Amicus Curiae Brief — McCreary County v. American Civil Liberties Union of Ky.
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JAN 2! 2005
No. 03-1693 , OFFICE OF THE CLERK
: ee
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Jn the Supreme Court of the United States
MCCREARY COUNTY, KENTUCKY, et al.,
Petitioners,
V.
AMERICAN CIVIL LIBERTIES UNION OF KENTUCKY,
et al.,
Respondents.
On Writ of Certiorari to the
United States Court of Appeals for the Sixth Circuit
BRIEF AMICUS CURIAE OF LEGAL HISTORIANS
AND LAW SCHOLARS ON BEHALF
OF RESPONDENTS
STEVEN K. GREEN
Counsel of Record
Willamette University College
of Law
245 Winter Street, S.E.
Salem, Oregon 97301
(503) 370-6405
TABLE OF CONTENTS
Page
DO PUNE 0.5 oc cc ob ce dccecvewccees ill
650 cb avwsdieddcdeudevansus l
SUMMARY OF ARGUMENT ...................... 2
ARGUMENT
1.
Il.
THE PETITIONERS’ ARGUMENT THAT THE TEN
COMMANDMENTS “PLAYED A SIGNIFICANT
ROLE IN THE FOUNDATION OF OUR SYSTEM OF
LAW AND GOVERNMENT” IS AN ARGUMENT
FOR THE PRIMACY OF THE TEN
COMMANDMENTS OVER RECOGNIZED LEGAL
EE Sn GiCAGRGC RANA GDRL ORR b ens bOee SW eess
THERE IS NO HISTORICAL BASIS FOR SINGLING
OUT THE TEN COMMANDMENTS AS SEMINAL
IN THE FOUNDATION OF AMERICAN LAW .....
A. Documents From the Pre-Colonial and Colonial
Eras Are Generally Devoid of References to the
Nee a ee tua ewes
B. Religious Influences Further Declined During
i .i lavkdeusweckkheuek és 6o
C. Early American Common Law Reflects
No Significant Reliance on the Ten Command-
DE VASES Cou an ekagnle bu kedeseedeunieas
D. Contemporary Statutory and Common Law
Reflects Little Religious Influence of the Ten
SED 6-c6 dbo 6c eee ceatnesenveses
(I)
24
il
lll. EVEN IF SOME OF THE PRECEPTS
REPRESENTED IN THE TEN COMMANDMENTS
HAVE INFLUENCED AMERICAN LAW, THE TEN
COMMANDMENTS AS AN AGGREGATE
DOCUMENT LACKS A SIMILAR STATUS ...... 27
eee eae 28
APPENDIX A Identifying Amicus Curiae ........... A-|
TABLE OF AUTHORITIES
Federal Cases
Adland v. Russ, 307 F.3d 471 (6th Cir. 2002) ......... 2,4
ACLU v.. McCreary County, Kentucky,
354 F.3d 438 (6th Cir. 2003) ................ 3,4,5
ACLU v. McCreary County, Kentucky,
145 F. Supp. 2d 845 (E.D. Ky. 2001) ........... 4,5
Books v. City of Elkhart, 235 F.3d 292 (7th Cir. 2000) .... 6
City of Elkhart v. Books, 532 U.S. 1058 (2001) ......... 6
Harvey v. Cobb County, 811 F. Supp. 669
(N.D. Ga. 1993), aff'd mem., 15 F.3d 1097
ccc c es vccetecccs 2
Indiana Civil Liberties Union v. O’Bannon,
259 F.3d 766 (7th Cir. 2001), cert. denied,
et cee etevecscccccs ee
McGowan v. Maryland, 366 U.S. 420 (1961) .......... 26
School District of Abington Township v. Schempp,
ee cere eset es secccecccce 3
Stone v. Graham, 449 U.S. 39 (1980) ............ 2, 6, 27
Van Orden v. Perry, 351 F.3d 173, 179
Feces e kbc eeveseesecsees 5
State Cases
Ex parte Andrews, 18 Cal. 678 (1861) .............5.-. 24
City Council v. Benjamin, 2 Strob. 508 (S.C. 1845) ..... 24
Fox v. Abel, 2 Conn. 541(1818) ...............0000ee 24
iV
Kowziz v. Price, 40 Miss. 341 (1866) ................ 24
McGatrick v. Wason, 4 Ohio St. 566 (1855) Camara awe 24
Melvin v. Easley, 52 N.C. 356 (1860) ................ 24
Neal v. Crew, 12 Ga. 93 (1852) ........ ccc cece cccces 24
New York v. Hoym, 20 How. Prac. 76
Ge MS SS Sea caceuaneunvasecuncssines 24
North Carolina v. Brooksbank, 28 N.C. 73 (1845) ...... 24
North Carolina v. Williams, 26 N.C. 400 (1844) RE lee 24
Pearce v. Atwood, 13 Mass. 324 (1816) .............. 25
Pennsylvania v. Wolf, 3 Serg. & Rawle 48 (Pa. 1817)... . 24
Rosenbaum v. Arkansas, 199 §.W. 388 (Ark. 1917) .... 24
Sparhawk v. Union Passenger Railway Co.,
NE cs cas Se ece eadenecauseeunees 24
Specth v. Pennsylvania, 8 Pa. 312 (1840) ............. 24
Theisen v. McDavid, 16 So. 321 (Fla. 1894) ........... 24
Other Authorities
THE ADAMS-JEFFERSON LETTERS
Caetar F. CONSE. TTTD ncn cc cccsccsvccess 19
BAILYN, BERNARD, THE IDEOLOGICAL
ORIGINS OF THE AMERICAN
REVOLUTION (1967) ............0.00005 7, 13, 15, 16
BECKER, CARL, THE DECLARATION
OF INDEPENDENCE (1958) ............-0.c0cecuee 17
BLACKSTONE, WILLIAM, COMMENTARIES ON THE
LAWS OF ENGLAND (Charles Harr ed., 1962)... 6, 14, 15
Vv
THE BOOK OF THE GENERAL LAWES AND LIBERTYES
CONCERNING THE INHABITANTS
OF THE MASSACHUSETTS (Thomas G. Barnes ed.,
1975) (facsimile reprint 1648) ................. 9,11
CHAPIN, BRADLEY, CRIMINAL JUSTICE IN COLONIAL
AMERICA, 1606-1660 (1983) ............... 9,11, 12
COKE, EDWARD, INSTITUTES OF LAWS 7
Es cncegseensseuseuctaces 9,14
CONTEXTS OF THE CONSTITUTION 7
Ge Oe CU, TUE cc cecccavecctensseces 8,9
DAVIS, DEREK H., RELIGION AND THE CONTINENTAL
CONGRESS 1774-1789: CONTRIBUTIONS
TO ORIGINAL INTENT (2000) ................. 18, 20
ECCLESIASTICAL RECORDS OF THE STATE OF
gk ee ee 14
ENCYCLOPEDIA AMERICANA
(Francis Lieber ed., rev. ed. 1836) ................ 22
ESSAYS IN THE HISTORY OF EARLY AMERICAN LAW
(David H. Flaherty ed., 1969) ............... 12, 13
FARRAND, MAX, THE RECORDS OF THE FEDERAL
CONVENTION OF 1787 (1966) ..............5% 20, 21
THE FEDERALIST PAPERS
(Clinton Rossitered., 1961) ............... 7,21, 22
re e . . . cevescavetesens 22
» i, | | 4 % errs ere 22
1 i, | 4.) Sere, = 22
, | 4 PRR RE PS eeererer ere 22
p i, || 4.) % Serre Tee 22
Vi
eT DUEL GD Cg cic kccccusccescececen am
pl a
Finkelman, Paul, The Ten Commandments
on the Courthouse Lawn and Elsewhere,
= <= ee eee 12
THE FOUNDERS’ CONSTITUTION (Philip B. Kurland
Ge Pe OT OE, FFD oo ccc ccesescccseevess 20
FRIEDMAN, LAWRENCE M., A HISTORY
OF AMERICAN LAW (2d ed. 1985) ........ 6, 13, 14, 26
FROST, J. WILLIAM, A PERFECT FREEDOM:
RELIGIOUS LIBERTY IN PENNSYLVANIA (1990) ...... 11
GAUSTAD, EDWIN S., LIBERTY OF CONSCIENCE:
ROGER WILLIAMS IN AMERICA (1991). ............ 12
Goebel, Jr., Julius, King’s Law and Local Custom
in Seventeenth Century New England,
