RE: Ten Commandments Basis of Our Laws Position
Is there any reason at all to believe that Roman Law owed anything at all to the Ten Commandments? I take it that Roman Law is the basic source of most European civil law. sandy From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of [EMAIL PROTECTED]Sent: Thursday, December 16, 2004 12:20 PMTo: [EMAIL PROTECTED]Subject: Re: Ten Commandments "Basis of Our Laws" Position I think the current use of the claim that our laws are based on the Ten Commandments, or at least the way I understand this phrase in its strongest sense, is that the Ten Commandments are our law's foundation in two senses:(1) Our lawsare derived historically, conceptually, and so forth in a unique mannerfrom the Ten Commandments, so that if the Ten Commandments never existed our law would be recognizably different, if it would exist at all, and (2)because of (1) (perhaps or as a separate manner), justification of our laws must refer to the Ten Commandments. (I'm not entirely sure (1) and (2) are distinct in any interesting way). By "current use" (above) I mean how the contention functions in political discourse today. Bobby Robert Justin LipkinProfessor of LawWidener University School of LawDelaware ___ To post, send message to [EMAIL PROTECTED] To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: Steven Williams Case - more factual information
In a message dated 12/16/2004 5:14:36 PM Eastern Standard Time, [EMAIL PROTECTED] writes: namely that teaching and proselytizing religion tend to go hand in hand. Another very good reason for eliminating public schools, or as my liberal friends so often want to do, relying on the canadian model, under which public and parochial schools are funded. Then all are accommodated and the realpolitik of NEA proselyzation does not threaten people of faith. Jim Henderson Senior Counsel ACLJ ___ To post, send message to [EMAIL PROTECTED] To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Ten Commandments Basis of Our Laws Position
Title: Message In response to Ed's and Prof Lipkin's post, just a quick thought or two. I think what is traditionally meant by the "basis of our laws" position is the following: 1. The Ten Commandments is a stark (if not the first surviving) demonstration that law comes from "outside" humankind-- that is, that lawis not merely a human artifact. This has a long tradition in the common law, from Magna Carta, to Coke, to Bracton and Blackstone. The ten commandments "are the basis of our laws," then, in the sense that the common law has taken the view that the King us under law, because law comes from God.Russell Kirk in his Roots of American Order, for example, cites the giving of the ten commandments as the foundation ofWestern order. So, first, the position is thatthe fact that the Ten Commandments were from God, not man (beingwritten with the finger of God) are the basis for many of thefundamental common law propositions, beginning with "no man isabove the law." 2. Theologians, includingAugustine and Calvin and many other Protestant and Catholic theologians in the history of the West have made directconnection between the Ten Commandments and *all* civil, moral, and ceremonial law. Therefore, "all law" in a sense is based on or-- maybe this isbetter put-- summarized bythe Ten. This is a pretty supportable proposition from the Old and New Testaments. So even laws that should not be civil laws, such as the ones that Ed points out, are still "law" in the sense of moral law, as Ed also points out. Furthermore, civil laws should be based on, modeled after, and in conformance with the moral law; so in that sense, our civil laws are "based on the Ten Commandments." I can't speak for everyone who might use the phrase, but this is my understanding of what it means to say that "our laws" are based on the "Ten Commandments." -Original Message-From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of [EMAIL PROTECTED]Sent: Thursday, December 16, 2004 10:01 AMTo: [EMAIL PROTECTED]Subject: Re: Steven Williams case and the Ten Commandments cases I want to second Ed Braton's thoughtful post, and inquire of anyone who knows whether the laws, rules, customs of the Jews prior to the acquisition of the Ten Commandments included prohibitions against murder and theft, for example.If the answer is yes then all those who agree with Robert Bork's remark, and I'm paraphrasing perhaps unfaithfully, that liberal society lives off the moral capital of the Judeo-Christian religious tradition are historically inaccurate. Indeed, it opens up the anthropological question whether the Judeo-Christian religious traditionlives off the moral capital of prior secular societies if any existed, orprior pagan societies. Bobby Robert Justin Lipkin Professor of Law Widener University School of Law Delaware ___ To post, send message to [EMAIL PROTECTED] To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
