Ten Commandments unconstitutional!

[molly bloom]

Gosh, Ned, your posts here have been almost as amusing as your posts in the 'nationalism or fascism' thread.

What links Confucius (not a religious leader, or prophet, by the way) with Moses and Hammurabi and Justinian and the Roman goddess Justitia?

The concepts of law and justice and morality perhaps? If you’re seriously asserting that images or statues of pagan gods and goddesses have been erected in the United States for the purposes of religious worship, then either you are wholly ignorant of history since the early middle ages in Europe, and art history, or you are doing serious drugs, or you’re being disingenuous.

Is it your contention, then, that hidden in America are devotees of the religion of Pharaonic Egypt? There is, after all, ample evidence to make such a statement- plenty of obelisks and even part of a temple in a museum in New York.

Perhaps there is also a secret cult that worships ex-presidents (other than Ronald Reagan) and meets at Mount Rushmore at the summer solstice, or vernal equinox. I think we should be told.

But then the subject of pagan art on public buildings was discussed in a previous thread relating to the Alabaman judge and his tablets- given that there are no longer any devotees of pagan Roman religion or Greek rites, the statues have an artistic value, but no sacred value- they represent concepts, such as fertility, the dawn, the north wind, justice, liberty- but are not objects of devotion.

Rogan Josh-

“Having a monument showing Moses with the commandments is not expressing a choice of religion. It is merely acknowledging the cultural root of modern law.”

“But England is a Christian country (or at least it was when America gained independence), so Deuteronomy is a primary source of English law. “

Your words, I believe. At no point have you shown anywhere that Mosaic law is the cultural root of modern English or American law. You might like it to be, but saying it is, is not the same as proving it is.

England was not a Christian country when Anglo-Saxon customs predominated in the kingdoms of Mercia and Wessex, and Northumbria, and Norse customs in the Danelaw. More to the point- even when it had a ruler who professed Christianity, this did not invariably make any new laws Christian in inspiration or derivation. Any more than it made the laws Angevin, Plantagenet, or Norman. Deuteronomy and Moses are not primary sources of English law or American law, and even though Christianity influenced the western legal tradition, so did Aristotle, Ibn Rushd, Ibn Sina, Moses Maimonides, Seneca and Epicurus.

Are you seriously suggesting that every English monarch and every parliament that passed laws in England consulted the Bible before they did so? England was never a theocracy- even under the rule of the English Commonwealth and Cromwell, who sincerely believed he was establishing a New Jerusalem.

Ben- of course the various aspects of monasticism influenced the evolution of law in the centuries following the collapse of Rome- so did pagan Frankish and Germanic customs and practices. Given that the Papacy was the only international body and that the Christian church had a virtual monopoly on literacy in Western Europe it would be unlikely for Christianity not to have had an influence on law, the theory of law and the codification of law. But this does not make the laws 'Christian' nor does it suddenly endow them with a Mosaic ancestor.

I rather like the fact you focus on Ockham- of course, he died excommunicate, and argued persuasively for the role of the laity within the Church, and for secular intervention to preserve truth in the Church as a whole.

[Ned]

Molly, then you would "agree," then, that it is not the display of religious symbols per se that is being asserted as being unconstutional, but the display of only "Christian" religious symbols because Christianity is the majority religion.

[Rufus T. Firefly]

Originally posted by Ancyrean


Hi Rufus . The secular nature of the state is first enshrined in the second constitution of Turkey, and the thing about the seperation of state and religion in Turkey is that in fact it's not a seperation by the full meaning of the word, it's rather state control over religion. State watches over the training and assignment of imams, and religious schools are permitted only under the aegis of the state. That's why for example, the universal nature of the Greek Orthodox Patriarch is not recognised by the state (he'd be out of state's oversight if he were a universal figure -like the Pope- so he's considered as the leader of only the Greek Orthodox Christians in Turkey, whereas the Orthodox take him as some kind of a Pope) and the Convent that trains bishops for the Patriarchate remains closed (they insist it to be an independent entity).

About Protestantism, it cannot be illegal in Turkey, as there's a Protestant Armenian church in Istanbul.

Hi Ancyrean . Thanks for the expansion on the point I was making; as both I non-Turk and a non-practitioner of religion, I knew the broad outlines of Turkish policy but not a lot of the details. And you're right: I'd forgotten about the Armenian Protestants, who were also grandfathered in (IIRC, the chuch you refer to dates from the early 19th century). But there is some kind of very strict regulation pertaining to those protestant sects that were not present in Turkey before 1923; "Illegal" may not be the correct word, but I'm pretty sure that the Mormons, say, couldn't just show up here and open a Church. I don't think even the Anglicans or Lutherans can. I could be wrong, though; I learn something new every day here, which is what a love about being an expat.