Jt COLUME. £.. REV. SIG CIGSE) 2... ccc ccc cc cenes 9
Green, Steven K., The Fount of Everything
Just and Right? The Ten Commandments
as a Source of American Law,
14 J. LAW & RELIGION 525 (1999-2000) ......... 3, 24
HALL, KERMIT L., THE MAGIC MIRROR:
LAW IN AMERICAN HISTORY (1989) ............ 13,15
HASKINS, GEORGE LEE, LAW AND AUTHORITY
IN EARLY MASSACHUSETTS (1960) ............ 9,10
Hoeflich, Michael, Relationships Among Roman Law,
Common Law, and Modern Civil Law: Roman Law in
American Legal Culture,
66 TULANE L. REV. 1723 (1992) .................. 6
HOFFMAN, DAVID, A COURSE
GRE, TI CD vc cc ciceccKwckenwucccck 23
Vii
HORWITZ, MORTON J., THE TRANSFORMATION
OF AMERICAN LAW, 1780-1860 (1977) ............ 26
JAFFA, HARRY V., ORIGINAL INTENT AND THE
FRAMERS OF THE CONSTITUTION (1994) ........... 17
JAYNE, ALLEN, JEFFERSON’S DECLARATION
OF INDEPENDENCE (2002) .............-+0: 16, 18
KRAMNICK, ISAAC & R. LAURENCE MOORE,
THE GODLESS CONSTITUTION (1996) .............. 20
LE BOUTILLIER, CORNELIA GEER, AMERICAN
DEMOCRACY AND NATURAL LAW (1950) ....... 18, 22
LOCKE, JOHN, A LETTER CONCERNING TOLERATION
(Raymond Kilbansky ed., 1968) ............... 6, 16
LOCKE, JOHN, TWO TREATISES OF GOVERNMENT
(GSD, SORTER TEGS) 2 nc ccc ccstccsnsesccseccs 6, 15
MAIER, PAULINE, AMERICAN SCRIPTURE: MAKING
THE DECLARATION OF INDEPENDENCE (1997) .... 18, 19
MILLER, PERRY, ERRAND |
INTO THE WILDERNESS (1956) ...............0055 11
MONTESQUIEU, CHARLES,
SPIRIT OF THE LAWS (1748) ..............--. 6, 15, 16
MORGAN, EDMUND S., ROGER WILLIAMS:
THE CHURCH AND THE STATE (1967) ............. 11
MorkRIS, RICHARD B., STUDIES IN THE HISTORY
OF AMERICAN LAW (2d ed. 1974) ........... 6, 10, 13
OsGOoD, RUSSELL K., THE HISTORY OF THE LAW
pe og Tt rare 10
PRATT, JOHN WEBB, RELIGION, POLITICS
AND DIVERSITY: THE CHURCH -STATE
THEME IN NEW YORK HISTORY (1967) ........-.-: 11
Vill
SCOTT, ARTHUR P., CRIMINAL LAW
IN COLONIAL VIRGINIA (1930) .................. 11
STORY, JOSEPH, COMMENTARIES ON THE CONSTITUTION
OF THE UNITED STATES (1833).............. 7, 22, 23
TANNER, J.R., ENGLISH CONSTITUTIONAL CONFLICTS
OF THE SEVENTEENTH CENTURY, 1603-1689
(1928, reprint 1960) .... 0.0... ccc ccc cece eee 8
Woop, GORDON S., THE CREATION OF THE AMERICAN
REPUBLIC, 1776-1787 (1969) ................. 15, 16
THE WRITINGS OF THOMAS JEFFERSON
(Paul L. Ford ed., 1899). ...................... 17
INTEREST OF AMICI
Amici are legal historians, law scholars, and historians of
American legal and religious culture who have studied and
written in the areas of American and British legal and
constitutional history, constitutional law, and religion and the
law. We are current and former professors and practitioners
who teach or have taught courses in American and British legal
history, American and British constitutional history,
constitutional law, First Amendment law, religion and the law,
religion and politics, seventeenth, eighteenth, and nineteenth
century American history, and in related areas in law schools
and undergraduate and graduate schools across America. We
have authored and edited books and written articles in scholarly
journals on related subjects. Many of us are members of the
American Society for Legal History, the leading professional
association for legal historians.
Amici file this brief in support of the Respondents’
challenge to the placement of Ten Commandments displays in
the McCreary and Pulaski County courthouses.” It is our belief,
based on our training and study as legal historians and law
scholars, that there is no historical basis of support for
Petitioners’ claim that the Ten Commandments “played a
significant role in the foundation of our system of law and
government.”
Our names and institutional affiliations (listed for
identification purposes only) are contained in Appendix A.
' This brief is filed with the consent of the parties. No counsel for
either party to this matter authored this brief in whole or in part and
no person or entity, other than amici or their counsel, made a
monetary contribution to the preparation of this brief.
? As addressed infra at note 7, amici request that the material
presented in this brief also be considered in adjudicating Van Orden
v. Perry, No. 03- 1500, to the extent this material is deemed relevant.
>
SUMMARY OF ARGUMENT
Petitioners justify their display of the Ten Commandments
in the McCreary and Pulaski County courthouses on the ground
that the “Ten Commandments have profgundly influenced the
formation of Western legal thought” and “provide the moral
background of the Declaration of Independence and the
foundation of our legal tradition.” This claim that the Ten
Commandments have “profoundly influenced” America’s legal
tradition is not supported in historical fact. On the contrary, the
histoncal record reveals that the Ten Commandments had
minimal impact on the development of American law. As a
result, there is no historical basis for singling out the Ten
Commandments as seminal in the foundation of American law.
ARGUMENT
I. THE PETITIONERS’ ARGUMENT THAT THE TEN
COMMANDMENTS “PLAYED A SIGNIFICANT
ROLE IN Ti E FOUNDATION OF OUR SYSTEM OF
LAW AND GOVERNMENT” IS AN ARGUMENT
FOR THE PRIMACY OF THE TEN
COMMANDMENTS OVER RECOGNIZED LEGAL
SOURCES.
It is indisputable that the Ten Commandments originated as,
and remain, a religious text.’ It is equally indisputable that the
* See Stone v. Graham, 449 U.S. 39, 41-42 ( 1980) (finding the Ten
Commandments to be “undeniably a sacred text”); Adland v. Russ,
307 F.3d 471, 480 (6th Cir. 2002); Indiana Civil Liberties Union v.
O'Bannon, 259 F.3d 766, 770-71 (7th Cir. 2001), cert. denied, 534
U.S. 1162 (2002); Books v. City of Elkhart, 235 F.3d 292, 302 (7th
Cir. 2000); Harvey v. Cobb County, 811 F. Supp. 669, 677-78 (N.D.