RE: Steven Williams Case - more factual information
As I read Jim's post, he is not denying what Bobby says, that there is a difference between objectively teaching about religion on the one hand, and trying to persuade on the other. In fact, Jim's post says that he accepts that distinction. Jim's point is that persuasion with which one agrees is typically not labeled proselytizing. Rather, that term is reserved for persuasion which is thought to be improper--and such impropriety is usually in the eye of the beholder. Where the main use of a term is pejorative, it may not be a very helpful term. Mark Scarberry Pepperdine -Original Message- From: [EMAIL PROTECTED] To: [EMAIL PROTECTED] Sent: 12/16/2004 7:22 PM Subject: Re: Steven Williams Case - more factual information In a message dated 12/16/2004 9:55:49 PM Eastern Standard Time, [EMAIL PROTECTED] writes: If you think that experience requires a different conclusion, then you simply have not read the opposing briefs of a variety of groups on the opposite side from me in numerous constitutional cases. I think briefs are one of the worst examples of testing the importance of the distinction between teaching and proselytizing. Briefs are advocacy pieces, usually (in my experience a long time ago as a federal appellate clerk) poorly done. Impartiality, if it exists at all, is not likely to be found in briefs. Indeed, it might be oxymoronic to contend that impartiality is or should be a goal of brief writing. The distinction between impartiality and advocacy, of course, itself is one of those troubling distinctions (or perhaps dichotomies) whose use might be counterproductive generally. Still shouldn't we exhibit patience when hearing someone using this distinction to see if that particular person is sensitive to its importance and is also sensitive to the ease of abusing it. Only a few people, Stanley Fish comes to mind if his work is not completely based in irony, sincerely believe that these distinctions are meaningless, incoherent or necessarily subject to abuse. Finally, distinctions such as teaching and proselytizing and impartiality and advocacy as well as a host of others are currently defining characteristics of our conceptual discourse. Abandoning these distinctions, while not impossible I suppose, requires a revolution in conceptual discourse similar to the types of revolutions in science Kuhn wrote about. Rejecting our current conceptual discourse is not impossible, but the cost is enormous and should not be borne without an extraordinary justification. Bobby Robert Justin Lipkin Professor of Law Widener University School of Law Delaware ATT1541434.txt ___ To post, send message to [EMAIL PROTECTED] To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: Steven Williams Case - more factual information
In a message dated 12/17/2004 10:59:31 AM Eastern Standard Time, [EMAIL PROTECTED] writes: Jim's point is that persuasion with which one agrees istypically not labeled "proselytizing". Rather, that term is reserved forpersuasion which is thought to be improper--and such impropriety is usuallyin the eye of the beholder. Where the main use of a term is pejorative, itmay not be a very helpful term. I appreciate Mark's remarks, but I understood Jim to be saying just what Mark attributes to him above. Perhaps, my post was unclear. Let me try again. Evaluating the benefits of using a distinction (or a term) seems to require three elements: (1) How important is the termin our conceptual scheme, (2) How much is it being abused, and (3) How difficult is it to rehabilitate the term, for example, by pointing out its salience in our conceptual scheme as a reason for being more circumspect in avoiding its abuse. For Jim to be right, in my view, he would need to say much more thanpeople often use theterm,"proselytizing" say, as a pejorative term, and "teaching" as an honorific term to hammer home their own partisan views.Consequently, my remarks were directed, even if inelegantly stated, to the fact, as I see it, that for Jim's' assault on the distinction to be plausible, he needed to address the three elements above. I do not see that Jim has succeeded in doing so. Bobby Robert Justin LipkinProfessor of LawWidener University School of LawDelaware ___ To post, send message to [EMAIL PROTECTED] To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: Steven Williams Case - more factual information
