Aseret Had'Varim in Tension: The Ten Commandments and the Bill of Rights
Osler, Mark, Journal of Church and State
One does not usually have to wait long in an after-church or talk-radio discussion of natural law to hear the familiar shibboleth that "The Ten Commandments are the foundation of American Law."1 This statement serves many functions: It ties together Jewish and Christian morality, affirms a role for those faiths within the secular world of law, and roots the argument for natural law in the reports of an ancient event that is hardto dispute, because those who believe in those events do so as an article of faith.2
The problem with this shibboleth is that it is not true, if it means that our law reflects or contains the Commandments. Almost none of the Ten Commandments remains as a functioning part of American criminal law, largely due to the limitations on government dictated by the Bill of Rights, another ten-part document.
The intersection of the Ten Commandments and the United States Constitution is fraught with debate. Two years ago, the United States Supreme Court simultaneously decided that the posting of the Ten Commandments was allowed at the Texas Capitol.s but unconstitutional in a Kentucky courthouse.4 That the arguments in those cases took place in a Supreme Court courtroom overseen by a frieze depicting Moses with the same Ten Commandments only added to the confusion surrounding the issue.5
The question presented in those cases, whether it violates the First Amendment for a government to post the Ten Commandments, is not the one addressed herein.e Rather, this essay will focus on the substance of the Commandments, not their use as a symbol. My interest lies in the message implied by the display at issue in the second of these cases, McCreary County, Kentucky v. American Civil Liberties Union, where a copy of the Ten Commandments was displayed next to a reproduction of the Bill of Rights,7 suggesting that they are companion documents conveying a common message. As indicated below, there is truth in that implication, though probably not in the way intended by the Kentucky Legislature. In a basic way and by their fundamental nature, the two are in opposition. For example, the First Commandment directs that we should have no gods above the God of Moses, but the First Amendment bars governmental enforcement of that imperative by insisting on freedom of religion. At the same time, however, the First Amendment's guarantee of the free exercise of religion does work to protect the role of the Commandments as a foundation of American morality, which ultimately might be more important.
This essay seeks to define the legal disconnect between the Ten Commandments and American law, largely through the effects of the Bill of Rights. Part I below looks at the striking structural similarities between the Ten Commandments and the ten Amendments to the Constitution that constitute the Bill of Rights. Part II, in turn, will explore the ways the Ten Commandments have been barred from enforcement by government through the requirements of practicality, our nation's evolving culture, and, perhaps most importantiy, by Constitutional concerns. Part III looks to the ways in which the Ten Commandments and the Bill of Rights, by their very nature, are in opposition; one seeks moral uniformity and the other protects amoral freedoms. Finally, Part IV describes the true and continuing role for the Ten Commandments: within the churches, mosques, temples, hearts, and souls of Americans.
TWO ASERET HAD'VARIM
Intriguingly, the Ten Commandments and the Bill of Rights share a similar structure. At the simplest level, they both contain ten points or statements, which is not accidental. The Bible describes the Ten Commandments using the Hebrew phrase aseret had'varim, which translates as "ten words, statements, or things."8 Our instinct to create lists of ten seems rather primal, given even our current obsession with "top ten fists" of various types. The similarities, though, extend beyond the shared numeration of the Bill of Rights and the Commandments.
From Many, Ten
Both the Ten Commandments and the Bill of Rights are complex in structure while appearing simple. More important, each contains far more than ten points or statements that have been grouped to create sets of ten.
The Ten+ Commandments
Turning first to the Ten Commandments, an initial reading shows that they resist easy definition. Part of the problem is that two places in Scripture list the Commandments somewhat differentiy-Exodus 20:2-17, and Deuteronomy 5:1-22. Though not major, the differences may be seen by some as significant. For example, one discrepancy is the description of the Sabbath. Exodus 20:8 warns us to "Remember the Sabbath Day," while Deuteronomy 5:12 instructs that we are to "Observe the Sabbath Day."
