I’ve done a similar analysis before, but Eugene Volokh makes the point as well that the Ten Commandments is a sketchy foundation for our civil law.
All this is an illustration, I think, of a basic point: Even if one thinks that the Bible is a proper source of legal guidance, a Biblical prohibition of something is not itself a sufficient reason for secular law to prohibit it, too — as even many of the Commandments (which some say are among the most fundamental of the Biblical rules) demonstrate. There still has to be a second step of the argument: Not just that the Bible prohibits it, but that this prohibition is also one of the rules that should be imposed by secular law as well as religious law, as opposed to one of the many rules that should only be imposed by religious law.
(Emphasis his.)
I, for one, am not particularly interested in a civil law that would imprison or fine me for working on a Sunday, or being disrespectful to my folks, or expresing covetous thoughts or actions. Who, then, is?
American civil law owes a lot to both Calvin and the Westminster Confession. The “law” is divided into parts, moral which is perpetual, ceremonial which passed away, and judicial in which the goals remained but the means (the specific sanctions of the OT) may pass away. Calvin defined the goals that do not pass away as “general equity”. Here’s some quotes from Calvin’s Institutes on this:
“The judicial law, given to them for civil government, imparted certain formulas of equity and justice, by which they might live together blamelessly and peaceably. . . . . The form of their judicial laws, although it had no other intent than how best to preserve that very love which is enjoined by God’s eternal law, had something distinct from that precept of love. Therefore, as ceremonial laws could be abrogated while piety remained safe and unharmed, so too, when these judicial laws were taken away, the perpetual duties and precepts of love could still remain.
“But if this is true, surely every nation is left free to make such laws as it foresees to be profitable for itself. Yet these must be in conformity to that perpetual rule of love, so that they indeed vary in form but have the same purpose. . . . .
“What I have said will become plain if in all laws we examine, as we should, these two things: the constitution of the law, and the equity on which its constitution is itself founded and rests. Equity, because it is natural, cannot but be the same for all, and therefore, this same purpose ought to apply to all laws, whatever their object. Constitutions have certain circumstances upon which they in part depend. It therefore does not matter that they are different, provided all equally press toward the same goal of equity.
“It is a fact that the law of God which we call the moral law is nothing else than a testimony of natural law and of that conscience which God has engraved upon the minds of men. Consequently, the entire scheme of this equity of which we are now speaking has been prescribed in it. Hence, this equity alone must be the goal and rule and limit of all laws.
“Whatever laws shall be framed to that rule, directed to that goal, bound by that limit, there is no reason why we should disapprove of them, howsoever they may differ from the Jewish law, or among themselves.”
Let’s take the fourth commandment, for example. The general equity here is that employers are not to abuse their employees. This is actually taken into account by current civil rights legislation. Employers are to make “reasonable accomodation” of the religious preferences of their employees, including observing of the Sabbath. A detailed look at the Sabbath regulations of the OT shows a much bigger emphasis on the employer than on the employee. The Pharisees of Jesus’ time did not see that and Jesus had to remind them that the Sabbath was made for man and not vice versa.
The general equity of the fifth commandment is a general respect for authority (and a respect of those in authority over whom they rule).
The general equity of the tenth commandment is respect for the property rights of others.
It is up to the civil authority how all these principles get worked out in practice. A more detailed application of the Ten Commandments, however, has generally been eschewed by our government. Roger Williams spoke against enforcing the so-called first table of the law (Commandments 1-4). Note the following comment from the a report of the 20th Congress on the Sunday mails:
“Let the national legislature once perform an act which involves the decision of a religious controversy, and it will have passed its legitimate bounds. The precedent will then be established, and the foundation laid, for that usurpation of the divine prerogative in this country which has been the desolating scourge to the fairest portions of the Old World. Our Constitution recognizes no other power than that of persuasion, for enforcing religious observances. Let the professors of Christianity recommend their religion by deeds of benevolence, by Christian meekness, by lives of temperance and holiness. Let them combine their efforts to instruct the ignorant, to relieve the widow and the orphan, to promulgate to the world the gospel of their Saviour, recommending its precepts by their habitual example; government will find its legitimate object in protecting them. It cannot oppose them, and they will not need its aid. Their moral influence will then do infinitely more to advance the true interests of religion, than any measure which they may call on Congress to enact.”