On Friday, December 17, 2004, at 12:18 PM, [EMAIL PROTECTED] wrote: The question of how much it is being used/abused I reflected on anecdotally from my experience litigating these cases for nearly twenty years. A very quick electronic search on Lexis, of Supreme Court briefs, reveals some 300 plus briefs in which the term is employed, and when the precise term proselytizing is searched, the number is 151, with the bulk of its uses being -- no surprise -- in cases involving religion in the schools. And no further surprise, it is principally used by certain members of the usual gang of suspects on one side. But even if it used by only one side, that does not mean it is being misused or used pejoratively. Some teachers sometimes proselytize. Sometimes what one side would characterize as proselytization the other side would as well. Sometimes the other side would not. Having been told that both evangelism and proselytization are Christian obligations (I understand the first easily enough, but have some trouble with the second as a matter of interpretting the gospels), I just don't see it as pejorative in general. I think an objective study of the question will bear it out, and may pursue it myself when time allows. [snip] Proselytizing is a provocative term unless used in a self-deprecating fashion and is likely to do less good than ready substitutes for it. such as? -- Prof. Steven D. Jamar vox: 202-806-8017 Howard University School of Law fax: 202-806-8428 2900 Van Ness Street NW mailto:[EMAIL PROTECTED] Washington, DC 20008 http://www.law.howard.edu/faculty/pages/jamar Lay not up for yourselves treasures upon earth, where moth and rust doth corrupt, and where thieves break through and steal; but lay up for yourselves treasures in heaven, where neither moth nor rust doth corrupt, and where thieves do not break through nor steal. For where your treasure is, there will your heart be also. Matthew 6:19-21 ___ To post, send message to [EMAIL PROTECTED] To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: Steven Williams Case - more factual information
In a message dated 12/17/2004 12:20:40 PM Eastern Standard Time, [EMAIL PROTECTED] writes: Its importance in communication is not subject to dispute. My messages on this subject have been to the effect of its incalculable value in steering the hearer from rational considerations of that which is tendered through efforts described pejoratively as proselyzation. Who could dispute the importance of a hammer to a carpenter? Nonetheless, when the carpenter uses the hammer to open windows, we could all agree, I supposed, that misuse and abuse was occurring. If its importance is not subject to dispute, then why the fuss? Many distinctions, dichotomies, and terms may in certain circumstancesdistort discourse. Why not just view "proselytizing" as one more term to explicate and argue about. In other words, rather than insist that some terms are inevitably used pejoratively and accordingly steer the conversation away from rationality, include these terms in the conversation and deliberate about whether they are useful or not. I had a neighbor, who characterized himself as "a born again Christian." Knowing that I am Jewish, he one day presented me with literature from "Jews for Jesus." He explained to me his reasons for doing so, and I told him that I've thought about religion a great deal, even taught the philosophy of religion, and I have well-decided beliefs on the matter and essentially concludedthanks but no thanks. Our "good neighbor" relationship was none the worse--indeed, it probably became richer--as a result of thisepisode. Had he pursued his religious inclinations to convert me, or had I persisted in challenging hisconvictions, our relationship might not have withstood the test of time. But neither one of us pursued his inclinations in this regard, and in my view, that's the way it should be. Bobby Robert Justin LipkinProfessor of LawWidener University School of LawDelaware ___ To post, send message to [EMAIL PROTECTED] To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: AU/PFAW brief in Van Orden v. Perry
Welcome to the list, Steve. Seems I keep running into you all over the place. G Ed Brayton Steve Sanders wrote: Friends and colleagues, Im new to the list, so I hope this first contribution will be something useful. My friend Richard Katskee at Americans United has sent me (and given me permission to share) the AU/People for the American Way brief in the Texas 10 Commandments case. So far as I can tell, it is not yet on their web sites. You can reach it through my blog, Reason Liberty (http://reasonandliberty.blogspot.com/) at the link: http://reasonandliberty.blogspot.com/2004/12/americans-unitedpfaw-brief-in-texas.html Steve Sanders University of Michigan Law School Web: http://www.stevesanders.net Blog: http://reasonandliberty.blogspot.com/ ___ To post, send message to [EMAIL PROTECTED] To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to [EMAIL PROTECTED] To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Are the Ten Commandments the foundation of the Anglo-American legal system?