Aside from the minor differences between the two accounts in the Bible, the fourteen distinct directives9 given in those accounts have been reduced to ten statements in a variety of ways. Jews, Catholics, Muslims, and various Protestant sects variously describe the Ten Commandments in strikingly inconsistent patterns. Catholics, for example, take three distinct statements ( "I am your Lord and God," "You shall have no other gods before me," and "You shall not make for yourself an idol") and gather them all together to constitute the First Commandment. In contrast, most Protestant denominations break these three statements into two commandments, with the First Commandment being "I am your Lord and God" and "You shall have no other Gods before me," while "You shall not make for yourself an idol" stands alone as the second Commandment.10 Meanwhile, Tews see a third permutation, with "I am your Lord and God" standing alone as the First Commandment.11 Thus, three major religious groups, all of whom view the Ten Commandments as an essential moral code, fundamentally disagree even as to how the first few should be organized. The disagreement comes in part from the structure of a Decalogue, which combines more than ten statements, a structure the Bill of Rights replicates.
Ten Amendments, 25 Rights
Even a cursory review of the Constitution's first ten amendments reveals a complex and even haphazard grouping of far more than ten rights. At least one of these groups is a hodgepodge: The Fifth Amendment lumps together a number of rights accruing to those accused of crimes (the right of due process and grand jury indictment, and against double jeopardy and self-incrimination) with one accruing strictly to property owners (the right against the taking of property by the government without proper compensation). Several of the most fundamental rights (free speech, religion, assembly, and press) are grouped together in the First Amendment, while the Third Amendment (freedom from quartering of troops) is of much less general import.
Listed separately, the Bill of Rights contains no fewer than twentyfive distinct rights,12 and reserves to the people and states all unenumerated rights under Amendments Nine and Ten. Like the Ten Commandments, the Bill of Rights is not a neatly numbered set of ten; rather, it is a complex web of statements intentionally placed into the familiar structure of an asaret had'varim.
THE UNSETTLING OF THE TEN COMMANDMENTS
On their face, both the Ten Commandments and the Bill of Rights have similar structures. This, of course, is not enough to justify the assumption that they somehow act in league, or that the Commandments are a foundation of American law.
If the Ten Commandments were a basis for American law, we would expect to see those imperatives reflected in the criminal laws of this country. After all, the Commandments themselves are phrased in the form of criminal laws, and violations were to be punished by the authorities. For example, the injunction of the Commandments against theft comes with specific sanctions: The theft of sheep shall be punished with a fine of four sheep, while the theft of an ox requires punishment of five oxen.13
In fact, only two of the Commandments are reflected in contemporary American law: the prohibitions against murder and theft.14 Even these are hard to credit to the Ten Commandments directly, as any civilized society likely has legal restrictions against killing and stealing-to allow such crimes would be to invite anarchy, and not surprisingly both are barred in nations with any sort of criminal code. As set out below,15 even the enforcement of these two is restricted by the Bill of Rights. The other Commandments, meanwhile, have fallen out of our public laws through social action, the effect of the Bill of Rights, or both.
Non-Constitutional Undoings of the Ten Commandments
So why are the remaining Commandments16 not a part of our law? Regarding three of them, the answer is that such a law would be functionally unenforceable. Coveting your neighbor's house is virtually unmeasurable.17 Similarly, it would seemingly overwhelm the resources of law enforcement if they were called to investigate all those instances where a teenager failed to honor his father and mother. Finally, the outlawing of all dishonesty would similarly be so unwieldy as to be impossible. Thus, half of the Commandments are either in the criminal code or are too unwieldy to enforce generally through the criminal laws.
In addition to these five, one of the Commandments has given way to the demands of commerce in this country. While many states and localities formerly maintained "blue laws," which banned activities (such as retail sales) inconsistent with "keeping the Sabbath," those restrictions have largely fallen by the wayside because of the demands of commerce.
Six of the Commandments, then, are either in the criminal law (murder, theft), unenforceable (coveting, honoring parents, lying), or have yielded to the demands of commerce (honor the Sabbath). What of the remaining four? As set out below, they succumb directly or indirectly to the demands of the Bill of Rights. Further, the ability to pursue those Commandments within the criminal law-theft and murder-are expressly limited by the Bill of Rights.
