The Ten Commandments and American Law:
Why Some Christians' Claims to Legal Hegemony Are Not Consistent with the Historical Record

By MARCI HAMILTON
hamilton02@aol.com
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Thursday, Sep. 11, 2003

When Alabama Supreme Court Chief Justice Roy Moore's 2.5-ton sculpture of the Ten Commandments was wheeled out of the courthouse, the furies of hegemonic Christianity were unleashed. Supporters protested, Moore spoke passionately, and commentators echoed the notion that the Ten Commandments are the sole source of American law and therefore never should have been removed.

As a Christian, an American, and a scholar, I found the whole thing embarrassing. First, it was such a transparent attempt by Christians to regain power over a country that has become the most pluralistic religious culture in world history.

Second, I was appalled that Americans - including television personalities who have a responsibility to their audience to do their homework - could be so uninformed about the history of our legal system, and its many and diverse sources.

Third, we proved once more to the world community that as a nation, we have the most abysmal knowledge of history. Worse, this laughable claim about legal history was repeated over and over as plain truth.

The primary problem with the claim that the Ten Commandments are the sole source of American law is that the facts simply do not support it. To the contrary, there are many, varied sources for American law. At most, some elements of the Ten Commandments play a supporting role.

The Ten Commandments: Their Text

It is easy to say American law rests on the Ten Commandments when one selectively remembers their content, but not so easy when one re-reads them. I will use the King James Bible version, since the Protestants who are asserting the right to have the Commandments displayed and promoted by the government would be most familiar with this version.

They begin: "And God spake all these words, saying,"

1.Thou shalt have no other gods before me.

2.Thou shalt not make unto thee any graven image, or any likeness of anything that is in heaven above, or that is in the earth beneath, or that is in the water under the earth . . . .

3.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.

4.Remember the sabbath day, to keep it holy. Six days shalt thou labour, and do all they work: 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 they maidservant, nor they cattle, nor thy stranger that is within thy gates.

5.Honour they father and they mother: that they days may be long upon the land which the Lord they God giveth thee.

6.Thou shalt not kill.

7.Thou shalt not commit adultery.

8.Thou shalt not steal.

9.Thou shalt not bear false witness against they neighbor.

10.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.

The First Four Commandments: Why They Cannot Constitutionally Be Made Law

Even a quick reading of the Ten Commandments demonstrates how strained is the claim that American law derives exclusively from them.

Early laws in the United States against blasphemy and heresy might be derived from the first three Commandments read together. But those laws long since have been held to be unconstitutional, and rightly so. Were the first three Commandments law, they would bump up against the most important fundamental right in the Constitution: the absolute right to believe whatever one chooses that derives from the First Amendment's Free Exercise and Free Speech Clauses.

James Madison, leader of the Constitutional Convention and drafter of the First Amendment, explained it as follows: "The Religion then of every man must be left to the conviction and conscience of every man; and it is the right of every man to exercise it as these may dictate."

The Supreme Court, in a widely admired opinion, West Virginia Board of Education v. Barnette, affirmed the same principle. There, it memorably declared: "If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion . . . ." The Barnette rule captures what is best, and even miraculous, about American constitutionalism--its strong and broad support for a meaningful freedom of conscience to believe whatever moves one's soul.

Thus, were the first four commandments enacted into law today, they would constitute plain constitutional violations. It is an exceedingly strange, and strained, argument that argues the primacy of the Ten Commandments as the true American source of law when the first four simply cannot be enacted into law, because they would conflict with our Constitution. The first four prove that the Commandments are religious rules, not civil law. So as a starting point, only the latter six could possibly be nominees as possible sources of our governing laws.

The Latter Six Commandments: Hardly the Sole Source of American Law

Moreover, two of the remaining six can be immediately ruled out. Number Five--honor one's mother and father--is not a legal rule, but rather a moral imperative. So is Number Seven, the prohibition on cheating on one's spouse.

Of course, in modern times, adultery is legally relevant as a ground for divorce. But allowing adultery to be such a ground is hardly the same as incorporating a direct prohibition against adultery into law. To the contrary, if tested by the Supreme Court, a direct criminal prohibition against adultery would likely be struck down as unconstitutional, whereas the Court would have no problem in recognizing adultery as a factor towards dissolving a union that was based on fidelity.

Similarly, the Tenth Commandment's ban on coveting - including coveting thy neighbor's wife - might play a role in a divorce proceeding, but not in a criminal case. Indeed, under the First Amendment, we are generally free to want what we like, and say that we want it, as long as we do not illegally take it, or - if what we covet is a person - resort to stalking or sexual harassment.

