Sunday, February 20, 2005

The Ten Commandments and the Civil Law:

Next month the Supreme Court will hear the Ten Commandments case and I'll be following it very carefully. Even though I'm a committed libertarian secularist, my mind isn't completely made up; although, I'm leaning towards the conclusion that the manner in which the Commandments were displayed was unconstitutional (even though not all Ten Commandments displays on public property ought to be considered unconstitutional; it depends on the context).

Certain pro-display arguments might convince me: for instance the argument that a display of the Decalogue is not an "establishment" of religion any more than the public display of text of the Koran, the book of Mormon or the Bhagavad Gita would be.

But it does pro-display forces no good to argue their case with dumb, historically inaccurate arguments that completely misunderstand and misrepresent the founding principles of this nation.

And this, according to the ACLU's brief, is exactly what the Counties which have erected the displays have done. They claim “the Ten Commandments as the precedent legal code upon which the civil and criminal codes of the Commonwealth of Kentucky are founded . . .” and that there is an “inseparable connection between the ethical conduct of that legislative body and the Christian principles which permeate our society and its institutions[.]" They also claimed, citing the Holy Trinity decision, that Supreme Court had “never . . . overruled, limited or even questioned” its holding “as a matter of law, fact and history that America is a ‘Christian nation.’"

Uh, maybe they'd want to check out the Supreme Court's First Amendment jurisprudence over the past 50 years or so.

The fact is the Ten Commandments were an historical legal code -- for the Old Testament Jews. And for much of Western History, Christendom did indeed incorporate the Decalogue into its civil code. And this resulted in theocratic tyranny, exactly the type of thing that we rebelled against when we Declared our Independence in 1776.

For instance, examine exactly what the Ten Commandments say and then ask how we might derive a "civil norm" from each. In the First, the God of the Hebrew scriptures forbids worship of any other God but He. David Barton, a shining star of the religious right and propagator of the "Christian Nation" theory, in an affidavit supporting the public display of the Decalogue, proudly gives us examples of colonial civil laws, dating back hundreds of years before the Founding, based upon the First Commandment (and other parts of the Bible) that give the DEATH PENALTY for worshipping "any other god but the Lord God."

This is quite frankly the antithesis of the theory of religious liberty that founds our nation. Also laughable is the attempt to draw some kind of connection between the Ten Commandments and the Declaration of Independence, as the Counties did when they claimed that "The Ten Commandments provide the moral background of the Declaration of Independence and the foundation of our legal tradition." If anything, the Declaration and the Decalogue need to be reconciled with one another.

For instance, the theory of religious liberty that founds this nation is part-and-parcel of the natural law of the Declaration of Independence, which many people regard as the organic law of the United States. According to such theory all men -- even those who would worship no God or twenty Gods -- in the words of Jefferson and Madison, have unalienable Free and Equal Rights of Conscience and hence the right to worship openly as they please. This is the polar opposite of those colonial civil codes, based on the Ten Commandments, that demand the Death Penalty for worshiping "False Gods."

Reconciling the theology of Ten Commandments with the philosophy of the Declaration of Independence:

On the one hand we have a Jealous, Duty-Demanding, God of Scripture who forbids the worship of False Gods, and on the other a Rights-Granting God of Nature who endows men with the unalienable right to openly worship no God or False Gods. Perhaps Nature's God is the God of the Bible; but if He is, then orthodox Christians must rethink what is appropriate civil policy. And the only way to reconcile the concept of Nature's God and the Biblical God regarding the Ten Commandments and the civil law is to conclude that the majority of the Commandments, perhaps all but three or four, properly ought to have NOTHING to do with our civil laws, but rather are relegated to the sphere of private conviction and conscience -- the Law of Man's Heart, not the Civil Law.

This, it seems to me, is a far cry from categorizing the Decalogue "as the precedent legal code upon which the civil and criminal codes...are founded."

And although the ACLU may or may not be wrong on the ultimate question of the constitutionality of the display, they are irrefutably correct when they assert that

History does not support the displays’ assertion that the Ten Commandments provide the foundation of our legal system. On the contrary, the clear historical record is that the Decalogue, while it (like other ancient moral codes) informed our notions of right and wrong, played virtually no role in the drafting or adoption of our nation’s founding documents. Nor are the parallels between three Commandments and secular law proof of causation, for those bans on killing, stealing and perjury are universal and existed in English law since before the English were Christianized. Moreover, the Declaration of Independence and the Decalogue address distinct concepts – one, the relation of individuals to a deity and each other, the other, the relation of individuals to government. There is no facial or historical link between the two and the displays themselves offer no evidence to support the Counties’ bald assertion that the Decalogue provided the “moral background” for the Declaration.

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