March 17, 2005
Moses Goes to Washington
Jerome Eric Copulsky and Michael Jon Kessler
Two weeks ago, the Supreme Court heard arguments in a potentially explosive set of cases that will determine whether the Ten Commandments can be displayed in or around government buildings. At issue will be whether the displays constitute a government endorsement of religion or simply a recognition of the role that the Ten Commandments have played in American legal history.
Proponents of the public display of this code claim that it stands at the basis of the American legal order; its placement in or near American courts is thus a legitimate recognition of religion's role in the formation of our law. Yet the founding legal document of our nation, the Constitution of the United States, mentions neither the Commandments nor God. Rather, it clearly stipulates that the nation's legal framework expresses the will of "We the People." When, in the First Amendment, the Constitution mentions religion, it does so only in order to limit government's control over religion -- by forbidding the establishment of religion or the regulation of its exercise.
Those who advocate such public displays nonetheless maintain that the deeply religious attitude of the Founders can be observed in other places. They rightfully point out that the Declaration of Independence makes a number of references to the deity. The Declaration, however, does not maintain that God has handed Americans their laws; rather, it states that "all men are created equal, that they are endowed by their Creator with certain unalienable Rights," and that this is "self-evident." That is, the Declaration holds that we know by natural reason that we have rights; it is not necessary to receive a historical revelation to know that God has endowed all people with them. Human beings may derive their rights from God, but humans are charged with the task of establishing governments, and this process grounds the legal legitimacy of those rights.
It is clear that the founding documents of our government support an understanding of legislation and political legitimacy quite different from that supposed by the Ten Commandments and the Bible. The Declaration of Independence and the Constitution endorse a political order based upon human freedom such that we can govern ourselves. The Ten Commandments, however, are divinely ordained mandates. Rather than being the foundation of our democratic political order, they represent a very different -- and possibly incompatible -- way of thinking about authority and law. So it is far from clear that the Ten Commandments are "the fundamental legal code of the Western Civilization and the Common Law of the United States." Supporters of the displays simply assert that the claim "that the Ten Commandments influenced American law and government can hardly be questioned" (McCreary County, Kentucky v. ACLU of Kentucky). But such assertions do not constitute evidence.
For the most part, the supporters do not regard the weakness of their position as a problem. Their strategy is to downplay the explicitly religious message of the Commandments. The displays, they argue, represent the government's "acknowledgement" of the Ten Commandments' role in the development of our legal system, and as such are not an endorsement of their particular religious principles or commitments. These displays therefore have a clear secular purpose that falls within the accepted interpretation of the First Amendment.
However, to argue that a public display of the Ten Commandments can serve a merely secular purpose is to undercut their sanctity. It is to ignore the very reason people regard them as sacred and want them displayed -- and read and lived by. The Ten Commandments are not exhibited simply to provide a history lesson to those who have business with the court. Justice Antonin Scalia recognized this during oral arguments, when he chastised the lawyer defending the displays: "You're watering it down to say the only message is a secular message. I can't agree with you. 'Our laws come from God.' If you don't believe it sends that message, you're kidding yourself." Justice Scalia didn't stop there. The Ten Commandments, he claimed, are "a symbol of the fact that government Š derives its authority from God," and therefore "an appropriate symbol to be on State grounds."
If Justice Scalia really maintains these views, then the Commandments ought to be displayed on account of their immanent religious message, not as a history lesson, for they make a claim regarding how government derives its very authority. Justice Scalia has also held -- in a statement regarding the death penalty -- that government's moral authority ultimately rests on God (and, by implication, not on the people), citing Romans 13 as his proof-text. If that is the case, however, Justice Scalia might want to amend the Preamble to the Constitution to reflect this, as the purpose and structure of a divinely ordained government would be much different than our political tradition.
But at least Justice Scalia is forthright. Many religious groups who argue for an "acknowledgement" of the Ten Commandments do so with a backdoor strategy: they claim that their sacred text has secular meaning as a historical document. But does not such a "vain" secularization of this sacred text transgress, not only the proper basis of our legal system, but the Commandments themselves?
Jerome Eric Copulsky is Assistant Professor of Judaic Studies at Virginia Tech. Michael Jon Kessler is Assistant Dean in the College at Georgetown University.