Re: Are the Ten Commandments the foundation of the Anglo-Americanlegal system?
For those who are interested in this issue, I have written an amicus brief for the McCreary case (with the valuable assistance of Paul Finkelman) that argues against a close connection between American law and the 10 Commandments. If you would seriously consider signing on to such a brief (on behalf of historians and law scholars) and would like to see a draft, please let me know: [EMAIL PROTECTED] By the way, my article in the JLR is based on research from my dissertation which pre-dated my association with Americans United. -- Steven K. Green, J.D., Ph.D. Associate Professor Director, Center for Law and Government Willamette University College of Law 245 Winter St., SE Salem, OR 97301 503-370-6732 [EMAIL PROTECTED] wrote: Divine source, perhaps, but certainly not the God of the Bible, but rather a diestic creator or nature's God. Paul FInkelman Quoting Francis Beckwith [EMAIL PROTECTED]: Very good questions. I think one could teach the logic of the Declaration without saying that it is true. For example, I frequently lecture on thinkers and arguments that I don't think are correct, but I do so because I would not be a virtuous teacher. On the other hand, it may be that some religious beliefs are more consistent with a just regime than others. For example, from your perspective a religion that taught its adherents that the state should teach in its schools the true religion would be a religion that is mistaken about the nature of the state. Frank On 12/18/04 3:23 PM, Ed Brayton [EMAIL PROTECTED] wrote: Francis Beckwith wrote: The declaration says three things about rights: 1. That they are self-evident 2. That they are inalienable 3. That they have divine source So, Ed seems to be suggesting that we jettison teaching the third because there is no principled way to teach it with out implying the falsity of other takes on God and rights. But, as you know, there are many who challenge the inalienability and self-evidence of rights precisely on the grounds that if rights have these non-material properties, it seems that some form of non-naturalism must be the case and theism is a form of non-naturalism. So, there's good reason to ignore 1 and 2 as well since it may lead one to think that theism has a lot more going for it in grounding rights than let's say materialism. I'm not suggesting that we not teach that this is the philosophy behind the Declaration, I'm just saying that if we allow teachers to advocate that the theological position is true, how do we prevent them from advocating any other theological position? If we cannot do so, then we'll have quite a mess on our hands as Muslim teachers teach their students that the Quran is true, for instance, or atheist teachers teach that the bible is false. From a practical standpoint, this clearly isn't workable, but at the same time you cannot constitutionally say that we will allow teachers to teach some theological positions but not others. How would you address that question, which was at the core of what I said? 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. 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 ___ 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
Re: Are the Ten Commandments the foundation of the Anglo-Americanlegal system?
To the best of my knowledge that Court has never cited the TenC as legal authority for anything. On the other hand, I don't know any serious scholar who would deny that the 10 C have influenced American law. The issue is HOW MUCH influence. Chief Justice Moore asserted it was the moral foundation of American law and thus a monumnet with the 10 C on would not violate the establishment clause because it was a monument to the historical foundation of our law. That is a very diffent claim than the very narrow one that the Ten C have influenced American law. I cannot comprehend how Mr. New can conclude that Monotheism is the moral foundation for Western ideas of fundamental human rights and freedoms. Given the sheer number of people slaughtered in the name of God by Western Europeans, it is hard to imagine what human rights stem from monotheism and western society. And as for freedoms we might recall the Crusades with the murdering of Jews throughout Europe and the attacks on Moslems in the Middle East, England expelling all of its Jews in the 13th century, the Inquisition and the cleansing of Spain of Jews and Moslems, the Revocation of the Edict of Nantes (1685) and the slaughter of French Protestants, the 30 years war with the mudering of hundreds of thousands of Protestants and Catholics, the pogroms of Eastern Europe, the Spanish destruction of native cultures in the New World, and countless other examples of how monotheism in the Western World has led, not to human rights, but to the slaughter of millions and millions. The worst tyrants of Europe were all devout monotheists. One also recalls the countless Protestant ministers in this country who defended slavery with the Bible and the Church, arguing that God ordained blacks to the be slaves of whites and that slavery was justified because it brought Christianity (Monotheism) to the heathens of Africa. Finally, neither the Ten C nor the rest of the Pentatuch teaches democracy or self-government. On the contrary, the Bible claims that law comes from God, not from the consent of the governed. Thus, for centuries monotheists extolled the powers and virtues of Kings who held their thrones by divine rights. Human rights was the invention of the age of Englightenment -- men like Voltaire, Paine, Jefferson, and Franklin -- and the rejection of religion as the basis for political society. Paul