Is American Law Based on the Ten Commandments?
Today, when the nation's attention is focused once again on the question of Ten Commandments monuments and displays on government property, it is important for secular Americans to remind themselves and their fellow citizens of the historical facts concerning our nation's secular founding. Goaded by pro-establishment interest groups such as the ironically named WallBuilders, and fueled further by misguided fears of some Christians that their religion is "under attack," legal and historical revisionism on this issue runs rampant in both alternative and popular media. The effect of this revisionism is to sustain existing policies respecting an establishment of religion, as well as to introduce new cracks into the wall of separation between church and state. In the face of these assaults on the truth, and on an essential Constitutional principle, secularists must continue to set the record straight.
Defenders of government supported Ten Commandments displays cite the supposed importance of these scriptures in the legal founding of this country as a basis for continuing them. The First Amendment, they argue, was never meant to exclude government acknowledgement of the special role that these laws of Jewish and Christian faith played in our legal origins. Tony Perkins of the Family Research Council says that government displaying of Ten Commandments monuments "recognizes the significant historical contribution made to America and the foundation the Ten Commandments have served to our legal system." Jeremy Tedesco asserts that "American law and the Ten Commandments are inextricably associated." If this claim were true, then we should expect to find clear evidence of this inextricable association in our founding documents. Can any such evidence be found?
The Declaration of Independence is often cited in support of the claim that our government is based on religious faith. In response to such citations, it is important to first point out that, while the Declaration is a seminal American document proclaiming principles of liberty that we cherish to this day, it is not a part of United States law. Our current law begins with the Constitution, not the Declaration. The Declaration was ratified by the Continental Congress, which was a transitional body consisting of delegates (not elected representatives) from the colonial governments. Unlike the Constitution, it was not ratified by the United States Congress. It was a document of grievance and separation from Britain, not a piece of legislation.
In response to this, Ten Commandments establishmentarians might counter that the Declaration does give us clues for the religious basis that the Founders had in mind when they authored and ratified the Constitution. A cursory glance at the Declaration might seem to give some credence to this view. After all, it makes explicit mention of God several times, just like the Commandments. The entitlement of the people of the United States to be independent and separate from Britain is said to derive from God. According to the Declaration, "all Men are created equal" and "endowed by their Creator with certain inalienable Rights." The signers appeal to the "Supreme Judge of the World for the Rectitude of [their] Intentions." Can't these appeals to divine authority in declaring legal separation from Britain be interpreted as an implicit recognition of the very first legal dictates handed down by God?
Not by a long shot. While the Declaration contends that rights and liberties are granted by God, the Commandments do not grant liberties, but are restrictive in nature. They are a collection of rules concerning what you should or shouldn't do, without any mention of any sort of entitlement of people to "Life, Liberty and the Pursuit of Happiness." The first four commandments, as listed in Exodus 20:1-17, restrict religious practice by dictating the manner of worship. Commandments 5, 7 and 10 (honor your parents, don't commit adultery and don't covet) variously restrict personal autonomy, personal relationships, freedom of speech, and even freedom of thought, depending on how they are interpreted. Commandments 6, 8 and 9 (don't murder, don't steal and don't bear false witness) come closest to being declarations of rights, since they could be seen as providing protections of a person's right to life and property, and one form of protection from wrongful conviction. However, there is nothing revolutionary or unique in these three commandments, since they represent legal standards that precede the Ten Commandments, and which have been embraced by cultures around the world, quite apart from any biblical faith. Furthermore, none of these commandments are framed in such a way as to clearly grant rights, and the very notion of self-determination is antithetical to them. The Commandments are rules handed down by God, not the divinely granted rights mentioned in the Declaration. The legal system of the Old Testament derived its power from the supposed revelations of God, and the people governed by these laws simply had to submit. There was no question of consenting. In stark contrast, the political theory set forth in the Declaration asserts that governments derive "their just Powers from the Consent of the Governed."
