Ten Commandments Monuments and American Law
By Paul Finkelman
I. Can a Ten Commandments Monument Be Neutral?
There are at least five common versions of the ordering of the Ten Commandments: Jewish, Catholic, Orthodox Christian, Lutheran, and general Protestant. These faiths, and various denominations within these faiths, use different translations of the Commandments. Thus, no monument can be “neutral” or “non-sectarian,” because any ordering of the Commandments or translation of the original Hebrew text will reflect the position of one or more faiths and exclude that of other faiths. An analysis of the Biblical text and the use of that text by Jews, Catholics, Lutherans, and most other Protestants illustrates the impossibility of a neutral or non-sectarian monument.
The Ten Commandments Text
The Ten Commandments texts used on the public displays are from Exodus: 20. These displays rely on a translation of the original Hebrew into English. There is no such thing as a “neutral” or “non-sectarian” translation of this text. More importantly, major faiths differ in how the organize the text in ten different commandments.
Numbering the Commandments
While most Americans probably believe that the Ten Commandments are a universally accepted list of ten “dos and don’ts,” this is emphatically not the case. There are in fact at least 13 separate admonitions in the “ten” commandments to “do” something or “not do” something. There are also a number of threats from God directed at those who do not obey these commandments. Different faiths divide these verses in different ways. Those faiths that accept the Ten Commandments do not agree on the numbering of the commandments, the content of each commandment, the translation of the commandments, or even their meaning. Jews, Catholics, Lutherans, other Protestants have different numbering systems for the Commandments themselves.
The problem of numbering the Commandments undermines any claim to “neutrality” in a Ten Commandments monument. The numbering system is a significant part of religious doctrine for all biblically based faiths. Any Ten Commandments monument must ultimately choose one numbering system or organization for the Commandments, and by doing so, it will endorse one faith and of course reject, or exclude, other faiths.
For Jews the First Commandment is an affirmative statement: “I the Lord am your God who brought you out of the land of Egypt, the house of bondage[.]” For Jews this sentence stands alone as a statement of faith that in itself is a Commandment. It is a statement, of course, that can only apply to Jews, as they are the people who were “brought . . . out of the land of Egypt[.]” No Christians adopt this verse as a Commandment. Most Protestants do not consider this to be part of the Ten Commandments. Rather, it is for them simply a prefatory statement. Catholics, Orthodox Christians, and Lutherans incorporate this sentence into their First Commandment, but it does not stand alone. Thus, there are at least four versions of “the First Commandment” – Jewish, Protestant, Orthodox, and Catholic/Lutheran.
The Second Commandment is equally complicated. For Jews, this Commandment contains verses 3-6 of Exodus 20, beginning with the words: “You shall have no other gods beside Me,” and continuing with verses 4-6. Verse 4 declares: “You shall not make for yourself a sculptured image, or any likeness of what is in the heavens above, or on the earth below, or in the waters under the earth.” For Protestants, the Second Commandment contains only verses 4-6, beginning with “Thou shalt not make unto thee any graven image, or any likeness of any thing that is in heaven above, or that is in the earth beneath, or that is in the water under the earth[.]” Thus, the Protestant First and Second Commandments form the entirety of the Second Commandment for Jews.
Catholics and Lutherans, on the other hand, consider their First Commandment to include everything that is the Jewish First and Second Commandments, as well as everything that is in the Protestant First and Second Commandment. Thus, their First Commandment contains all of verses 2-6, although verse 2 is seen as a preamble, rather than as a theological assertion. Catholics translate Verse 4 of this commandment as “You shall not carve idols for yourselves in the shape of anything in the sky above or on the earth below or in the waters beneath the earth.”
The most obvious substantive difference in these numbering schemes concerns the emphasis on sculptured or graven images. The prohibition on “graven images” stands alone as the Second Commandment for Protestants, which reflects ideological and theological aspects of the Protestant reformation in most of Europe. Jews, Catholics, and Lutherans, do not make this provision a separate commandment. Catholics also reject the language of “graven image.” Thus, monuments or displays – such as the one in Haskell County – that have as the Second Commandment a prohibition on graven images are distinctly Protestant and should be seen an endorsement of mainstream Protestant theology, and rejection the faith of Jews, Catholics, and Lutherans.