That leaves the prohibitions in Commandments Six, Eight, and Nine: They command us not to kill, steal, or lie. Even these are not reflected in our law in their entirety.

Granted, the ban on lying does appear as a legal rule in some contexts - for instance, a misrepresentation can be the basis for fraud. But many lies are not legally regulated. Thus, perjury is illegal, but telling your best friend you love her new, disastrous hairdo is not.

In the civil context, a lie that does not cause damage (and fulfill other requirements as well) cannot be the basis for a tort suit. In the criminal context, not all lies are perjury: Only lies under oath; lies to the government are also criminalized, but only in some circumstances.

That leaves us with only two commandments that are somewhat accurately echoed in current law: the rule against murder, and the rule against stealing. And even the rule against murder is not exactly the same as the Commandment: We recognize exceptions, such as self-defense, that the Commandment simply does not.

Moreover, it is impossible to attribute the continuing force of these laws solely to their Ten Commandments' origin. And that origin is not unique: There is no civilized country that has not settled upon these two principles.

In any event, focus on the Commandments themselves also leads one to forget the enormous complexity of American law. The laws controlling shareholders or the environment can only be attributed to the most labyrinthine reasoning.

A Quick Tour Through the Historical Record

The claim that the Ten Commandments are the foundational source of American law defies history. Of course, there is simply no way to cover the many sources of the many aspects of American law in a column (or even in a book or encyclopedia). In fact, the sources are legion and cannot be traced back to any single origin or tradition. Here is a quick tour, an introduction.

The written law was founded first--to the best of anyone's knowledge--in the Code of Hammurabi, the sixth ruler of the First Dynasty of Babylon, who ruled from 1792-1750 B.C.. Hammurabi's code was lengthy and detailed, though not comprehensive. While an actual copy of the Code itself did not appear in modern times until an excavation in 1902, the existence of such a code was known before then and is considered by scholars to be the precursor in important respects to Jewish or Hebrew law. Indeed, the Ten Commandments echo some of the rules that appear in Hammurabi's Code.

Roughly one thousand years later, the Ten Commandments appeared. Interestingly, over the centuries, many Christians have claimed that the Ten Commandments did not govern their conduct, because they were given dispensation from the Commandments through Christ--a claim that severely undermines the notion that the Ten Commandments were always considered by Christians to be the supreme and foundational law. Others have embraced the Ten Commandments as part of the history of Christianity. Now some claim that they are the sole source of the secular law that binds everyone in secular law. Such turnarounds are not uncommon in history, but they are impossible to know if one does not know any history!

The Magna Carta, which forced the British King John to give up many rights to the aristocracy, was first set down in 1215 A.D. It was the first declaration that the people's ruler was under the law, the first check on royal power, and it introduced nascent concepts of due process, jury by one's peers, freedom of religion, and no taxation without representation.

Other monarchs agreed to future Magna Cartas, and it came to be considered central to the law of England. Even though it took a back seat during the 1500s, it was re-discovered and embraced in the 1600s to fight the tyranny of the Stuarts. Parliament used it as a wedge against the monarchs, in effect, creating the beginnings of the separation of powers we now take for granted. It is common knowledge that the principles of the Magna Carta were carried across the Atlantic to the New World and the colonies, and bore fruit in the United States Constitution and state laws.

The most recent copy was recently installed with much pomp and circumstance in a handsome display in Philadelphia's Independence Visitors' Center. There is no question that the Magna Carta--which was the first written declaration of rights by landowners against the monarchy--was a strong influence on later rights declarations, including the Declaration of Independence and the Bill of Rights.

The vast majority of American law, including the rules against killing and stealing, was borrowed in whole or in part from the British common law--which itself was viewed either as rising from natural law or from custom, not from the Ten Commandments.

The Founders and the Framers Adamantly Did Not Intend to Make the Ten Commandments Law

Thomas Jefferson specifically railed against attempts to claim that the common law incorporated the Ten Commandments when he criticized judges for "lay[ing] the yoke of their own opinions on the necks of others by declaring that [the Ten Commandments] make a part of the law of the land." John Adams also questioned the influence of the Commandments and the Sermon on the Mount on the legal system.

At the Constitutional Convention, the Framers looked to the examples of antiquity--the Greeks and the Romans - and not to the Ten Commandments. They were a pragmatic lot, and they were not interested in being bound by their religious heritage (despite today's claims to the contrary). Rather, they were searching for virtually any idea--from virtually any source--that would work to create a better government than the failure produced by the Articles of Confederation.