The Constitutional Challenge to the Ten Commandments
For many who firmly believe in both a faith that embraces the Ten Commandments (Christianity, Judaism, and Islam) and the rights conferred by the Constitution, it is hard to imagine the idea that the U.S. Constitution not only ignores, but directly rejects many of these Commandments. Yet, an objective view of the history of those Commandments and the Constitution demonstrates a repeated and explicit rejection.
"Thou shalt have no other gods before me"
The First Commandment is subject to interpretation; to some it may bar polytheism, but on its face it seems only to bar placing another god above the God of Moses and the Jews. Either interpretation, however, may not be made a part of the law in the United States. The First Amendment forbids such a favoring of one specific view of God by directing both that "Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof. ..." The first part of this fragment is referred to as the Establishment Clause, while the second is the Free Exercise Clause. Both would clearly bar a law requiring citizens to worship the God of the Hebrew people at the time of Moses above all others.
As the Supreme Court has repeatedly made clear, the First Amendment not only prevents the government from promoting one god above another, or monotheism over polytheism, but requires government neutrality even "between religion and nonreligion."18 Thus, the government not only cannot enter into the law a preference for the God of the Judeo-Christian tradition, but the idea of a God at all.
"Thou shalt not make unto thee any graven images"
More, perhaps, than any of the other Commandments, the ban against graven images was seemingly a product of the time of Moses. The Hebrew kings and prophets struggled for centuries against idolworship, especially idols of the god Baal19
In modern America, of course, we are free to worship an idol if we choose, a freedom protected by the Bill of Rights in the Free Exercise Clause described above. There may well be Baal-worshippers in America today, among the other groups who choose faiths including devil-worship, Wiccan covens, and even the devotees of the Flying Spaghetti Monster (a faith which was created for the sole purpose of mocking religion).20
The ability to build and worship idols is not even close to the limits of allowable religious practices in modern America. In extending the reach of the constitutional interest in the free exercise of unconventional religions, Congress has even granted religious sects the ability to violate secular iaws. For example, last year in Gonzales v. O Centro Espirita Beneficiente Uniao do Vegetal,21 the United States Supreme Court upheld, based on the Free Exercise Clause and the Religious Freedom Restoration Act of 1993,22 a preliminary injunction preventing law enforcement from stopping a religious group from using illegal hallucinogenic substances as part of their worship.
Even beyond Free Exercise, it would seem that worship of an idol, even if not given the status of a religion, would be protected by the Free Speech Clause of that same First Amendment. That is, it is hard to imagine the United States allowing a person to be prosecuted merely for bowing or praying to an idol, as the state interest in preventing that behavior would be very limited or prohibited. As with other parts of the Mosaic imperatives, American law at its most important level not only does not support the Commandments' directive to avoid the worship of graven images, but affirmatively prohibits the Second Commandment from becoming a part of our laws.
"Thou shalt not take the name of the Lord thy God in vain"
Interestingly, the interaction between blasphemy and the First Amendment's Free Speech clause has changed over time. While the predominant view today is that because or freedom of speech, "In America, there is no heresy, no blasphemy,"23 blasphemy was not only a crime in parts of colonial America, it was a capital crime in the colony of Massachusetts.24 The conflict between these statutes and the freedoms embodied in the First Amendment did not go unnoticed; in a letter to Thomas Jefferson in 1825, John Adams criticized blasphemy laws, saying that they were "a great embarrassment, great obstructions to the improvement of the human mind."25
The First Amendment and its guarantee of religious liberties was not applied to the states until 1931.26 Prior to that point, the states (unlike the federal government) were not hindered by the Bill of Rights in barring blasphemy. In early America, there were a few significant state prosecutions for blasphemy. For example, the 1837 Delaware case of State v. Thomas Jefferson Chandler,27 convicted the defendant of declaring in public that "the virgin Mary was a whore and Jesus Christ was a bastard."28 In the time since Chandler, it appears there were few if any prosecutions for blasphemy, even in the state courts, no doubt owing both to the increased prevalence of such language in society and the accepted belief that, at some level, such speech is protected by the Constitution.
