notwithstanding. The practice is called lying for Jesus.
In his Transformations of Myth Through Time, Joseph Campbell writes, Your mythology, your imagery, has to keep up with what you know of the universe, because what it has to do is put you in accord with the universe as known, not as it was known in 2000 B.C. in the Near East. (Campbell; page 22)
Finally, it should be noted that the Ten Commandments, whichever version is preferred, were hardly the first set of rules adopted for the governance of human societies. They were themselves derived from other sources. From the very beginning human cultures always have had rules against members of those cultures savaging one another. At least, thats my view of the matter. I think its an opinion well supported by even the most casual study of the subject.
III. Whose Commandments?
Its also worth noting that different religions recognize different versions of the Ten Commandments. They break the list up differently.
The Protestant version makes Thou shalt have no other gods before me the first commandment. Catholics, according to the Catholic Catechism, word it I am the Lord thy God. Thou shalt not have strange gods before me. The Hebrew version makes I am the Lord thy God, who brought thee out of the land of Egypt, out of the house of slavery the first commandment. The Protestant version separates the making of graven images into the second commandment. The Catholics apparently consider the rule covered by the prohibition against strange gods and make the prohibition against taking the Lords name in vain the second. The Hebrew version combines the prohibition against worshipping other gods and the prohibition against making idols and makes that the second commandment. The Catholic version makes the prohibition against coveting thy neighbors wife one commandment and that against coveting thy neighbors goods a separate commandment. Both the Protestant and Hebrew versions follow their biblical tradition and leave the two as one, the tenth.
Beyond that, there is the question of which translation should be used. Should the commandments be reproduced in the language in which they were originally given? Should we use the King James Version with its prohibition against killing as opposed to murder?
Those who advocate the posting of the Ten Commandments as public memorials typically are talking about the Protestant version. But how is it not an establishment of religion to select one list over another?
IV. The First Amendment and the Ten Commandments
It will come as no surprise to anyone that I think the exhibition of the Ten Commandments on publicly owned property, be it the wall of a classroom, the square of a monument plaza or a grassy knoll in a public park, violates both the spirit and the letter of the First Amendment.
Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof; - the words guarantee us the right to freedom FROM religion as well as freedom OF religion.
The amendment does not say the establishment of a church as some historical revisionists want to pretend. While I recognize the rolefor good and for illreligion has played in our development as a nation, it seems increasingly clear to me that it was the intent of the authors of the Constitution to erect Jeffersons famous wall of separation not between church and state but between government and religion.
Since Congress is the legislative branch, the empowering branch of government, and since Congress can act only by making laws, the prohibition against making any law respecting an establishment of religion means government has no business making religion its business.
The only question before us, then, is whether or not it is a violation of the establishment clause for displays of the Ten Commandments to be erected on public land and/or at public expense.
Put another way, does displaying the Ten Commandments constitute an establishment of religion. As I noted before, given the sectarian differences in the various versions of the Ten Commandments, once any government agency adopts a particular set of commandments for its display it has endorsed a particular religious dogma. The conclusion is inescapable. Beyond that, it is simply impossible to ignore the religious character of some of the commandments.
If the requirements to worship a particular god, to have no idols, to observe a particular holy day and to respect a particular gods name by not taking it in vain are not religious in nature, then what in the world are they? People cite the Decalogue as a moral code, but it is much more than that. On the record, it represents part of a covenant that a particular god made with a particular group of people according to their mythology. That the myth was subsequently coopted by another group of people and incorporated into their myth as well does not, in any way, make it less religious.
Any display of the Ten Commandments, no matter how worded, is going to have a religious character by its very nature. Government agencies, if I read the Constitution correctly, have no business involving themselves in such matters. That is the long and the short of it.
Private citizens have religions, but under our system, government agencies may not. Thus, the agencies of government have no business making religious pronouncements or promoting anyones religious agenda. Government should be absolutely neutral on matters of religion. Neither inhibiting nor promoting it. That neutrality is especially critical in a diverse society such as ours.
Writing about the differences in the versions of the Ten Commandments on Judaism 101, Tracey Rich says, These may seem like trivial differences to some, but they are serious issues to those of us who take these words seriously. When a government agency chooses one version over another, it implicitly chooses one religion over another, something that the First Amendment prohibits. This is the heart of the controversy.
