The Volokh Conspiracy - Ten Commandments and Modern Law?

I thought I'd repost something I discussed a couple of years ago, related to one particular argument about the Ten Commandments. This is not a core argument in the opinions in these cases, but it's popular enough that I thought I'd speak to it here.

I have often heard it said that the Ten Commandments are an important part of the foundation of American law, and I think that's true to a point. But here's a quick question for you: How many of the Ten Commandments are actually implemented as legally binding obligations under modern American law? (To avoid confusion, let's focus on the list in Exodus, chapter 20, King James Version, available here.)

It turns out that the answer today is pretty much three, #6, #8, and #9:

1. "I am the LORD thy God, which have brought thee out of the land of Egypt, out of the house of bondage. Thou shalt have no other gods before me." This is fortunately not legally enforceable; in fact, the First Amendment would prohibit the government from enforcing this.

2. "Thou shalt not make unto thee any graven image, or any likeness of any thing that is in heaven above, or that is in the earth beneath, or that is in the water under the earth. Thou shalt not bow down thyself to them, nor serve them . . . ." Again, this is fortunately not legally enforceable, neither as to the prohibition on graven images, nor on the visiting of the fathers' sins upon the sons.

3. "Thou shalt not take the name of the LORD thy God in vain; for the LORD will not hold him guiltless that taketh his name in vain." Some states have enacted blasphemy laws in the past, though to my knowledge they've generally been limited to public blasphemy. Fortunately they are not enforced today.

4. "Remember the sabbath day, to keep it holy. Six days shalt thou labour, and do all thy work: But the seventh day is the sabbath of the LORD thy God: in it thou shalt not do any work, thou, nor thy son, nor thy daughter, thy manservant, nor thy maidservant, nor thy cattle, nor thy stranger that is within thy gates . . . ." This is generally not the law today; some states still require some businesses to be closed Sundays, but there's no general prohibition on work on the Sabbath -- no-one is going to arrest you for working from home on Sundays, and that too is very good.

5. "Honour thy father and thy mother . . . ." Not legally enforceable.

6. "Thou shalt not kill." Legally enforceable, though of course with the usual qualifiers.

7. "Thou shalt not commit adultery." Not in practice legally enforced today, though I believe that some states do still have criminal prohibitions on adultery on the books. There are plausible arguments for enforcing these prohibitions, and also for considering adultery in various civil contexts (in property settlements in divorce and the like), though I think that on balance the current approach is better for a wide range of practical reasons.

8. "Thou shalt not steal." Legally enforceable.

9. "Thou shalt not bear false witness against thy neighbour." Legally enforceable, at least in a wide range of contexts (such as perjury and libel).

10. "Thou shalt not covet thy neighbour's house, thou shalt not covet thy neighbour's wife, nor his manservant, nor his maidservant, nor his ox, nor his ass, nor any thing that is thy neighbour's." Not legally enforceable -- can you imagine a law prohibiting coveting?

So there it is: Many of these rules may be morally good, and all may be theologically important to some people. But only three (no killing, stealing, and false witness) are currently enforceable under American law, though there are plausible arguments that adultery should also be included.

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cathyf:

I'm not sure if it qualifies under your criteria, but adultery is still actively prosecuted in the military.

cathy :-)

6.27.2005 3:12pm

russg:

and of course, #6 is actually a prohibition against murder, although it is often translated as though it prohibits all killing.

6.27.2005 3:16pm

Kevin Kenny:

The reading on #8 vs #10 is also unclear; in context
in Exodus (if not in Deuteronomy) it would be possible
to interpret #8 as a prohibition on stealing your neighbour,
(that is, kidnapping) while #10 is a prohibition of stealing
property.

6.27.2005 3:27pm

Doug Sundseth (mail):

Of those three (or four) enforceable provisions, how many were not included in some, most, or all previous codes of laws? If the Ten Commandments are "...an important part of the foundation of American law...", as opposed to "... yet another restatement of commonly held norms...", I'd think they would need to contain some new material.

I do not mean this to say that the Ten Commandments were not important to the "founders"; clearly they were. But I don't understand that to be the usual form of the argument for including them as a public monument, nor do I find that form of the argument especially convincing.

6.27.2005 3:28pm

LArry88 (mail) (www):

It is worth nothing that some judges impose an "honor thy father and mother" bail condition (in secular terms) upon juveniles. I don't know if any prosecutors have ever saught to have bail revoked for those reasons.