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 doestouch 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 werethe 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 [EMAIL PROTECTED] To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: Are the Ten Commandments the foundation of the Anglo-American legal system?
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 doestouch 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 werethe 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 [EMAIL PROTECTED] To subscribe, unsubscribe, change options, or get password, see
Re: Are the Ten Commandments the foundation of the Anglo-American legal system?
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
RE: Are the Ten Commandments the foundation of the Anglo-American legal system?
Yet it is also undoubtedly true -- is it not? -- that most of our American law was carried over or adopted from British law. We did not have a clean slate revolution; if I understand the matter correctly, most state law had continuity from the pre-revolutionary time to the post-revolutionary time. I think members of this list, who of course focus on federal constitutional law -- all of which was new -- may need to think a second time about the general continuity both of common law and (I believe) statutory law. Mark S. Scarberry Pepperdine University School of Law -Original Message- From: A.E. Brownstein [mailto:[EMAIL PROTECTED] Sent: Friday, December 17, 2004 3:14 PM To: Law Religion issues for Law Academics Subject: Re: Are the Ten Commandments the foundation of the Anglo-American legal system? 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
RE: Are the Ten Commandments the foundation of the Anglo-American legal system?
For all the broad assertions we'll be hearing in the coming months in the media and from amici about the profound influence of the Decalogue on law generally and American law in particular, it's surprising how few serious scholarly sources there appear to be out there to back them up. The petitioner's brief in McCreary County v. ACLU is full of these sorts of sweeping statements, yet it's very thin on any actual support -- mostly the conclusory pronouncements of various jurists (including the Chief Justice) and the portentous dicta of various state courts. At one point there's a footnote to an out of print 1999 book that appears to have been self-published (at least it's the only work ever produced by the obscure Christian publisher). Something I did find in a Westlaw search is Steven K. Greene, The Fount of Everything Just and Right? The Ten Commandments as a Source of American Law, 14 J.L. RELIGION 525 (1999-2000). He concludes, At best, the most that could be said about the relationship of the Ten Commandments to the law is that the former has influenced legal notions of right and wrong. (I recognize that Prof Greene used to work for Americans United, so may not be disinerested.) See also KERMIT L. HALL, ET AL., EDS., THE OXFORD COMPANION TO AMERICAN LAW 507 (2002) (noting that [a]nthropologists report that in every known culture there are rules forbidding some forms of the moral offenses proscribed by the last five of the Ten Commandments). This is the only reference to the Ten Commandments in that tome of more than 800 pp. Note that this is not the same as the argument its partisans make, which is that the Ten Commandments *influenced* almost all legal structures, or that the ideas the 10C expressed were so unique and original that the Decalogue must be regarded as their very wellspring. The most sensible thing I've ever read on this subject is a Findlaw column by Marci Hamilton, available at http://writ.news.findlaw.com/hamilton/20030911.html Steve Sanders University of Michigan Law School Blog: http://reasonandliberty.blogspot.com/ ___ To post, send message to [EMAIL PROTECTED] To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
RE: Are the Ten Commandments the foundation of the Anglo-Americanlegal system?
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
Re: Are the Ten Commandments the foundation of the Anglo-Amer ican legal system?