One striking and very recent case shows the triumph of free speech over the criminalization of blasphemy once the First Amendment was applied to the states. On 15 October 2002, a man named Thomas Leonard rose to speak at a township council meeting in Montrose, Michigan. Upset about the loss of a towing contract, he addressed the council, saying, "That's why you're in a God-damn lawsuit."29 It's not surprising to our modern sensibilities that such a thing was said at a public meeting; but what happened next may well De a surprise. Leonard was arrested by a police officer and charged for his speech.30
After the case was predictably voided and dismissed, Leonard sued the officer who arrested him. In attempting to employ the shield of qualified immunity, the arresting officer relied on a long-forgotten Michigan statute31 that stated anyone "who shall profanely curse or damn or swear by the name of God, Jesus Christ, or the Holy Ghost, shall be guilty of a misdemeanor."32 The Sixth Circuit held that the officer could not rely on that statute as a justification for his actions, noting a long line of free speech cases and concluding that the blasphemy statute "if not facially invalid, is radically limited by the First Amendment."33
Rather than being beaten down through court action, it appears that blasphemy statutes have faded away, largely due to the wellfounded belief that, in most instances, they would violate the First Amendment's guarantee of free speech. While prohibitions against blasphemy did exist in the early days of the republic (and linger in unused statutes today), they became a victim not only of the increasing freedoms we have come to expect, but the disinterest of law enforcement in pursuing laws that no longer match the prevailing sense of freedom's allowable limits.
"Thou Shalt Not Commit Adultery"
Like blasphemy, it seems that criminal prohibitions against adultery have simply fallen into disuse, rather than having been tossed overboard by courts interpreting the Bill of Rights. Nevertheless, any remaining vitality those laws might have may well have been finished off by the Supreme Court's decision in Lawrence v. Texas,34 in which the Court struck down a Texas law prohibiting consensual, private homosexual relations based on a constitutional right to privacy.
While the Constitution does not enumerate the right to privacy, the Supreme Court has held in a variety of contexts that it is unconstitutional for the government to violate the privacy of individuals in their sexual affairs, holding that the Constitution implies an interest in such privacy. This line of cases extends to the present from the Court's 1965 decision in Griswold v. Connecticut,36 which first discovered this right to privacy in limiting a state's ability to prevent the sale of contraceptives to married couples. Other significant cases in this line include Eisenstadt v. Baird36 which extended Griswold's protections to unmarried couples, and Roe v. Wade,37 which held that this right to privacy also allowed women the right to have an abortion.
One blip on this line of cases extending the right to privacy was Bowers v. Hardwick,38 which in 1986 upheld the ability of a state to convict an adult male of homosexual sodomy over the objections of the defendant that he was entided to sexual privacy. This reversal was brief, however; in 2003, the Court overruled Bowers in Lawrence, which presented nearly identical facts.39
The Court's ruling in Lawrence was predicated, at least in part, on the Court's conclusion that there is an "emerging awareness that liberty gives substantial protection to adult persons in deciding how to conduct their private fives in matters pertaining to sex."40 This recognition, along with the general trend of broadened protections after Griswold, would suggest that if an adultery law were to be challenged before the Court, that law may well be struck down as intruding within the protected realm of privacy.41 In his own dissent to Lawrence, in fact, Justice Scalia suggested exactly that.42
We probably will not find out what the Court would do with a challenge to an adultery law. Like blasphemy, the dominant culture has combined with the general perception of the growing sphere of privacy to prevent the facts for such a case from arising very often, Once again, culture and the Constitution have, at least indirectly, reduced the credibility of the idea that the Commandments are a foundation of American law.
"Thou Shalt not kill"
"Thou Shalt not steal"
Though the criminal laws of the U.S. include the biblical injunction not to kill or steal, that hardly is a point of distinction from any other civilized society, including those well outside of the Judeo-Christian tradition. It is hard to imagine a code of law that would allow wholesale murder or theft. Moreover, the Bill of Rights hinders the prosecution of those who commit these acts. It cannot reasonably be disputed that the Constitution imposes substantial burdens on those seeldng to enforce those laws: It is certainly true that some murderers have gone free because a search warrant was improper, or because they invoked their constitutionally-protected right to remain silent. Thus, even those Commandments most firmly lodged in the pantheon of American law are limited in their application by the freedoms set out in the Bill of Rights. Ironically, it is those countries outside of the JudeoChristian tradition that lack such restrictions on enforcing the ban on murder-the rights we have created to restrict the pursuit of murderers do not apply in China.