[Jack the Bodiless]

Ned, you seem to be arguing in circles here.

Non-Christian religions haven't placed monuments like the Alabama one, nor have they insinuated phrases into the Pledge of Allegiance: unless you count such things as the decorations on the Supreme Court building, which DO include the Judeo-Christian figure of Moses, which nobody is actually complaining about!

(Incidentally, there the Ten Commandments don't appear on the tablets Moses is carrying.)

Apparently, your position is that you want a Christian-specific persecution to start, so that you can complain about it!

[Ned]

Originally posted by Jack the Bodiless
Ned, you seem to be arguing in circles here.

Non-Christian religions haven't placed monuments like the Alabama one, nor have they insinuated phrases into the Pledge of Allegiance: unless you count such things as the decorations on the Supreme Court building, which DO include the Judeo-Christian figure of Moses, which nobody is actually complaining about!

(Incidentally, there the Ten Commandments don't appear on the tablets Moses is carrying.)

Apparently, your position is that you want a Christian-specific persecution to start, so that you can complain about it!

Jack, I am not so sure that you are right about this. We seem to honor and respect religious displays of religions other than Christianity. For example, have you ever heard of a lawsuit to remove a totem pole from government property? They do exist and there is no dougbt that they are "religious" in nature to the Native Americans. Ditto displays by Buddists in Chinese communities. They are religious to the Chinese.

This is not about religious displays in general. It is about Christian displays exclusively.

Now, in a post by Ancyrean, Ancyrean hit the nail on the head by analogy to the situation in Turkey. There the religious displays that are outlawed are primarily if not exclusively displays of Islam. The reason for this is obvious. It is because Islam is the majority religion in Turkey and Islam was, in fact, the state religion during the empire. The theory seems to be that permitting religious displays of the majority religion tends to "establish" the majority religion.

I dispute this, but this is the only valid constitutional basis for banning Christian displays in the United States. The constitution forbids "establishment" of religion. The only possible "establishment" that is possible here in the US is the establishment of Christianity.

The next question that is critical to the analysis whether the display by government officials of their beliefs or the permitted display of Christian symbols on public property "establishes" religion as opposed to a statute that requires the people to exercise only one religion to the exclusion or preference of others.

We have had a long history of public officials displaying their Christian beliefs. We have had a long history of the permitted display of Christian symbols on public property. (Christmas trees anyone?) Yet in all this time, Christianity has not been established as a religion in the United States.

I would suggest that the evidence is overwhelming and irrefutable on this point.

I would therefor submit that displays of Christian symbols by government officials does not establish or even tend to establish Christianity as a state religion.

Which is why I come to the conclusion that the ACLU assault here is on the free exercise of religion by Christians.

[molly bloom]

Originally posted by Ned


We seem to honor and respect religious displays of religions other than Christianity. For example, have you ever heard of a lawsuit to remove a totem pole from government property? They do exist and there is no dougbt that they are "religious" in nature to the Native Americans. Ditto displays by Buddists in Chinese communities. They are religious to the Chinese.

This is not about religious displays in general. It is about Christian displays exclusively.



Which is why I come to the conclusion that the ACLU assault here is on the free exercise of religion by Christians.

You need to distinguish between art and religion. You need to cite specific cases where Native Americans or Buddhists have used public land to promulgate their religion with the erection of religious artefacts, icons, totem poles, stupas, etc. You need to distinguish between philosophies of life (Confucianism) and religions. Stoicism, for instance, is a philosophy, not a religion.

The artwork (not religious icons) on the exterior of the Supreme Court clearly reflects historical law givers and moralists- it does not serve to promote any particular religion. As has been pointed out, the figure of Moses is holding blank tablets.

No one is attacking Christianity per se- what they are doing is saying that the state does not support one religion (or one brand of one religion) in preference to another. It would seem to me that some Protestant Christians in the United States are doing their very best to make it appear as though there is state sanction for a particular kind of religion, or a particular sub group of one religion. Wisely, it seems to me, the American revolution did not enshrine one religion at the expense of another (in theory, if not in practice).

[Imran Siddiqui]

The state created the coercive situation.

But it didn't do the coercion.

Have you found an opposite meaning among those 17? If not, then what I offered is enough.