Finkelman -- Paul Finkelman Chapman Distinguished Professor University of Tulsa College of Law 3120 East 4th Place Tulsa, Oklahoma 74104-2499 918-631-3706 (office) 918-631-2194 (fax) [EMAIL PROTECTED] David W. New wrote: Even the U.S. Supreme Court acknowledges that the Ten Commandments have influenced American law. See McGowan v. Maryland, 366 U.S. at 462. The influence of the Ten Commandments on our laws goes far deeper than the body of American law itself. The most important influence of the Ten Commandments concerns the nature of God and its impact on human rights. The Ten Commandments teach monotheism. Monotheism is the moral foundation for Western ideas of fundamental human rights and freedoms. Our concept of Equal Justice Under Law can be traced directly to the view that God is One. The belief in human equality is strictly a religious concept, it did not originate from secularism. Monotheism pervades American culture including our laws to such an extent that it is impossible to escape its influence. Virtually, everyone participating in this discussion thinks like a monotheist, whether they are conscious of it or not. Even atheists who deny the existence of God think like monotheism albeit unknowingly. I am reluctant to recommend a publication since I wrote it. But my publication is about the way monotheism and the Ten Commandments influenced Western law and culture. Feel free to read the Table of Contents at www.mytencommandments.us David W. New Attorney at Law Washington, D.C. 202-333-2678. - Original Message - From: Steven Green [EMAIL PROTECTED] To: Law Religion issues for Law Academics [EMAIL PROTECTED] Sent: Monday, December 20, 2004 2:31 PM Subject: Re: Are the Ten Commandments the foundation of the Anglo-Americanlegal system? ___ 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 11:31:37 PM Eastern Standard Time, [EMAIL PROTECTED] writes: Surely, an exhaustive anthropology should reach back into those primitive societies that survived because they embraced such rules as no killing, no stealing, etc. Well, I wonder about this. Why should an anthropology of angles and saxons rely upon developments of neolithic cultures in the pacific rim? And what of the cultures that survived because they adopted the no killing us, no stealing from us, versions of these rules. If you visit Washington, DC, take the public tour of the Supreme Court building. If the docent does not proffer an explanation, inquire about those tables, centered over the Chief's head, that are numbered from 1 through 10: "Are those the Ten Commandments?" If you do, this is the reply you will get: "Actually, although numbered 1 through 10, those tables are intended by the artists to remind us of the moral codes common to all early societies." That "interpretation" avoids complications that the ACLU might raise with the Court if the stock answer was that the tables represented the Ten Commandments and that the position of them above the Court and at the center of the bench symbolically acknowledge the superiority of God's law over man's and the centrality of God's law to the resolution of disputes over man's law. But that raises lots of issues about what moral code was common to all early societies, and how limited the code would have to be in order to reach across the boundaries of varied early cultures, etc. 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.
Re: Are the Ten Commandments the foundation of the Anglo-Americanlegal system?
Richard Dougherty wrote: 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? I think we certainly should teach that those who wrote the Declaration believed that rights were something we were endowed with by a creator. To teach anything else would be a lie. But no, I do not think that a teacher should then go on to say, And they were right about that. To do that is to endorse a religious position. It is also a statement that we can't really know is true or not, as opposed to the historical question of what they believed to be true, which we can give a solid empirical answer to. And I'd go a step further than that and say that if teachers are going to discuss the religious views of the men who wrote the Declaration in any detail, they should make it clear that what there were major differences among them regarding the nature of the Creator, because that too is true and verifiable. One of the problems that is quite common in discussion of the founding fathers in general, and especially in this area, is that of oversimplification. To pretend that they all meant the same thing by creator or nature's god is, again, to teach something that simply isn't true. Jefferson's conception of God differed wildly from Patrick Henry's, which differed from Ben Franklin's, which differed from George Washington's. Most people see the broadly deistic language in the Declaration and, because they haven't read anything further about the founders' views, presume that it refers to the Christian God. But for many of the founders, it clearly did not (though for most, I think it did). Again, we should teach what is true and verifiable, which is that the fight for independence and the founding of America was achieved by a mixture of orthodox Christians and Enlightenment-inspired deists and unitarians who often disagreed greatly on religious matters (and on other matters, of course). Hence, most historical scholars view the language in the Declaration to be a sort of lowest common denominator reference, one which could satisfy both sides in this sometimes-tense compromise. More later when I return home. 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.
Re: Are the Ten Commandments the foundation of the Anglo-Americanlegal system?