6.27.2005 3:32pm

JR:

This might be a stretch, but what about blue laws as they relate to the Fourth Commandment?

6.27.2005 3:43pm

ReaderX:

Regarding #7, see e.g.

Misenheimer v. Burris (N.C. App., No. 04-445, Apr. 5 2005), Misenheimer

Eluhu . Rosenhaus, 159 N.C. App. 355 (2003), aff'd, 358 NC 372 (2004) Eluhu

Oddo v. Presser, 158 N.C. App. 360 (2003), aff'd, 358 NC 128 (2004), Oddo

Still quite regularly enforced, at least in North Carolina.

6.27.2005 3:50pm

6.27.2005 3:51pm

Hans Bader (mail):

#7 (Thou Shalt Not Commit Adultery) is not civilly enforced in most states (35 plus states), since it isn't taken into account by divorce courts in alimony and equitable distribution decisions. The reasoning behind these decisions is rather dumb: since divorce is permitted on a no-fault basis, the courts claim, fault can't be considered in alimony and property distribution. That's silly; that's like saying that because breach of contract is permitted when efficient, the breaching party should not have to compensate the victim of the breach. The fact that a marriage is irretrievably broken and thus should be put out of its misery (regardless of who caused it to break down in the first place) hardly means that the innocent party should have to make a lifetime of alimony payments to the guilty party. Yet that is the rule in most states. Hundreds of thousands of men pay alimony to adulterous ex-wives. (I use gendered terminology only because the law is itself gender-biased. Outside California, where men periodically receive alimony, men almost never get it, even when they put their wives through college or take care of the kids. Even very poor men very seldom get alimony from even very rich ex-wives, while middle class men often pay alimony to middle class women with similar incomes.) By the way, I am not divorced.

6.27.2005 4:08pm

DJ (mail):

Forgive me if I'm missing the point of Prof. Volokh's exercise here, but isn't the legal relevance of the Decalogue not it's substantive provisions, but the fact that it--much like the Koran--established a written code of laws and, accordingly, was indispensable to the development of the principle of the rule of law?

6.27.2005 4:17pm

Mahan Atma (mail):

"isn't the legal relevance of the Decalogue not it's substantive provisions, but the fact that it--much like the Koran--established a written code of laws and, accordingly, was indispensable to the development of the principle of the rule of law?"

The Code of Hammurabi did that long before the Ten Commandments.

6.27.2005 4:22pm

P Duggan (mail) (www):

6.27.2005 4:46pm

Goober (mail):

Rob Lowe's character on The West Wing had a really good soliloquoy in response to a fictional attempt to reintroduce the Commandments into American jurisprudence: "How could you have a law against me coveting my neighbor's wife? What---how would you even prove that? What's more, if you accused me, I'm pretty sure I'd bear false witness."

6.27.2005 4:55pm

WB:

Marci Hamilton had an interesting article on this topic a while back, making some similar points.

6.27.2005 4:56pm

Eric Rasmusen (mail) (www):

I have an article on adultery law, available at
here. It's worth noting that neither criminal adultery nor the tort of alienation of affections is about the morality of the act of adultery per se-- most laws have been about setting a bad public example or literally stealing affection.

Here's a related question: How many people's *religious beliefs* currently uphold all of the 10 Commandments? Very few Americans still hold to "No work on the Sabbath", even as a nominal dogma, and that goes even for most evangelicals and for all Roman Catholics. What those rural Kentuckians are establishing is Orthodox Judaism!

6.27.2005 5:07pm

David Ross (mail) (www):

It strikes me that bans on fornication are enforceable as a public health issue.

Hospitals have to be up to hygiene codes, and there are laws on the books about cleaning up after Rover. These exist because they limit the vectors for staph, plague, cholera and so forth. Why not expand this to vectors for AIDS and herpes?

We already do have limits on fornication in the form of anti-prostitution, limits on non-softcore porn, and other such vice laws.

Personally I don't agree with such a ban because I don't think the cost-benefit ratio supports it. But that's a utilitarian argument...

6.27.2005 5:16pm

Stephen W. Stanton (mail) (www):

re: #3 - I'm unsure whether blasphemy per se is banned by the FCC, though broadcast networks have long censored phrases such as "God Damn" while allowing "Damn". Whether the FCC imposed fines or not is unknown to me.

