MayerBlog: The Web Log of
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Supreme Nonsense, Part I: The Court and the Ten Commandments
As an example of the modern U.S. Supreme Court’s confused interpretation of the Constitution, conservatives often assert, “The justices give greater protection to pornography than they do to the Ten Commandments.” That statement, or something similar to it, was uttered frequently by conservative commentators last week, when the Court heard oral arguments in a case involving government display of the Ten Commandments and, more or less simultaneously, new Attorney General Alberto Gonzalez announced plans for a Justice Department crackdown on obscene materials. Although conservative critics are right about the Court’s confused interpretation of the Constitution, this particular claim is wrong, for several reasons. First, it conflates together two different constitutional rights protected by the First Amendment: the First Amendment religion clause, which prohibits government “establishment” of religion; and the First Amendment free speech clause, which prohibits government from abridging freedom of speech or the press. Second, the claim just about turns the truth on its head: the Supreme Court, unfortunately, has not given “pornography” free-speech protection – indeed, it has declared that so-called “obscene” works are exempt from the First Amendment’s protections – while the Court has allowed, in particular contexts, government display of religious symbols like the Ten Commandments. The Court indeed has interpreted the First Amendment in perverse ways; but generally, the Court’s erroneous interpretations ought to upset libertarians and left-liberals more than conservatives. To put it another way, the Court has failed to fully protect both religious freedom and freedom of speech – and by so doing, the Court has allowed government to trample individual rights.
The Ten Commandments Myth
As noted above, the U.S. Supreme Court last week heard oral arguments in McCreary County v. ACLU, a case concerning displays of the Ten Commandments on public property. Two such displays are being considered by the Court: in Kentucky, the framed text of the Ten Commandments posted alongside the Declaration of Independence, the Mayflower Compact, the Magna Carta, and other documents as part of a display called “Foundations of American Law and Government,” in two county courthouses; and in Texas, a 6-foot-high granite monument on the grounds of the Texas Capitol in Austin. The questions raised in Wednesday’s oral arguments (especially by Justice Sandra Day O’Connor, who probably will cast the pivotal vote in this case) and the Court’s previous decisions on church-state issues suggest that this decision will turn on the context of the individual displays. Under both the Court’s tests for government establishment of religion – the so-called Lemon test (announced by former Chief Justice Warren Burger in Lemon v. Kurtzman in 1971) and Justice O’Connor’s “endorsement” test (announced in her concurring opinions beginning in the mid-1980s) – the critical question is how the government’s display of the Ten Commandments would be perceived by a reasonable observer. Does it show a sectarian purpose, with the primary effect of advancing religion? (as the Lemon test asks). Does it show government “endorsing” religion? (as Justice O’Connor’s alternative test asks). If so, it is an unconstitutional establishment of religion. If, on the other hand, the display can be seen in a broader context – as the Kentucky courthouse “Foundations” display puts it, or as the Texas Capitol grounds display could be seen if taken in consideration with all the other monuments on the Capitol grounds – then the Court might decide it is not an unconstitutional establishment. In the key 1984 decision of Lynch v. Donnelly, for example, the Court upheld government display of a nativity scene in a public park in Pawtucket, Rhode Island, because it was seen in the context of the Christmas season and was part of a broader display including other secular “holiday” symbols such as Santa’s house and sleigh, reindeer, and candy-striped poles. In the later case of Country of Allegheny v. ACLU the Court upheld the public display of another religious symbol, an 18-foot Hanukkah menorah, along with a Christmas tree, again in the context of the “holiday” season. Displays of the Ten Commandments as part of a larger context dealing with the history of law – such as its display in the frieze carved above the U.S. Supreme Court’s own hall – would be permissible under these tests. That’s especially so with the current Court, with the four more conservative justices (including Chief Justice William Rehnquist) who have been explicitly critical of the Lemon test as not being sufficiently “accommodating” to religion in American public life. If the Court should decide to uphold the display of the Ten Commandments in Kentucky – the decision that most Court-watchers expect – that decision probably would not authorize other government displays of the Commandments. As noted above, the critical question whether a given display constitutes government endorsement of religion depends on the display’s context: display of the Ten Commandments as part of an overall display of the supposed “foundations” of our legal system would be seen as innocuous; while prominent display of the Ten Commandments alone – such as the notorious 2½-ton granite monument ordered to be displayed inside the Alabama Supreme Court building by the state’s Chief Justice Roy Moore – would be prohibited, under the Court’s contextual standards. Indeed, it could be argued that the fanaticism of people like Justice Moore and his supporters by itself shows the unconstitutional purpose motivating their desire to display the Ten Commandments: undoubtedly they are attempting to use the coercive power of government to endorse their particular religion, their particular understanding of the Judeo-Christian religion. Defenders of government display of the Ten Commandments argue that the Commandments have a secular meaning, that they have played a prominent role in America’s founding and in the formation of our laws. Chief Justice Rehnquist wrote in a previous case, “The Ten Commandments have had a significant impact on the development of secular legal codes of the Western World.” And Texas attorney general Greg Abbott, who defended his state’s display of the Ten Commandments monument before the Court last week, has maintained