The fact that Jews, mainstream Protestants, Catholics, Lutherans, and Orthodox Christians have different First and Second Commandments, leads to a different numbering system throughout the rest of the commandments. Jews, Protestants, and Orthodox Christians finish their Second Commandment at the same place, with a ban on “sculptured” or “graven” images, a ban on bowing down or serving such sculptures, and an admonition to “keep my commandments.” These three faiths have the same numbering system for Commandments three through ten, but not the same translations. As already noted, the First Commandment for Roman Catholics and Lutherans contains the verses that make up the first two Jewish and Protestant commandments. For the remaining commandments, Roman Catholics and Lutherans are essentially one commandment behind Jews and Protestants. For example, the Seventh Commandment for Catholics is a prohibition on stealing, while for Protestants and Jews the Seventh Commandment is a prohibition on adultery. An admonition from a Catholic to “remember the Seventh Commandment” [don’t steal] would have a very different meaning for a Protestant or a Jew [don’t commit adultery].
Thus, it is impossible to have a theologically “neutral” version of the Ten Commandments. Any monument that contains the Ten Commandments must choose among a variety of numbering systems, and in doing so endorse one religion over others.
Translating the Commandments
It is also impossible to have a “neutral” or “nondenominational” English version of the Ten Commandments. Any translation of the original Hebrew text requires a complex set of decisions that are influenced by religious belief and theology. For example, The King James Version of the Bible translates Exodus 20:4 as, “Thou shalt not make unto thee any graven image, or any likeness of any thing that is in heaven above, or that is in the earth beneath, or that is in the water under the earth[.]” The Catholic New American Bible, however, translates this as, “You shall not carve idols for yourselves in the shape of anything in the sky above or on the earth below or in the waters beneath the earth.” The Catholic translation to “not carve idols” is substantively different from the Protestant King James Bible translation not to make “any graven images” found on the monuments and displays in Kentucky, Texas, and Haskell County.
These differences are of course theological. The Protestant reformation made it a point to destroy statues in Catholic churches and cathedrals, as the Reformationists turned these buildings into Protestant churches. The Catholic Church, however, retained statues of saints, the Virgin Mary, and Jesus. Thus, the Catholic Church’s translation reflects theology and practice, as well as perhaps a goal to provide the “true” meaning of the Commandment, rather than a word-for-word translation.
Another translation problem comes in Exodus 20:13. The King James Version of the Bible translates the verse as “Thou shalt not kill.” The Revised Standard Version modernizes the “Thou” to “You,” translating the line into “You shall not kill,” as do American Catholic Bibles, such as The New American Bible. Jewish Bibles, following well accepted Jewish theological traditions and careful scholarly attention to the original Hebrew, translate this line as “You shall not murder.” Some modern Protestant translations, such as the New Revised Standard Bible and, also use the term “murder” instead of “kill.”
There is a clear legal difference between to “kill” and to “murder,” and this difference has had, and continues to have, important theological implications. Quakers and Mennonites, for example, in part base their pacifism on the grounds that “killing” violates the Ten Commandments. One Jewish commentary notes that “only unauthorized homicide is meant by the text, and the older translation ‘You shall not kill’ was too general and did not represent the more specific meaning” of the original Hebrew. The point here is not whether one translations is correct or not, but rather to illustrate how the choosing of one word – kill – rather than another word – murder – indicates that Ten Commandments displays, like the one in Haskell County, have, in effect, endorsed one religious and theological tradition and rejected another.
Similarly, the King James Version uses the words: “Thou shalt not take the name of the Lord thy God in vain” (Ex. 20:7). Other Bibles have a very different text. Jewish translations offer this text: “You shall not swear falsely by the name of the Lord your God.” The Living Bible translates this as: “You shall not use the name of Jehovah your God irreverently, nor use it to swear to a falsehood.” The Jehovah’s Witness text is: “You must not take up the name of Jehovah your God in a worthless way[.]” The International Children’s Bible simply states: “You must not use the name of the Lord your God thoughtlessly.” Catholic translations for this verse are inconsistent. The Jerusalem Bible translates it as “You shall not utter the name of Yahweh your God to misuse it,” while the authorized translation for English Catholics is “Thou shalt not take the name of the Lord thy God lightly on thy lips.” As with other verses, different faiths and denominations, using various translations of the Bible, offer different texts, which often contain different meanings. Again, these translation differences underscore the sectarian nature – the preferentialism – of Ten Commandments monuments.