No, but I found a better meaning as it applies here. When you offered doesn't fit as well.

is murder an external restraint

Only to the person being murdered. It is not an external restraint to the person committing the murder or the religion commanding the murder. Therefore, since murder is not an external restraint to the religion, then it is freedom of that religion to engage in such a practice without the state butting in .

It was expanded? When? What amendment re-wrote the 1st Amendment?

In case you've forgotten, the US is a common law country. That means the judicial branch creates law by its opinions and interpretations. As long as it doesn't directly contradict statutory language (and the courts have ruled this isn't an expressed exclusion) it will remain law as precedent.

Trying to equate the Church with a government bureaucracy won't cut it, the Church and the British government were allied but separate entities often at "war" with each other in struggles over power sharing

So government bureaucracies don't go to 'war' over power sharing? My, my, you need to open your eyes, Berz. Right now, DepState and DepDef are in a massive power struggle.

Seeing how the King of the England was also the Supreme Head of the Anglican Church (since Henry VIII's reign.. except for a short period of time when Mary ruled), I'd say the Church was a part of the English government.

And like when agencies ask for money and the government gets it for them, when the Church asked for money, the government get it... if it wants. Of course the King was the one that decided whether it needed funding or not.

"No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within it's jurisdiction the equal protection of the laws."

Again, where does that say the Bill of Rights must be incorporated to the states? No state depriving people of life, liberty, or property without due process doesn't necessarily mean the Bill of Rights gets incorporated. Neither does the equal protection or privileges and immunities clause, which don't mention 'state' at all.

[molly bloom]

Oh, and Ned, I suggest you try to find evidence for the 'Christian' nature of the Christmas tree in the Bible. You won't find it. It's about as Christian as the figure of the pagan sheela-na-gig in the wall of Kilpeck Church.

Or as Christian as the Easter Bunny or Easter eggs or the feast of Easter (previously a hare- an ancient pagan fertility symbol, an ordinary egg, a pagan fertility symbol, and the Anglo-Saxon pagan goddess Eostre).

Perhaps you might like to protest at covert state support for paganism?

[Ben Kenobi]

Given that the Papacy was the only international body and that the Christian church had a virtual monopoly on literacy in Western Europe it would be unlikely for Christianity not to have had an influence on law, the theory of law and the codification of law. But this does not make the laws 'Christian' nor does it suddenly endow them with a Mosaic ancestor.

Funny. Same facts yet a different conclusion.

Do you seriously mean to say that there is no connection between the medieval church and the Ten Commandments?

And I don't say the laws are Christian, just that the Ten Commandments have played an important role. Your argument confirms my position.



As for Ockham's excommunication:

http://www1.physik.tu-muenchen.de/~rwagner/me/ockham.html

"They were at odds over the theoretical problem of whether Christ and his Apostles had owned the goods they used; that is, whether they had renounced all ownership (both private and corporate), the right of property and the right to the use of property. Michael maintained that because Christ and his Apostles had renounced all ownership and all rights to property, the Franciscans were justified in attempting to do the same thing."

So please, continue slagging Ockham.

[Berzerker]

Imran -

But it didn't do the coercion.

It doesn't matter, the state created the situation. And the child who is faced with the coercive situation created by the state doesn't know if teachers and administrators will treat him differently, but that child has a reasonable expectation they might. That's why it is coercive wrt other students and the school officials...

No, but I found a better meaning as it applies here. When you offered doesn't fit as well.

That's fine, you don't care for the definition I offered so you offered one yourself. The fact remains your preferred definition neither contradicts mine nor supports your assertion that murder is an act of freedom.

Only to the person being murdered.

So how can you argue a restraint is not a restraint? That is your position, freedom means the absence of restraints and murder is a restraint but you claim murder is also an act of freedom.

It is not an external restraint to the person committing the murder or the religion commanding the murder. Therefore, since murder is not an external restraint to the religion, then it is freedom of that religion to engage in such a practice without the state butting in .

It is an external restraint to the victim and that's what matters wrt whether or not murder is an act of freedom. Remember, we are dealing with 2 concepts - religion and freedom - the meaning of both have to be met by any act to qualify as religious freedom. I see you didn't respond to my point that freedom cannot belong to a religion, just it's adherents. Your argument that a religion has freedom under the 1st Amendment but not the actual people who practice the religion is illogical... That's like arguing a book has freedom but not the people who want to read books... Would you also argue that "freedom of the press" doesn't afford freedom to those who publish but to the printing press itself?

