Ten Commandments unconstitutional!

[Imran Siddiqui]

the Supremes have not said the whole of the BoR applies to the states via the 14th.

They haven't, that's what I said 'selective incorporated' . You are exactly correct.

IIRC, the 2nd Amendment and one other one (I forget which) of the first 8 haven't been incorporated to the states.

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

Playing on your assumption, it is an interesting question. I don't know what the answer would be. It depends if the SCOTUS would rule the right to bear arms is 'fundamental'. In modern times, I doubt it.

[molly bloom]

Originally posted by Ned


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.

Right Ned. By this reasoning Christians are celebrating a pagan feast- the feast of Eostre- it even has the goddess's name embedded in it!

What absurd reasoning. Distinguish between religion and folklore and folk customs. And religion and crass commercialism (although in America it would seem to be difficult to separate them at times).

The use of Christmas trees is all about the old pagan yuletide customs- nothing Christian about it. Or Christmas, for that matter. Another pagan festival. Do you think there's anything Christian about some of the pagan beliefs incorporated into Central American and Latin American religions? If so you have a very strange and loose definition of Christianity.

[Ned]

Originally posted by Imran Siddiqui

the Supremes have not said the whole of the BoR applies to the states via the 14th.

They haven't, that's what I said 'selective incorporated' . You are exactly correct.

IIRC, the 2nd Amendment and one other one (I forget which) of the first 8 haven't been incorporated to the states.

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

Playing on your assumption, it is an interesting question. I don't know what the answer would be. It depends if the SCOTUS would rule the right to bear arms is 'fundamental'. In modern times, I doubt it.

So do I, since militias are totally obsolete.

[Ned]

Molly, this is descending into the absurd.

I am not arguing as do others that the display of the Ten Commandments was not intended as a religious display in this case. I think it clearly was. I just do not think it had anything to do with establishing religion. It was display of one man's beliefs. Nothing more. The display did not require anyone to acknowlege the Ten Commandments, to become Christian, to pray, to worship God or anything else religious.

It was a display, like a Christmas tree or a prayer before opening a session of Congress. It was a display like someone wearing a cross or saying in closing a speech "God Bless America." It was a display like reciting the Pledge of Allegiance in school or singing God Bless America in a municipal stadium. It was exercise of religion - and that is constitutionally protected, not proscribed.

Are you listening to me?

[molly bloom]

Originally posted by Ned
Molly, this is descending into the absurd.

I am not arguing as do others that the display of the Ten Commandments was not intended as a religious display in this case. I think it clearly was. I just do not think it had anything to do with establishing religion. It was display of one man's beliefs. Nothing more. The display did not require anyone to acknowlege the Ten Commandments, to become Christian, to pray, to worship God or anything else religious.

It was a display, like a Christmas tree or a prayer before opening a session of Congress. It was a display like someone wearing a cross or saying in closing a speech "God Bless America." It was a display like reciting the Pledge of Allegiance in school or singing God Bless America in a municipal stadium. It was exercise of religion - and that is constitutionally protected, not proscribed.

Are you listening to me?

In between bursts of laughter, yes. So the erection of a weighty stone monument on state property by a state official, with a particular form of a translation of the ten commandments indicating an adherence to a particular branch of Christianity inscribed thereon, is the same as Joe Schmoe wearing a small gold cross on a chain around his neck as he goes shopping?

I agree Ned, your arguments grow more and more absurd.

So, Ned, I suppose you'll welcome Satanists, pagans, Buddhists, animists and Muslims as they agitate for the same right to 'display' their religion. Would you be as vociferous in your support if say, it were a voodoo shrine to Damballah installed in your local town hall? Or perhaps a votive statue of Kali or Shiva Nataraja in the vestibule of your local courthouse?

I think not. What the judge wants is special treatment for his brand of religion- not special treatment for all religion, or the same treatment for everyone, who either has a religion or doesn't. Tenuous arguments purportedly showing the biblical inspiration for American common law show the desperation involved.