But there is an additional issue in this controversy that is of concern from a Jewish perspective. In Talmudic times, the rabbis consciously made a decision to exclude daily recitation of the Aseret ha-Dibrot from the liturgy because excessive emphasis on these statements might lead people to mistakenly believe that these were the only mitzvot or the most important mitzvot, and neglect the other 603. By posting these words prominently and referring to them as The Ten Commandments, (as if there werent any others, which is what many people think) schools and public buildings may be teaching a message that Judaism specifically and consciously rejected.
And what of other members of our society who may practice Islam, Buddhism, Hinduism or one of the many other religions practiced by millions of people in this nation? What of the nonbelievers, be they atheists or agnostics or just people who follow no religions, even though they may believe in something? Shall we simply ignore those citizens because of the danger inherent in failing to pander to the wishes and the prejudices of the majority.
No ones religious liberty is in any way diminished when government remains neutral on the subject of religion. However, the rights of conscience of many citizens are threatened when any government agency takes an active roleno matter how innocent or well-intentioned the motivationin the promotion of any religion.
That government displays of the Ten Commandments constitute such promotion is, I think, inarguable.
Does this mean the Ten Commandments are unconstitutional? Obviously not. There is not and should not be anything in the law which prevents any private citizen (or government official for that matter) from displaying the Decalogue at home, or erecting monuments on private property, or displaying them at their church or in their places of business (though I think government offices should be off limits for obvious reasons). Theres nothing in any of this that suggests people may not apply the Ten Commandments in their personal lives and so on.
V. The arguments
A number of arguments have been put forth by those who want to allow government displays of the Ten Commandments.
A. Not religious.
This is perhaps the most surprising claim. Its expressed in different ways by different people.
Appearing before the United States Supreme Court on March 2, 2005, Texas Attorney General Gregg Abbot claimed there was no religious purpose in the display of a monument on the grounds of the Texas Capitol. The granite monument bears the text of the Ten Commandments, along with symbols: an undefined ancient-looking text, an American eagle clutching an American flag, two small stars of David, some Greek letters and a pyramid, reports Allen Pusey of the Dallas Morning News.
Justice David Souter observed, You are left basically with a religious text, surrounded by religious symbols. Its hard to find anything in that but state approval of religious expression. (Souter voted to disallow the Texas display and the two in courthouses in Kentucky.)
Justice Antonin Scalia said, pointedly, If you dont believe that it sends a religious message, youre kidding yourself. (Scalia voted to leave the displays in place. He has no problem mixing religion and government and has said so on many occasions. As long as the religion in question is Christianity, its OK with him.)
The religious character of Ten Commandments displays simply cannot be denied. That some of the people defending such displays attempt to do so demonstrates confusion on their part.
It should be noted that the Supreme Court allowed the Texas monument to continue to be displayed on publicly owned property, notwithstanding its admittedly religious character. The split decision (Justice Stephen Breyer was the swing vote, voting for the Texas monument and against those in Kentucky.) failed to establish any strong precedent one way or the other and appears, to this writer, to have only increased the confusion on this issue.
B. The Ten Commandments are the basis of our nations legal system and, thus, such displays should be permitted.
This argument is often made. Indeed, its one of Scalias claims. However, it seems dubious at best. Apart from the prohibitions against murder and stealing that exist, in one form or another, in virtually every legal code that has ever existed, including some, like the Code of Hammurabi, which predate the Ten Commandments by centuries, it would be a virtual impossibility to pass laws enforcing most of the commandments. Even if one could get them through Congress, most would be struck down as unconstitutional.
Think about it. Enforcing the Ten Commandments would require that:
All Americans worship Yahweh who led the nation of Israel out of Egypt.
All commercial and governmental activity would cease on the Sabbath (the seventh day, Saturday). Christians would lobby for Sunday, but if were going to enforce the rules that are contained in the Ten Commandments, it has to be Saturday. That is the position Judaism takes, and who would know better?
Government would make it illegal to covet anything belonging to anyone else. (Im not exactly sure how such a law would be enforced, but Im confident any attorney general working in the Bush White House could find a way.)
Children who were disrespectful to their parents would be locked up or worse. (Well probably need some tax increases to start building more prisons. Then again, we might be able to privatize the institutions and make contracts with big business to make products for a fee that would cover the cost of the facilities and might even enable us to toss a few bucks to the work force, if convenient.)
Adultery would be a federal crime. (Anyone seriously think this would get through the Congress?)
It would be a federal crime to tell a lie about another person (bear false witness). (Here again, congressional approval seems unlikely.)
So how can anyone claim with a straight face that our laws are based on the Ten Commandments? That so many accept the claim only demonstrates the success of the campaign of disinformation that has been waged by the Religious Right for the past several decades.
