The notion that American Law is derived directly from the Judeo-Christian Ten Commandments is legendary in the Christian community. But is there any historic or legal precedent to support this belief? That is the subject of this paper. To begin, we should note that the Ten Commandments (also known as the “Decalogue”) appears in the Bible multiple times and with different flavors of content and emphasis (e.g. Ex 20, Ex 30, Lev 25, Deut 6). Nevertheless, we can ignore these apparent inconsistencies for purposes of this discussion because the differences do not invalidate our analysis of the origins of U.S. Constitutional law.
The Bible tells us that the Decalogue was given by God to Moses on Mount Sinai and that it spells out the Israelite’s obligation in the new covenant that God made with them as they escaped from Egypt over four thousand years ago. A “covenant”, by definition is simply a “contract” or an “agreement” wherein each party promises to do or not to do certain things in consideration of the other party’s promise to do or not to do certain things.
In the covenant God made with Moses, God said (paraphrased), “I will place you and your people under my protection (make you my “chosen people”) and I will give to you your own land in Canaan (the “promised land of Canaan”) in exchange for which you will fulfill the obligations that I have enumerated for you in the Decalogue.” The Decalogue that God gave to Moses contain two types of precepts: religious and moral. There are four religious covenants e.g. “have no other Gods but me”, “observe the Sabbath”, etc. and six moral covenants of a secular nature e.g. “don’t steal”, “don’t kill”, etc.
Deciding the Question
Now to decide the question of whether or not the Ten Commandments, the collection of seminal ancient Hebrew laws, is the basis upon which US Constitutional Law stands, we need to examine whether its religious and secular covenants came into play during the construction of the Constitution or if they made an appearance in later legislation enacted by Congress. We shall begin first with the religious covenants.
The Religious Covenants
Let us begin with what one Founding Father said about the relationship between religious belief and the running of government. In his address to the Danbury Baptist Association just after the Bill of Rights and the Constitution were ratified, Thomas Jefferson said,
“Believing with you that religion is a matter which lies solely between man and his god; that he owes account to none other for his faith or his worship; that the legislative powers of the government reach actions only, and not opinions, — I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should ‘make no law respecting an establishment of religion or prohibiting the free exercise thereof,’ thus building a wall of separation between church and State.”
The First Amendment to the US Constitution contains a particular and pertinent prohibition about religion called the Establishment clause. This clause is a prohibition against government that specifically forbids the government from enacting any laws that would advance or inhibit religion. Since the intent here is to keep the government from enacting laws of a religious nature, then it follows logically that this prohibition could not exist in a legal system that is itself is based upon religious law. What religious law would say that there cannot be any laws based upon religion? That would be self-contradictory. Therefore, we can reasonably conclude that, insofar as the four religious obligations contained in the Decalogue are concerned, they cannot be both religious and also the standard upon which our Constitutional law is based without creating a contradiction in the meaning of the Establishment clause itself.
Moreover, Congress by their own actions also endorsed the notion of a separation of church and state. For example, the Washington administration drafted the Treaty of Tripoli that was subsequently ratified by the Senate in 1779 under the Adams administration. Article 11 of this treaty explicitly confirms the Founding Father’s intention that the government of our then new republic should remain free of religious influence and was therefore not founded upon any denominational religious belief. The opening sentence of Article 11 begins, “As the government of the United States of America is not in any sense founded on the Christian Religion,…..” Consequently, since the government, and by implication its authorizing law, “is not in any sense founded on the Christian Religion”, and since the Decalogue is part of the Christian religion, then the Decalogue cannot also be the foundation of our Constitutional law.
From the language contained in Constitution itself to the application of its intent by Congress, we can say unequivocally, that so far as these four religious covenants are concerned, they do not form the basis of any “law of the land.” In fact, neither the US Constitution, the Bill of Rights nor any subsequent Amendments make any mention of “God”, “Christ”, “Christians” or “Christianity.” Moreover, the words “religion” and “religious” each appear only once; the former in the Establishment clause of Article I in the Bill of Rights (government shall make no law regarding an establishment of religion) and the latter in the Article 6 of Constitution itself (there shall be no religious test required to qualify for public office).
Perhaps the only direct connection between the “Thou Shalts” of theDecalog and the Constitution concerns the President’s veto power as described in Article 1, Section 7. to wit: “If any Bill shall not be returned by the President within ten Days (Sundays excepted) after it shall have been presented to him, the same shall be a Law..“
The Moral (Secular) Covenants
But what of the six secular covenants in the Decalogue that describe moral conduct? Well, these are not unique to the Decalogue. They are found in non Judeo-Christian societies that both pre-dated and post-dated the delivery of the Decalogue to Moses. The fact that the covenant God made with the Israelites includes common secular moral laws found in most societies should not come as a great surprise. They are fundamental to the security and integrity of any society.
Thus, the appearance of these secular moral laws in the Decalogue does not support a Judeo-Christian copyright claim to them. And likewise therefore, if the U.S. Constitution coincidently contains some or even all of the secular moral covenants of the Decalogue, one cannot claim that the character of US law is anymore Judeo-Christian in nature than it is one of the other pre or post-Decalogue cultures that incorporated similar concepts into their own laws. And in fact, the friezes that appear on the Supreme Court building in Washington, D. C. support this notion because they pay a special tribute to a number of ancient lawgivers and civilizations for their contributions to the development and codification of laws which have had an important influence in the development of our own Constitutional law [Office of the Curator – Supreme Court of the United States] .
The case is proven therefore that the answer to the question under discussion is “no.” US Constitutional Law, the “law of the land” is not based upon the Ten Commandments. The US Constitution itself logically excludes this as a possibility with regard to the religious covenants and the historic origin of the moral covenants having predated the Decalogue excludes them as being uniquely Judeo-Christian in nature.
Some Final Thoughts
In colonial American religious life, Christianity clearly had the greatest following. But Christianity was not monolithic; it was divided among a number of denominations that, to be sure, shared a great deal of theological dogma in common but that were nevertheless different enough, whatever the differences were, to cause the formation of these separate denominations of Christianity within the larger Christian community. Had the Founding Fathers not adopted a Constitution that empowered a secular form of government and instead had created a Christian theocracy, these different denominations might well have found themselves the unhappy subjects of religious intolerance and autocratic rule by the Christian denomination having the largest membership. This specific concern was expressed quite succinctly by James Madison when he asked the rhetorical question,
“Who does not see that the same authority which can establish Christianity, in exclusion of all other religions, may establish with the same ease any particular sect of Christians, in exclusion of all other sects?“
Under US Constitutional Law, there is no place for religious dogma in the affairs of state. That does not mean that we expect our elected officials to leave behind their own personal religious convictions when they take up public office. But we should and we must insist, on constitutional grounds, that our elected public officials transact the affairs of government without imposing upon our society their own personal religious denominational faith as a matter of public policy.
A public law or policy must be defended solely on secular not religious grounds to avoid imposing the religious denominational doctrines of one part of our society on the whole of society. If a public law or policy cannot be successfully defended with secular arguments alone, then it should fail regardless of any religious doctrine. The distinction here is essential to an understanding of how our religious freedoms are constitutionally protected by the preservation of a secular, not theocratic, constitutional republic.
William T. Benson
September 2, 2004