In case you've forgotten, the US is a common law country. That means the judicial branch creates law by its opinions and interpretations. As long as it doesn't directly contradict statutory language (and the courts have ruled this isn't an expressed exclusion) it will remain law as precedent.

So the 1st Amendment was never changed via the amendment process, only through some judges re-writing of the Constitution. Did the Framers authorise judges to re-write the Constitution? Nope. That's why they gave us the amendment process...

So government bureaucracies don't go to 'war' over power sharing? My, my, you need to open your eyes, Berz. Right now, DepState and DepDef are in a massive power struggle.

You're still using the falatious analogy that the Church of England equates to a government bureaucracy.

Seeing how the King of the England was also the Supreme Head of the Anglican Church (since Henry VIII's reign.. except for a short period of time when Mary ruled), I'd say the Church was a part of the English government.

Does that mean the Church wasn't part of the government when the King wasn't the head of the Church?

And like when agencies ask for money and the government gets it for them, when the Church asked for money, the government get it... if it wants. Of course the King was the one that decided whether it needed funding or not.

But the King was the head of the Church so the Church had power over (or if you prefer, within) the government. Laws were passed and enforced at the behest of the Church and that's why the Framers wrote the applicable part of 1st Amendment.

Again, where does that say the Bill of Rights must be incorporated to the states? No state depriving people of life, liberty, or property without due process doesn't necessarily mean the Bill of Rights gets incorporated. Neither does the equal protection or privileges and immunities clause, which don't mention 'state' at all.

I've emboldened the relevant parts:

"No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within it's jurisdiction the equal protection of the laws."



Imran, the word "incorporated" is the term the judicial system uses to describe what is said in the 14th Amendment. The question is whether or not the BoR applies to the states by virtue of the 14th Amendment. It does and this is why:

1) No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.

The 14th Amendment there is saying the states cannot make or enforce laws that abridge our rights as citizens of the country called the United States. And those privileges and immunities are outlined in the Constitution.

2) nor shall any State deprive any person of life, liberty, or property, without due process of law.

So (1) prohibits the states from passing or enforcing laws and (2) repeats the prohibition stated in the 5th Amendment dealing with punishing people.

3) nor deny to any person within it's jurisdiction the equal protection of the laws.

And (3) guarantees equal protection.

[molly bloom]

Originally posted by Ben Kenobi


Funny. Same facts yet a different conclusion.

Do you seriously mean to say that there is no connection between the medieval church and the Ten Commandments?

And I don't say the laws are Christian, just that the Ten Commandments have played an important role. Your argument confirms my position.



As for Ockham's excommunication:

http://www1.physik.tu-muenchen.de/~rwagner/me/ockham.html

"They were at odds over the theoretical problem of whether Christ and his Apostles had owned the goods they used; that is, whether they had renounced all ownership (both private and corporate), the right of property and the right to the use of property. Michael maintained that because Christ and his Apostles had renounced all ownership and all rights to property, the Franciscans were justified in attempting to do the same thing."

So please, continue slagging Ockham.

Firstly I'm not slagging William ogf Ockham- so don't bear false witness.

Secondly, cite some facts- cite some European or English or American laws, or bodies of laws, that derive wholly or mainly from Mosaic inspiration, and show the derivation. As I said with Rogan Josh, just because you would like them to, or say that they do, is not the same as proving that they do. I realize being a person with religious beliefs allows you to believe several impossible things, but backwards creation of the origins of laws won't do. Thomas Aquinas studied Aristotle- does this make Aristotle a proto-Christian? Ibn Rushd and Ibn Sina studied Aristotle, as did Moses Maimonides- and yet Aristotle remains pagan Greek, not Jewish or Muslim.

That there is a 'connection' between the mediaeval Church/es and the ten commandments is self-evident, but hardly proof therefore that the bodies of English and American Common Law derive from Moses.

I would suggest you read, for instance, 'The Origins of the Western Legal Tradition, From Thales to the Tudors' by Ellen Goodman, as well as the two previous works I mentioned. Contract law, for instance can be shown in the West to date back to the Hellenic period, and certainly the rule of the Diadochi. Somehow they managed to get by without reference to Moses....

[Ned]

Originally posted by molly bloom
Oh, and Ned, I suggest you try to find evidence for the 'Christian' nature of the Christmas tree in the Bible. You won't find it. It's about as Christian as the figure of the pagan sheela-na-gig in the wall of Kilpeck Church.