Any translation of the Commandments is heavily connected to theology, religious practice, and denominational needs. This once again underscores that any monument with a translation of the Ten Commandments would involve privileging one faith’s translation over another. Thus, it should be clear that a Ten Commandments monument on government property would in fact be an endorsement of one faith and a rejection of other faiths. There can be no “neutral” display of the Ten Commandments. When the government puts up a Ten Commandments monument, it in effect endorses one or more faiths and rejects others.
Non-Judeo/Christian Religions and the Ten Commandments
For an increasing number of Americans the Ten Commandments have no religious significance. Buddhists, Hindus, Janes Toaists, Sikhs, Moslems do not accept the Pentateuch as a central text of their faith. For them the Ten Commandments are not the foundation of their religion or their law. Indeed, the Ten Commandments were not meant for them.
The Ten Commandments were given to the ancient Israelites by their God and were initially directed to them. Exodus 20 begins, “I am the Lord your God who brought you out of the land of Egypt, out of the house of slavery.” This is a statement from the God of the Israelites to the Israelite people. “Implicit in this biblical view is that God is Isreal’s king, hence its legislator.” The Commandments that followed were theologically directed to the people of Israel. Christians later adopted the Commandments because, as one theological scholar notes, “Christians interpret the Old Testament in light of the New Testament” and “the prologue invokes not only the exodus narrative but also the story of the cross. For Christians, therefore, the prologue also says in effect, “I am the LORD our God, who was incarnate in Jesus Christ, born in a manger, died on a cross for you. So remember who you are and act accordingly.”
Thus, while the Ten Commandments speak directly to Jews, and indirectly to Christians, they have no relevance to people who are not of these faiths. Supporters of Ten Commandments monuments argue that even if people do not accept the Bible, the Commandments themselves are a set of universal truths that can apply to people of all faiths. But, this is clearly not true.
The First Commandment for Jews is “I am the Lord your God who brought you out of the land of Egypt, out of the house of slavery.” This Commandment is hardly universal, it is in fact very specific and applies to Jews and only Jews. The Protestant first commandment – “You shall have no other Gods before me” – is obviously inapplicable to Hindus, Janists, or Sikhs who worship many Gods, Confucians who have deified Confucius, or Buddhists, who have a non-theistic concept of God. The ban on graven images, the second commandment for Protestants and part of the first commandment for Catholics (as a ban on idols), would make no sense to Hindus, Buddhists, Janists, Confucians, Sikhs, or Shintoists. Similarly, it is hard to imagine how any of the followers of these faiths would find it wrong to take the name of the Israelite God in vain. None of these faiths even have a concept of a Sabbath, so followers surely could not be expected to “remember the Sabbath to keep it holy.”
Followers of these faiths may have very different notions of some of the other commandments. There is no evidence that all faiths condemn envy, which is the essential command of the Jewish and Protestant Tenth Commandment (and the Catholic and Lutheran Ninth and Tenth Commandments). Notions of adultery vary, from culture to culture and faith to faith. For some Hindus a ban on killing is central to their faith and might fit with the traditional (King James) translation of the Protestant sixth commandment “Thou shalt not kill,” but might not fit with the Jewish translation as “Thou shalt not murder.”
Thus, it is impossible to make a serious argument that the Ten Commandments are “universal,” or can in any way apply to the followers of most religions that do not accept the Jewish Bible as the basis of their theology and eschatology. A Ten Commandments monument on public space can be seen as an attack on the faith of many Americans and a statement that followers of non-western religions, a well as atheists and agnostics, are not true Americans and their faiths or beliefs are not worthy of respect.
II. The Ten Commandments as the Moral Foundation of Law
A second argument in favor of allowing Ten Commandments monuments to be displayed in public places focuses on the historical importance of the Ten Commandments, and more generally, the Bible. For example, Chief Justice Roy Moore of Alabama testified that he put a 5,500 pound Ten Commandments monument in the Alabama Supreme Court building “for the purpose of restoring the moral foundation of law. And to do that, one must recognize the source of those moral laws, which is GOD.” Moore believed that, in the suit directed at his Ten Commandments monument, “[w]hat's on trial is the acknowledgment of GOD from which all our forefathers said justice is derived.”
