Ten Commandments/Moore/O'Reilly

[Fun2BFree]

What do the Declaration of Independence, The US Constitution and common law all have in common?

The fundamental idea that the power of the law derives from the consent of the governed--from the people...that is more John Locke--- not Moses.

Judeo-Christian ideas come the notion that laws are divine, immutable and come from above...like the divine rights of kings. Opposing such ideas is the foundation of the United States of America...sorry...that does not fit with some people's wishful thinking about the importance of religious thought in America--but quoting all the religious people in the world about their warped view of our history does not change our nations fundamental founding legal principle--the power of the people to rule themselves according to those rules they see fit-- not as it is writ in sacred texts-but according to democratic principles more akin to ancient Greece than ancient Judea.

 

[ceo_esq]

What? More evidence this isn't just Yahzi's quirky little impression?

Gosh jee golly whiz, who woulda thought?

Thanks for chiming in, Yahzi. I think the lesson here is that, in an environment such as this forum where many (though not all) of the non-religious people are extremely unfavorably disposed toward all things Christian - people tend to leap to the conclusion that someone who presumes to critique arguments directed against Christianity must be either be Christian or harbor a pro-Christian bias. Of course, shooting down many such arguments presented here is like shooting fish in a barrel - it's neither very difficult nor does it require Christian credentials. Leaping to a conclusion is still leaping to a conclusion. In my case, I thought you had purported to accept the fact that the conclusion was wrong, but your persistent attempts to justify your mistake (which these days focus less on my actual statements than on citing other people who have made the same mistake) indicate otherwise.

Originally posted by Fun2BFree
But for someone like you, who calls it not the West but the "Christian" west

I referred to the Christian West (precisely once, by the way) because I was emphasizing that Judaic sources were largely interpreted, retained (or discarded), and transmitted in the West (from late antiquity at least up through 18th-century British common law) with a particularly Christian slant (rather than, say, a Jewish one). That should have been clear if you had been paying attention to what I was actually trying to say. It was neither a slip nor evidence of bias.

 

[ceo_esq]

What do the Declaration of Independence, The US Constitution and common law all have in common?

The fundamental idea that the power of the law derives from the consent of the governed--from the people...that is more John Locke--- not Moses.

That is certainly the case with modern common law, although it was not precisely true of earlier versions of common law. But more importantly, you are now addressing the philosophical question of whence the authority of laws is derived, which is distinct from the historical question of whence their content is derived.

 

[Suddenly]

That is certainly the case with modern common law, although it was not precisely true of earlier versions of common law. But more importantly, you are now addressing the philosophical question of whence the authority of laws is derived, which is distinct from the historical question of whence their content is derived.

I think you put your finger on the larger problem. It seems many are unable to make a distinction between the two concepts you outline. Assuming our present law developed at least in part from biblical influence, it does not follow that the authority for the law stems from the bible.

 

[DialecticMaterialist]

I think Ceo is right that the mosaic tradition may have had some small influence on our legal tradition however there are many other influences as well on display in the Supreme Court. Greco-Roman, Feudal, Spartan, that from Enlightenment ideology, Cannon Law, Common Law (which existed before Cannon Law) etc. I mean Mosaic law never just dropped down at any time and was absorbed by the masses. Mosaic law had to always be interpretated and re-interpreted (as well as evaluated) at its time. We for example don't make lying illegal, nor adultery, nor not honering thy parents, nor working on the Sabbath, nor do we stone rebelious children to death. Such a change did not occur over night.

Deism played a large role into the ultimate formation of our laws and legal system.

Other European Deists were Anthony Collins (1676-1729), Matthew Tindal (1657-1733). J.J. Rousseau (1712-1778) and F.M.A. de Voltaire (1694-1778) were its leaders in France.

Many of the leaders of the French and American revolutions followed this belief system, including John Quincy Adams, Ethan Allen, Benjamin Franklin, Thomas Jefferson, James Madison Thomas Paine, and George Washington. Deists played a major role in creating the principle of separation of church and state, and the religious freedom clauses of the 1st Amendment of the Constitution.

http://www.religioustolerance.org/deism.htm


Though I would really like to hear CEO's view on Church-State separation issues.

1) Do you CEO think that Church and State should be separated?

2) Should there be prayer in school?

3) Should the Ten Commandments have been left up in Judge Moore's court?


CEO also has once stated that whoever attacks the idea of the Ten C's being the foundation for the constitution as false, is attacking a straw man. CEO are you really saying nobody on the religious right thinks the ultimate authority in US legal matters is the Ten Commandments? Are you honestly saying nobody on the religious right adheres to the viewpoint that our Founding Father's based our constitution on Christian law?