Those restrictions, too, are neither few nor insignificant. The Fourth Amendment allows a thief or murderer to hide evidence unless the police have a warrant, and the Fifth Amendment allows them to remain silent when questioned, without penalty. That amendment also sets out that the government must use an indictment obtained from a Grand Jury in order to try the murderer, requires due process, and prevents trying him twice for the same crime. Without a speedy trial or an impartial jury or an effective attorney, the case will be dismissed or retried, pursuant to the Sixth Amendment. Finally, he is to be free from cruel and unusual punishments, which prevents the state from executing the murderer who is too young43 or too unintelligent,44 and will prevent the thief from being executed at all. The Constitution, in many cases, is hardly a "companion document" to the Ten Commandments-rather it is a blanket thrown over the enforcement of even these most basic of the Mosaic imperatives.
THE STRUCTURAL STRUGGLE BETWEEN THE ASERET HAD'VARIM
All that is set out above, describing the large and small ways in which the Bill of Rights has been employed to prevent the Ten Commandments from being a significant source of contemporary American criminal law, is not an accident or the result of malicious manipulation of the U.S. Constitution. Rather, die Constitution has served that function because of the precise type of tool it is-one designed to maintain freedom even at the expense of a moral order based on a source as powerful and ancient as the Ten Commandments.
The essence of the Bill of Rights is that it limits the actions of government in attempting to impose any code of belief and behavior on the residents of the nation. Justice Scalia summed this up in his Lawrence dissent, noting that the Texas law forbidding homosexual acts "undoubtedly imposes constraints on liberty. So do laws prohibiting prostitution, recreational use of heroin, and, for that matter, working more than 60 hours per week in a bakery."45 That is, every law restricts the natural freedom of individuals in some way, by criminalizing or allowing a civil sanction for performing a given act. In turn, the Constitution acts as a countervailing force to protect those freedoms.
Scalia's summary brings out beautifully the fact that the job of law, through the actions of both legislatures and courts, is nothing less than the hard work of defining the line between morality and freedom, which continually oppose one another. Freedom, it might be said, is nothing more and nothing less than the ability to violate someone else's morals, through thought or action, without threat of sanction.
Within that epic struggle, the morality of the Ten Commandments has often given way to freedom as the courts and society have defined that line. The enactment of the Bill of Rights initiated that process. Want to tell us how we should worship, as directed by the First Commandment? You can't, because of the First Amendment. Want to tell us how to talk about God? Good luck with that. Would you like to regulate sexuality between consenting adults? Things aren't going your way lately. Want to do something about a murderer or thief? Better get a warrant, and an indictment, an allowable confession, a speedy trial, an initial appearance, and even find and pay for effective defense counsel. It is the Constitution that by its very nature has allowed these obstacles to be erected against the enforcement of the Commandments. We should not be surprised, because that is what a Constitution does. The freedoms it protects are often ugly, immoral, and unchristian. That does not change when we plaster these two aseret had'varim side-by-side in a classroom and pronounce them to be the twin pillars upon which our society rests. Rather than pillars, they are more like the lion and the tamer, constantly at battle in an unsettled equipoise, as a moral citizenry reacts to those immoralities that come before us in the guise of protected freedoms.
AND WHAT OF THE TEN COMMANDMENTS, THEN?
That the Commandments are not a fundamental part of American law does not imply that they are anything less than a fundamental part of American society. Because the Commandments are common to so many of our faiths, they are more than a guide to personal morality, they are a glue that holds us together, with or without the law being mustered in their support. Adultery is condemned in America, for the most part, and the common bond of the Commandments has something to do with that-certainly more than any vestigial law diat may still be around, unused and ignored.
It is a particularly American characteristic that among our diversity of beliefs, the Commandments can have such sway even without the support of the law. This combination of a secular, freedom-loving law and a religious, moral-loving population distinguishes us from Doth those theocracies that impose belief on citizens and more secular societies that lack any dominant public morality.