The essence of this argument is that American law is based primarily, or fundamentally, on Biblical law. There were some connections between early English law and the nation’s established church. Some colonial law was also Biblically-based. However, the claim that the Ten Commandments, or even the Bible, are the moral foundation of American law simply does not stand up to careful scrutiny. Indeed, even in the colonial period the overwhelming majority of laws – which regulated land, crops, domestic animals, the sale of tobacco and rice, white-Indian relations, and slavery – had little or nothing to do with the Bible, much less the Ten Commandments.
The practice of invoking divine authority had ebbed by the time of the American Founding. The Declaration of Independence includes references in the beginning to the “Laws of Nature and of Nature’s God” a “Creator,” and a reference in the end to “Divine Providence,” but these are non-Biblical references. The primary author of the Declaration, Thomas Jefferson, was a deist. His references to a supreme being are clearly not references to the God of the Bible. Rather, they are invocations of enlightenment notions of natural rights. As a Deist, Jefferson notes that some basic concepts – equality and the rights to “Life, Liberty, and the Pursuit of Happiness” – are “self-evident” and are supported by “the Laws of Nature and Nature’s God.” But, these are not references to the God of the Bible, or to a Christian God. Rather, they are to a more generic, non-sectarian, non-theistic, higher authority.
More significantly, Jefferson appeals to notions of popular sovereignty and self-determination. He asserts the right of the colonists to create their own laws, through self-government. Jefferson does not invoke God’s name, or even “Nature’s God” to justify this. Nor does he claim that the new nation is formed on the basis of God’s law or any Biblical authority. Rather, he asserts that governments are created by the people – “the consent of the governed” – and not by God or by Kings with divine rights to rule. Thus “it is the Right of the People to alter or to abolish” a government if they wish. The Declaration is devoid of any references to Biblical law or the Ten Commandments.
The Declaration of Independence – not the Ten Commandments or the Bible – is central to the moral foundation of the United States. The assertions of self-government – that “Governments are instituted among Men, deriving their just Powers from the consent of the governed” – and “self-evident” notions that “All men are created equal” – go to the heart of the moral and ethical foundation of American society and American law. Jefferson does not assert these moral truths based on the Bible, Biblical law, or the Ten Commandments. Rather, they are, like the Declaration itself, created by the will of the people and exist in nature without the intervention of any religious code or writings. In essence, the moral foundation of American law becomes the right of the people to declare themselves independent and to assert their equality and their claim to self-government.
The central legal documents of the United States – the Constitution and the Bill of Rights – did not include even a perfunctory or formalistic reference to God. Rather than relying on divine authority, the Constitution is “ordain[ed]” by “the People of the United States.” The foundation of the law of the United States thus emanates from the nature of representative government – “the consent of the governed” – and needs no external or divine authority for its support. The United States Constitution is devoid of religious references, apart from banning religious tests for holding office and giving the President and other officers the choice of being sworn into office by either oath or affirmation. Indeed, these two clauses illustrate how the American founding was simultaneously deeply secular, respectful of religious diversity, and conscious of the needs to protect religious minorities. The ban on religious tests for office-holding made the United States unique among western nations. Throughout Europe, office-holding was tied to religious belief. Americans believed that an oath of some kind was necessary to hold office, but declined to make it a religious oath, allowing office-holds to “swear (or affirm)” their support of the Constitution.
The founding generation viewed the common law as embodying concepts of justice, equity, and the rule of law, rather than representing divine principles. Americans cited the Magna Carta, Coke's Institutes, Blackstone’s Commentaries, and the English Bill of Rights – not the Bible – in their struggle against the Crown.
The Founders understood from first hand experience the dangers of linking church and state. For example, in the decade before the Revolution, Virginia, with its established Anglican church, jailed and whipped nearly fifty Baptist ministers for unlicensed preaching and other infractions. After the Revolution, Virginia continued to persecute Baptists and other dissenters until 1786 when Virginia effectively disestablished its official church. Thus, in the Constitution and the Bill of Rights, framers like Madison worked to prohibit an establishment of religion at the federal level.