Ga. 1993), aff'd mem, 15 F.3d 1097 (11th Cir. 1994). As the
Seventh Circuit has opined: “(T]he Ten Commandments is a
religious and sacred text that transcends secular ethical or moral
concerns. .. . [I]ts very text commands the reader to worship only the
3
precepts contained in some of the Ten Commandments have
been inspirational in the development of the Western legal
_tradition. At the risk of oversimplification, many legal matters
rest on notions of right and wrong that, in turn, are normative
concepts derived in part from religious texts and teachings.*
Our normative legal standards also have their origins in non-
religious sources, such as custom and classical law. And, in
some instances, secular laws may “parallel . . . the Ten
Commandments,” without necessarily having any religious
origins. See Indiana Civil Liberties Union v. O’ Bannon, 259
F.3d 766, 771 (7th Cir. 2001), cert. denied, 534 U.S. 1162
(2002). None of these points is controversial.°
—_—
Lord God, to avoid idolatry, to noi use the Lord’s name in vain, and
to observe the Sabbath. These particular commandments are wholly
religious in nature, and serve no conceivable secular function.”
O'Bannon, 259 F.3d at 770-71.
* See School District of Abington Township v. Schempp, 374 US.
203, 306 (1963) (Goldberg, J., concurring) (“{[MJany of our legal,
political and personal values derive historically from religious
teachings.””). Accord Steven K. Green, The Fount of Everything Just
and Right? The Ten Commandments as a Source of American Law,
14 J. LAW & RELIGION 525, 525 (1999-2000) (“Few people, if any,
would dispute that the Ten Commandments — and its parallels from
other ancient cultures — as well as other directives contained in the
Pentateuch of the Hebrew and Christian Scriptures, inform our
notions of right and wrong and, as such, have influenced the
development of Western law of which the American legal system is
part.”’).
> Asa result, the frieze on the Supreme Court courtroom with its
image of Moses among fifteen other lawgivers makes only the
vaguest claim of the influence of the Ten Commandments on the
Western legal tradition and, unlike the instant controversy, does not
convey a message that the Ten Commandments were “profoundly
influential” or serve as “the foundation of our legal tradition.” See
ACLU v. McCreary County, Kentucky, 354 F.3d 438, 443 (6th Cir.
4
The Petitioners’ argument that the Ten Commandments
represent the “moral background of the Declaration of
Independence and thé Toundation of legal tradition” is not an
effort to restate these modest points. See ACLU v. McC reary
County, Kentucky, 145 F. Supp. 2d 845, 848 (E.D. Ky. 2001).
On the contrary, the Petitioners grossly exaggerate the
significance of the Ten Commandments in the formation of
American law while they assert the primacy of the Ten
Commandments over recognized sources of law. In so doing,
they have selected a document from one discrete religious
tradition to the exclusion of other secular and religious
influences with much greater historical pedigrees. See Adland
v. Russ, 307 F.3d 471, 481-482 (6th Cir. 2002).°
The Petitioners’ claim of a special relationship between the
Ten Commandments and our legal and governmental systems
is also conveyed by the original and subsequent compositions
of the displays themselves. Initially installing solitary copies of
the Ten Commandments in the courthouses. the petitioners later —
added several legal and historical documents to the displays —
first, solely religious excerpts from several “historical”
documents, and then entire versions of other legal and historical
documents. See ACLU v. McCreary County, Kentucky, 354
F.3d 438, 442-443 (6th Cir. 2003). The third (and current)
rendition of the displays is entitled “The Foundations of
2003).
* All of the Petitioners’ justifications for the displays relate to the
Ten Commandments’ relationship to the law. See 145 F. Supp. 2d at
848. Even if the Petitioners’ purpose could be viewed more broadly
to include a recognition of America’s religious heritage, the
placement of a single religious text, surrounded by legal and political
texts, does not provide a meaningful account of our nation’s diverse
religious traditions, particularly where, as the lower courts found,
there is no effort to integrate the Ten Commandments with the other
documents.
5
American Law and Government Display.” Jd. Significantly,
the Ten Commandments is the only religious document
displayed alongside the Magna Carta, the Declaration of
Independence, and the Bill of Rights, among other political and
legal documents. As the district court found, the positioning of
the Ten Commandments with political and legal documents, but
not with other religious symbols or moral cedes, “imbues it
with a national significance constituting endorsement [of
religion].” McCreary, 145 F. Supp. 2d at 851. A “reasonable
observer will see one religious code placed alongside eight
political or patriotic documents, and will understand that the
counties promote that one religious code as being on a par with
our nation’s most cherished secular symbols and documents.”
Id. This positioning thus proclaims the Ten Commandments
as the singular religious influence in the development of
American law.
In essence, the petitioners are not simply claiming that some
of the principles contained in the Ten Commandments have
influenced ethical notions represented in American civil and
criminal law. Rather, they are claiming that the Ten
Commandments, aS a unique aggregate document, has
“profoundly influenced the formation” of American legal
thought and singularly provides the “moral background of the
Declaration of Independence and the foundation of legal
tradition.” See McCreary, 354 F.3d at 443 (emphasis added).
This historical and legal claim, which we address in the next
section, is inconsistent with the historical record.’
The record in Van Orden v. Perry, 351 F.3d 173 (Sth Cir. 2003),
is inconclusive on this issue. Apparently, there is an absence of
information indicating the original purpose behind the erection of the
Ten Commandments monument on the Texas Capitol grounds. See
id. at 179. However, the Fifth Circuit relied on a rationale similar
to that advanced by the Petitioners in McCreary, with the court
affirming the “influence [of the Ten Commandments] upon the civil
and criminal laws of this country.” /d. at 181. The court went on to
6
Il. THERE IS NO HISTORICAL BASIS FOR SINGLING
OUT THE TEN COMMANDMENTS AS SEMINAL IN
THE FOUNDATION OF AMERICAN LAW.
The sources of law for the American colonies and later the
United States are broad and varied. The principal earl y sources
are the common and statutory law of England, but also
influential was the law of the non-common law courts of
England, such as equity, chancery, admiralty, orphans, and
ecclesiastical courts. Other sources of American law include
Roman law, the civil law of continental Europe in the post-
Roman period, private international law, and Germanic tribal
law.
The various documents and texts that have figured
prominently in these developments include, but are certainly not
limited to, the Magna Carta, the writings of Sir Edward Coke,
the English Bill of Rights, William Blackstone’s Commentaries
on the Laws of England, John Locke’s Second Treatise on
Government and A Letter Concerning Toleration, Adam
Smith's The Wealth of Nations, Baron Montesquieu’ s The Spirit
of the Laws, the Mayflower Compact, Cato’s Letters, the
State approvingly that the Texas State Preservation Board had
“carefully chosen” the Decalogue’s location “to reflect the role of the
Commandments in the making of law.” Jd. Members of this Court
have made similar claims. Seé City of Elkhart v. Books, 532 U.S.
1058 (2001) (Rehnquist, C.J., dissenting from denial of cert.); Stone,
449 U.S. at 196 (Rehnquist, J., dissenting). Asa result, amici request
that the material presented in this brief be considered in adjudicating
Van Orden to the extent it is deemed relevant.
* See generally LAWRENCE M. FRIEDMAN, A HISTORY OF
AMERICAN LAW 33-104 (2d ed. 1985); RICHARD B. MorRIS, STUDIES
IN THE HISTORY OF AMERICAN LAW (2d ed. 1974 ); Michael Hoe flich,
Relationships Among Roman Law, Common Law, and Modern Civil
Law: Roman Law in American Legal Culture, 66 TULANE L. REV.
1723 (1992).
7
Declaration of Independence, the debates in the Constitutional
Convention of 1787, the Federalist Papers, the United States
Constitution, the Bill of Rights, St. George Tucker’s
Americanized version of Blackstone’s Commentaries (Tucker's
Blackstone), Joseph Story’s Commentaries on the Constitution,
the writings and speeches of American leaders during the
revolutionary and early national periods, and the writings and
speeches of abolitionists and Republican leaders from the
antebellum period through the end of Reconstruction.
Each of these documents had a far greater influence on
America’s laws than the Ten Commandments. Indeed, the legal
and historical record does not include significant and
meaningful references to the Ten Commandments, the
Pentateuch, or to biblical law generally. Aside from a failed
attempt in the seventeenth century to establish a biblically based
legal system in the Puritan colonies, American law is generally
viewed as having secular origins.