I'm just wondering because CEO does not really, if he believes in Separation of Church and State, make himself clear enough on such matters.

He seems a bit more concerned with the "harmful atheists" that may be ignoring the role of the Ten C's in legal tradition or saying it plays a smaller part then it actually did (something truely unforgivable), then he is with the religious right that seems to want to tear the constitution to shreds and make america a "Christian Nation".

 

[DialecticMaterialist]

Nothing like laypeople expounding on the nature of the legal system...

Nothing like a self-proclaimed expert resorting to insults. CEO even if you are a lawyer, that doesn't necessarily make you an expert on all aspects of the legal system, let alone legal history. Especially a history with such scope, beggining over two thousand years ago. That's like someone saying that because he is an engineer, he can comment on the history of physics, quantum mechanics or the big bang. Such a person can of course make comments, but they will never carry the weight by themselves as lets say, Stephen Hawkings or a theoretical physicist. This is because such a person is more a practitioner then a researcher or historian (and they mainly do research in so far as it helps their practice.)

This means if you make claims here you have to prove them and anyone should be able to challenge your arguments, whether they are laymen or not.

 

[ceo_esq]

Though I would really like to hear CEO's view on Church-State separation issues.

1) Do you CEO think that Church and State should be separated?

2) Should there be prayer in school?

3) Should the Ten Commandments have been left up in Judge Moore's court?

Hello DM.

I'm not at all persuaded that my views on those things are relevant to the argument, but since you and I dialogue quite a bit on (semi-)related issues I suppose it's a reasonable query.

The difficulty with the first two questions is that they're too abstract (absent any specific factual context) to really signify much.

1) I think that church and state are better off separated, obviously, and that in the United States they should remain separated to the fullest extent required by the Constitution. (I realize that this is not the fullest extent conceivable.) I reject theocracy and erastianism as political models for the country. That said, I think that religious (or non-religious) tolerance and liberty of conscience are the fundamental issues at stake, and I acknowledge that a nation can be fairly enlightened and progressive as to those issues while still lacking a formal separation (such as in the UK), although I would strongly disfavor any such politico-religious establishment in my own country.

2) Only on pop quiz days. Seriously, though, I vigorously oppose prayer in school under unconstitutional circumstances. Apart from that I have no strong views on the issue.

3) I've already said a couple of times that I thought Judge Moore's commandments had to go and that I agreed with the court decisions. What bothers me slightly about this question, though, is the idea that it would even be necessary. Only a fundamentalist Christian might be likely to answer "Yes" to the question, and you know that I'm not.

Originally posted by DialecticMaterialist
CEO also has once stated that whoever attacks the idea of the Ten C's being the foundation for the constitution as false, is attacking a straw man. CEO are you really saying nobody on the religious right thinks the ultimate authority in US legal matters is the Ten Commandments? Are you honestly saying nobody on the religious right adheres to the viewpoint that our Founding Father's based our constitution on Christian law?

With respect to the Constitution in particular, I have pointed out that arguing about the Constitution is not overwhelmingly relevant to a discussion of the origins of American law and legal procedure generally, because comparativle little of the law and procedure is addressed by the Constitution. I mention this one more time just in case that is one of the remarks you had in mind.

Obviously there are people who believe that the Ten Commandments were the foundation of U.S. laws. I have argued elsewhere that this claim is defensible if and only if numerous qualifiers are tagged onto it and if the entire claim is understood in a limited historical sense. Some people believe the claim is defensible without qualification and in an absolute sense, and I obviously disagree.

There are even people who believe that the Ten Commandments served as the foundation for the Constitution in particular. I think that this claim is even less defensible than the first one (see my earlier arguments regarding the distinction between U.S. law generally and the Constitution specifically), although I realize that a few of the people holding this viewpoint were themselves Founding Fathers. Some of Judge Moore's supporters believe it as well, and even some courts have essentially endorsed it from time to time. "A people unschooled about the sovereignty of God, the Ten Commandments, and the ethics of Jesus, could never have evolved the Bill of Rights, the Declaration of Independence, and the Constitution. There is not one solitary fundamental principle of our democratic policy that did not stem from the basic moral concepts as embodied in the Decalogue," the Florida Supreme Court wrote in 1950. I think that is a gross overstatement.