The debates over the United States Constitution in the Philadelphia Convention of 1787 illustrate the minor role of both the Bible and the Ten Commandments in American law. In these wide-ranging debates, the Founders mentioned Roman law, European Continental law, British law, and various other legal systems, but no delegate ever mentioned the Ten Commandments or the Bible. The only serious discussion of religion led to the clause prohibiting religious tests for office-holding.
The words “Bible,” “scripture,” and “Ten Commandments” do not appear in any of The Federalist Papers, written to explain the Constitution. Clearly, the three authors, James Madison, Alexander Hamilton, and John Jay, saw no connection between either the Ten Commandments or the Bible and the Constitution they were defending. The Federalist Papers referred to the gods and religions of the ancient world in a few places and once, in Federalist 43 to “the transcendent law of nature and of nature's God”, but otherwise never mentioned God. The reference to “nature’s God” is suggestive of the deist views of Jefferson or Benjamin Franklin, rather than of the Old Testament God. The authors denounce religious intolerance and note the dangers of mixing of church and state. In Federalist 10 Madison famously pointed out, “A zeal for different opinions concerning religion, concerning government, and many other points, as well of speculation as of practice” has historically “divided mankind into parties, inflamed them with mutual animosity, and rendered them much more disposed to vex and oppress each other than to co-operate for their common good.” In another essay Alexander Hamilton asserted that, “in politics as in religion, it is equally absurd to aim at making proselytes by fire and sword. Heresies in either can rarely be cured by persecution.” Similarly, in Federalist 31, Hamilton declared that “those mysteries in religion, against which the batteries of infidelity have been so industriously leveled” are “incomprehensible to commonsense.” Using examples of history to support the Constitution, Federalist 19 argued that in the Swiss Confederation “controversies on the subject of religion” had three times “kindled violent and bloody contests” that “severed the league.” The implication of this point was that America was better off under a Constitution that effectively separated religious and political issues.
Ten Commandments and American Jurisprudence
The claim that the Ten Commandments is a foundational document is not supported by the Supreme Court’s jurisprudence. The U.S. Supreme Court has never cited to the Ten Commandments as an authority for law, or even as a source of law. It has, however, cited many other sources of law that predate the Revolution, as well as to some sources and public figures from the early national and antebellum periods. For example, there are thirty-seven Supreme Court citations to the Federalist Papers, but, as already noted, the Federalist Papers did not rely on the Ten Commandments or the Bible. The Court has also relied on other historical sources. For example, the Supreme Court has cited the Declaration of Independence more than 200 times.
There are at least forty-seven citations to President Abraham Lincoln. Many quote or cite to Lincoln favorably as a legitimate interpreter of American law. The Court has cited or referred to Thomas Jefferson at least 175 times. There are over 350 cites to Blackstone’s Commentaries, many using Blackstone as an authority for our law. The Court has also cited the great English jurist, Chief Justice Lord Mansfield, more than 325 times. The Court has cited the Bill of Rights as a document more than one thousand times, which suggests how important that document has been to the development of our legal culture. There are over 190 citations to the Magna Carta.
These citations to the Federalist Papers, Thomas Jefferson, Magna Carta, Abraham Lincoln, the English Bill of Rights, Blackstone’s Commentaries, the Bill of Rights, and the Declaration of Independence illustrate the most important historical sources for our legal system and our constitutional development. Significantly, the Ten Commandments do not appear to have ever been used as a source or an authority by the highest court of the United States.
Monuments to the Ten Commandments thus do not reflect an objective or accurate representation of the historical development of American law. Rarely have American lawmakers turned to the Commandments for guidance. Those laws which dovetail with the Commandments, such as prohibitions on stealing or perjury, are found in virtually all cultures. However, most of the other provisions of the Commandments have never been part of our law, at least since independence.
Rather than reflecting our legal heritage, to a great extent the Ten Commandments fly in the face of the evolution of American law, which has been towards secular freedoms and liberties and towards greater religious diversity. Furthermore, the Founders of the United States did not turn to Biblical sources in general, or the Ten Commandments in particular, as a source of law. Thus, there is no historical foundation for a claim that a monument to the Ten Commandments, such as the one in Haskell County, is rooted in our legal and political history. The framers of the Constitution and the Founders of the nation valued freedom of expression, freedom of thought, and freedom of belief and worship – they thus rejected as a source of law a set of precepts or “commandments” that would have limited the right of people to believe what they want and worship as they wish.
