Thou Shalt Not Make Inane Displays

The Georgia state legislature is considering* a bill that would allow Georgia counties to display the Ten Commandments and other historical documents (read Mayflower Compact) on county government property. Most state legislators predict that the bill will make it through the legislature by the end of the current term. Also, as, expected, the ACLU is gearing up to challenge the bill in court should it pass. The arguments for and against the bill are effectively the standard arguments given for this issue. Supporters claim that the Ten Commandments are one of the founding documents of the western (and in particular american) legal system and for that reason should be given their proper due and reverence in the legal institutions of the state of Georgia. Opponents argue that such displays violate the establishment clause of the Constitution because governments effectively endorse religion by displaying some of the fundamental tenets of Christianity.

Now, these types of cases should be less of an issue in the future because the Federal Court of Appeals for the 6th Circuit has recently established what I'll call the "reasonable person" statute. This statute basically says that any display of the Ten Commandments on government property is okay provided that a reasonable person can interpret the display as historical in nature. Thus, since we have this statute and it hasn't yet been challenged in a higher court, the proposed Georgia law is not unconstitutional on its face because the bill explicitly allows the display of the Commandments on historical grounds. In other words, the language of the bill clearly states the legislature's intent as desiring to show how certain religious documents have influenced the american legal tradition.

Here's the thing, though. I'm not convinced by the arguments that proclaim that the Ten Commandments are the basis of the american legal system for two reasons. The first reason has to do with the nature of the Commandments themselves. Reading the Ten Commandments, I can only find two, maybe three that have actually made it into the common law in this country-prohibitions on murder and theft. Lying is only illegal in very specific circumstances and adultery is typically only grounds for divorce, never for incarceration or other civic punishment. Thus, it seems the Ten Commandments are only batting about .200 in terms of influencing the explicit laws in the american legal system.

If you're not convinced of this argument, then consider what the other Commandments prescribe as laws for believers. How can "I am the Lord thy God who brought you out of the land of Egypt" be interpreted as part of the american common law? Where does the american legal system consider it a crime to "make a sculpted image or any likeness of what is in the heavens above"? Have people ever been sent to jail for "swear[ing] falsely by the name of the Lord" under any circumstances?

Furthermore, my explicit problem with the Ten Commandments is that they have absolutely nothing to say about protecting children. Do the statues that we have enacted to protect children from would be predators have a religious foundation as argued by supporters of Ten Commandments displays? Not if you believe that the Commandments are part of the foundation of the american common law.

Given the above statements, it would seem then that the argument for Commandments displays as a historical exhibit fails. Not quite. I have also heard the argument that the historical significance of the Ten Commandments is that they represent the first time in man's history that laws were explicitly codified and put on public display. The argument goes that after Moses descended Mount Sinai, individuals no longer could claim ignorance of the laws because they were now plainly visible to all. Thus, the tradition of the american legal system's transparency descends from the explicit codification of God's laws in the form of the Ten Commandments.

There is one massive problem with this argument, however. Depending on how much faith you put in carbon-dating archaeological methods, the Ten Commandments may not be the first time in man's history that laws were codified and put on public display. This distinction could go to the Code of Hammurabi, a large black obelisk that contains 242 explicit prescriptions and their punishments. By most accounts, the Code dates from nearly four thousand years ago and may be older than the Ten Commandments. Furthermore, as a potential influence on the legal system, it actually is more compatible with the american common law than the Ten Commandments ever could be. To begin with, the Code contains explicit punishments for violation of the established laws. While violating laws in the current american legal system does allow for some flexibility in punishments, a would-be criminal can have a reasonable expectation of his punishment will be if he is caught and convicted. The Commandments provide no such punishments for violations.

Secondly, and this is the key difference between the two documents, Hammurabi never considered himself to be a descendant of God. Where the Ten Commandments are explicitly God's laws, the Code codifies Hammurabi's laws. Since Hammurabi was not a descendent of God, laws of his creation could not be divine in nature. Thus, because the american legal system does not consider its laws divine in origin, it would seem that the Code is a more natural choice since it definitively represents the first time in history that man codified man's laws.

So, here is my proposed solution to what is likely to be a long and drawn out battle over the display of the Ten Commandments in public buildings and courthouses. I don't dispute that the Ten Commandments have had an impact on the american legal system. Far from it. I'm only saying that the arguments that are currently given in favor of their historical significance are flawed because the Ten Commandments largely don't reflect the laws of this country and may not be the first time laws have been codified. So, in order to satisfy the believers who want their document on display and to mollify the ACLU types who fear the coming theocracy, let's simply have displays that really do represent the historical foundations of this country's legal system. Such a display would include the Ten Commandments, the Code of Hammurabi, the Mayflower Compact, the Cherokee and Iroquois charters, and perhaps a couple of other documents that I'm currently unaware of. Such a display really would portray all of the legal traditions that we hold dear as well as capturing the influences of several different religions on the codification of american laws. No reasonable person could ever be put off by such a display. And, hell, they may even learn something.

* This essay was written in January of 2006.  I believe the bill passed, but I cannot find a source on whether or not this is accurate.