[Ned]

I'm sorry, Molly, but what the Judge "wants" is irrelevant. The question is does he have a right to display his religion and does he have a right to use public money and public property to do so? If he did not have this right, no public official could display religious symbols, like a cross or a scarff for Muslim women, nor could they pray to open a legislative or court session, or take off work on religious holidays at public expense, or erect Christmas trees and sing carols with their fellow Christians on public property, to sing God Bless America at a ball game in a municipal stadium or to conduct a baptism on a public beach. If some of these activities are protected and some not, how do you draw a dividing line? All of them involve the actor displaying his or her belief in their religion. Some of them certainly involve spending public money. Some of them take place on public property. Why are some protected exercises of religion and why are some not, but rather establishment of religion?

There is no right in the US for anyone to have a religion-free zone called the public domain thereby confining religion to the private areas of the home or church, temple or mosque. But that is what the ACLU apparently wants.

[Ben Kenobi]

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.

Molly:

Perhaps you should give me a little credit rather than taking the cheap shots.

I never argue that the Common Law derives from Moses, but that the Ten Commandments played an important role in the construction of the law. Work with me here. If it is self-evident that the medieval church contributed to the interpretation of the law, as well as believing in the Ten Commandments, than one would expect their views of the Ten Commandments to influence their interpretation on the law.

This is without resorting to any argument other than your own.

[Berzerker]

Imran -

Doesn't matter.

Why? The state is pushing it's religion (something you object to when it's a piece of stone placed by a judge) and children who don't affirm that religion are subject to coercion - that violates both religious freedom and the establishment clause. You ignored my explanation as to why it does matter and responded only with "doesn't matter".

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

So murder is a restraint sometimes but not when the "frame of reference" is different? C'mon Imran, you're not making sense.

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

You're the one who tried to argue that the free exercise of religion was a freedom of the religion and not it's adherents. This is your "logic", an idea or book has freedom but not the person who thinks or writes.

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

Organisations are made up of people, Imran. You claimed the 1st Amendment was not about the religious freedom of people but of religion (whatever that means). Are you really suggesting the religious freedom clause of the 1st Amendment did not refer to the religious freedom of the people but "organisations" instead? Are there any other non-human rights in the BoR? You're in law school, try your argument out on your teachers.

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).

All the words after "yes" don't support the "yes". The Framers did not authorise judges to re-write the Constitution or they would have said so in the Constitution. But go right ahead and tell your fellow "conservatives" that the judicial activism re-writing the Constitution they decry is constitutional.

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.

True, I'm not a scholar of the Anglican Church. Since the King was the head of the Church - King via divine mandate (a religious idea) - how can that be an example of the Church not having power? I never said the King had no power over the Church, only that the Church also had power. The fact the King was the head of the Church makes this argument moot. The Framers did not write the 1st Amendment because they felt sympathy for the Anglican Church's alleged lack of power. The Pilgrims didn't leave England because they had religious freedom, but because they were persecuted for not having the state's religion.

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.

So now the BoR aren't federal privileges and immunities? Gee Imran, does that mean a freedom is not an immunity too?

And if you read it expansively, it means that no state can differ in its laws from other states.

What? You think all the states are required to have the same laws now?

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?

Only those P&I in the Constitution or created by Congress in accordance with the Constitution:

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

The United States there refers to the nation and it's national P&I, the Constitution and the BoR certainly do contain privileges and immunities.

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.

That's the SCOTUS' fault, not the authors of the amendment.

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.

The SCOTUS has not interpreted the 14th Amendment to mean the states are exempt from the BoR. And no, (1) limits legislative power while (2) applies the federal process for punishment to the states. These are separate matters just as the Constitution separates the limitations on federal legislative power from the 5th Amendment's requirements regarding punishment.

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

Imran, citizens were already subject to the BoR in federal courts prior to the 14th Amendment.

[Ned]

According to a report on O'Reilly's site, the president of the ACLU has decided to go after Christmas itself as a national holiday and Christmas displays on government property.

Anyone from the ACLU like to comment?

[molly bloom]

Originally posted by Ben Kenobi


Molly:

Perhaps you should give me a little credit rather than taking the cheap shots.

I never argue that the Common Law derives from Moses, but that the Ten Commandments played an important role in the construction of the law. Work with me here. If it is self-evident that the medieval church contributed to the interpretation of the law, as well as believing in the Ten Commandments, than one would expect their views of the Ten Commandments to influence their interpretation on the law.