The Declaration appeals to no written revelation in making its general affirmation of the rights of a nation and its citizens to self-determination. It does not mention the Ten Commandments, nor the other dictates that--with the Ten Commandments--comprise the body of Old Testament law, nor the Bible, nor any other scripture. It does, however, appeal to "the Laws of Nature and Nature's God" as sources of entitlement to rights. Such language does not find its origin in biblical faith, but in the faith of Deists, for whom nature is the only revelation. Then, as now, adherents to Christianity constituted the majority of Americans. However, Deism was a faith that was very influential among the intellectuals of Revolutionary America. Thomas Paine, a prominent propagandist for the Revolution, was also a very public advocate of Deism (and critic of Christianity and other "revealed" religions). Benjamin Franklin, while nominally a Presbyterian, was a Deist. George Washington, though a member of the Anglican church, chose not to receive communion, nor did he ever mention Jesus Christ in any of his writings. John Adams, counted himself a Deist, and denied the Trinity. Deist Thomas Jefferson even had the temerity to tamper with "revealed" scripture by compiling a version of the gospels that deleted anything that he considered to be contaminated by error or miraculous fables. Jefferson's version of the life of Christ begins with his birth, making no mention of his supposed virgin conception, and ends with his burial, without proceeding to the stories of his resurrection and ascension.
A survey of the writings and practices of these and other Founders will reveal a great spectrum of beliefs along the axis between Christianity and Deism. With such a variegated mixture of faiths represented by the Founders, and with many of the sentiments of Deism finding expression even among those who called themselves Christians, it is not surprising at all that the Deity mentioned in the Declaration is referred to as "Nature's God," and that there is no reference to Jesus Christ, the Trinity, or written revelation. The consensus of the colonies' representatives would have been jeopardized if the Declaration had made appeals to any specific doctrines of biblical or Christian faith, which is why it makes none. Yet Jefferson, the primary author of the Declaration, does manage to slip in a characteristically Deistic reference to God.
Any attempt to draw a connection between the Ten Commandments and the Declaration of Independence is thoroughly invalidated by the vastly different political theories that each document represents. However, a clear connection with Deism can be made. Three of the five members of its drafting committee were known Deists (Adams, Franklin and Jefferson). The primary author of the Declaration was also arguably the strongest advocate of Deism on the committee. If any religion can claim a special status as the inspiration for the Declaration, it is surely the religion of Nature's God, and not either of the revealed religions of Moses.
Does this mean that we should tear down the Ten Commandments monuments that are displayed prominently on government land and in our courtrooms and put in their place affirmations of Deism and Nature's God? Surely, if it were legitimate for government to treat Judeo-Christian monuments preferentially in a nation whose founding document was inspired by biblical laws, then it would be just as legitimate for government to treat Deistic monuments preferentially, since Deism, more than any other religion, inspired the authorship of the Declaration of Independence. Perhaps we could have verses from Jefferson's demythologized Bible carved into stone and given a place of special prominence on the people's land. Or perhaps excerpts from Thomas Paine's Age of Reason could be written onto tablets and hung in courtrooms. We could then defend such displays against Christian protestors, saying that, no matter how much they don't like the historical facts, it was Deism that played the most important role in our nation's founding. These massive blocks of stone, we could argue, are simply an acknowledgment of the special role that Deism and Deists played in building our government. If anyone objects to this, we could just dismiss them by paraphrasing Justice Anthony Kennedy, responding that "there is this obsessive concern over any mention of Deism, that shows a hostility toward Deism ... If a Christian walks by this monument, he can just avert his eyes."