Just as an aside, the Mosaic laws are much more than 10 and they track suspicously with the so-called 42 Negative Confessions of Egypt of the time Moses is supposed to have left Egypt with the Jews. Of course it might just be that a number of the ideas about living a good, moral life have little to do with god and lots to do with what people throughout the ages and in most cultures have decided is the right way to live. And so back to Durkheimian concept of society as god. In any event, it seems that we ought to go back to Egypt and pagan Greece for a bunch of these ideas. Not to mention that the whole idea of a confederacy or union of states comes from Native Americans in upstate New York. Let us not forget that the Constitution is quite a bit more than the first amendment freedom of religion. Steve On Friday, December 17, 2004, at 07:00 PM, Scarberry, Mark wrote: Kurt knows a lot more about this than I do (and allow me to put in a plug for his two articles on the 9th amendment that are about to come out), but my comment was not limited to law relating to religious freedom. The claim that the Decalogue influenced American law is not limited to that part of the law that deals with religion. To the extent that the Decalogue influenced British law generally, it is important to note the general continuity of law between the pre- and post-revolutionary period. Mark S. Scarberry Pepperdine University School of Law -- Prof. Steven D. Jamar vox: 202-806-8017 Howard University School of Law fax: 202-806-8428 2900 Van Ness Street NW mailto:[EMAIL PROTECTED] Washington, DC 20008 http://www.law.howard.edu/faculty/pages/jamar Years ago my mother used to say to me... 'In this world Elwood' ... She always used to call me Elwood... 'In this world Elwood, you must be Oh So Smart, or Oh So Pleasant.' Well for years I was smart -- I recommend pleasant. You may quote me. --Elwood P. Dowd - Mary Chase, Harvey, 1950 ___ To post, send message to [EMAIL PROTECTED] To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
RE: Steven Williams Case - more factual information
But the greatest level of generality does not produce any solutions to the problem of how to treat members of minority religions. So the abstract notion that teaching religion is somehow constitutional flies in the face of the hard facts of life: namely that teaching and proselytizing religion tend to go hand in hand. Those who favor teaching religion in the common schools have the burden, it seems to me, of establishing, in concrete, real world terms, that their programs will be limited to teaching. That strikes me, by the way, as a tall order indeed. They havent made the case yet. -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] Sent: Thursday, December 16, 2004 12:22 PM To: [EMAIL PROTECTED] Subject: Re: Steven Williams Case - more factual information Now you have made patent your concern: proselytization. But you seem to agree that teaching about religion is something other than proselytization. (As an aside, I always wonder that those with whom we agree never proselyze, they only offer irrefutable arguments, while those whose views are disagreeable are readily described as proselytizing. There is, it seems, a knee-jerking content to the term that makes it valuable in guiding discussions away from substance.) I will concede that the First Amendment, as construed in the recent decisions of the Supreme Court, bars proselyzing by school officials (not by students acting on their own). But will you concede that, at least at the greatest level of generality that there is no constitutional impediment to teaching about religion? Jim Can't We All Just Get Along Henderson Senior Counsel ACLJ ___ To post, send message to [EMAIL PROTECTED] To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: Are the Ten Commandments the foundation of the Anglo-Americanlegal system?
In a message dated 12/17/2004 7:11:44 PM Eastern Standard Time, [EMAIL PROTECTED] writes: Surely principles such as nokilling, no stealing, no beating people up, no defaming people, nodestroying their property, and so on -- both those mentioned in the TenCommandments and those not so mentioned -- are a far more important partof the moral foundation of American law than the political principles inthe Declaration of Independence. I am not at all sure why we stop ourbackward inquiry with the Declaration, the Magna Carta, or the Ten Commandments. Surely, an exhaustive anthropologyshould reach back into those primitive societies that survived because they embraced such rules as no killing, no stealing, etc. In other words, we can, if we choose, stop at our favorite period and say the basis of Anglo-American law resides in that period without exploring whether such societies--whatever societies are--could persist without such rules of practical prudence. The mistake is to identify these rules of practical prudence with any particular period, religion, or secular creed. Instead, we should be aware that human society cannot exist without these rules of practical prudence, and thus where they come from is irrelevant to the question of whether we should embrace them. Bobby Robert Justin LipkinProfessor of LawWidener University School of LawDelaware ___ To post, send message to [EMAIL PROTECTED] To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
RE: Are the Ten Commandments the foundation of theAnglo-Americanlegal system?