Or as Christian as the Easter Bunny or Easter eggs or the feast of Easter (previously a hare- an ancient pagan fertility symbol, an ordinary egg, a pagan fertility symbol, and the Anglo-Saxon pagan goddess Eostre).

Perhaps you might like to protest at covert state support for paganism?

While the Christmas tree may have come from Germany and originally had nothing to do with Christmas, it did become associated with the celebration of Christ's birthday. It even has his name imbedded in the word.

The display of Christmas trees is all about Jesus Christ and celebrating his birthday. Christians througout the world know this.

[Ned]

Originally posted by molly bloom


No one is attacking Christianity per se- what they are doing is saying that the state does not support one religion (or one brand of one religion) in preference to another. It would seem to me that some Protestant Christians in the United States are doing their very best to make it appear as though there is state sanction for a particular kind of religion, or a particular sub group of one religion. Wisely, it seems to me, the American revolution did not enshrine one religion at the expense of another (in theory, if not in practice).

Molly, I agree that any effort to prevent the establishment of one religion as a state religion is protected activity under the constitution. But that is not what the ACLU is doing here. They are attacking those who exercise their first amendment rights of free expression of religious beliefs. I tried to demonstrate to you the difference between displays of religious beliefs and the establishment of a religion as a state religion. You simply do not address the real issue and continue to focus on the so-called intent of some Christians to establish Christianity as a state religion. I personally have not seen any such intent. What I see, rather, is outrage by Christians that their rights to exercise their religion are being taken away.

[Imran Siddiqui]

the state created the situation

Doesn't matter.

murder is a restraint but you claim murder is also an act of freedom.

That's right, it depends on the frame of reference.

I see you didn't respond to my point that freedom cannot belong to a religion, just it's adherents.

Because these posts are already starting to hit my limit of how long of a post I'll read.

Anyway, of course freedom can belong to an organization and not just its persons. Organizations have rights just as well as people.

Did the Framers authorise judges to re-write the Constitution?

Yes... they knew of the common law and ratified all the common law before the revolution. And the founders had no problems with common law when the Supreme Court used it in the early days of the republic (see Marbury v. Madison).

Laws were passed and enforced at the behest of the Church and that's why the Framers wrote the applicable part of 1st Amendment.

You have great gaps in your education about the Anglican Church. The Puritans and others were forced out because the KING decided he wanted a pure Anglican England. It was the King who decided what religious laws were. Henry VII passed through numerous laws reforming doctrine and litergy of the English Church.

Elizabeth gave the Anglican Church some further autonomy, but it was still under the Crown. The Crown ultimatly decides what the Church needed. The Anglican Church could do NOTHING without the Crown's approval.

Does that mean the Church wasn't part of the government when the King wasn't the head of the Church?

Yes, it wasn't at all. Before Henry VIII took control of the Church of England, the English clergy was not part of the government. It was a totally seperate entity which owed alleigiance to the Pope.

The Catholic model was one followed since the Investiture Crisis of [God -> Church -> State]. The Anglican model went back to the old Roman Imperial model [God -> State -> Church].

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.

Very nice, but I don't see where 'privileges and immunities of citizens of the United States' = Bill of Rights. The amendment doesn't say the state shall not abridge the rights given to the citizens of the United States by the Constitution. It says the states can't take away priviledges and immunities of citizens. These may simply refer to federal laws and treaties granting privileges.

And if you read it expansively, it means that no state can differ in its laws from other states. The privileges and immunities that a person in one state has may not be the same as the P&I those in another state has. They are both citizens of the US, so should have the same P&I, right?

Seeing as how the SCOTUS gradually and selective incorporated the amendment it seems there was more than a little confusion as to what the 'privileges and immunities' of citizens were.

So (1) prohibits the states from passing or enforcing laws and (2) repeats the prohibition stated in the 5th Amendment dealing with punishing people.

Actually SCOTUS has interpreted (1) as repeating the P&I guarenteed in the 5th Amendment, and (2) as expanding the 5th Amendment protections. Since you agree that some parts of the 14th simply repeat parts of the 5th, I guess the SCOTUS can be correct in it interpretation of the P&I.

And (3) guarantees equal protection.

Having ALL citizens be subject to the BoR in federal courts and state rights in state courts IS equal protection of the laws.

[Ned]

Imran, your obviously are learning a thing or two in law school.

But, AFAIK, the Supremes have not said the whole of the BoR applies to the states via the 14th. If they have, please cite a case.

Assuming for the moment that only "fundamental" rights pass through the 14th, does the 2nd Amendment apply to the states?