Within U.S. society structured by the Constitution, our secular government is layered below a diversely religious people, meaning that multiple social directives will be issued-including necessarily secular messages from the government, and faith-based messages from churches, mosques, temples, and individuals. Thus, there is a realm in which the imperatives of the Ten Commandments can be held out as a moral code-as a normative guide to personal behavior or the basis for a social morality directed by a church community. Perhaps, then, it is more important that the Commandments be posted in our homes and churches than in our courthouses.
David A. Skeel and William J. Stuntz have described at length a reason to be glad for this secular/religious overlay: It saves the religious sphere from the arbitrariness and politicization resulting from discretion being wielded by mortal and flawed people in public office.46 So long as we do not believe there is a "Party of God," it is hard to trust that revealed truth is best filtered through our political system.
In one sense, the Ten Commandments and the U.S. Constitution are at loggerheads, but only if we view the best expression of the Commandments to be enacting them into law to be enforced by our governments. If, on the other hand, we hope that the Commandments will be promoted and cherished by individuals and religious groups, then we do see a way in which the Constitution and Commandments work together. As the Free Exercise and Establishment clauses of the First Amendment simultaneously prevent the first three of the Ten Commandments from being enforced, these clauses also protect the sphere in which the Ten Commandments can be expressed as moral imperatives. That is, while the First Amendment tells the government not to direct which God to worship, it also prevents the government from interfering with the worship people choose. The First Amendment is a shield when the government tries to enter the realm of faith, but it is also a sword in the hands of those people of faith who soldier into the fray of social debate, carrying the Commandments with the same strength and vigor as the depiction of Moses on the ceiling of the U.S. Supreme Court.
1. A 2003 poll found that 40 percent of those Americans polled believed that the United States is guided "by Judeo-Christian beliefs inspired by God," and 68 percent thought that governments should be able to post the Ten Commandments in courthouses. Susanna Dokupil, "Thou Shalt Not Bear False Witness:' 'Sham' Secular Purposes in Ten Commandment Displays," Harvard Journal of Law and Public Policy 28 (2005): 609, 612, quoting: http://www.pbs.org/flashpoinrusa/20040127/tvpoll_results.html.
2. Moreover, the case that biblical elements such as the Ten Commandments serve as the basis for our law are often employed in efforts to require Bible study in schools. Recently, for example, Warren Chisum, a member of the Texas legislature, promoted a proposed law that would require all public schools in Texas to offer an elective class in the Bible. Part of his argument for such a law was that "There's a lot of stuff in the Bible that finds its way into our dictionaries, into our art, into our literature and into our laws." See "Bill Would Put Course On Bible in All Districts," Houston Chronicle, 4 April 2007, A1.
3. Van Orden v. Perry, 545 U.S. 677 (27 June 2005).
4. McCreary County, Kentucky v. American Civil Liberties Union, 545 U.S. 844 (27 June 2005).
5. Ibid, at 874.
6. Nor is it a very important question. The posting of the Ten Commandments in courtrooms seems to be nothing more than an obvious attempt to push religion into the public sphere; I cannot remember ever having seen them posted in a church or the home of those who think this is important to defend. At the same time, the hardship caused by such a posting is not very significant in a nation that is struggling with life-and-death constitutional issues, such as capital punishment.
7. In its last incarnation, that display also included the Magna Carta, the Declaration of Independence, the lyrics of the national anthem, the Mayflower Compact, the national motto, the Preamble to the Kentucky Constitution, and a picture of "Lady Justice." Ibid, at 855.