that the Commandments have had “a profound impact on many nonreligious aspects of our culture and history.” These arguments are based on erroneous or naïve views of American history; they are based on myths rather than facts. (Thus, paradoxically, if the Court finds the display in Kentucky to be constitutional, it will be because it’s based on a false reading of history, for the Commandments cannot properly be considered part of the “Foundations of American Law and Government.”) Moreover, these arguments also fail to acknowledge the true nature of the Ten Commandments themselves. The Ten Commandments have no significance in the American legal system; they had virtually nothing to do with the development of our conception of law, and still less to do with our substantive laws – including those laws (such as the prohibitions of murder or theft in our criminal codes) that seem to parallel those in the Decalogue. The English common law – the body of substantive law on which early American law was based – originally derived from the customary laws of the pagan Anglo-Saxons. The Anglo-Saxons had no criminal law, as we understand it; their legal system was based on restitution, or compensation of victims (or victims’ families) for harms done to them by wrongdoers – similar to our modern law of torts – in order to forestall blood feuds. Murder was among those wrongs; its compensation was payment of wergeld (“man-money”), the worth of the victim’s life. After the Anglo-Saxons converted to Christianity, their legal system remained the same; the Anglo-Saxon kings, beginning with Aethelbert of Kent (the first English king to convert to Christianity), promulgated their so-called “dooms,” or laws, which merely codified the existing customs. Even after the Norman Conquest, English law continued to be based on the Anglo-Saxon system of restitution. The first criminal penalties for “murder” concerned an additional payment, or fine (called the murdrum) that was to be paid to the Norman kings of England, but only if a Norman was killed; the penalty did not apply to the killing of a native Englishman. Later, when something like true criminal laws were instituted – including laws that punished as murder the killing of any person – those laws had more to do with the king’s responsibility to keep the peace and to see that justice was done rather than with enforcing Biblical commandments. Indeed, as Thomas Jefferson showed in an essay written in his retirement years, Christianity was no part of the English common law. When we consider the Ten Commandments themselves – something that many of their defenders seem to have failed to do – we can understand further why they are not part of the “Foundations of American Law and Government.” Rather, they are literally foreign to our legal and constitutional system – at best, irrelevant to it; and at worst, inconsistent with it. The Ten Commandments are imbued with religious significance; they are religious doctrine, a key part of the teachings of the Judeo-Christian religious tradition, and specifically the religion of the ancient Israelites as embodied in the Old Testament (Book of Exodus, chapters 20-24). As philosopher George Walsh has pointed out, the Ten Commandments fall into two groups: the last six and the first four. The last six – “honor your father and mother,” “do not commit murder,” “do not commit adultery,” “do not steal,” “do not bear false witness,” and “do not covet what belongs to others” – are supposed to be the ethical base of the Judeo-Christian tradition, but their content is not unique to that tradition, for similar moral principles and the values lying behind them “have been shared by many ethical and legal systems and by many other societies,” as Professor Walsh notes. (The specific formulation of these rules, however, is uniquely part of the Judeo-Christian religion and is, in fact, the subject of some controversy, depending on one’s translation of the Old Testament text. Catholics and Protestants have different versions of the “do not covet” injunction, for example – something that’s been overlooked in the constitutional analysis and which may pose problems for one part of the Lemon test, which forbids government “entanglement” with religion: if the government displays the Commandments’ text, which version – Catholic or Protestant – should be used?) Nevertheless, as Professor Walsh adds, there is a critical difference between these six prohibitions in the Ten Commandments and similar rules in other moral or legal codes: the Commandments are absolute. “They contain no provisions for exceptions. There are no situations in which it is permitted not to honor one’s father and mother, for example.” Also, they do not distinguish between lawful killing (in one’s self-defense, for example) and unlawful killing, or murder; the commandment is absolute, “thou shalt not kill.” (In this particular regard, they’re totally unlike the substantive content of Anglo-American criminal law.) “These commandments are given in the form that Immanuel Kant was later to call `apodictic.’ It means `unyielding,’ `unconditional,’ `absolutely necessary,’ `in the form of absolute, categorical imperatives.’ Other moral codes contain provisos for special situations or for mitigations; these commandments do not. Now, why do they have this absolute form? Because they are revealed. Because the nature of the revealer is hidden from the scrutiny of reason, and because the revealer refuses to entertain any questions as to the premises behind the commandments or any of his actions. His answer is always, `Because I say so.’” (George Walsh, The Role of Religion in History (1998), p. 109.) The other group of commandments, the first four of the Ten Commandments, clearly show their authoritarian nature and clearly pertain to a particular religion, that of the ancient Jews. “I am Yahweh your God. You shall have no other gods before me.” “You shall not make a carved image of me or any natural object, or bow down to such an image, for I, Yahweh your God, am a jealous God.” “You shall not use my name lightly.” “You shall not do any work on the seventh day, the Sabbath.” As Professor Walsh notes, “these commandments are unique to the Judaic tradition”: “They deal with attitudes and actions to be taken up by those who accept the last six commandments – attitudes toward the revealer of the commandments, Yahweh. First, Yahweh is to be the only object of reverence. He openly states that he is jealous. Secondly, he is not to be represented as having any form. Now `form’ is what you can scrutinize with your senses or examine by your reason. `Form’ means `identity,’ but Yahweh is beyond form, beyond identity, beyond identification. If you ask him what he is, he answers, `I am inscrutable.’ Now, all nature has form. Yahweh is therefore beyond all nature, beyond the universe. Just as `apodictic’ is the correct word for his commands, so `transcendent’ and `inscrutible’ are the correct words for his nature. Transcendent: he is hidden, he is beyond our scrutiny. Thirdly, his name must not be used lightly. Later the Jews elaborated this commandment as to prohibit the very pronunciation of the name `Yahweh.’ There is a prohibition of perceiving Yahweh. There is a prohibition of framing a concept of him, and finally a prohibition of naming him. . . . Finally, there is the consecration of a special day to Yahweh, a day on which man’s productive activities must come to a complete halt, in order to acknowledge the fact that Yahweh is the supreme creator.” (Walsh, The Role of Religion in History, pp. 109-110.) The authoritarianism of the Ten Commandments, and not just their overtly religious content, is totally contrary to the American conception of law. Law is not to be based on religious beliefs, whether biblical Scriptures or any other authoritarian source. The law – which is to say, the rules prescribing human conduct and enforceable by the coercive power of government, its unique power legitimately to use force – is derived from “the consent of the governed,” as our founding document, the Declaration of Independence, states. Indeed, the Constitution itself owes is legitimacy to “the consent of the governed,” its ratification by the American people (that is, by the people of the several states that comprise the United States). In no way can an honest historian of American law – that is, one who is not advancing a particular political/religious agenda, as many conservative Christian scholars do – say that the Ten Commandments, or other specific teachings within the Judeo-Christian tradition, are truly part of the “Foundations of American Law and Government.” America’s Founding Fathers included many Christians, to be sure; but many of them were not Christians in the traditional sense but were rather deists, believers in God as the Creator who acts through nature rather than against it. Importantly, when Thomas Jefferson wrote the Declaration of Independence, speaking for the members of the First Continental Congress and basing their case for American independence on the surest possible ground, he chose the scientific thought of the 18th-century Enlightenment tradition, “the laws of nature and of nature’s god,” and based individual rights not on revealed religion but on the “self-evident” truths of logical reasoning. (Note that in his original draft of the Declaration, Jefferson followed his usual practice of not even capitalizing the word god.) When certain religious conservatives claim that America was founded on Christian principles simply because the Declaration includes the word god, they are ignoring context and fundamentally misunderstanding the history and principles of this country’s founding. (For more on this, hear my lecture “The Declaration of Independence as a Philosophical and Literary Document,” available on audio cassettes from The Objectivist Center, at www.objectivismstore.com .) Considering the real content of the Ten Commandments – the peculiar understanding of law and even of God that they proscribe – it should be clear that, by themselves, the Commandments are contrary to one of America’s fundamental constitutional principles, freedom of religion. The core idea behind the First Amendment’s religion clause – both its protection of an individual’s “free exercise” rights and its prohibition of government “establishment” – is that religion is a private matter, a matter of an individual’s own conscience, over which government simply has no business. That’s what Jefferson meant when he described the First Amendment religion clause as erecting “a wall of separation between church and state,” and that’s what the Supreme Court tried to recognize when it endorsed Jefferson’s conception and applied it in cases involving government aid to parochial schools and other church-state issues. If the justices of the Supreme Court were truly to decide this issue according to first principles of American constitutional law, they would find that government display of the Ten Commandments, in any context, is an unconstitutional endorsement of religion and thus prohibited by the Constitution. But don’t hold your breath waiting for the Court to consistently follow first principles. It seems that a majority of the justices on the Court, like conservative defenders of government display of religious symbols like the Ten Commandments, really do want the government to endorse religious belief, notwithstanding the Constitution’s prohibition. The myth of the Ten Commandments provides a convenient rationale for them to indulge in their subjective preferences – and to give the sanction of law to their private religious beliefs.
In the second part of this essay, to be posted next week, I’ll discuss one of the major flaws in the Supreme Court’s interpretation of the First Amendment free speech clause: its so-called “obscenity” exception, under which the Court has declared that “obscene” materials – in other words, erotic materials or “pornography” – are not protected by the First Amendment. As we’ll see, that doctrine flies in the face of the explicit language of the Amendment and is logically untenable. There should be no such exception to First Amendment protection: freedom of speech should cover all forms of expression, including sexually explicit materials that some people may find offensive. For the Court to exempt some materials from First Amendment protection – and thus to allow government to suppress certain forms of free expression – is in fact a form of judicial activism, an abuse of the Court’s judicial review power. I’ll also discuss another example of judicial activism, another abuse of the Court’s power: its decision last week that the Constitution forbids execution of persons under 18. As I’ll argue, it’s not the class of persons supposedly protected by the Court’s decision, but the majority decision itself, that’s juvenile.
| Link to this Entry | Posted Monday, March 7, 2005 | Copyright David N. Mayer |
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