ten commandments and 10 commandments and steven k green and steven green and mccreary county v. aclu

One of the contentions of the Petitioners in the recently-decided US Supreme Court case, McCreary County v. ACLU, in which the Court disallowed the erection of a 10 Commandments display in public spaces of county courthouses in two KY counties, is that the 10 Commandments "played a significant role in the foundation of our system of law and government." This was a similar argument made by KY petitioners in the 1980 Supreme Court case, Stone v. Graham, where they argued "The secular application of the Ten Commandments is clearly seen in its adoption as the fundamental legal code of Western Civilization and the Common Law of the United States." Language of "significant role" and "fundamental legal code" is meant to be synonymous; in both cases the KY appellants wanted to argue that the Decalogue not only presents some significant principles underlying American law but it is generative of/shaping of/foundational for understanding American law. The purpose of this mini-essay is to highlight the work of a brief submitted in McCreary by law professors and scholars, the burden of which is to argue that the 10 Commandments have played very little role in the legal history of the United States.

A Word of Personal History

I went to Brown University in the Fall of 1970 flush from an Evangelical experience of faith and ready to see God's handiwork and influence everywhere I turned. I wanted to see God's hand in the history of the West, in American history, in the development of education, in whatever thing I chose to study. I remember feeling chagrined and not a little shortchanged when we studied Rousseau and Locke and other authors whom my professors said were "foundational" to understand our form of government. Why would they say such a thing, I wondered, since religion was crucially important to those who settled our country? I felt a little better when we studied the 17th century Puritans in my history courses, but still I had the nagging feeling that someone felt that "secular" or "deistic" thinkers had shaped the American ideological framework. I set these topics aside for more than a decade after completing college, but then when I returned to them in the 1980s, it seemed utterly clear to me that Scriptural categories and commandments were of very minor importance in the shaping of American law. Indeed, I felt that the Bible had played a bigger role in the formation of American literature than in law.

Thus, when the "10 Commandments" type of cases began to be litigated in earnest in the 1990s, I recall that my first reaction was, 'how can these people think that the 10 Commandments exerted a foundational influence?' Then I realized that it wasn't important for these folk to know their history or to learn what shaped what. More significant was to have a reed to hang on to against the seemingly overwhelming and apparently confusingly secular power of big government. By holding on to the 10 Commandments as a foundational legal document, these folk were able to maintain the illusion that this country was made in their image legally, despite the fact that there is very little evidence to support it.

To the Evidence

The virtue of the Amicus Brief of "Legal Historians and Law Scholars" on behalf of the ACLU, drafted by my colleague Professor Steven K. Green, is that it clearly and systematically shows what were the legal sources for the Founding Fathers and then demonstrates how the 10 Commandments were mentioned neither in these legal sources nor in judge-made law or legal codes in our national history. For example, the Magna Carta, Coke's Institutes, the English Bill of Rights of 1689, the parliamentary debates over the Petition of Right (1628), the philosophy of Locke, Montesquieu and Rousseau, Blackstone's Commentaries among others, provided almost all the background for concepts of due process of law, search and seizure, cruel and unusual punishment, unlawful taking of land or property and, most to the point, freedom of religion. Then, Professor Green turns to the actual language of the Declaration of Independence and the US Constitution, as well as writings by legal scholars and jurisits in the 19th century to show that the 10 Commandments were hardly ever invoked as a source of law or the ground of decision. I think a case could be made that Sabbath laws (blue laws) in the colonies and national history, as well as laws against blasphemy and adultery were probably derived or influeced by the 10 Commandments, but certainly the bulk of statutory and common law in the United States was shaped by the much less sexy, and much more secular, common law of England. He makes the case with skill and finality.

So Why the Commandments?

More interesting to me is a question which the professors never raise. Where was it in American law/political life that the 10 Commandments began to become an issue for the Religious Right or their predecessors? We know that the KY legislature in 1978 passed a statute allowing the 10 Commandments to be posted in public school classrooms, but who decided that the 10 Commandments should be the great "wedge" issue to divide people in American life? Why wasn't it some words of Jesus or other Scriptural words? Who convinced whom, and when, that the Commandments should play such an important role? For once they were decided upon as the important text, history becomes unimportant or, better said, an imagined history can be created to buttress their importance.

Thus, the 10 Commandments have become another fixture in the culture wars in American society. Along with the Pledge of Allegiance, the practice of abortion, the presence of "Creation Science" or the issue of school prayer, these issues are serving to energize the Religious Right and keep them loyal to the Republican party. Professor Green, and others, are to be commended for their effort to take the wind out of the Right's sails on the 10 Commandments. My only wish is that his careful work would be more widely known.

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