I'm not sure this is quite right. Surely principles such as no
killing, no stealing, no beating people up, no defaming people, no
destroying their property, and so on -- both those mentioned in the Ten
Commandments and those not so mentioned -- are a far more important part
of the moral foundation of American law than the political principles in
the Declaration of Independence. The Declaration is pretty important,
but the basic rules of decent conduct with respect to each other seem
much more foundational. That aspect of the English heritage was surely
not rejected.
Nor did all the Americans of 1776-1791 reject an established
Church or an official religion, as both the continuing establishments
and the favorable mentions of Christianity in various state
constitutions attest. They were rejecting a nationally established
religion, to be sure, but not state establishments (or at least not all
were rejecting it).
Now I'm not sure how many Americans of 1776-1791 assumed that
God literally made laws, at least those laws under which Englishmen and
Americans lived. I take it that the claim about the Framers'
religiosity is that they thought right and justice were largely defined
by God's law (hence the reference to endowment by their Creator, or for
that matter the appeal to God as a judge of the colonists' cause),
something that's not inconsistent with the view that governments derive
just powers from the consent of the governed.
Eugene
Paul Finkelman writes:
> The foundation of American law, especially the *moral*
> foundation, begins with the Declaration of Independence, and
> continues at least through the adoption of the Bill of
> Rights. The Americans of 1776-1791 were clearly rejecting a
> great deal of their English heritage, including and
> established Church, an official religion, and the assumption
> that "God" made laws. "Governments are instituted among Men,
> deriving their just Powers from the Consent of the Governed,"
> as Jefferson noted. Chief Justice Moore put up the Ten
> Commandments monument in Alabama because he claimed there was
> a high law which he had to obey. That may his personal
> theology, but it not the basis of our law.
>
> Paul Finkelman
>
> Quoting "A.E. Brownstein" <[EMAIL PROTECTED]>:
>
> > This is really a critical part of the issue. Are we talking about
> > distinctly American law or more generic "Anglo-American" law.
> > I have no
> > doubt that the American Tories, the British soldiers who shot
> > down the
> > Minutemen at Lexington, the Hessian mercenaries, and King
> > George III
> > himself all believed in the Ten Commandments as much
> > Washington and the
> > drafters of the Declaration of Independence and the
> > Constitution. If the
> > question is whether belief in the Ten Commandments predisposes
> > you to
> > accept the American experiment in self-government, obviously
> > it did not
> > have that effect on a lot of believers.
> >
> > Alan Brownstein
> > UC Davis
> >
> >
> > At 04:51 PM 12/17/2004 -0500, you wrote:
> > >Speaking for myself, none of this discussion has been about
> > Anglo-American
> > >law, it's been about American law. The Constitution was
> > obviously a
> > >radical break from English law on many levels. It established
> > an entirely
> > >different basis upon which legitimate lawmaking was based,
> > and upon which
> > >a legitimate lawmaker might rule. The notion of a government
> > instituted
> > >solely to protect the rights that each individual is endowed
> > with from
> > >birth was monumentally different than the notion of a nation
> > ruled by the
> > >divine right of the king, to whom one must plead for whatever
> > recognition
> > >he chooses to give our claims of liberty. The distinction is
> > as basic as
> > >the one Madison draws so vividly, with the European
> > governments that
> > >preceeded ours being charters of freedom granted by power,
> > while ours was
> > >a charter of power granted by a free people. Hence, the
> > notion of
> > >combining Anglo- and American together for the purposes of
> > this discussion
> > >seems entirely unwarranted to me. Under the English law prior
> > to our
> > >constitution, the King could have declared any of the Ten
> > Commandments to
> > >be legally in force and prescribe whatever punishment he
> > chose upon it; in
> > >our system after the Constitution, most of the commandments
> > could not be
> > >legitimately made into laws without violating it. I can't
> > think of a more
> > >obvious reason not to combine the two as one.
> > >
> > >Ed Brayton
> > >
> > >Ross S. Heckmann wrote:
> > >>This list has recently discussed the issue of whether the
> > Ten
> > >>Commandments are, or ever have been, the foundation of the
> > Anglo-American
> > >>legal system.
> > >>
> > >>A book was published earlier this year that sheds light on
> > this
> > >>issue. It is entitled "The Ten Commandments in History."