8. Exodus 34:28 (New Standard Revised Version).
9. As described in the book of Exodus, those imperatives would be:
1. I am the Lord your God (Exodus 20:2, New Revised Standard Version)
2. You shall have no other gods before me (Exodus 20:3)
3. You shall not make for yourself an idol (Exodus 20:4)
4. You shall not bow down to or worship idols (Exodus 20:5)
5. You shall not make wrongful use of the name of the Lord (Exodus 20:7)
6. Remember the Sabbath Day (Exodus 20:8)
7. Work forbidden on the Sabbath (Exodus 20:10-11)
8. Honor your father and mother (Exodus 20:12)
9. Do not commit murder (Exodus 20:13)
10. Do not commit adultery (Exodus 20:14)
11. Do not steal (Exodus 20:15)
12. Do not bear false witness against your neighbor (Exodus 20:16)
13. Do not covet your neighbor's house (Exodus 20:17)
14. Do not covet your neighbor's wife (Exodus 20:17).
10. A friend and colleague remembers a striking incident at a Baptist college which hints at the fact that many people do not realize these distinctions have been made. He wandered into the bookstore at that school and saw a beautiful wall plaque of the Ten Commandments on display. He wanted them, but noticed that something was different about them. In short, they were the Catholic version of the Commandments, he eventually ascertained. Upon raising this to the proprietor of the store, she said none of the several people who had purchased them had noticed.
11. Rabbi Ronald H. Isaacs, "Division & Structure of the Ten Commandments," available online at: http://www.myjewishlearning.com/holidays/Shavuot/TO_Shavuot_Communi-ty/Isaacs_Readings_402/Isaacs_Commandments_1053.htm.
12. Described separately, these would be: 1) Freedom of religion (First Amendment); 2) Freedom of speech (First Amendment); 3) Freedom of the press (First Amendment); 4) Freedom of assembly (First Amendment); 5) Freedom to petition Government (First Amendment); 6) Right to bear arms (second Amendment); 7) Freedom from quartering of troops (Third Amendment); 8) Freedom from unreasonable searches and seizures (Fourth Amendment); 9) Right to indictment when accused of serious crime (Fifth Amendment); 10) Freedom from double jeopardy (Fifth Amendment); 11) Freedom from compelled selfincrimination (Fifth Amendment); 12) Right to due process (Fifth Amendment); 13) Freedom from uncompensated taking of property (Fifth Amendment); 14) Right to a speedy trial in criminal cases (Sixth Amendment); 15) Right to a public trial in criminal cases (Sixth Amendment); 16) Right to impartial jury in criminal cases (Sixth Amendment); 17) Right to be informed of accusation (Sixth Amendment); 18) Right to confront accusers (Sixth Amendment); 19) Right to compulsory process to obtain witnesses (Sixth Amendment); 20) Right to counsel (Sixth Amendment); 21) Right to a jury in civil cases (Seventh Amendment); 22) Freedom from review of jury findings (Seventh Amendment); 23) Freedom from excessive bail (Eighth Amendment); 24) Freedom from excessive fines (Eighth Amendment); 25) Freedom from cruel and unusual punishments (Eighth Amendment).
13. Exodus 22:1.
14. While lying may be criminal in certain situations (for example, if one commits fraud or perjury), for the most part lying is not addressed by the criminal code.
15. § II(B)(5).
16. For the purposes of this discussion, I employ the Commandments as they were described in the McCreary County case, 545 U.S. at 853:
1. Thou shalt have no other gods before me.
2. Thou shalt not make unto thee any graven images.
3. Thou shall not take the name of the Lord thy God in vain.
4. Remember the Sabbath day, to keep it holy.
5. Honor thy mother and father.
6. Thou shalt not kill.
7. Thou shalt not commit adultery.
8. Thou shalt not steal.
9. Thou shalt not bear false witness.
10. Thou shalt not covet.
17. Enforcement of a law against coveting would be particularly troublesome to enforce. See Irene Merker Rosenberg, "The Ten Commandments: The Prohibition Against Coveting and the Problem of No Actus Reus," Criminal Law Bulletin 39, no. 3 (May 2003), 2.
18. Epperson v. Arkansas, 393 U.S. 97 (1968) at 104; Everson v. Board of Education of Ewing, 330 U.S. 1 (1947).
19. For example, generations after Moses, the prophet Elijah did battle with 450 prophets of Baal. 1 Kings 18:20-40.
20. As one might expect, the Church of the Flying Spaghetti Monster has a significant presence on the internet, centered at http://www.venganza.org/.