More importantly, the Founders valued political self-determination. In creating the Constitution they did not appeal to the Bible, God, or the Ten Commandments for authority, but rather, declared “We the people . . . do ordain and establish this Constitution for the United States of America.” In asserting their right to “ordain” their own form of government, the Framers implemented Jefferson’s notion that “[g]overnments are instituted among Men, deriving their just Powers from the Consent of the Governed. . . .” Such a theory of government precluded relying on laws that were handed down to the people by any outside authority. By declaring in our Constitution that there would be no religious tests for national office-holding, the Framers rejected the religious tests inherent in the Ten Commandments. The Ten Commandments require that adherents accept only “one God,” and have “no other God,” and “not bow down” to statues (or idols in the Catholic translation), but the Constitution has no such tests and does not require that anyone even believe in God in order to hold office. The Framers clearly rejected religious orthodoxy in what was already a religiously diverse nation.
The Ten Commandments are a statement of faith and belief for Jews and Christians. Some of the Commandments offer universal “truths” found in most societies, such as prohibitions on adultery, stealing, perjury, and, depending on the translation, murder. But other parts of the Commandments are clearly theological and sectarian, such as the assertion of one God, the creation of a Sabbath, or the ban on graven images. Still other aspects of the Commandments are neither theological nor legalistic. The admonition to honor one’s parents has never been part of the law of the United States.
The last Commandment for Jews and Protestants (which forms the last two commandments for Catholics and Lutherans) is an admonition against coveting. This text illustrates yet one more way in which the Ten Commandments are antithetical to the American legal and cultural experience. The King James Version of the Bible of this text says “Thou shalt not covet thy neighbour’s house, . . . Nor anything that is thy neighbour’s [sic].” This Commandment seems to stand in opposition to a capitalist, consumer culture that has long been at the root of American life. Whole industries – advertising, automobiles, clothing, and cosmetics – are predicated on the idea of wanting what your neighbor has. Americans learn from an early age to “covet they neighbour’s house” and two huge industries, real estate and home building, thrive because of this. We even have a tax code that subsidizes this covetousness. “Keeping up with the Joneses” is a tried and true aspect of American culture. The prohibition on envy found at the end of the Commandments may be an ethical goal of Judaism and Christianity, but it can hardly be seen as part of the foundation of either American law or culture.
Indeed, most of the Commandments could not be enacted into law and withstand a constitutional challenge. The first five commandments for Protestants (one god, no graven images, not taking the Lord’s name in vain, observe the Sabbath, and honor parents) would clearly be unconstitutional. It is hard to image how we could even have a statute requiring children to honor their parents. One wonders what its provisions might entail. The Protestant and Jewish seventh Commandment (prohibiting adultery) was once enforceable in this country, but it is probably no longer enforceable. Indeed, the expansive protection of privacy and liberty in Lawrence v. Texas would seem to preclude prosecution for adultery. Similarly, the last commandment for Jews and Protestants (coveting) could hardly be banned by statute. Even the Protestant and Jewish ninth commandment, (prohibition on bearing false witness) is only enforceable under limited circumstances. In courts and when talking to police officials we may be legally obligated to tell the truth, but this is not so in daily life, where lying is permissible. Thus, at most we can only be sure that laws against steal and murder (although not always killing) would be upheld under modern constitutional standards.
In the end, Ten Commandments displays are sectarian, supporting the theological interpretations and Biblical translations of particular groups, usually Protestants. The Commandments themselves speak, with only a few exceptions to ethical and religious values (believing in God, observing the Sabbath, etc.) that are beyond the reach of civil law. Furthermore, these displays endorse a particular version of Christianity, and, by doing so, exclude other Christians and Jews, agnostics and atheists, and followers of non-Western faiths, including Islam, Hinduism, and Buddhism. By endorsing a particularistic version of the Ten Commandments, the state sends a message of inclusiveness to some Protestants or Lutherans, while in effect implying to others that they are outsiders, and that their religious traditions and beliefs have less value within the political culture of the nation. As such, these displays have no place on the Courthouse lawn or on public property.