A. Documents From the Pre-Colonial and Colonial Eras
Are Generally Devoid of References to the Ten
Commandments.
Most legal historians consider the Magna Carta of 1215 to
be a seminal source of modern English, and later American,
/law.? The Magna Carta addressed various legal subjects,
including inheritance; land ownership and sale; taxation; jury
trials and trial procedure; proportionality in punishment; and the
taking of property without compensation. The Magna Carta
contains principles that are central to our legal culture today,
including assertions that no person can be “seized or
imprisoned, or stripped of his rights or possessions . . . except
by the lawful judgment of his equal: or by the law of the land.”
The Magna Carta made no reference to either the Ten
% See BERNARD BAILYN, THE IDEOLOGICAL ORIGINS OF THE
AMERICAN REVOLUTION 22-54 (1967).
8
Commandments as a whole or any particular one of the
Commandments. Although it made some references to God,
these were formalistic and did not relate to the substantive
content of the document.'®
Colonialists were also influenced by the 1689 English Bill
of Rights, which made the monarchy subject to the laws of
Parliament and established legal rights and relationships for
British citizens (e.g., freedom of speech; excessive bail and
fines; cruel and unusual! punishment; and the right to a jury
tral). Like the Magna Carta, the English Bill of Rights was
highly influential in the colonies; many of the colonies
incorporated liberties guaranteed by the Magna Carta and the
English Bill of Rights directly into their laws and governing
documents. Like the Magna Carta, the English Bill of Rights
did not mention the Ten Commandments. It made passing
references to “God,” but these references were again highly
formalistic and bore no relationship to the substance of the
document.'' ah
The concessions granted by King John in the Magna Carta
were largely limited to the baronial families at the top of the
ngidly structured feudal system. In the early seventeenth
century, however, Sir Edward Coke used the Magna Carta to
argue for an expansion of rights and liberties to all people in
Britain.'- As a result of Coke’s influence, most of the early
colonial charters contained a clause asserting that the colonists
would have the nghts of natural-born English citizens. When
See CONTEXTS OF THE CONSTITUTION 657-666 (Neil H. Cogan
ed., 1999).
'' Id. at 686-692.
May 17, 1628, in debate in House of Commons, as quoted in J.R.
TANNER, ENGLISH CONSTITUTIONAL CONFLICTS OF THE
SEVENTEENTH CENTURY, 1603-1689, at 63 (1928, reprint 1960)
(citing John Rushworth, | HISTORICAL COLLECTIONS 562 (1682)).
9
American colonists spoke of their “rights as Englishmen,”
whether in the early colonial period or later at the time of the
Revolution, they had in mind, among other things, the rights
and privileges found in the Magna Carta and the English Bill of
Rights."
Biblical law was also among the myriad influences that
shaped early colonial statutory and common law.'* This
influence was characterized by enormous temporal and regional
variations. Religious influences were most pronounced in the
early New England colonies (Massachusetts Bay, New Haven,
Connecticut, and Plymouth), with the influence of biblical law
at its apex in the Massachusetts Bay and Plymouth’"® colonies
between 1620 and the 1680s.'°
'* Coke also influenced the development of colonial law, and
ultimately American law, through his four-volume treatise, /nstitutes
of the Laws of England, which was widely read by American lawyers
throughout the colonial period. This essentially secular text helped
shape American notions of liberty. Although Coke’s Institutes
makes passing references to “God,” these are, once again, highly
formalistic and hortatory.
'* BRADLEY CHAPIN, CRIMINAL JUSTICE IN COLONIAL AMERICA,
1606-1660, at 4-15 (1983); GEORGE LEE HASKINS, LAW AND
AUTHORITY IN EARLY MASSACHUSETTS 141-162 (1960); Julius
Goebel, Jr., King’s Law and Local Custom in Seventeenth Century
New England, 31 COLUM. L. REV. 416 (1931).
'S The Mayflower Compact, enacted by the Plymouth Colony in
1620, is often seen as the first act of self-government in the
American colonies. This document mentions both “God” and the
“Christian Faith,” but makes no mention of the Ten Commandments.
See CONTEXTS OF THE CONSTITUTION I.
'© See generally THE BOOK OF THE GENERAL LAWES AND LIBERTYES
CONCERNING THE INHABITANTS OF THE MASSACHUSETTS (Thomas
G. Barnes ed., 1975) (facsimile reprint 1648); see also HASKINS,
10
Even in those colonies, however, reliance on the Ten
Commandments themselves (as opposed to reliance on biblical
law as a whole) was proportionately insignificant and largely
limited to particular criminal and domestic laws, such as
blasphemy and adultery.'’ Thus, even though many of the early
Puritan leaders believed in the supremacy of biblical law, they
relied primarily on other, secular sources — including local
innovation — for the bulk of their laws.'®
Furthermore, these colonies’ reliance on biblical principles
Was relatively short-lived. The Glorious Revolution of 1688-89
brought about a new charter in Massachusetts Bay, ending the
“experiment” of this most-religious-of-all-the-colonies. The
new charter removed almost all references to biblical law and
replaced them with common law practices and procedures.
Although Massachusetts law still retained a few remnants of
biblical law after 1691, the laws of the colony in this period,
and later the state, were essentially secular, based primarily on
English law, indigenous law, and local custom.”
LAW AND AUTHORITY 136-37.
See HASKINS, LAW AND AUTHORITY 136-37. It cannot be said
that the English settlers of the New World would not have enacted
these statutes absent the Ten Commandments. Laws punishing theft,
murder, and Perjury are found in virtually every culture, and were
deeply ingrained in the laws of pre-Christian England as well as in
the English common law.
” Another influential text was Michael Dalton’s The Countrey
Justice (1618, reprint 1973), a popular — and secular — handbook for
British justices of the peace. See HASKINS, LAW AND AUTHORITY
137.
'% RUSSELL K. OsGOOD, THE HISTORY OF THE LAW IN
MASSACHUSETTS 10-13 (1992); MORRIS, STUDIES IN THE HISTORY
OF AMERICAN LAW 62-64.
11
Reliance on biblical princip!es was even less pronounced in
the non-Puritan colonies. In Virginia, the oldest and most
important of the British colonies, an attempt to base a system on
the Decalogue ended early with the colony quickly resorting to
common law.” A review of Virginia’s colonial laws
demonstrates that only a small subset of the colony’s legislative
enactments (e.g., Sabbath laws) can be said to parallel the Ten
Commandments. Even then, nothing in the colonial record
indicates that the colonialists viewed the law as being based on
the Bible or the Ten Commandments.” A secular common law
was also applied in Pennsylvania and New York, despite the
latter colony initially relying on Massachusetts Bay’s Lawes
and Libertyes as a model.”
The clearest contrast from the Puritan colonies is seen in
Rhode Island, where its founder, Roger Williams — who had
been exiled from Massachusetts Bay in part because of his
refusal to accept the religious aspects of its legal culture —
expressly rejected arguments that Mosaic law should serve as
a model for civil law, relying instead on secular English law for
authority.”
© See Perry Miller, Religion and Society in the Early Literature of
Virginia, in ERRAND INTO THE WILDERNESS 99-140 (1956); CHAPIN,
CRIMINAL JUSTICE 4-15; ARTHUR P. SCOTT, CRIMINAL LAW IN
COLONIAL VIRGINIA 3-38 (1930).
—_
*! See sources in note 20, supra.
*2 See JOHN WEBB PRATT, RELIGION, POLITICS AND DIVERSITY: THE
CHURCH-STATE THEME IN NEW YORK History 29-37 (1967); J.
WILLIAM FROST, A PERFECT FREEDOM: RELIGIOUS LIBERTY IN
PENNSYLVANIA 15-18 (1990).