21. Gonzales v. O Centra Espirita Beneficiente Uniao do Vegetal, 546 U.S. 418 (2006).
22. Religious Freedom Restoration Act of 1993, 42 U.S.C. § 2000bb et. Seq.
23. H. Kalven, "A Worthy Tradition: Freedom of Speech in America," quoted in Robert C. Post, "Cultural Heterogeneity and Law: Pornography, Blasphemy, and the First Amendment," California Law Review 76 (1988): 297, 314-15.
24. Furman v. Georgia, 408 U.S. 238 (1972), 335 (concurrence of Marshall, J.).
25. Adams also, in agreeing with Jefferson, acknowledged that while "The Ten Commandments and The Sermon on the Mount contain my religion," they did not warrant much influence on the legal system. John Adams to Thomas Jefferson, 23 January 1825 and 4 November 1816, in The Adams-Jefferson Letters, ed. Lester J. Cappon, (1959), 607-08, 493-95, quoted in Steven K. Green, "The Fount of Everything Just and Right? The Ten Commandments as a Source of American Law," Journal of Law and Religion 14 (1999-2000): 525, 547-48.
26. Stromberg v. California, 283 U.S. 359 (1931).
27. 2 Del. 553 (Ct. of General Sessions of the Peace and Jail Delivery of Delaware 1837).
28. Ibid, at 553. Notably, this was prior to the application of the Free Speech clause to the states.
29. Leonard v. Robinson, 477 F. 3d 347 (6th Cir. 2007) at 352.
31. Mich. Compiled Laws §750.103.
32. Leonard at 356.
33. Ibid, at 360.
34. Lawrence v. Texas, 539 U.S. 558 (2003).
35. Griswoldv. Connecticut, 381 U.S. 479 (1965).
36. Eisenstadt v. Baird, 405 U.S. 438 (1972).
37. Roe v. Wade, 410 U.S. 113 (1973).
38. Bowers v. Hardwick, 478 U.S. 186 (1986).
39. The applicable laws, however, were somewhat different. In Bowers, the Georgia statute at issue barred sodomy among both heterosexuals and homosexuals; in Lawrence, the Texas statute which was challenged only applied to same-sex couples. Lawrence, 539 U.S. at 566.
40. Lawrence, 539 U.S. at 572.
41. But see Beecham v. Henderson County, Tennessee, 422 F. 3d 372 (7th Cir. 2005) (suggesting in dicta that the Lawrence decision should not be extended to heterosexual adultery). In an era in which at least one state allows homosexual marriage, there does exist the (highly unlikely) possibility that a homosexual who strayed outside his marriage for sex could be prosecuted for adultery, and rely on Lawrence in a way that heterosexuals could not.
42. Lawrence, 539 U.S. at 590 (Scalia dissent).
43. Roper v. Simmons, 543 U.S. 551 (2005).
44. Atkins v. Virginia, 536 U.S. 304 (2002).
45. Lawrence, 539 U.S. at 592 (Scalia dissent).
46. David A. Skeel & William J. Stuntz, "Christianity and the (Modest) Rule of Law," University of Pennsylvania Journal of Constitutional Law 8 (2006): 809.
* MARK OSLER (B.A., William and Mary; J.D., Yale University) is professor of law, Baylor University Law School. He is author of Jesus Christ: Defendant (Abingdon Press, forthcoming). His articles have appeared in Federal Sentencing Reporter, Valparaiso Law Review, Baylor Law Review, Pepperdine Law Review, Mississippi Law Review, South Carolina Law Review, and Texas Tech Law Review. Special interests include legal ethics, federal sentencing, and faith and law. Professor Osier thanks Joel Burnett, Robert Darden, and Michael O'Hear for their valuable comments, and Dann Walker and Karol Daniel for initiating the discussions that led to this article.…
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Publication information: Article title: Aseret Had'Varim in Tension: The Ten Commandments and the Bill of Rights. Contributors: Osler, Mark - Author. Journal title: Journal of Church and State. Volume: 49. Issue: 4 Publication date: Autumn 2007. Page number: 683+. © 1999 J.M. Dawson Studies in Church and State. Provided by ProQuest LLC. All Rights Reserved.