Saturday, October 11, 2008

John Adams' Alternate Ten Commandments

Apparently there is a Ten Commandments case coming to the Supreme Court this term. It doesn't appear to be an Establishment Clause case, but a Free Speech case. It's called Pleasant Grove City v. Summum. The facts behind the case:

Founded in Salt Lake City in 1975, the Summum faith believes Moses originally descended from Mount Sinai not with the Ten Commandments, but with a set of seven principles - or aphorisms - that he revealed to only a select few. Over the last decade, leaders of the faith have sought to erect monuments of the aphorisms in numerous Utah towns alongside displays of the Ten Commandments donated by private organizations.

Pleasant Grove denied the Summum’s request, citing a city requirement that permanent displays in the park either be directly related to city history or be donated by a group with longstanding community ties. (The Ten Commandments monument was donated by the Fraternal Order of Eagles.)

In the suit, the Summum contended the city violated its free speech rights by excluding its monument while allowing the Ten Commandments monument to be displayed in the park. After the district court denied the Summum’s request for a preliminary injunction, the 10th Circuit reversed with instructions to grant a preliminary injunction allowing the Summum to erect its monument in Pioneer Park.

The panel reached its decision after concluding the case implicated private speech in a public forum, not government speech. With regard to the type of forum implicated, the panel held that “the nature of the forum in this case is public” because a “city park” is “a traditional public forum.” Therefore, the panel reasoned, “the city’s restrictions on speech are subject to strict scrutiny” - a standard of review that the city’s denial of the Summum’s request would likely fail.


On free speech grounds, it seems, the conservatives have an easy and common sense rationale for denying the right of public display of the "seven aphorisms." From the 10th Circuit's decision:

In Graff v. City of Chicago, 9 F.3d 1309, 1314 (7th Cir. 1993), the
Seventh Circuit held that “[t]here is no private constitutional right to erect a structure on public property. If there were, our traditional public forums, such as our public parks, would be cluttered with all manner of structures.” (quotation and citation omitted).


In other words, official speech on government property ultimately belongs to (surprise surprise) the government.

Yet, the Establishment Clause -- apparently not an issue in this case -- is not about speech but religious rights, our unalienable rights to liberty and equality of conscience. And whereas the Free Exercise Clause invariably vindicates liberty rights, the EC often vindicates equality rights. In short, our constitutional system grants the Summum faith the same rights, no greater or lesser, that it does to traditional Judeo-Christian faiths.

One strong reason why I think America's Founders were so concerned with grating equal rights to unorthodox, heretical faiths is that many of the key Founders were unorthodox heretics. They all came together in their belief that America was governed by a wise, inscrutable Providence. But on issues as basic as even the Ten Commandments, America, in principle, was founded to be as much about doubting that we had the right version of the Ten Commandments, as it was to be about living by the traditional version of the Decalogue.

That's one reason why I believe on these public display of the Ten Commandments issue, whatever the technical proper constitutional result, the historical answer -- what America, in principle, was founded to be all about -- is display those heterodox, freethinking, non-traditional sentiments right next to the Ten Commandments. And display them proudly. And so I would display John Adams' alternate Ten Commandments right next to the traditional ones.

John Adams writing to Thomas Jefferson, Nov. 15, 1813 doubts we have the right version of the Ten Commandments, indeed explicitly doubts the accuracy of the Bible's text, and proposes an alternate version which might be the "authentic" Decalogue:

Among all your researches in Hebrew history and controversy, have you ever met a book the design of which is to prove that the ten commandments, as we have them in our Catechisms and hung up in our churches, were not the ten commandments written by the finger of God upon tables delivered to Moses on Mount Sinai, and broken by him in a passion with Aaron for his golden calf, nor those afterwards engraved by him on tables of stone; but a very different set of commandments?

[...]

1. Thou shalt not adore any other God. Therefore take heed not to enter into covenant with the inhabitants of the country; neither take for your sons their daughters in marriage. They would allure thee to the worship of false gods. Much less shall you in any place erect images.

2. The feast of unleavened bread shalt thou keep. Seven days shalt thou eat unleavened bread, at the time of the month Abib; to remember that about that time, I delivered thee from Egypt.

3. Every first born of the mother is mine; the male of thine herd, be it stock or flock. But you shall replace the first born of an ass with a sheep. The first born of your sons shall you redeem. No man shall appear before me with empty hands.

4. Six days shalt thou labor. The seventh day thou shalt rest from ploughing and gathering.

5. The feast of weeks shalt thou keep with the firstlings of the wheat harvest ; and the feast of harvesting at the end of the year.

6. Thrice in every year all male persons shall appear before the Lord. Nobody shall invade your country, as long as you obey this command.

7. Thou shalt not sacrifice the blood of a sacrifice of mine, upon leavened bread.

8. The sacrifice of the Passover shall not remain till the next day.

9. The firstlings of the produce of your land, thou shalt bring to the house of the Lord.

10. Thou shalt not boil the kid, while it is yet sucking.

And the Lord spake to Moses: Write those words, as after these words I made with you and with Israel a covenant.

[...]

When and where originated our ten commandments? The tables and the ark were lost. Authentic copies in few, if any hands; the ten Precepts could not be observed, and were little remembered. If the book of Deuteronomy was compiled, during or after the Babylonian captivity, from traditions, the error or amendment might come in those.


So, in debating public display of Ten Commandments & American Founding, ask those on the pro-display issue what the 10th Commandment is. And reply, no it's "Thou shalt not boil the kid, while it is yet sucking." So sayeth John Adams. But in any event, I would support public display of these Ten Commandments, replete with Adams' quotations doubting we have the right version of the Ten Commandments as written in the Bible.

As a matter of constitutional technicality the Summum folks may be in the wrong (or not). But what they are trying to do is as American as apple pie.