——
* To Williams and his followers, Christ’s resurrection had
abrogated the authority of the first four commandments (the “first
table”) and had restricted the precedent of Mosaic law to Old
Testament Israel. See EDMUND S. MORGAN, ROGER WILLIAMS: THE
/
12
—
Furthermore, throughout the colonies, significant
differences existed between legislative enactments and the
mandates of the Ten Commandments over matters such as
divorce, pre-marital sex, slavery, and inheritance. For example,
the Bible provides that the first-born son should receive a
“double portion” of inheritance (Deuteronomy 21:16).
Massachusetts Bay adopted this provision in the seventeenth
century, but the rest of the colonies rejected it, and instead
accepted the English rules of primogeniture. Also, under
biblical law, the wife could not inherit from her husband; rather,
the brother inherited by marrying the wife. ( Deuteronomy 25:5
and following). In all of the colonies, however, wives inherited
outright or at least were entitled to their dower rights.
In sum, the vast majority of the colonial codes, and the
English sources from which they were principally derived,
developed independently of the Ten Commandments.”> Only a
small fraction of colonial laws (e.g., Puritan codes) were
derived from the Bible generally, and an even smaller subset
CHURCH AND THE STATE 102-104, 128 ( 1967); EDWIN S. GAUSTAD,
LIBERTY OF CONSCIENCE: ROGER WILLIAMS IN AMERICA 66-68, 80-
85 (1991); CHAPIN, CRIMINAL JUSTICE 4-15.
“** See Paul Finkelman, The Ten Commandments on the Courthouse
and Elsewhere, __ FORDHAM. L. REV. __ (2005).
** As a result, Petitioners’ claim (see Pet. Br. at 22) that “Twelve of
the thirteen original colonies adopted the entire Decalogue into their
civil and criminal laws” is flatly incorrect. See Zechariah Chafee, Jr.,
Colonial Courts and the Common Law, in ESSAYS IN THE HISTORY
OF EARLY AMERICAN LAw 72-73 (D. Flaherty ed., 1969) (“{T]he
view that colonial law was either rude or drawn from the Bible is
dispelled by a study of court records, at least after the earliest periods
of settlement.”’).
13
paralleled the Ten Commandments specifically.*° Even then,
reliance on biblical sources all but disappeared following the
Glorious Revolution. Indeed, much of what became the central
legal rights of the United States — due process of law; the right
to confront witnesses; the right against self-incrimination;
prohibitions on cruel and unusual punishments; freedom of
speech; and, most of all, freedom of religion — may properly be
seen as a reaction to the legal culture of the Puritan colonies,
rather than as an endorsement thereof.
B. Religious Influences Further Declined During the
Founding Era.
The most important source of the founding-generation’s
attitudes toward law and government was the common law as
brought over from Great Britain and adapted to meet America’s
indigenous needs.*’ During the eighteenth century, a
developing market economy, dependent on trade with England
and between the colonies, required a more formalized legal
system with consistent procedural and substantive rules based
on British common law.” Increasing religious heterogeneity in
*° See George E. Woodbine, The Suffolk County Court, 1671-1680,
in ESSAYS 202 (“The presence of biblicism and Scriptural law is very
little in evidence in [early colonial] records. Much has been written
on the effect of the Mosaic law upon the legal situation in the New
England colonies. Undoubtedly the influence of that law as a active
legal force in their civilization has been greatly overstated.”’).
27 BAILYN, IDEOLOGICAL ORIGINS 22-54; FRIEDMAN, HISTORY OF
AMERICAN LAW 34-35.
8 KERMIT L. HALL, THE MAGIC MIRROR: LAW IN AMERICAN
HisTORY 22-23 (1989); MORRIS, STUDIES IN THE HISTORY OF
AMERICAN LAW 62-64; FRIEDMAN, HISTORY OF AMERICAN LAW 48-
49, 80.
14
the colonies in the 1700s further militated against reliance on
biblical law.”
Rather than seeing the law as biblically based, the founding
generation viewed the common law as a repository of human
experience, embodying concepts of justice, equity, and the rule
of law, not as representing divine principles. American
revolutionaries cited the Magna Carta, Coke’s Institutes,
William Blackstone’s Commentaries on the Laws of England,
and other English legal sources in their struggle against the
Crown and Parliament. Blackstone’s Commentaries, written
between 1765-1769 and considered the dominant lawbook in
England and America for more than half a century after its
publication, does not include a single reference to the
“Decalogue” or the “Ten Commandments.”*’ While Blackstone
understood that canon law had influenced the development of
British law (via the established Church of England) and made
formalistic references to “God” and religion in his
Commentaries, the system of law he described was secular and
non-biblical. Throughout the Commentaries, Blackstone’s
discussion of property law, criminal law, marital law,
29
In 1684, the Governor of the colony of New York, Thomas
Dongan, reported to his superiors in London that: “Here bee not
many of the Church of England; [a] few Roman Catholicks:
abundance of Quakers preachers men and women especially; Singing
Quakers, Ranting Quakers; Sabbatarians; Antisabbatarians: Some
Anabaplists; some Independents; some Jews; in short of all opinions
there are some, and the most part none at all.” “Governor Dongan’s
Report on the State of the Province,” 2 ECCLESIASTICAL RECORDS OF
THE STATE OF NEW YORK 879-90 (1901).
*© “WILLIAM BLACKSTONE, COMMENTARIES ON THE LAWS OF
ENGLAND (Charles Harr ed., 1962). Blackstone’s Commentaries
were more popular in America than in England. See FRIEDMAN,
HISTORY OF AMERICAN LAW 102.
ee”
—
15
inheritance law, and the rights of persons has little or nothing to
do with, and is often at odds with, biblical law.*!
The founding generation was also heavily influenced by the
works of Enlightenment thinkers, principally John Locke’s
Second Treatise on Government (1690) and Baron
Montesquieu’s Spirit of the Laws (1748). The works of the
radical whig philosophers, like John Trenchard and Thomas
Gordon, the authors of Cato’s Letters (1720-1723), were also
influential. Trenchard and Gordon were strong advocates of
freedom of expression and government accountability, and
spoke out against corruption in the government and the
Anglican Church. The founding generation also read and
applied the writings of the Scottish Enlightenment, including
those of Adam Smith, David Hume, and Francis Hutchinson.”
Locke’s political writings refuted the doctrine of the divine
and absolute right of Kings and established a theory of a “social
contract” by which people — the ultimate sources of authority —
delegated to government the responsibility to create an ordered
society.’ Locke’s theories stand in sharp contrast to the notion
of a government based on the concept that God is the lawgiver
*' Blackstone wrote that there was a great body of law, termed
municipal law, that derived its authority not from God, but from the
“law of man.” “There is, it is true, a great number of indifferent
points, in which both the divine law and the natural leave a man at
his own liberty; but which are found necessary for the benefit of
society to be restrained within certain limits. And herein it is that
human laws have their greatest force and efficiency... .”
COMMENTARIES, 4:42. /
* See BAILYN, IDEOLOGICAL ORIGINS 35-54; GORDON S. Woop,
THE CREATION OF THE AMERICAN REPUBLIC, 1776-1787, at 291-305
(1969).
*° JOHN LOCKE, TWO TREATISES OF GOVERNMENT 408-4 12 (1965):
HALL, MAGIC MIRROR 57-58.
16
and that secular law is subject to religious mandates. In his
influential A Letter Concerning Toleration, Locke wrote that
“the law of Moses,” which includes the Ten Commandments,
“in no way obligates Christians.” “The business of law,” he
noted, was not to protect religious beliefs or “to provide for the
truth of opinion,” but rather to provide for “the security and
safety of the commonwealth and each man’s goods and
person.”
Only slightly less influential among the founding generation
was Montesquieu’s Spirit of the Laws, which, among other
matters, advocated separation of powers, toleration in religious
belief, and freedom of worship. Although Montesquieu
addressed at length the relationship between government and
religion, he did so without any emphasis on the Ten
Commandments.