This is without resorting to any argument other than your own.

I’m not taking cheap shots. I’m growing increasingly frustrated at your inability to adduce any examples where pagan tribal custom law as it evolved into Anglo-Saxon/English common law, as codified under Henry II, and later inherited by the American colonies, was in any way preponderantly influenced by the ten commandments.

You can’t provide examples, because the tribal customs existed before the Christianization of the Anglo-Saxon Heptarchy- the common law notion of redress and compensation for wrongs is not Mosaic or Christian in inspiration.

You talk as if there were no difference between feudal law, canon law, common law, contract law and Mosaic laws, and as if somehow ‘influence’ subtly transforms into or shares its meaning with ‘derives from’. You even seem to imply that there are no differences between Church or canon law and Mosaic law- and yet there are.

Yes, when Christianity was introduced it influenced some pagan laws and procedures- usually to ameliorate harsh punishments, or to weight court proceedings more in the favour of the accused, and to provide the repentance element in punishment- the idea that a punishment is not simply about providing financial compensation, but also to atone for wrong doing.

However the struggle that characterized Western Europe was the struggle between secular powers (the state, king, republics) and the Papacy- and we know how that ended. Western Europe avoided the autocratic despotic regimes found in Asia and Africa (for the most part) and also (with brief uncharacteristic exceptions) avoided government by theocracy. Even the divine right of kings/monarchs is not a Judaeo-Christian idea- as Alexander the Great (identified with Zeus Ammon) and Cleopatra (identified with Isis) could attest.

Even so- European Continental law, based on Roman law, is a different kettle of fish from English common law and American common law. And interpreting or theorizing about laws does not make those laws ‘Christian’. If it did, then the Benedictine Rule (heavily influenced by concepts derived from pagan Hellenized Roman law) would according to your way of reasoning be 'pagan'.

You simply assume that because the ten commandments are part of the religious lexicon of Christianity then they have a huge influence on the development of the law- but don't provide examples to back up this assertion. As I've said before- it's easy to say something like that, but a lot harder to show a progression from Judaeo-Christian or Mosaic law to English common law.

I'd suggest you consult someone else who had something to say on the subject of the presumed Christian aspect of English and American common law- Thomas Jefferson. I'll give you a hint- he scotched the idea. In fact, he even opposed prosecutions for blasphemy. He usually goes up in my estimation the more I read about him.

[Ned]

Molly, in your debate with Ben, I say I must agree with you. The Ten Commandments has virtually nothing to do with English common law.

However, just one small question. Did not the "Thou shalt not bear false witness" commandment find its way into jury trials when they open with an oath sworn on the Bible to "tell the truth, the whole truth and nothing but the truth?"

[Rogan Josh]

I must admit that I do find Molly's insistence that 1000 years of Christianity in a country with a system of legal precidence would not influence the countries laws....

[molly bloom]

Originally posted by Rogan Josh
I must admit that I do find Molly's insistence that 1000 years of Christianity in a country with a system of legal precidence would not influence the countries laws....

Oh good grief.

'Influence' does not mean 'derive' from.

'Influence' does not mean 'originates in Mosaic law'.

'Influence' does not mean is contained in statute law.

If you think it does, then please provide us with some relevant examples of English common law based on the decalogue.

Just one last time- English common law, as codified and regulated in the reign of Henry II, descends from Anglo-Saxon and Norse laws. Laws which come from the customs of the Germanic tribes, pagan Germanic tribes. You will not find Mosaic or Christian concepts in them.
You cite the matter of precedence as if somehow this means that the ten commandments interpolated themselves into English common law without anyone noticing. They didn't.

Ned- the practice of swearing on a holy book, or relics is not the sole purview of Christianity- according to what I have read, even non-Christian tribes (the Germans and Celts for instance) would make an oath on sacred objects. Trial by jury itself is a pagan Anglo-Saxon institution. The importance of oaths, and the consequences of keeping or not keeping them, is central to some Germanic/Norse myths- the Nibelungenlied, and the Volsung Saga, for instance.