Those Framers who were well educated had studied antiquity and the classics in depth (unlike the vast majority of Americans today, even those who are college educated). Thus, they were perfectly comfortable borrowing and adapting whatever suited their purposes. It would be a huge overstatement to say that they felt themselves constrained by the four corners of the Bible in finding the right government, or setting up the ultimate law that would rule the U.S.

The sources that influenced the Framers ranged from Greek and Roman law, to John Locke, to Scottish Common Sense philosophers, to Grotius. The influence of the Common Sensists was quite evident in the Framers' strong belief in the power of reason--not revelation or Biblical passages--to determine government. They were also influenced by the dominant religion of the time--Calvinism--in the sense that their world view was rooted in distrust of any human who holds power. And this list is only a beginning.

Meanwhile, the very tenor of the times was distrustful of organized religion, and especially stakeholder claims to truth by religious individuals. Madison declared, in his Memorial and Remonstrance of 1785, "experience witnesseth that ecclesiastical establishments, instead of maintaining purity and efficacy of Religion, have had a contrary operation. During almost fifteen centuries, the legal establishment of Christianity has been on trial. What have been its fruits? More or less in all places, pride and indolence in the Clergy, ignorance and servility in the laity, in both, superstition, bigotry and persecution."

And when Benjamin Franklin presented the draft Constitution to the Congress, he declared: "Most men indeed as well as most sects in Religion, think themselves in possession of all truth, and that wherever others differ from that it is so far error. Steele[,] a Protestant[,] in a Dedication tells the Pope, that the only difference between our Churches in their opinions of the certainty of their doctrines is, the Church of Rome is infallible and the Church of England is never in the wrong. But though many private persons think almost as highly of their own infallibility as to that of their sect, few express it so naturally as a certain French lady, who in a dispute with her sister, said "I don't know how it happens, Sister but I meet with no body but myself, that's always in the right . . . ."

Why the Pro-Ten-Commandments Statue Forces Are Misguided

Were Franklin speaking today, one might be mightily suspicious he was speaking of Justice Moore, who placed a plaque on his Ten Commandments monument that said "Laws Of Nature And Of Nature's God."

No rational Hindu, Buddhist, Muslim, atheist, or agnostic--each of whom's beliefs are equally and fully constitutionally protected--could rationally expect justice in those halls. As Madison warned, "Who does not see that the same authority which can establish Christianity, in exclusion of all other religions, may establish with the same ease any particular sect of Christians, in exclusion of all other Sects?"

It is important to distinguish the public square from public buildings. Christians have been making the argument at least since Stephen Carter published The Culture of Disbelief in 1993 that they have been pushed out of the public square. What this current debate shows is that they have been prohibited from using public buildings or settings for their religious messages, not from speaking in the public square.

Christians have no shortage of access to the public square, which is where free speech and public debate take place. The Constitution strongly and equally protects their free exercise of religion, and their right not to have any religion established as part of our federal or state governments. And there are numerous legitimate and effective places for that very free exercise and free speech, other than a courthouse designed to offer justice to all, irrespective of race, creed, or religion. That is what a town square or a public park is all about.

If Justice Moore (in his private and plainclothes capacity, without his judicial robes and title) mounted his 10 Commandments statue on wheels today and wheeled it around the country, he'd have 24/7 coverage and apparently plenty of people trailing along. All citizens have the right to proselytize, preach, and promote their religion to their hearts' content. What they do not have is the right to use the government's might and power in the service of their beliefs.

Nevertheless, the drive in Alabama to get the Ten Commandments into a government building, as opposed to the public square, continues. Alabama's Governor Riley on Tuesday announced a "historical display in the old Supreme Court library" of the State Capitol. The collection includes the Ten Commandments, the Magna Carta, the Mayflower Compact, and the Declaration of Independence.

Attorney General Bill Pryor assisted the Governor, saying that he hoped that "Alabamians will visit our State Capitol to learn more about the development of the rule of law." There is also an "accompanying book with the texts of these legal documents."

This is a step in the right direction, to be sure - a step towards acknowledging the many and diverse sources of American law. Still, the display emphasizes the narrowness of Americans' historical horizons. When it comes to legal and religious history, Americans have proven themselves to be woefully ignorant. How else could such untruth about the Ten Commandments' status as an influence on our law be so widely and uncritically repeated and accepted?


Marci Hamilton is the Paul R. Verkuil Chair in Public Law at Benjamin N. Cardozo School of Law, Yeshiva University. Her columns on church-state issues can be found in the archive of her columns on this website. Her email is hamilton02@aol.com.

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