All of these sources were widely read by the Founding
Fathers and are generally considered by historians and other
scholars to be ideologically central to the founding of the
nation. These writings were highly influential on the legal and
political documents of the founding era, including the
Declaration of Independence, the United States Constitution,
and the American Bill of Rights.*° To be sure, The Declaration
of Independence includes prefatory references to the “Laws of
Nature and of Nature’s God” and a “Creator,” but these are not
acknowledgments of a law-giving biblical God.’ On the
4 JOHN LOCKE, A LETTER CONCERNING TOLERATION 115-17, 123
(Raymond Klibansky ed. 1968).
*° BAILYN, IDEOLOGICAL ORIGINS 27-29; WOOD, CREATION OF THE
AMERICAN REPUBLIC 152-153.
© See BAILYN, IDEOLOGICAL ORIGINS 22-54.
*” See ALLEN JAYNE, JEFFERSON’ S DECLARATION OF INDEPENDENCE
26-30 (2002) (“It is the God of [Jefferson's] heterodoxy that appears
17
contrary, Jefferson and the Enlightenment writers on which he
relied distinguished natural law from Old Testament law.™
Equally important, Jefferson appealed to notions of popular
sovereignty and self-determination in the Declaration. In
asserting the right of the colonists to create their own nation he
did not invoke God’s name or even “nature’s God” as
justification. He did not claim that the new nation was formed
on the basis of biblical law.’ Rather, he asserted that
in the Declaration of Independence rather than the God of the
Bible.”); id. at 19. See also CARL BECKER, THE DECLARATION OF
INDEPENDENCE 24-78 (1958). Accord HARRY V. JAFFA, ORIGINAL
INTENT AND THE FRAMERS OF THE CONSTITUTION 355 (1994) (“The
idea of ‘the laws of nature and of nature’s God’ is derived from
classical political philosophy.’’).
8 There is no evidence Jefferson or the other members of the
drafting committee relied on any biblical sources in considering the
language of the Declaration. In a subsequent letter to Richard Henry
Lee, Jefferson wrote that the Declaration was “neither aiming at
originality of principle or sentiment, nor yet copied from any
particular and previous writing, it was intended to give expression of
the American mind. . . . All its authority rests on harmonizing
sentiments of the day, whether expressed in conversation, in letters,
printed essays, or in the elementary books of public right, as
Aristotle, Cicero, Locke, Sidney, etc.” Jefferson to Lee, May 8, 1825,
10 THE WRITINGS OF THOMAS JEFFERSON 343 (Paul L. Ford ed.,
1899).
* To be sure, Jefferson and the drafters consciously employed
language that placed the Declaration within both an Enlightenment
and theistic framework. According to Professor Davis, “most of the
natural law doctrines could be viewed in tandem with traditional
Christianity. * * * [The Declaration] is written in a theistic
framework primarily because Jefferson, his committee, and indeed
the Continental Congress at-large understood the colonists’ authority
to sever their relationship with Britain as resting upon a theistic,
natural rights philosophy. Yet this theistic framework also was
18
“Governments are instituted among Men, deriving their just
Powers from the Consent of the Governed,” words that became
the scripture for American democracy.”’ In essence, by relying
on Enlightenment natural law, Jefferson was rejecting the
primacy of revealed or divine law in the foundation of the new
government.*' Thus in no substantive way does the Declaration
pertain to biblical law or the Ten Commandments, and, in fact,
its references to natural law indicate a rejection of any such
connection.”
adopted because it was broad and general enough to capture the
theistic framework in which most colonists understood all earthly
events to take place. Thus it was neither specifically deistic
(scientific worldview) nor Christian (biblical worldview), as either
position would have excluded those adherents of the other.” DEREK
H. DAVIS, RELIGION AND THE CONTINENTAL CONGRESS 1774-1789:
CONTRIBUTIONS TO ORIGINAL INTENT 108-109 (2000).
* See PAULINE MAIER, AMERICAN SCRIPTURE: MAKING THE
DECLARATION OF INDEPENDENCE 132-142 (1997).
*! See JAYNE, JEFFERSON'S DECLARATION 38 (“[The first paragraph
of the Declaration] does not refer to the God of revelation or the
Bible but to ‘Nature’s God,” or [Lord] Bolingbroke’s deistic God of
natural religion. The impartiality of this God to all nations and
peoples can be seen in Jefferson’s reference to ‘one People,’ the
colonists, who were under the ‘Laws of Nature.’ According to these
‘Laws’ and ‘Nature’s God’ who established them, a people or a
nation was not chosen by God over other peoples and nations on
earth. Rather they were all given a ‘separate and equal Station’ by
those ‘Laws of Nature’ and ‘Nature’s God.’ Jefferson’s God of the
Declaration is, therefore, antithetical to any God who would
manifest partiality by choosing one people or nation over others, as
did the God of the Old Testament.” (emphasis added).
** See CORNELIA GEER LE BOUTILLIER, AMERICAN DEMOCRACY
AND NATURAL LAW 110 (1950) (“{T]he Founding Fathers, as they
employed the notion of natural law . . . gave it very often a utilitarian
19
Jefferson, for one, doubted the authenticity and authority of
the Ten Commandments. In a later letter to John Adams,
Jefferson wrote that “the whole history of [the Ten
Commandments] is so defective and doubtful that it seems vain
to attempt minute enquiry into it; and such tricks have been
plaid with their text... that we have a right, from that cause, to
entertain much doubt what parts of them are genuine.”*’ In the
same letter, Jefferson went on to refute the claim that
Christianity served as a basis of the common law.“ Adams’
response was supportive, writing that Jefferson’s research “in
the laws of England, establishing Christianity as the Law of the
Land and part of our common Law, are curious and very
important. . . . In what sense and to what extent the Bible is
Law, may give rise to as many doubts and quarrels as any of our
civil political military or maritime Laws and will intermix with
them all to irritate Factions of every sort.’ Although
Jefferson’s religious views were not shared by all of his
contemporaries, his expression of the philosophical bases of the
new nation, as represented in the Declaration of Independence,
was universally embraced.”
meaning. Such a utilitarian meaning is logically in opposition to the
transcendental meaning which relates to man’s rational nature: it
supplies a contrary premise.”’).
% Jefferson to Adams, Jan. 24, 1814, THE ADAMS-JEFFERSON
LETTERS 421 (Lester J. Cappon ed., 1959).
4 Id. at 422-423.
4S Adams to Jefferson, March 3, 1814, in id. at 427.
*© See MAIER, AMERICAN SCRIPTURE 135 (“By the time of the
Revolution [Enlightenment and Whig] ideas had become, in the
generalized form captured by Jefferson, a political orthodoxy whose
basic principles colonists could pick up from sermons or newspapers
or even schoolbooks without ever reading a systematic work of
20
The central legal documents of the United States — the
Constitution and the Bill of Rights — did not include even a
perfunctory or formalistic reference to God. Rather than relying
on divine authority, the Constitution is “ordained” by “the
People of the United States.” The foundation of the law of the
United States thus emanates from the nature of representative
government — what Jefferson called “the consent of the
governed” — and needs no external or divine authority for its
support.*’
Thus, it comes as no surprise that the Ten Commandments
and biblical law received nary a mention in the debates and
publications surrounding the founding documents. In the wide-
ranging debates — reprinted in Madison’s Notes, the Annals of
Congress, Farrand’s Records, Elliot’s Debates, and elsewhere
— the Founders mentioned Roman Jaw, European Continental
law, British law, and various other legal systems, but as can best
be determined, no delegate ever mentioned the Ten
Commandments or the Bible. The only serious discussion of
religion led to the clause prohibiting religious tests for office-
holding.*
Indeed, many of the framers made statements during the
debates expressing the view that religion should be left to the
political theory. The sentiments Jefferson eloquently expressed were,
in short, absolutely conventional among Americans of his time.’’)
