Thou shall not tell fibs about the foundations of American law

June 25, 2005

Guest Post by Morbo

The Supreme Court is expected to hand down two rulings on Monday dealing with government displays of the Ten Commandments.

Based on what I have read about the oral arguments in these cases, I’m not optimistic that the justices will strike down the displays — one from Texas and one from Kentucky — as violations of separation of church and state. They should, but unfortunately the high court is getting lax on upholding Thomas Jefferson’s church-state wall these days.

There’s another reason why these displays are inappropriate, one that has less to do with constitutional law and more to do with historical accuracy. The claim is often made that the Ten Commandments are the basis of U.S. law. This assertion is frequently tossed out by fundamentalists as a type of rhetorical trump card, but it isn’t true. Displaying the Commandments in courthouses creates the impression that it is true and thus fosters ignorance about the real origins of American law.

A group of legal historians filed a friend-of-the-court brief with the Supreme Court debunking the claim that U.S. law is based on the Ten Commandments. It’s well worth a read, and, oddly enough, is available online at the website of Liberty Counsel, the Religious Right legal group that is defending the McCreary County, Ky., display.

But you don’t have to take the legal historians’ word for it. You can read the Ten Commandments for yourself and see that they are not the foundation of our laws. Indeed most of them have no reflection in American law.

We’ll take a look at each one, but first a few caveats. Number one, this post is not a new idea. I’ve seen columns in newspapers and online parsing the Ten Commandments and making the argument I am undertaking right now. But some of you might have missed it and for those who did not, it never hurts to hear it again. Two, I am aware that different versions of the Ten Commandments exist. Since it’s mainly Protestant fundamentalists who back these government displays, I will use the Protestant version in this post.

Let’s get started.

I. I am the Lord your God. You shall have no other gods before me. It’s not illegal to worship other gods. The First Amendment guarantees us the right to worship one god, five gods, 500 gods or no god at all. Puritan Massachusetts took it upon itself to use the power of the state to regulate the individual’s relationship with the deity. That all ended with the Bill of Rights.

II. You shall not make graven images. Says who? Not the government. I can make all of the graven images I want. I can bow down to a golden calf. I can worship a tree. I can carve huge idols out of stone blocks and sacrifice virgins to them. (Well, maybe not that last part.)

III. You shall not take the name of the Lord in vain. If this refers to swearing, I suppose there may be some antiquated statutes out there that ban it, but let’s get serious. No one is going to put you in jail because you uttered a blasphemous oath after stubbing your toe.

IV. Remember the Sabbath and keep it holy. Not any more. “Blue laws” have faded away in most states. Now we get up early on Sunday morning and shop ’til we drop. It’s the American way!

V. Honor your mother and father. Generally speaking, this is a good idea — but no laws require it. You can dis mom and pop all day long. (As an aside, I’ve often wondered if you have to keep this commandment if your parents were jerks. What if they beat you? Are you still required to honor them?)

VI. You shall not kill. OK, the fundamentalists get this one. If “kill” refers to “murder,” then the law does ban that act. However, this has been a rule for as long as people have been trying to live together in organized societies. I suspect people knew murder was wrong long before Moses came back from the mountain.

VII. You shall not commit adultery. Some states used to have laws on the books penalizing adultery; a few may still be around. They are rarely enforced these days. If they were, nearly half of the married population would be in prison, if the sex researchers are to be believed.

VIII. You shall not steal. Gotta give them this one too. Stealing is definitely a crime. However, like murder, people have probably known that for a long time.

IX. You shall not bear false witness against your neighbor. I find this one kind of vague. Lying is not good policy under most conditions, but it’s only illegal when done under oath in a courtroom. If all lies were illegal, George W. Bush would have been locked up a long time ago. (Hmmm, maybe we should make the Ten Commandments the basis of our laws.)

X. You shall not covet your neighbor’s house, your neighbor’s wife, your neighbor’s ass or anything that is your neighbors. “Covet” simply means “long for in a jealous manner.” In other words, don’t be envious of your neighbor’s hot spouse, big ranch, shiny SUV and all of that other cool stuff. I hate to break it to the fundies, but lusting for your neighbor’s goods is not illegal. In fact, some would say it is to be encouraged. In many ways, it forms the basis for the modern consumer state. Your neighbor gets a boat, so you go out and buy a bigger boat. That’ll show him.

So, out of ten Commandments, one could plausibly argue that two or three (if we want to be generous and give them lying under oath) are reflected in U.S. law. Some basis that is.