7 comments:

Brad Hart said...

Heh...very interesting take on the 10 Commandments by Adams. I remember running across this letter during some undergrad research. I'm glad that you chose to do a post on it here.

Rowe states:

"One strong reason why I think America's Founders were so concerned with grating equal rights to unorthodox, heretical faiths is that many of the key Founders were unorthodox heretics. They all came together in their belief that America was governed by a wise, inscrutable Providence."

In addition, the founders had already witnessed what would likely happen if and when orthodox mainstream religion was given precedent over the unorthodox "heretics" of their day. In Virginia, the Baptists were the recipients of terrible persecution at the hands of the mainstream Anglican/Episcopal faith. Madison's sole purpose for the Memorial and Remonstrance was to illustrate how this lack or religious freedom would damage the American republic.

As for displaying the 10 Commandments in front of a school, courthouse, etc., my personal opinion is that none of them should be put on display. After all, if we were to allow every single faith to display their respective creeds in stone the lawn in front of a courthouse would look like a cemetery.

When it comes to issues like this, I believe we should stick to the ideology behind Franklin's public religion and Jefferson's natural religion, which are both neutral in their understanding and definition of God.

Matt Huisman said...

I don't follow the argument that says the Summum have a right to erect their monument because the 10 Commandments have been allowed. Under that logic, I could go around and demand that all war memorials be removed unless I'm allowed space to erect a shrine to the water balloon fight I had with my kids last weekend.

Tom Van Dyke said...

I don't follow the argument that says the Summum have a right to erect their monument because the 10 Commandments have been allowed.

I see their point. How can the government decide which version of the commandments is the correct one? And why would we want the government to decide? We don't want the government anywhere near theological determinations, and indeed for it to decide would be a patent violation of "no establishment."

This touches on what Mr. Rowe often writes about, which is the true Christianity, and who would be the final arbiter but the government? Pass.

Therefore, the only reasonable solution would appear to be a pluralism, that the Summums' commandments [or Adams'] line up side-by-side.

But Brad echoes the 10th Circuit's common sense opinion that all public places would get junky in a damn hurry, so the pluralism thing isn't practical.

Now, also out of common sense, I would make an argument here for "grandfathering" in whatever's already standing and not use the courts to rewrite our cultural history. [I believe Sandra O'Connor made that argument somewheres.] The 10 commandments would remain, but we would add no more such stuff.

Now, academically, I'd point out that the understanding behind the ratification of the Constitution was that religion was left to the states, and they could each decree that there are 10 Commandments and not 7 if they wanted to or vice-versa, and put up or ban or remove whatever they wanted.

This should not be a federal issue. But everything's a federal case these days.

Charles said...

"I would make an argument here for "grandfathering" in whatever's already standing and not use the courts to rewrite our cultural history."

I haven't revisited them recently so I may be misremembering or over-simplifying, but one google hit I just read seems to suggest that the supposed inconsistency of the McCreary (wall of the courthouse) and Perry (old plaque in a remote corner of the grounds) was partially explained by Breyer (the swing vote in these cases) by this very distinction. TVD for next SCOTUS opening!!

"This should not be a federal issue."

Or maybe not - FWIW, Akhil Amar disagrees with you on this one, as discussed in this article by one-time PL blogger (I think) Tim Sandefur:

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1272053

pp. 14-5

- Charles

Tom Van Dyke said...

Yes, I figgered the Fourteenth Amendment would be dragged in, in my view dragged in kicking and screaming. It's the only hook for these sort of arguments. Expansive "Living Constitution" readings of Amendment XIV are in my view simply excuses and justifications for desired outcomes. In these religion cases, I see no substantive threat to the life, liberty or property of the "offended" parties. Moreover, the "grandfathering" principle also suggests that "due process," in the form of years of accumulated custom and practice, satisfy the requirements of due process. I am very much opposed---in that Edmund Burke way---to the status quo having to rejustify itself every Monday morning.

Sandefur's real target is Lawrence v. Texas, where "liberty" may indeed be applicable. However, he still cannot resist charging "ignorance and bigotry" on the part of those who disagree with his position, which is why many or most intelligent people decline to debate the issue publicly. Just don't need that noise.

Charles said...

The 14th A will of course be "dragged in", "kicking and screaming" or not, since that's how incorporation is argued.

And if I understand Prof Amar's argument correctly, he is saying that the interpretation of the intent of the EC had moved from a states' right protection view at the founding to an individual rights view, and that the 14th A authors intended that view to be subsumed under "privileges or immunities". My understanding of "original intent orginalism" is that it's based on the intent of the authors of an Article at the time of its adoption. If so, one can argue numerous things - the reinterpretation of the EC was incorrect or inappropriate, that original intent is the wrong kind of originalism to use, that the 14th A wasn't legitmately adopted because of exclusion of the rebellious states, et al - but not that it's "living constitutionalism". That becomes just slogan mongering.

"Sandefur ... cannot resist charging 'ignorance and bigotry' on the part of those who disagree with his position"

Oooh, that's just flat out untrue. He says:

"such laws ... are instead leftovers from an era of ignorance and bigotry"

He's clearly not only not referring to contemporary opponents, he isn't even directly referring to persons at all.

- Charles

Tom Van Dyke said...

I'm identifying a dynamic, one I've seen on this very blog. I do not agree with your parsing of Mr. Sandefur, but as usual, even if I stipulate you're correct for the sake of discussion, the larger phenomenon indisputably exists.

As for Amendment XIV, it should be uncontroversial that it's been applied far beyond its intended purpose of granting equal protection under the laws for the freed slaves. I've already given my reasons why I do not think it should apply in these religion cases, absent the plaintiff satisfying the burden of proof that he has suffered harm to more than his feelings and sensibilities.