(emphasis added). Accord DAVIS, RELIGION AND THE CONTINENTAL
CONGRESS 102 (“There is every reason to believe that Jefferson
strongly held to natural law theory as the essence of the universal
order established by God and that most of the delegates also saw it
that way.”’).
*” See generally ISAAC KRAMNICK & R. LAURENCE MOORE, THE
GODLESS CONSTITUTION 26-45 (1996).
* See generally THE FOUNDERS’ CONSTITUTION ( Philip B. Kurland
& Ralph Lerner eds., 1987).
21
private sphere. James Madison noted in one debate that
“Religion itself may become a motive to persecution &
oppression. — These observations are verified by the Histories
of every Country ancient & modern.””” South Carolina’s
Charles Pinckney described “our true situation” as this: “a new
extensive Country containing within itself the materials for
forming a Government capable of extending to its citizens all
the blessings of civil & religious liberty —- capable of making
them happy at home.”” Similarly, George Reid of Delaware
declared, in a debate over the power of Congress, that “the
Legislature ought not to be too much shackled. It would make
the Constitution like Religious Creeds, embarrassing to those
bound to conform to them & more likely to produce
dissatisfaction and Scism, than harmony and union.”*' This
illustrates how the framers believed that minimizing the
connection between religious law and civil law was integral to
American liberty.
Similarly, neither the “Bible” nor “Scripture” nor the “Ten
Commandments” appears in the index of the Federalist Papers,
which are generally considered to contain the most important
discussions of the meaning of the United States Constitution at
the time of ratification.” The authors of the Federalist Papers
made a handful of passing references to “God” and “gods,” the
#9 MAX FARRAND, | THE RECORDS OF THE FEDERAL CONVENTION OF
1787, at 135 (1966).
® Id. at 402.
*! Id. at 582.
2 See generally THE FEDERALIST PAPERS (Clinton Rossiter ed.,
1961).
22
“Almighty,” “Heaven,” and to religion (ancient and modern)*?
in one place (Federalist 43), Madison refers to “the
transcendent law of nature and of nature’s God,” but this
reference is suggestive of the deist views of Jefferson, rather
than of an Old Testament God.“ Rather than asserting a
connection between biblical law and the new nation, most
references to religion in the Federalist Papers denounce
retigoous factions and intolerance and the mixing of church and
State.
To be sure, a handful of later legal commentators made
vague claims that, on face value, support the Petitioners’ claims
about the relationship between the Ten Commandments and the
law. For example, Joseph Story, extremely influential among
early American lawyers through his numerous legal treatises,
including his Commentaries on the Constitution, wrote an
article in 1836 on “natural law” in which he referred to God as
“our Lawgiver and Judge, [to whom] we owe an unreserved
obedience to his commands.”*° However, this assertion was
inspirational; it did not suggest a belief on the part of Justice
Story that the law was derived from God’s Commandments. In
* See, e.g., Federalist 38: “It is impossible for the man of pious
reflection not to perceive in it a finger of that Almighty hand which
has been so frequently and signally extended to our relief in the
critical stages of the revolution.” /d. at 230-23}.
** According to Le Boutillier, Madison’s phrasing in Federalist 43
“strips away its transcendental qualities as he says that it ‘declared
that the safety and happiness of society are the objects at which all
political institutions aim, and to which all such institutions must be
sacrificed.’ This is utilitarianism.” LE BOUTILLIER, AMERICAN
DEMOCRACY AND NATURAL LAW 113.
°° See Federalists 1, 10, 19, 31, and 51.
*€ JOSEPH STORY, Natural Law, in Encyclopedia Americana 9:150-
158 (Francis Lieber ed., rev. ed. 1836).
23
his treatment of the history of the Revolution, the history of the
adoption of the Constitution, and his lengthy commentary on
the provisions of the Constitution, which made up the vast bulk
of his three-volume Commentaries, he placed no emphasis on
religious influences.*’ Story never mentioned the Ten
Commandments in his treatise, while his single mention of the
Bible came in a discussion of Freedom of the Press (§ 1875)
with him merely noting that some governments have regulated
the printing of the Bible and its translation.
Also, in his widely read A Course of Legal Study (1836),
University of Maryland professor David Hoffman wrote that
“[t]he purity and sublimity of the morals of the Bible have at no
time been questioned; it is the foundation of the common law
of every christian nation.” Although Hoffman maintained the
law had a philosophical debt to the Bible, referring to the
biblical books of Leviticus, Numbers, and Deuteronomy as
containing the “ritual, moral, and civil law of the Jews,” he, like
Story, stopped short of claiming that Anglo-American law was
derived from the Decalogue or Pentateuch. In fact, Hoffman
cautioned his readers against drawing parallels between
scripture and the law, noting that the Bible’s “figurative [and]
symbolic language” presented a “most serious impediment” to
applying biblical principles to the law.” Even then, these
references — which support the Petitioners’ claims in only the
vaguest sense — are the exception to the general understanding
that the law was derived from secular sources.
7 See generally JOSEPH STORY, COMMENTARIES ON THE
CONSTITUTION OF THE UNITED STATES (1833).
58 Davip HOFFMAN, A COURSE OF LEGAL STUDY 1:65-78 (1836).
5° HOFFMAN, A COURSE OF LEGAL STUDY 66, 68, 71-72, 74-75.
24
C. Early American Common Law Reflects No Significant
Reliance on the Ten Commandments.
In addition to the lack of references to the Ten
Commandments in the founding documents, there also is no
significant reliance on the Commandments in early American
case law. Granted, in a handful of early nineteenth century
cases judges drew parallels to the fourth commandment when
validating the enforcement of Sunday laws.” In a few other
cases, judges made rhetorical references to the Decalogue when
interpreting rules governing labor or judicial activity on
Sundays.°' For the most part, however, early judicial references
to the Ten Commandments were not detailed, with most
allusions being illustrative or oratorical, and with the courts not
relying on the Decalogue as authority for their holdings.”
Rather, the courts upheld the laws as valid health and labor
regulations.” In essence, the biblical references were hortatory,
with the holdings resting on secular legal grounds.”
” See, e.g.. New York v. Hoym, 20 How. Prac. 76, 78-79 (N.Y.
Super. 1860); City Council v. Benjamin, 2 Strob. 508, 523 (S.C.
1845); Pennsylvania v. Wolf, 3 Serg. & Rawle 48 (Pa. 1817).
®! See, e.g., Fox v. Abel, 2 Conn. 541, 554 (1818).
*° See, e.g., Neal v. Crew, 12 Ga. 93, 100 (1852); New York v. Hoym,
20 How. Prac. 76 (N.Y. Super. 1860); Kountz v. Price, 40 Miss. 341
(1866); Theisen v. McDavid, 16 So. 321 (Fla. 1894); Rosenbaum v.
Arkansas, 199 S.W. 388 (Ark. 1917).
** See, e.g., Ex parte Andrews, 18 Cal. 678 (1861); Melvin v. Easley,
52 N.C. 356 (1860); McGatrick v. Wason, 4 Ohio St. 566 (1855);
Sparhawk v. Union Passenger Ry. Co., 54 Pa. 401 (1867); North
Carolina v. Brooksbank, 28 N.C. 73 (1845); North Carolina v.
Williams, 26 N.C. 400 (1844); Specth v. Pennsylvania, 8 Pa. 312
(1840).
* See Green, Fount of Everything Just and Right, at 555.
25
For example, in one early case, Pearce v. Atwood, 13 Mass.