Those views are, of course, extreme, and the arguments that are most susceptible to being productively discussed and engaged on an intellectual and academic level are not those arguments. Accordingly, although the viewpoints you referred to are not strawmen in an absolute sense (that is, not in the sense that no one anywhere subscribes to them), they are strawmen for the purposes of the type of serious discussions you and I have had, because our discussions do not entertain the validity of such extreme perspectives.

What I have tried to do elsewhere is to sketch out a basic and accurate case regarding the relationship between the Ten Commandments and our legal tradition that is historical rather than theological. One thing to remember is that acknowledging such a relationship need not have bad implications for Constitutional secularism. After all, the federal district court in Moore's case acknowledged the evidence presented on both sides establishing the historical relationship, and still ruled against him. What a lot of people seem not to realize is that Moore's case did not break down because he failed to persuade the courts of a sufficiently strong historical or thematic nexus between the Ten Commandments and U.S. law. It broke down because regardless of the extent of such a nexus the monument violated the Establishment Clause (via the Fourteenth Amendment).

Therefore, those arguments are something of a red herring that has succeeded in distracting both sides. I think that a lot of the passion devoted to such arguments arises from a misconception on each side that the stronger and more sweeping the claim that the Commandments are part of the lineage of the secular law, the likelier it is that courts will give the fundies what they want and permit what are clearly encroachments on the Establishment Clause. They won't; the law doesn't work that way.

Suddenly's observation earlier that people have trouble distinguishing the historical content of laws from ideas about the authoritative power of those laws applies both to the Moore and the anti-Moore camps (if I may use those designations as a sort of shorthand). Even if everything I've said about the Ten Commandments and Western law is true (and of course, I believe it is), it makes no real difference to the separation of church and state as we generally understand the concept. It doesn't mean that any court is legally beholden to Christian theology. It doesn't mean that our political, civil and legal institutions have not fully and formally transcended the religious frameworks that may have influenced their development.

I sometimes wonder if certain people would be so hostile (even to the point of rejecting or ignoring significant historical and jurisprudential evidence) to the kinds of arguments I've made regarding the Ten Commandments if they realized this. Unfortunately, what seems to have developed is a sort of zero-sum mentality according to which any concession or acknowledgement having anything to do with religion (even if purely historical rather than theological) is viewed as a crack in the door barring the path to theocracy. Perhaps some religious fanatics share a similar mentality, but why should we adopt it? It only prevents us from approaching such issues in an objective, clearheaded and factually sound manner.

Originally posted by DialecticMaterialist
I'm just wondering because CEO does not really, if he believes in Separation of Church and State, make himself clear enough on such matters.

He seems a bit more concerned with the "harmful atheists" that may be ignoring the role of the Ten C's in legal tradition or saying it plays a smaller part then it actually did (something truely unforgivable), then he is with the religious right that seems to want to tear the constitution to shreds and make america a "Christian Nation".

Well, perhaps my views are a bit clearer now. As I've stated before, however, my philosophical and political convictions about the separation of church and state are just as irrelevant as yours or anyone else's to the factual arguments I make. So when you suggest that I don't make myself clear enough on such matters, my question is, "clear enough for what"?

 

[UnrepentantSinner]

2) Should there be prayer in school?

DM, to be honest - and don't forget, I'm a fervent seperationist - that's a totally loaded and unfair question within the contest of Church/State issues.

I for one would never suggest that any student be stopped from praying in school any time/any where. As ceo_esq has pointed out, I certainly wouldn't begrudge children asking for some devine help on a pop quiz (though a few more minutes of study might be more productive).

It would be more appropriate to phrase the question within the actual context of the controversy. Should organized or "official" prayer be in school? Obviously the answer is no - at least not in Public Schools.

 

[ceo_esq]

Nothing like a self-proclaimed expert resorting to insults. CEO even if you are a lawyer, that doesn't necessarily make you an expert on all aspects of the legal system, let alone legal history. Especially a history with such scope, beggining over two thousand years ago. That's like someone saying that because he is an engineer, he can comment on the history of physics, quantum mechanics or the big bang. Such a person can of course make comments, but they will never carry the weight by themselves as lets say, Stephen Hawkings or a theoretical physicist. This is because such a person is more a practitioner then a researcher or historian (and they mainly do research in so far as it helps their practice.)

This means if you make claims here you have to prove them and anyone should be able to challenge your arguments, whether they are laymen or not.

My comment about laypeople expounding on the nature of the legal system actually was made in the context of Fun2BFree's insistence on a substantive constitutional basis for all American law. This is an assertion that any lawyer would be well-equipped to dispute (note that Brown did as well).