Re the First Commandmant: the Bill of Rights actually didn’t put an end to anything because the First Amendment initially only applied to the federal government. Several states retained taxpayer-supported churches into the nineteenth century, and the Supreme Court didn’t begin to apply Jefferson’s wall of separation to state and local governments until the 1950s — well within the memory of some of today’s theocrats and dominionists.

  • According to most fundamentalists, “You shall not covet your neighbor’s ass” probably refers to homosexuality 🙂

    Clueless.

  • I’ve said it before. They should call them the
    Five Commandments because Bush Inc. have already
    repealed the ones about false gods, bearing
    false witness, lusting for your neighbor’s goods,
    stealing your neighbors goods, and then killing
    your neighbor.

  • I’m all for compromise. If they want to post the 2 Commandments to public places, let them.

  • If the Court allows the displays, the very first thing I plan to do is erect a shrine to Bhudda in my local park. Let them stick that in their bongs and smoke it.

  • I again want to propose a NATIONAL HOLIDAY, January 16, the date in 1786 when James Madison got the General Assembly of Virginia to accept Thomas Jefferson’s (1777) “Act for Establishing Religious Freedom“. This later formed the basis of our Constitutional clauses on religion. It is what has kept us from the bloodbaths and cruelty engendered historically, and in much of world still, in the name of religion.

    Here are a few relevant quotes from Jefferson:

    Christianity neither is, nor ever was a part of the common law.
    -letter to Dr. Thomas Cooper, February 10, 1814

    In every country and in every age, the priest has been hostile to liberty. He is always in alliance with the despot, abetting his abuses in return for protection to his own.
    -letter to Horatio G. Spafford, March 17, 181

    But it does me no injury for my neighbor to say there are twenty gods or no God. It neither picks my pocket nor breaks my leg.
    -1782

    Question with boldness even the existence of a god; because if there be one he must approve of the homage of reason more than that of blindfolded fear.
    -Letter to Peter Carr, August 10, 1787

    I wish the Bush-backers would ponder that last one. Apart from the idiocy of condemning us for being “reality based”, they have a very twisted notion of what the word “Christian” implies.

  • Marblex has the best response though I really like Jim B’s! Perhaps a combination of the two? A general, national airing of the five commandments Bush has broken, and a demand to our various local authorities that they create Muslim, Buddhist and other monuments in our public places?

    I’m serious. Pressure them right up to the Supreme Court. Because the problem with putting the Ten Commandments in the courthouses is not really, as Carpetbagger suggests, the triumph of ignorance over historical accuracy (though it is that) but rather that it is a nefarious effort of Christian Corporations to make the Ten Commandments (and thus Christianity) the accepted law of the land. Which, of course, is wholly unacceptable!

  • while certainly the substance of the ten commandments are not, by and large, reflected in american law, the underlying legal philosophy very likely did influence american jurisprudence. in contrast to most other legal codes in the ancient near east, the ten commandments did not explicitly stem from the leader of the city-state over which the rules were to apply (i.e. the word of the king is the law). these ten commandments were understood to exist prior to and separate from the ruler, therefore even the king would be subject to the same legal limitations as his subjects (a point lost on the bush administration).

    what the christian right wants us to forget is that the founding fathers were extending this moral reasoning one step further, creating rules and rights which not only existed separate from the ruler’s wishes, but existed separate from christianity, as well.

  • Didn’t Tom Paine, in The Age of Reason, say that any person with a modicum of wisdom could come up with whatever morality there is in the bible? After all, being nice to your neighbors is good not because God said so, but for the very practical reason that it gives them no reason to beat the shit out of you.

    What Paine couldn’t understand was the fact that God was pleased to break–or encourage his people to break–every single one of his commandments. Even adultery! (You know, knocking up the Virgin Mary and all.)

    What I’m saying is that there is a hell of a lot of danger in playing up the bible as the basis for our system of law. One can find justification for anything, even genocide and raping young girls, there. We see it with the amoral actions of the Jimmy Swaggartses, Jim Joneses, David Koreshes, et al.

  • I think atheists better form an antireligion so that if this absurdity is passed we can create our own monuments and demand that they be put in public places. Maybe an elaborate display of all the trappings normally associated with the Christian God, culminating in a throne with angels flying adoringly around it, but the throne itself being empty.

    Fun post, Morbo, reminding me of a similar comment I’d offered recently on some blog (this one?), but using the Catholic version. Not to be redundant, but here it is for the sake of a slightly different take:

    In addition to the not coveting absurdity (2 of them, by the way, in the Catholic version), just what business does the government have promoting this kind of policy:

    I: I am the lord thy god, thou shalt have no other gods before me
    II: Thou shalt not take the name of the lord thy god (see #1) in vain.
    III: Remember to keep holy the lord’s (see #1) day.