A variant of this argument concedes that, for the most part, our laws are based on the English Common Law but claims the English Common Law was based on the Judeo-Christian tradition, which included the Ten Commandments. But besides being a much weaker claim (because it really doesnt offer the commandments as the basis of our law), this is also bad history.
According to Law.com, the English common law is the traditional unwritten law of England, based on custom and usage, which began to develop over a thousand years before the founding of the United States. The best of the pre-Saxon compendiums of the common law was reportedly written by a woman, Queen Martia, wife of a king of a small English kingdom. Together with a book on the law of the monarchy by a Duke of Cornwall, Queen Martia's work was translated into the emerging English language by King Alfred (849-899 A.D.). When William the Conqueror invaded England in 1066, he combined the best of this Anglo-Saxon law with Norman law, which resulted in the English common law, much of which was by custom and precedent rather than by written code. By the 14th century legal decisions and commentaries on the common law began providing precedents for the courts and lawyers to follow. It did not include the so-called law of equity (chancery), which came from the royal power to order or prohibit specific acts. The common law became the basic law of most states due to the Commentaries on the Laws of England, completed by Sir William Blackstone in 1769, which became every American lawyer's bible. Today almost all common law has been enacted into statutes with modern variations by all the states except Louisiana, which is still influenced by the Napoleonic Code. In some states the principles of Common Law are so basic they are applied without reference to statute.
In his letter of Feb. 10, 1814 to Dr. Thomas Cooper, Thomas Jeffersona lawyer by profession and a scholar in his own rightcomments on the relationship between Christianity and the English common law in some detail. He notes that the common law was first brought to England by Anglo-Saxon settlers about one hundred years before the conversion of the first Christian king in about 598 and about two hundred years before the last king on the island had been converted in about 686. During that period the common law already was in place and in practice.
Writing about the period between the introduction of Christianity to the British Isles and the date of the Magna Charta (generally conceded to be the time when the common law was closed and laws were written and adopted, rather than evolving through custom and local judicial decisions as had been the case with the common law) Jefferson observes, But of the laws of this period we have a tolerable collection by Lambard and Wilkins, probably not perfect, but neither very defective; and if any one chooses to build a doctrine on any law of that period, supposed to have been lost, it is incumbent on him to prove it to have existed, and what were its contents. These were so far alterations of the common law, and became themselves a part of it. But none of these adopt Christianity as a part of the common law. If, therefore, from the settlement of the Saxons to the introduction of Christianity, that system of religion could not be a part of the common law, because they were not yet Christians, and if having their laws from that period to the close of the common law, we are all able to find among them no such act of adoption, we may safely affirm (though contradicted by all the judges annd writers on earth) that Christianity neither is, nor ever was a part of the common law. (Jefferson; pp. 1321-1325)
The fact is the common law was based on no Christian tradition. Ecclesiastical law, which would become part of the legal system of England, was separate from the common law, mostly developed on the continent and was imported to England from other places. Ecclesiastical law gained no foothold in Englands American colonies, at least, none that could be sustained once the Revolution began.
So the argument that our system of laws is somehow based on the Ten Commandments also fails as the basis on which to justify the governmental display of the Ten Commandments.
C. The Ten Commandments already are displayed in the Supreme Court. How can it be unconstitutional for other government agencies to display them.
This claim gets made a lot by people who really have no idea what they are talking about. There is an excellent web site devoted to the Supreme Court, that discusses the architecture of the Supreme Court building and all the decoration of it. It describes the friezes, the doors and so on.
The fact of the matter is that there is not a single display in Washington D.C. that is on government-owned land that offers a readable reproduction of the Ten Commandments. Not at the Supreme Court building. Nor, as far as I have been able to determine, anywhere else. There are no monuments like the Texas monument considered by the Supreme Court in 2005 or Alabama Judge Roy Moores notorious monument, which caused such controversy.
Heres what is in place at the Supreme Court building.
On the north and south wall of the courtroom in the Supreme Court building is a frieze depicting the great lawgivers. Included among these figures is a representation of Moses clutching two stone tablets. On one of those tablets portions of commandments six through ten, written in Hebrew, are visible.
However, its important to note that the frieze includes a number of other figures including one of the prophet Mohammed holding a copy of the Quran. Also included are figures of Solon, Lycurgus, King John, Napoleon and so on. Moses is given no position of special importance and the representation is no more an endorsement of the 10 Commandments than it is an endorsement of the holy book of Islam or the Code of Hammurabi.