I actually agree with Bobby on this point; I've written in the past (on my blog, not in any scholarly work) that the Ten Commandments don't form much of a basis for modern American law, and that it's not clear to what extent they even formed a but-for cause of American law historically, partly for the very reasons that Bobby mentions. My point was simply a criticism of the particular arguments that Paul Finkelman made in an earlier post. Eugene -Original Message- From: [EMAIL PROTECTED] on behalf of [EMAIL PROTECTED] Sent: Fri 12/17/2004 11:29 PM To: [EMAIL PROTECTED] Cc: Subject: Re: Are the Ten Commandments the foundation of theAnglo-Americanlegal system? In a message dated 12/17/2004 7:11:44 PM Eastern Standard Time, [EMAIL PROTECTED] writes: 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. I am not at all sure why we stop our backward inquiry with the Declaration, the Magna Carta, or the Ten Commandments. Surely, an exhaustive anthropology should reach back into those primitive societies that survived because they embraced such rules as no killing, no stealing, etc. In other words, we can, if we choose, stop at our favorite period and say the basis of Anglo-American law resides in that period without exploring whether such societies--whatever societies are--could persist without such rules of practical prudence. The mistake is to identify these rules of practical prudence with any particular period, religion, or secular creed. Instead, we should be aware that human society cannot exist without these rules of practical prudence, and thus where they come from is irrelevant to the question of whether we should embrace them. Bobby Robert Justin Lipkin Professor of Law Widener University School of Law Delaware ___ To post, send message to [EMAIL PROTECTED] To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
RE: Are the Ten Commandments the foundation of the Anglo-Americanlegal system?
For the Ten C. to be the foundation of law we would at least have to imagine that without the 10 C we might not have these rules; but of course ALL societies ban murder (not killing, which is a problem with the (incorrect) King James translation of the 10 C;), stealing, and perjury. The 10 C say NOTHING about destroying property beating people up or defamation. So, I don't see how the 10 C can be the moral foundation of law if those are central to our law. Most of the 10 C have NOTHING to do with our law (one God, no sculptured images, keep the sabbath, honor your parents, don't take God's name in vain, etc.) so how can somethign be the moral foundation of the law if most of it is completely ignored by our law. Some of our law -- or at least our economy -- cuts against the 10 C-- Our economy is based on the concept of coveting your neighbors things goods, house (maybe not wife). That is what makes capitallism run. Paul Finkelman Quoting Volokh, Eugene [EMAIL PROTECTED]: 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
RE: Are the Ten Commandments the foundation ofthe Anglo-Americanlegal system?
I'm puzzled here. Paul wrote that 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. I responded that (1) other principles such as no killing, stealing, defaming, battering, etc. (including 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, (2) much of English heritage therefore wasn't rejected, (3) the Americans of the Framing era didn't entirely reject established churches or official religions, though they rejected a national establishment (and some rejected state ones, though others didn't), and (4) many Americans took the view that right and justice were largely defined by God's law was surely not rejected. Now Paul responds by pointing out that the Ten Commandments weren't the foundation of American law. I agree, and have said so publicly (including some of the points that Paul makes), see, e.g., http://volokh.com/2003_04_27_volokh_archive.html#200199520 http://volokh.com/2003_04_27_volokh_archive.html#200199520 and http://volokh.com/2003_04_20_volokh_archive.html#200195975 http://volokh.com/2003_04_20_volokh_archive.html#200195975 . But I don't quite see how Paul's message responds to the points that I was making, and especially to my criticism of the statements in his original post. Eugene -Original Message- From: [EMAIL PROTECTED] on behalf of [EMAIL PROTECTED] Sent: Fri 12/17/2004 11:48 PM To: Law Religion issues for Law Academics Cc: Subject: RE: Are the Ten Commandments the foundation ofthe Anglo-Americanlegal system? For the Ten C. to be the foundation of law we would at least have to imagine that without the 10 C we might not have these rules; but of course ALL societies ban murder (not killing, which is a problem with the (incorrect) King James translation of the 10 C;), stealing, and perjury. The 10 C say NOTHING about destroying property beating people up or defamation. So, I don't see how the 10 C can be the moral foundation of law if those are central to our law. Most of the 10 C have NOTHING to do with our law (one God, no sculptured images, keep the sabbath, honor your parents, don't take God's name in vain, etc.) so how can somethign be the moral foundation of the law if most of it is completely ignored by our law. Some of our law -- or at least our economy -- cuts against the 10 C-- Our economy is based on the concept of coveting your neighbors things goods, house (maybe not wife). That is what makes capitallism run. Paul Finkelman Quoting Volokh, Eugene [EMAIL PROTECTED]: 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
Re: Are the Ten Commandments the foundation of the Anglo-Americanlegal system?