    These first three clearly have no place whatsoever in civil life or law, notwithstanding Sunday closing laws, an anachronism which surely the fundie wingnuts would reinstate, probably claiming that our founding fathers intended it. Would we also be jailed for saying god or Jesus as an exclamation?

    IV: Honor thy father and thy mother

    Hmm. Who’ll be the judge of that?

    Okay, I can get behind #5 (thou shalt not kill, for all you heathens out there—I’m doing this from memory, though, so I could be mistaken), as could anybody with a lick of sense, religious or not.

    VI: Thou shalt not commit adultery

    Oh, this is a rich one. How about we start by jailing every rightwing nutjob who’s cheated on his wife. The list would be virtually endless, we’d have to liberate all the pot smokers just to make room. Come to think of it, where’s the commandment that says “Thou shalt not smoke pot?”

    VII: Thou shalt not steal

    Perhaps we could kick off the enforcement of this one with Halliburton, then proceed down the endless line which would include Ken Lay and all your other favorites. And let’s not forget Fearless Leader himself, who’s still leading the charge to impoverish our children and grandchildren in manifold dastardly ways.

    VIII: Thou shalt not lie

    This one’s easy: Line up the entire Bush administration (yes, you too, Mr. Rove, you’re at the head of the line) and march them all into the slammer. Again, we have to build more jails.

    As for nine and ten, the coveting business, there’s one there about coveting thy neighbor’s ass. Given the recent stories about antiabortion zealot Horsley and his mule girlfriend, not to mention Dr. Hager’s buggering of his narcoleptic wife, those seemingly nonpertinent commandments take on a whole new dimension.

    Bottom line: It should be clear to anybody with half a brain that our Constitution is hardly based on the ten commandments, or that our Founding Fathers intended it to be that way. It’s also abundantly clear that if we were to elevate them to the status of actual law, we’d have to build enough jails to imprison virtually the entire US population, most certainly including most of the leaders of the theocracy movement. So explain to me again why we should have these posted in our public places.

  • When a Dominionist says that the Ten Commandments “are” the basis for law, he’s also saying that the Ten Commandments “should” be the basis of U.S. law.

    He wants Christianity privileged in U.S. law: Commandment I

    He wants a prohibition on blasphemy and profanity: Commandment III [I understand you can now be fined $500,000 for saying “shit” on broadcast TV. No kidding, a cool half million — talk about inhibiting political discourse, how can you even begin to describe Bush policies?).

    “Blue Laws”? Bring ’em on say the Dominionists

    “Honor thy Father and Mother” — That’s the basis for their opposition to Social Security — again, I kid you not.

    So, you think, maybe 3, apply, and they think all but, maybe, two apply.

    Oh, by the way, I believe the application of the Bill of Rights to the States, barring, for example, States from establishing churches, depends on a Supreme Court doctrine, called incorporation, regarding the 14th Amendment. The hard right, from which Bush promises to choose his Supreme Court nominees, wants the 14th Amendment to be a dead letter — in fact they want the whole Constitution to be a dead letter, impotent to enforce any edict, which goes beyond practical conditions at the end of the 18th century.

    “Adultery” — absolutely they want to bring back felony adultery, and felony sodomy and felony fornication, too.

    “Bearing false witness against thy neighbor” is the one commandment, which is uncharacteristically narrow in its scope; contrary to popular belief, it does not cover a broad variety of lies, disceptions or misrepresentations.

  • Mr. Fribble,

    The Bible is loaded with this stuff. Here are a few specific examples. In Judges 19 a guy offers his virgin daughter and his house-guest’s concubine to the men of the village to be gang-raped; then when he finds what’s left of the exhausted concubine on his doorstep the next morning, he slices her up into 12 pieces and scatters them around Israel. He wasn’t punished in any way, so I guess it was part of Intelligent Design.

    In (a href=”http://www.ac.wwu.edu/~stephan/webstuff/bible/lot.html”>Genesis 19 Lot, asked to share a young man with the men of the village, instead offers them his two virgin daughters (can’t offend his house guest). Later on, after the Intelligent Designer destroys civilization, Lot manages to have sex with and impregnate both of his daughters. And the Intelligent Designer saw that it was good.