Moses also is pictured with Solon and Confucius on the eastern pediment of the building. In this tableau, he is seated and is flanked by the other two figures who stand on either side of him. He is holding two blank tablets. The other two figures each hold one. There is nothing written on any of the tablets. Again, no 10 Commandments are visible.
Moses is one of eight people memorialized with medallions in the Great Hall as representing aspects of the development of the law. Hamurrabi is another.
On the inside of the oak door separating the courtroom from the great hall, there is a depiction of two tablets with the Roman numerals one through ten written on them. Again the depiction is out of the wayactually toward the bottom of the door - and there is nothing to indicate the artist intended to give this symbolic Ten Commandments a special prominence or to suggest it had any particular importance.
The bottom line on all of this is that there is nothing in the architecture or decoration of the U.S. Supreme Courts that suggests the Ten Commandments is the foundation of U.S. law or that gives them preeminence over all other influences on American jurisprudence.
D. Even if displaying the Ten Commandments is a kind of endorsement of religion, whats wrong with that? After all, its the religion of the majority. People who dont like it can just look away, cant they.
Sadly, this seems to the be argument that prevailed when the Supreme Court decided to allow the Texas monument to continue to be displayed on public land. Majority opinion in our society has always felt it safe to trivialize the concerns of minorities. As long as the chief objections to such displays are raised by atheists and agnostics or nonbelievers in general, its easy enough to ignore them.
The court has decided that such displays are OK in monument parks where there are other monuments honoring various people and influences on American culture because there is no denying that the Ten Commandments have played a role in the development of that culture. Although it seems less likely, it would not surprise me if the court also allowed stand alone displays for much the same reason and so as to avoid the appearance of hostility toward religion.
Squarely against that view is the proposition that the First Amendment prohibits government endorsement of religion precisely to protect the rights of conscience of all Americans and to ensure that the rights of the majority may not trump the rights of minorities or individuals.
Beyond that, it is clear the rights of conscience are uniquely individual rights. Government, by its very nature, cannot have such rights. Consequently, government, by its very nature, cannot have a religion of any description. When any governmental agency gives the appearance of endorsing a particular religion, it is doing what the establishment clause prohibits and infringing on the very liberty that the free exercise clause protects.
It is not hostility toward religion that leads me to this conclusion. On the contrary, any action by any government agency that promotes one religion over another religion must ultimately work to the detriment of all religion and consequently is the very epitome of hostility. I seek the end of such practices.
Clearly the story of the Ten Commandments is more complicated than is commonly supposed in the popular imagination. What is recorded in the Bible is susceptible to several interpretations. Moreover, there are competing versions of the Ten Commandments in the scriptures and alternative versions are accepted by major religious congregations.
Displays of the Ten Commandments would appear to violate the establishment clause of the First Amendment and to threaten the free exercise clause as well.
The arguments in favor of displaying the Ten Commandments appear to be on very shaky ground, and the weakest may be the one that gets the most weight, even though it is based, in my view, on faulty assumptions.
Once government adopts a religious icon, a religious custom or religious languagewhatever the motivation for so doingit becomes very hard to force a change. Such efforts always become contentious because inevitably the religious memorials in question are those of the majority and any attack on those memorials is perceived by the majority as an attack on their religion itself.
Those who object to such displays find themselves in an uphill fight, battling the weight of public opinion, the pietistic pandering of public officials and the sheer inertia of public bureaucracy in trying to right a wrong that never should have been permitted in the first place.
Most of the monuments to the Ten Commandments, including the one challenged in Texas, were put in place when the Fraternal Order of Eagles offered them at the time Cecil B. DeMilles Ten Commandments was coming out. It was part public relations blitz and part public service as the Eagles said they thought the public display of the Ten Commandments would have a salutary impact on the morality and behavior of young people. Since many religionists today decry the moral inadequacies of our culture, it appears the monuments had no such influence.
Maybe today we should replace all of them with monuments to the Bill of Rights.
Beliefnet: Did the Exodus Really Happen? Rabbi David Wolpe:
High court split on Ten Commandments
King James Bible: http://www.bibles.net/
Judaism 101: http://www.jewfaq.org/10.htm (Tracey R. Rich writes on Judaism from an Orthodox point of view. Rich makes no claim to be a rabbi, just a traditional, observant Jew.)
The Supreme Court of the United States: http://www.supremecourtus.gov/visiting/visiting.html
Commandments not religious? Court says you must be kidding - Allen Pusey, The Dallas Morning News, March 3, 2005
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© 2005 by George A. Ricker