Christians, Jews and other non-Deists would of course be justified in objecting to such preferential treatment by government of a religion. So too are those Americans now bringing suit in objection to preferential treatment that governments in the United States are giving to Ten Commandments displays on public land. The religious language used in the Declaration of Independence in no way sets precedent that overrides the plain prohibition of government establishment of religion written into the most important founding legal document of the United States. While the Declaration of Independence affirmed that we would no longer be governed by the British, the Constitution established how we would govern ourselves. If the Declaration of Independence provides next to no support for our government's preferential treatment of Ten Commandments monuments on public lands, there is even less to be found in the Constitution.
The Preamble of the Constitution shows some early promise for defenders of religious preference, since it does contain some religious-sounding language. The Framers speak of securing "the Blessings of Liberty." However, it is significant that the blessings are described as flowing from liberty, rather than from God. Whether liberty itself is of God is not specified. Presumably, the Framers would rather leave that question to the individual, abstaining from proffering their own views on the matter, unlike in the Declaration. The blessings of God, or the divine origin of rights are not appealed to here. Instead, the first three words of the Preamble echo that portion of the Declaration that describes the power of government as deriving from the consent of the governed. While the Ten Commandments begin with "I am the Lord thy God," the Constitution begins with a powerful statement in favor of human self-determination: "We the People ..."
Unlike the Declaration, the Constitution does not even mention God at all. That is, unless you count the manner in which the year of signing was dated: "in the Year of our Lord." But this is merely a dating convention equivalent to present-day use of "A.D." for the Latin "Anno Domini," of which "in the Year of our Lord" is a translation. It owes its use to the admitted cultural preponderance of Christianity. It is still used today around the world, by Christians and non-Christians alike, and can no more signify an affirmation of faith than can our use of "March" or "Thursday" signify our worship of Mars or Thor. Even if its use by the Founders were an affirmation of faith on their part, it holds no legislative weight, and can in no way indicate an intention to give legal preference to Christianity. Ten Commandments establishmentarians will have to search elsewhere for their support. But the fact is, that is the strongest support they can ever hope to find in the Constitution.
Not only is God not mentioned in the Constitution, there is no mention of the Bible, Moses or the Ten Commandments. If the Ten Commandments are the basis for American law, it is peculiar that they bear no mention in the most important founding legal document of our nation. Are we to believe that the Framers--though they valued the Decalogue highly as the sacred source from which all earthly legislation flows--decided not to incorporate any portion of it into the law of the new nation for which so many had given their lives? Were they so careless in laying the foundations of their new government that they failed to even mention or acknowledge the divine cornerstone of that foundation?
Some might try to argue that the culture of America at the time was so saturated with biblical faith that the Founders simply took it for granted that Christianity provided the overriding legal context for American law (with Judaism claiming a secondary position, redeemed partially for its acceptance of the "Old" Testament). But this assumption is disproved by the Deistic and unbiblical beliefs of many of the most prominent Founders. It also does not give enough credit to the Framers' knowledge of history and law. They knew of governments around the world and through history that had establishments of religion, and knew that such establishment was enshrined in the written legal codes of such governments. Even in America, nine of the thirteen colonies had set up their own religious establishments, which they had made explicit, and not simply assumed or taken for granted. The Framers knew that there was religious diversity in their land, not just between different types of Protestant Christians (who constituted the majority of Americans), but also between Protestants, Catholics, Deists, Jews, Muslims and atheists. If they had intended to base their new government on the legal code of a religion, or to establish a national religion, or to give preferential treatment to certain religious beliefs over others, then they would have done so by writing it into the law. But they did not.
In fact, they wrote such things out of the law. They specified in Article VI that "no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States." The oath or affirmation for the office of the Presidency in Article II says simply: "I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States." There is no "so help me God," nor is a Bible required for the swearing in ceremony. The President is even given the option of affirming, if his or her beliefs preclude swearing.