    The head of Seattle’s Discovery Institute, which came up with all the current Intelligent Design nonsense, Bruce Chapman, was head of Reagan’s US Census Bureau 1981-3. Makes you wonder how he could do that job, knowing that the Intelligent Designer was downright hostile toward the business of census-taking. In 1 Chronicles 21:1-14 King David decides to take the first census. Yahweh objects. David does it anyway. So in reprisal Yahweh slaughters 70,000 men of Israel, thus causing an immediate 8-1/2 percent undercount. David, apparently, could care less; he was too busy having sex with Jonathon (see 1 Samuel 18-20 and 2 Samuel 1:26).

    But these are mere frivolities, of course. People magazine tidbits. The real sins include providing Biblical justification for Slavery, Oppression of Women, Raping the Environment, Smiting your Enemies – i.e., Bush administration policies.

  • >>the ten commandments did not explicitly stem from the leader of the city-state over which the rules were to apply (i.e. the word of the king is the law). these ten commandments were understood to exist prior to and separate from the ruler, therefore even the king would be subject to the same legal limitations as his subjects

    The English legal system, upon which ours is based, consisted of three types of courts – law (which involved property, tort, and other disputes that involve a remedy or questions of “guilt or innocence” – this is the stuff whereby the rights of the king vis-a-vis his subjects, and the rights of the people were adjudicated), equity, (which involved non-criminal and non-remedy type legal issues – think bankruptcy, adoption, and bureaucratic-type issues), and ecclesiastical (which involved the church and religious issues). The Founders deliberatly included law and equity in the Constitution – they slso deliberately and specifically excluded ecclesiastical courts and iisues from the Constitution and our legal system. So much for the ten commandments as being any “source” for our laws or our legal system.

    Part of the problem is that we have a substantial portion of the population who spend a significant amount of their time each week, each month, each year studying all about an ancient non-democratic non-Constitutional civiilization, while bothering to expend precious little of their time learning about their own. When “reigious” people keep their kids at home to home-school them, do you really think civics, never mind legal history of jurisprudence is taught? Yet because these people know their bible, we expected to accomodate their comparative ignorance and rewrite history to conform to their limited worldview.

  • Ed,
    You gotta go see the Landover Baptist Church parody sight…it’s a riot!

    This article title from over there says it all: “Tampons–the devil’s little cotton fingers?” I’m not kidding!!

    But everything there’s biblically justified in a strictly legalistic sense, which is exactly why nobody should want a theocracy unless they are ready for a padded cell.

  • “Thou shall not bear false witness” means “you shall not commit perjury”.

    They (we) definitely get this one. Social lying, even political lying, don’t count. Get a guy under oath, however, and he burns in hell for lying.

  • The commandment against coveting thy neighbor’s house has some new relevance considering the recent Supreme Court decision on Imminent Domain allowing cities to do just that. The one about stealing might also apply.

  • Thanks for the link to the brief by legal historians
    on the essentially irrelevant role the Ten Commandments
    has had on our Constitution and laws. It’s a welcome
    addition to my separation-of-church-and-state document
    collection.

  • Putting the 10 commandments on public property is foolish. Say someone is found guilty by a judge that has the 10 commandments tacked up on the courtroom wall. The defense later finds out that the judge was an adulterer or didn’t attend church or hadn’t called his Mother in weeks would that be grounds for appeal? If a judge overtly uses the 10 commandments in carrying out his public official duties then he/she must be held to those standards. If they fired a weapon in war time then is that a prima face evidence for breaking the “Thou Shalt Not Kill” commandment? If they are fond of saying “goddammitt” should they be barred from the bench?

    Having said that there is one quote from a great Rabbi that should be etched over every courthouse door, “Judge Not Lest Ye Be Judged”.

    It’s odd that bible thumpers latch onto the 10 commandments, which strangely don’t mention judgement while this handy little piece of advice goes unused.

  • A little late, I know, but I have to add – this post is a perfect example of how official displays of the Ten Commandments cannot help but exclude people.

    I was reading the list, and only got two commandments down when everything got all mixed up – you split the first commandment in two! Your numbering got all fouled up, and didn’t catch up until the very end!

    You’d have to take the fact-denying fanaticism to a truly bizarre degree to deny that the English Common Law system was pretty much in place for centuries before the Reformation. If this was about historical monuments, then all of those monuments would go up and they’d follow the Catholic version.**

    Historical monument, my ass. This is about finding new ways to deny legitimacy to your fellow citizens, and everyone knows it.

    (** You know, I’d almost kind of like to see the courts rule that way, just to watch some Dominionist heads explode.)

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