> > It was based
> > >>on a manuscript left behind by the late Professor Emeritus
> > Paul Grimley
> > >>Kuntz, "a distinguished member of the Emory philosophy
> > faculty and an
> > >>ardent supporter of the Law and Religion Program." (From
> > the book's
> > >>"Acknowledgments," p. xiv, by Professor John Witte, Jr.,
> > writing in his
> > >>capacity as general editor of Emory University Studies in
> > Law and
> > >>Religion.) The Supreme Court's decision in Stone v. Graham
> > was for the
> > >>late Prof. Kuntz "the catalyst for almost ten years of
> > research and
> > >>thought about the Decalogue and its role in American life."
> > (From the
> > >>book's Foreword, p. viii, by the late Prof. Kuntz's spouse,
> > Prof. Marion
> > >>Leathers Kuntz.)
> > >>
> > >>The book itself is primarily a history of ideas, how various
> > thinkers
> > >>throughout history have been reacted to the Ten
> > Commandments, but the
> > >>book does touch upon the issue of whether the Ten
> > Commandments are the
> > >>foundation of the Anglo-American legal system.
> > >>
> > >>Chapter 5 is entitled, "King Alfred: The Decalogue and
> > Anglo-American
> > >>Law." Alfred the Great lived from 849 to 899. (Book, p.
> > 46.) Prof.
> > >>Kuntz writes:
> > >>
> > >> ". . . . The hostility between the Roman Empire and
> > Christians ended
> > >> with tolerance from Constantine, and then he gave to the
> > church the
> > >> support of the state. The pattern of Roman conversion was
> > followed in
> > >> all the nations of Europe--among Latin nations, Germanic,
> > Scandinavian,
> > >> Slavic, etc. Does this mean that the Mosaic Decalogue
> > became part of
> > >> the law of these peoples when they were converted to
> > Christianity? And
> > >> how did changes introduced by the gospel affect the legal
> > code?
> > >>
> > >> "Political historians and historians of law do not
> > offer us a
> > >> general and comparative study [too bad--maybe somebody on
> > this list can
> > >> remedy this deficiency--R.S.H.], but one notable case is
> > the code of
> > >> King Alfred the Great. This is particularly of interest
> > since it shows
> > >> the Decalogue as basic to the civil religion of England,
> > and of the many
> > >> colonial offspring, which build upon the traditions of
> > common
> > >> law. Thanks to Alfred the law is also the king's law."
> > (Book, pp. 46-47.)
> > >>
> > >> In the book's later chapter on Jeremy Bentham, the book
> > states that
> > >> in response to Jeremy Bentham, ". . . . a historian
> > might object
> > >> that Alfred the Great prefaced his collection of Saxon laws
> > with the Ten
> > >> Commandments from Exodus 20, that the monarch of Great
> > Britain takes a
> > >> sacred oath at coronation to enforce God's law."
> > >>
> > >> Thus, the Ten Commandments are, or at least used to be,
> > the
> > >> foundation of the Anglo-American legal system.
> > >>
> > >> I will stipulate that it would be no small challenge to
> > reconcile
> > >> this proposition with the Supreme Court's post-World War II
> >
> > >> jurisprudence. But even assuming that American law is no
> > longer founded
> > >> upon the Ten Commandments, but on some other basis of some
> > sort or
> > >> other, for well over a thousand years, the Ten Commandments
> > were the
> > >> foundation of Anglo-American law. Moreover, it is by no
> > means clear
> > >> that the Supreme Court's post-World War II jurisprudence
> > will endure,
> > >> either as it currently exists, or in modified form.
> > >>
> > >>Very truly yours,
> > >>
> > >>Ross S. Heckmann
> > >>Attorney at Law
> > >>Arcadia, California
> > >>
> > >>
> > >>
> > >>
> > >>
> > >>
> > >>
> > >>
> > >>
> > >>
> > >>_______________________________________________
> > >>To post, send message to
> > >><mailto:[EMAIL PROTECTED]>[EMAIL PROTECTED]
> > >>To subscribe, unsubscribe, change options, or get password,
> > see
> >
> >><http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw>http://l
> > >>ists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
> > >>
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> > >_______________________________________________
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> > _______________________________________________
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>
>
>
> Paul Finkelman
> Chapman Distinguished Professor of Law
> Univ. of Tulsa College of Law
> 2120 East 4th Place
> Tulsa OK 74104-3189
>
> Phone: 918-631-3706
> Fax: 918-631-2194
> _______________________________________________
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