But the most important piece of Constitutional evidence against Ten Commandments establishmentarians is found in the first clause of the First Amendment of the Constitution. This clause definitively demonstrates that our law is independent of the Ten Commandments and all other religious legal codes. It reads: "Congress shall make no law respecting an establishment of religion." This clause alone prevents the United States government from ever passing laws based on the first four commandments, which tell us to have no gods but the Lord, not to worship idols, not to blaspheme, and to keep the Sabbath holy. If Congress tried to incorporate those commandments into our laws, it would be an establishment of religion. How can our law be based on the Ten Commandments if a single clause of the Constitution wipes almost half of those commandments out of contention for inclusion in our law? The second clause of the First Amendment also outlaws any inclusion of the first four commandments in our legal code, since that clause protects our rights to free exercise of religion. If we were forced by the government to worship a certain way, as the first four commandments tell us to, then our rights to free exercise would be violated.
This is not to say that most of the Founders (even the Deists) did not have reverence for the Ten Commandments, or recognize them as important rules with which to govern their own lives. That so many of the Founders did revere and follow the Ten Commandments, yet still chose to disestablish these and other religious doctrines from our national government with the First Amendment, indicates their respect for liberty of conscience--even of minorities. Such restraint and respect should serve as an example for religious majoritarians of today, who seek to enshrine government preference for their doctrines by staking out exclusive places of prominence on government lands for monuments to those doctrines.
The Founders were complex and fallible. They quite often contradicted--in word or deed--the consensus and noble intent expressed in our nation's founding documents. They spoke of the equality of all men, and their rights to liberty, yet they denied such equality and freedom to women, those who did not own land, slaves, and Native Americans. A similar self-contradiction is found in their attitudes toward religious establishments, since even after the First Amendment was added to our Constitution, establishments of religion and violations of the right to free exercise persisted in the states. And although the clause against establishment of religion made taxation for religious purposes illegal, this did not stop the First Congress from establishing a taxpayer supported chaplaincy to open their sessions with religious invocations. The inertia of majority opinion and past acceptance of establishment of religion persists, resulting in the religion clauses of the First Amendment being violated to this day. Paradoxically, this history of violations has been cited as support for continued violations, such as in the case of Marsh v. Chambers, in which the Supreme Court ruled that taxpayer supported chaplaincies in state legislatures do not violate the Establishment Clause.
It is possible that the Supreme Court will take a similar tack today, citing the presence of the Ten Commandments in federal monuments as support for state governments who maintain similar endorsements of religious doctrine written in stone. It is also possible that they will attempt to appeal to the "fabric of society," or the sentiments of the majority, in defense of the practice. All such reasoning is grounded in error, and opposes the principle written into the law, which plainly prohibits all establishments of religion, be they large or small, and regardless of precedent or majority sentiment. But any reasoning based on the supposed basis of our law in the Ten Commandments will not only find itself in conflict with this principle of liberty, but will find itself in conflict with the facts of history. Our laws are of human origin, and not handed down by God. Our laws do not simply prescribe and prohibit behavior--they guarantee equality and rights. And the authority of our laws is grounded in the consent of the governed, rather than the divine demands made by any religion or revelation.
Defenders of government preference for Ten Commandments displays are free to live by those commandments, and to display them publicly using their own resources, and to make permanent displays on their own land. They are even free to display their doctrines on government property, as long as people with other religious opinions are given equal access to do likewise. What is prohibited by the right interpretation of American law, however, is government's preferential treatment of religious displays, as is the case with the Texas and Kentucky displays currently being challenged. These challenges are not an attack against religion, history, freedom of speech, or religious liberty, as many Ten Commandments establishmentarians would have us believe, rather they are a defense against the violation of a Constitutional principle. All of these rights can be fully protected only if that principle is upheld, and this can only happen if governments end the preference given the Mosaic Decalogue, and instead recognize their duty to protect the Constitutional Decalogue: our Bill of Rights. And this political recognition of that duty will only come to full fruition through the informed and unrelenting advocacy and activism of American secularists.
 Tony Perkins, "FRC Welcomes Supreme Court Hearing on Ten Commandments," Family Research Council press release, (October 12, 2004).
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