In a message dated 12/18/2004 9:09:47 AM Eastern Standard Time, [EMAIL PROTECTED] writes: Why should an anthropology of angles and saxons rely upon developments of neolithic cultures in the pacific rim? And what of the cultures that survived because they adopted the no killing us, no stealing from us, versions of these rules. Oh, because often the claim that American law is based on religion is offered as an explanation and justification of religion's salience in American society. In other words, the claim is that were it not for religion, society would consist of a war of all against all.Consequently, if anthropology reveals that those pre-religious societiesor those pre-Judeo-Christian societies also had laws against murder, theft, and forth, or if anthropology shows that only societies that have such rules survive, then some of the importance of religion as the groundwork of morality in American society is undercut. The claim that morality derives from and is justified bythe Ten Commandments, or some other Judeo-Christiantext cannot be sustained if anthropology reveals that prior secular societies or priornon-Judeo-Christian societies had the same or similar rules for governing social life. 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 the Anglo-Americanlegal system?
In a message dated 12/18/2004 3:51:16 PM Eastern Standard Time, [EMAIL PROTECTED] writes: But, as you know, there are many whochallenge the inalienability and self-evidence of rights precisely on thegrounds that if rights have these non-material properties Why are "inalienability" and "self-evidence" "non-material properties"? Certainly, "self-evidence" is howwe know the truth ofpropositionswithout any ontological commitment.Further, I'm not sure I understand why "inalienability" implies non-naturalism.Perhaps, Frank is right that both these terms can be interpreted as "non-naturalist," but surely that interpretation is not necessary for rendering these terms intelligible. 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 the Anglo-Americanlegal system?
Francis Beckwith wrote: The declaration says three things about rights: 1. That they are self-evident 2. That they are inalienable 3. That they have divine source So, Ed seems to be suggesting that we jettison teaching the third because there is no principled way to teach it with out implying the falsity of other takes on God and rights. But, as you know, there are many who challenge the inalienability and self-evidence of rights precisely on the grounds that if rights have these non-material properties, it seems that some form of non-naturalism must be the case and theism is a form of non-naturalism. So, there's good reason to ignore 1 and 2 as well since it may lead one to think that theism has a lot more going for it in grounding rights than let's say materialism. I'm not suggesting that we not teach that this is the philosophy behind the Declaration, I'm just saying that if we allow teachers to advocate that the theological position is true, how do we prevent them from advocating any other theological position? If we cannot do so, then we'll have quite a mess on our hands as Muslim teachers teach their students that the Quran is true, for instance, or atheist teachers teach that the bible is false. From a practical standpoint, this clearly isn't workable, but at the same time you cannot constitutionally say that we will allow teachers to teach some theological positions but not others. How would you address that question, which was at the core of what I said? 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.
Re: Are the Ten Commandments the foundation of the Anglo-Americanlegal system?
Divine source, perhaps, but certainly not the God of the Bible, but rather a diestic creator or nature's God. Paul FInkelman Quoting Francis Beckwith [EMAIL PROTECTED]: Very good questions. I think one could teach the logic of the Declaration without saying that it is true. For example, I frequently lecture on thinkers and arguments that I don't think are correct, but I do so because I would not be a virtuous teacher. On the other hand, it may be that some religious beliefs are more consistent with a just regime than others. For example, from your perspective a religion that taught its adherents that the state should teach in its schools the true religion would be a religion that is mistaken about the nature of the state. Frank On 12/18/04 3:23 PM, Ed Brayton [EMAIL PROTECTED] wrote: Francis Beckwith wrote: The declaration says three things about rights: 1. That they are self-evident 2. That they are inalienable 3. That they have divine source So, Ed seems to be suggesting that we jettison teaching the third because there is no principled way to teach it with out implying the falsity of other takes on God and rights. But, as you know, there are many who challenge the inalienability and self-evidence of rights precisely on the grounds that if rights have these non-material properties, it seems that some form of non-naturalism must be the case and theism is a form of non-naturalism. So, there's good reason to ignore 1 and 2 as well since it may lead one to think that theism has a lot more going for it in grounding rights than let's say materialism. I'm not suggesting that we not teach that this is the philosophy behind the Declaration, I'm just saying that if we allow teachers to advocate that the theological position is true, how do we prevent them from advocating any other theological position? If we cannot do so, then we'll have quite a mess on our hands as Muslim teachers teach their students that the Quran is true, for instance, or atheist teachers teach that the bible is false. From a practical standpoint, this clearly isn't workable, but at the same time you cannot constitutionally say that we will allow teachers to teach some theological positions but not others. How would you address that question, which was at the core of what I said? 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. 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 ___ 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-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 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 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.