As for coveting... Palpable coveting in the workplace can be construed as actionable harrasment.

As for blue laws / Sabbath... #4 and # 9 are about the same. Surely, it depends on how broadly you define "work" and "false witness". It's "sort of" enforceable. With all the crackpot partisan books out there bearing false witness within legally allowable parameters, surely that counts no more or less the same as the limited amount of work you can do on the Sabbath.

6.27.2005 5:26pm

SW (mail):

But the code of hamurabbi was unknown until its discovery (in 1901?) and so for most of America's history, the actual influence on the American idea of a written code of law is traceable to the influence of the Decalogue.

I think Mahan Atma's point was that such rules are common to most civilized societies. Even societies that didn't follow these Ten Commandments came up with similar rules, not because G-d pronounced them, but because certain constraints on behavior keep common misbehaviors under control. In Professor Volokh's favorite writing terms, the Ten Command weren't necessarily "novel and nonobvious."

6.27.2005 5:52pm

david giacalone (www):

-- "can you imagine a law prohibiting coveting?"

In When Will Jesus Bring the Pork Chops?, while winnowing down the Ten Commandments to two (be honest and be loyal), George Carlin notes (at 17) "THOU SHALT NOT COVET THY NEIGHBOR'S GOODS. This one is just plain stupid. Coveting your neighbor's goods is what keeps the economy going."

6.27.2005 6:21pm

Chris Jones (mail):

There's a theological point that is related to this question of whether and how the Decalogue is foundational to American law. It is often thought that the commandments express a general moral law not unique to any particular faith, to which the conscience of every person of whatever faith ought to be bound. It is also often thought that the Deity behind the commandments is a generic Deity, to whom any theist may own allegiance.

Both of these common thoughts are quite false. The first commandment, to which all of the others are logically subordinate, enjoins worship of, and obedience to, a specific God, who refers to Himself by His specific and personal name. And the commandments which follow are not presented as an appeal to the conscience of human beings qua human beings, but as the terms of a covenant between this specific Deity and a specific people (the Jews). This covenant is at the theological heart of Judaism, and for Christians it is also central, as the antitype of the new covenant established by Jesus.

These are the theological facts of the matter. Those who imagine that the ten commandments escape the establishment clause, because they are a theologically neutral code of general ethics, do not know their theology very well.

6.27.2005 6:31pm

AK:

File this one under Department of Missing the Point. Who cares how many of the commandments are on the books (or enforced) today? The point is that the commandments were one of the foundations of American/English/western law. At least six of them (3,4,6,7,8,9) were enforced by American civil law at one time. That they're not now reflects modern legislative choice and evolving constitutional law, but it doesn't change the fact that they were once some of the basic laws on which our legal system was built.

Worrying that the Commandments don't reflect modern law is like worrying that the 13 stripes on the flag don't reflect the current number of states.

6.27.2005 10:05pm

The Editors, American Federalist Journal (mail) (www):

Respect for the Christian Sabbath is actually enshrined in the US Constitution.
<blockquote>
Article 1, Section 7:
"...If any Bill shall not be returned by the President within ten Days (<b>Sundays excepted</b>) after it shall have been presented to him, the Same shall be a Law, in like Manner as if he had signed it, unless the Congress by their Adjournment prevent its Return, in which Case it shall not be a Law."
</blockquote>

Somebody call the ACLU - The Constitution is unconstitutional. Or maybe the Founders chose to except Sundays at random. :)

6.27.2005 11:28pm

Tara:

I think that blue laws tended to prohibit play more than they prohibited work. Besides Sunday is not the sabbath - as far as I understand it, it is the Lord's Day and that's it.

6.28.2005 12:20am

Poul (mail) (www):

the original hebrew word translated as "covet" mostly means "actively trying to attach to". i.e. the commandment actually prohibits seduction of one's spouse and plotting to grab his property.

i always say that christianity is mostly a product of mistranslation...

6.28.2005 5:52am

howvan:

Paul Finkelman has written an article on this subject, discussing the various versions of the Ten Commandments:
Paul Finkelman, The Ten Commandments on the Courthouse Lawn and Elsewhere, 73 Fordham L. Rev. 1477 (March 2005).

6.28.2005 11:05am