I think it’s deceptively easy to extrapolate out an “equity” from one of the the commandments and then use that to determine whether the law is purely ceremonial (and therefore can be discarded) or fundemental (and therefore must be adhered to). It is not at all clear to me that the equity intended behind the 4th Commandment is that employers should respect their employees, particularly as extrapolated to respect for religious festivals beyond Jewish (or, as extended, Christian) ones. Nor is it clear to me that the 5th Commandment is meant to be a general admonition for respect for authority in general.
Determining equity in this way is to try to determine intent, and while it’s something we all do (and must do), it’s also a dangerous game, and often comes up with very different results.
On the other hand, I do like your congressional quote.
I don’t think that equity is easy to determine at all. There is a theological camp known as theonomy who think that it is very easy to apply the OT law (and to determine how to bin the law into the three categories mentioned previously). I do not subscribe to that camp. On the other hand, Jesus’ extraction of the general equity is much easier to figure out and apply than a complicated and tortured casuistry. To wit:
1. Love the Lord with all your strength, soul, and mind.
2. Love your neighbor as yourself.
It is the role of the civil magistrate to restrain those who cannot follow (in extreme cases) number two.
James Madison and Patrick Henry disagreed quite forcefully on the issue of case number one and the government. Madison’s idea of limited civil (and ecclesiastical!) government ruled the day. There was still some carry-over as late as the 1820s where John Adams expressed embarrassment to Thomas Jefferson over blasphemy laws (where it was illegal to deny the inspiration of Scripture) in Massachusetts.
The idea of separation of church and state was not a secular idea but came from the non-conformists in England (particularly Baptists and Presbyterians). They figured out that tyranny was not just the other guy’s religion running the govenment, but my guy’s too. While it is true that Thomas Jefferson coined the term, it should be noted that it was a Baptist pastor who was the recipient of the correspondence.
This just in from the Supremes.
WASHINGTON (Reuters) – The U.S. Supreme Court on Monday rejected an appeal by Kentucky of a ruling that barred the display of a large granite monument with the Ten Commandments on the state Capitol grounds in Frankfort.
I would agree with your analysis between the two greatest commandments, though I suspect there would be a number who argue that the state should take a role in #1 as well — and who would also differ on what constitutes an “extreme” case regarding #2.
That there is a difference of opinion here doesn’t bother me. It is the role of a civil leader to actually apply the principle to the current situation. This means there will be a difference. The so-called Golden Rule was also Kant’s Categorical Imperative. Kant did not derive this from Scripture. Thus, this is not exclusively a Christian concept.
I don’t see those who argue for #1 have any historical case that this was ever an American position (at least from the Constitution on forward).
I don’t mind differences of opinion, either (that’s why I leave the Comments on).
The Golden Rule, yes, is not strictly a Christian structure (similar dictates, phrased both positively and negatively, can be found in any number of religions, as well as Kant’s reformulation of the Catagorical Imperative). What constitutes love of (or harm to) one’s neighbor, though, or how different levels of love/harm are weighed, is sometimes religiously informed, and can be subject to debate which must be guilded and resolve both by the civil leader and by the political structures and strictures we’ve set up.
Regarding Rule #1, despite the Johnson quote, Sunday remains more or less a day of governmental (and labor) rest, and in localities and states with various Blue Laws, may be more than that. Public acts of piety and religious devotion (within the bounds of “ceremonial deism” or not), though a lot less prevalent than before, remain (see the ongoing Under God controversy).
Decisions may very well be religiously informed, and that’s OK because the First Amendment applies to politicians, also. There is, however, a difference between a religiously informed political decision and religious establishment. The lack of a religous test in the Constitution applies to both the religious and irreligious. You cannot disallow someone from public office based upon how they determine what a good or bad neighbor is.
This is where an informed electorate is important: deciding whether they trust someone to truly protect them or not. If they believe that a candidate’s Christian views promote justice and equity then they will get voted in. If they believe that it is just a way to impose their Christian (we both know this is not truly Christian but I hope you know what I mean) values on someone else, then not. Likewise, if an irreligious candidate is viewed as being truly tolerant of people who are religious, then this candidate will win. If they are viewed as imposing their secularism on others, then not.
I don’t have any problem with religion informing a political decision by a person who is religious (ideology and personal morality should inform an individual’s decisions, just as intellect and other personal attributes should).
I think, though, that much of the public doesn’t see a problem with voting in people who impose “normalcy.” So if a certain generic brand of Christianity is seen as “just the way normal folks are,” the local public won’t have a problem with voting in folks who will work to enforce that normal status quo, even at the expense of some fringe types — and particularly if there’s a sense (conscious or subconscious) that what is normal locally is not normal in a broader arena (“circle up the wagons!”).