324 (1816), the Massachusetts Supreme Judicial Court upheld
a Sunday law as based on “common practices.” Referring to
the fourth commandment, the court noted that “it may be
inferred, that one day in seven was, according to divine will, to
be set apart as a day of rest from labor.” But, the court
continued, “it is not necessary to resort to the laws promulgated
by Moses, in order to prove that the Christian Sabbath ought to
be observed by Christians, as a day of holy rest and religious
worship.”” The court viewed its authority as arising from the
“uniform usage” among the Christian citizens of the state, not
from any religious basis for the law.
Furthermore, court decisions pertaining to the Sabbath and
the other subject matter addressed in the Ten Commandments
represent a small subset of the areas of decisional law; the vast
majority of court decisions — both from the early American
period and today — make no mention whatsoever of the
Commandments or biblical law.”
65 13 Mass. at 345-46.
% Jd. Noting that “some among our ancestors so far regarded the
laws of Moses as of perpetual obligation,” the Court held that none
of the “rigid laws of Moses” held sway in the Commonwealth. /d. at
346.
*’ Petitioners and their amici rely on several nineteenth and early
twentieth century cases where judges declared a connection between
the Ten Commandments and the law. See Pet. Br. at 25-29; Br.
Amicus Curiae of Wallbuilders, Inc., passim. First, as discussed, the
vast majority of those references were hortatory with no examination
of the historical record. But, more important, the uninformed
statement of a judge does not establish an historical fact.
26
D. Contemporary Statutory and Common Law Reflects
Little Religious Influence of the Ten Commandments.
The developments that have taken place in the past century
have further diluted any religious influences on the law, such
that the vast majority of contemporary statutory and common
law reflects no religious influence. Accord McGowan v.
Maryland, 366 U.S. 420, 433-36 (1961) (documenting the
growing secularization of Sunday laws beginning in the
eighteenth century). The areas of contemporary law that
developed independently of the Ten Commandments include
the law of corporations and business transactions; riparian law;
immigration law; tax law; environmental law; Native American
law; international human rights law; international business law;
antitrust law; administrative law; bankruptcy; intellectual
property law; civil nghts law; estate planning and probate;
women’s nights law; education law; licensing and regulation of
professions; dram shop laws and liquor regulation; insurance
law; traffic law; science and computer technology law;
regulations regarding nudity and obscenity; criminal procedure,
including the rights to a jury trial and against self-incrimination;
and criminal statutes prohibiting vagrancy, statutory rape,
assault and battery, arson and property destruction, underage
drinking, use of narcotics, and kidnaping.® Indeed, it is
difficult to find any aspect of contemporary American law that
can be fully and directly traced to the Ten Commandments.
* See generally FRIEDMAN, HISTORY OF AMERICAN LAW; see also
MORTON J. HORWITZ, THE TRANSFORMATION OF AMERICA LAW,
1780-1860 (1977) (describing the transformation of American law
from relying on natural law concepts to adopting an instrumental
approach).
ee — Sp
27
il. EVEN IF SOME OF THE PRECEPTS RE-
PRESENTED IN THE TEN COMMANDMENTS
HAVE INFLUENCED AMERICAN LAW, THE
TEN COMMANDMENTS AS AN AGGREGATE
DOCUMENT LACKS A SIMILAR STATUS.
Although the precepts found in some of the individual
commandments may find parallels in Anglo-American law
(e.g., homicide, theft, false witness), the first “table” or section
of the Ten Commandments concerns purely religious duties —
worshipping God, avoiding idolatry, not using God’s name in
vain, and observing the Sabbath — that have no parallels in civil
law. See Stone, 449 U.S. at 41-42.%
But more important, even if some __ individual
commandments could have an indirect connection to modern
legal precepts, their presentation as an aggregate unit — in this
case, a highly recognizable unit with indisputable religious
significance — mutes any secular aspects of those individual
commandments. In essence, the Ten Commandments is an
aggregate religious document. In that form, the commandments
are from God, not from some secular authority. The fact that a
secular authority could also mandate fealty to the precepts
contained in a handful of individual commandments does not
make their presentation as part of the Ten Commandments non-
religious. Conversely, the fact that some of the individual
commandments may parallel secular legal precepts does not
mean that the Ten Commandments, as an aggregate religious
* “The Commandments do not confine themselves to arguably
secular matters, such as honoring one’s parents, killing or murder,
adultery, stealing, false witness, and covetousness. See Exodus
20:12-17; Deuteronomy 5:16-21. Rather, the first part of the
Commandments concerns the religious duties of believers:
worshipping the Lord God alone, avoiding idolatry, not using the
Lord’s name in vain, and observing the Sabbath Day. See Exodus
20: 1-11; Deuteronomy 5:6-15.” 449 U.S. at 41-42.
28
document, “profoundly influenced the formation of Western
legal thought” and served as “the foundation of our legal
tradition.” The historical record, as discussed above,
demonstrates otherwise.
CONCLUSION
While the Ten Commandments have influenced some of our
notions of right and wrong, a wide variety of other documents
have played a more dominant and central role in the
development of American law. No scholar who has seriously
studied this issue would assert that the Ten Commandments has
played a dominant or major role, or even a significant role, in
the development of American law as a whole. To insist on a
closer relationship or to claim the that Ten Commandments has
a special place in the development of American law lacks
historical support.
"nn
Respectfully submitted,
Steven K. Green
Counsel of Record
Willamette University College of Law
245 Winter St., S.E.
Salem, OR 97301
January 2005
APPENDIX A Identifying Amicus Curiae
Richard I. Aaron, J.D.
Professor of Law
University of Utah
Robert S. Alley, Ph.D.
Professor of Humanities,
Emeritus
University of Richmond
Joyce Appleby, Ph.D.
Professor of History
Emerita U.C.L.A.
J. Jackson Barlow, Ph.D.
Professor of Politics
Junita College
Christine Corcos, J.D.
Associate Professor of Law
Louisiana State University
Derek Davis, J.D., Ph.D.
Director, J.M. Dawson
Institute of Church-State
Studies
Baylor University
Norman Dorsen, J.D.
Stokes Professor of Law
New York University
Melvin Dubosfky, Ph.D.
Bartle Distinguished
Professor of History and
Sociology
Binghamton University,
SUNY
Paul Finkelman, Ph.D.
Chapman Distinguished
Professor of Law
University of Tulsa
Ronald B. Flowers, Ph.D.
John F. Weatherly Emeritus
Professor of Religion
Texas Christian University
Eric M. Freedman, J.D.
Maurice A. Dean
Distinguished Professor
of Law
Hofstra Law School
Steven G. Gey, J.D.
David and Deborah
Fonvielle and Donald and
Janet Hinkle Professor
Florida State University
Mark A. Graber, Ph.D.
Professor of Government &
Adjunci Professor of Law
University of Maryland
Steven K. Green, JD, Ph.D.
Associate Professor of Law
Willamette University
David Gutterman, Ph.D.
Assistant Professor of
Political Science
Linfield College
Dennis D. Hirsch, J.D.
Associate Professor of Law
Capital University Law
School
Sanford Levinson, Ph.D..,
J.D.
W. St. John Garwood and
W. St. John Garwood, Jr.,
Centennial Chair in Law
Univeristy of Texas
Robert M. O’ Neil, J.D.
University Professor of Law
University of Virginia
Jamin Ben Raskin, J.D.
Professor of Law
American University
Frank S. Ravitch, J.D.
Associate Professor of Law
Michigan State University
-Robert Schwartz, J.D.
Professor of Law
University of New Mexico
G.L. Seligmann, Ph.D.
Associate Professor of
History
University of North Texas
Robert E. Sheperd, Jr., J.D.
Emeritus Professor of Law
University of Richmond
Nadine Strossen, J.D.
Professor of Law
New York Law School
Jose R. Torre, Ph.D.
Assistant Professor of
History
Keuka College
William W. Van Alstyne,
J.D.
Lee Professor of Law
College of William and
Mary
Samuel Webb, J.D., Ph.D.
Associate Professor of
History
University of Alabama,
Birmingham
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.