Ed: I think this is stated very clearly, and I think you have done an excellent job of laying out your position -- others have, too, including those who disagree with you, but I want to focus on this one a bit. This discussion started some days ago about whether the CA Steve Williams suit was being described properly as outlawing the Declaration of Independence. Your position, I take it, is that that misrepresents the case. And maybe it does, or maybe it overstates the case, if it is true that the textbook for Mr. Williams's class has a copy of the Declaration in it (that has been reported). My question is a simple one, I think: regardless of the facts of this case, do you think it is unconstitutional to teach the Declaration of Independence -- that is, not as a historical document, but as if it were true, and that it is legitimate to tell students that it is true? The problem, of course, is with the multiple references to God in the document. Is it a violation of the First Amendment, say, to tell students that many (some?) of the colonists thought that God was the source of our rights, and that they were right about that? Or do we avoid First Amendment problems only by saying that many of them perhaps thought that God was the source of our rights, but then abstain from making any suggestions about whether that is in fact right? Others are certainly welcome to respond, and I welcome any responses. Richard Dougherty -- Original Message -- From: Ed Brayton [EMAIL PROTECTED] Reply-To: Law Religion issues for Law Academics [EMAIL PROTECTED] Date: Fri, 17 Dec 2004 19:15:38 -0500 Kurt Lash wrote: Actually, the establishment clause (and the Tenth Amendment) left to the states the decision whether to adopt common law doctrines relating to religious freedom. Early on, state courts regularly applied common law doctrines like religious blasphemy and the Pearson Rule which decided church property disputes by deciding which group adhered most closely to the original faith of the church. By the mid-1800s, however, most state courts had begun to disentangle religious propositions and the state's common law. Certainly true that one can find lots of connections between the English common law and various state laws regulating religious conduct, such as blasphemy laws and sabbath laws. But it's equally true that such laws are entirely antithetical to the principles found in the Constitution. There clearly was a sea change in the way we viewed such matters that began, I believe, not so much with the first amendment but with the passage of Jefferson's Act for Establishing Religious Freedom in Virginia in 1786, and with the publishing and dissemination of Madison's Memorial and Remonstrance. While the free exercise clause was not initially binding on the states, the tide had turned against the notion that government had the authority to regulate and coerce religious beliefs, and by 1833 all of the original colonies had disestablished their state churches. So at best, one might argue that the Ten Commandments influenced English common law, which the Constitution rejected. One can make the argument I am opposing only by pretending that there is a seamless cloth made up of both the English common law and the American system of freedom of religion, when in fact the two are quite opposed to one another. Again I state that in almost every respect in which one can draw an analog between one of the Ten Commandments and a law that existed either in the English common law or in the states in America for a time, such laws are entirely unconstitutional (particularly after incorporation when they are forbidden to state governments as well). So far from being based on that influence, our Constitutional system can better be viewed as a rejection of that influence. Ed Brayton ___ To post, send message to [EMAIL PROTECTED] To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to [EMAIL PROTECTED] To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