The study and practice of law is, by its nature, more historically oriented than, say, engineering (Brown already mentioned how standard academic case studies delve far back into previous centuries). Of course, many lawyers have not devoted much study to some of the historical legal topics we discuss, although (similar to the engineer in your example) their training arguably makes them more likely than the average person to be able to grasp and evaluate scholarship in specialized legal disciplines (such as legal history) when they encounter it. You are entirely justified in pointing this out. On the other hand, the history of Western legal traditions has been an area of academic concentration of mine, although it intersects only occasionally with my professional practice in general. Nevertheless, I avoid making arguments that rely solely on my own authority in such matters.

I don't dispute the right of anyone to challenge any arguments here, although in my experience, the closer the argumentation is related to contemporary law and legal procedure (as Fun2BFree's constitutional arguments did) the more likely it is that a lawyer will reliably be able to detect errors in it. This occurs with sufficient frequency to become occasionally exasperating, as Brown suggested.

 

[Brown]

The study and practice of law is, by its nature, more historically oriented than, say, engineering (Brown already mentioned how standard academic case studies delve far back into previous centuries).

Pardon me for interrupting, but I have to say that this remark made me smile.

In my studies of electrical engineering, nearly everything was developed within the past few years. Sure, fellows with names like Kirchhoff, Fourier, Bernoulli, LaPlace and Heaviside were mentioned, but most of the practical device information is relatively new.

Semiconductors are a relatively recent invention, and no one teaches vacuum tubes anymore. The slide rule is out, and the calculator and computer are everywhere. There is a lot less table-driven engineering (a big exception being Thermodynamics), and a lot less interpolation. Models are far more intricate than they were twenty years ago. Digital analysis is now important, and new digital techniques are being developed literally every day.

History place very little role in the study of engineering. (Historical events such as the humiliation of Fourier, and Fourier's vindication, are presented as sidelights and are not required reading.)

By contrast, legal history is very pertinent to the law of today. Law, as ceo_esq says, is "historically oriented." But not all history is equal. Doctrines such as strict product liability and comparative fault are relatively modern. The historical "bases" for these doctrines go back only a few decades. (Rules of liability pertaining to defective products and fault extend back much longer than that, but these rules are largely inconsistent with, and do not form the "basis" for, modern laws.)

The historical "bases" for other doctrines, however, extend back by centuries. In some cases, the roots of some state laws extend to English common law from the 1500s. Some of those roots, however, are being snapped or eroded in recent years, as today's courts conclude that some of the old rules don't work all that well in the modern world. In addition to being "historically oriented," courts are "practically oriented" as well.

And so it is with all branches of law. Old laws affect modern laws, and may be a part of the history of modern laws. But old laws are not necessarily the "basis" for modern laws. I suspect there is a consensus on this point.

 

[DialecticMaterialist]

CEO I would like to thank you for presenting your viewpoints and would like to point out that I think you and me agree on many things. I agree for example that the Ten Commandments had an effect on the evolution of our law(which is why I'm ok with it in the Supreme Court), what degree of effect I cannot really say, and I likewise agree that many of our Founding Fathers may have been very devout Christian men (almost all if not all were theist).

I also agree that emotions get heated up on the issue. Recognizing that, it would be somewhat constructive if you gave people this sort of information beforehand, while you posted. If need be by just briefly pointing out that you believe in Church-State separation. Like you said this is a loaded issue, and both sides are partial to assumptions.

I'm not saying you absolutely must do it. We can in a sense blame people for making such assumptions on this issue. But it would help a lot in avoiding controversy and making people more receptive to your viewpoint.

People naturally assume, that's human nature. Especially on a topic as controversial as this where the other side is very extremist.

Evolutionary psychologists for example, when they make books for lay men, go to great lengths to distance themselves from genetic determinism, racism, eugnics etc. This is not necessary and nobody should assume evolutionary psychology is the equivalent to racist theories of the past, but it does help a lot in avoiding needless controversy and needless accusations.

I'm not presenting this as a criticism but as a suggestion. I mean part of why you post is to have people entertain your view, be willing to accept it and they will do so more favorably if you calm them down and dispell certain fears they have built up. Sometimes by debating with a lot of fundamentalists on the issue who would quickly have taken many of your arguments as support for your side (and quoted you to no end, some even after you have made the calrification).

I mean all that would be doing is putting it in a context to help clarify things.

 

[ceo_esq]

I didn't know where else to express how bummed out I am that the "Ten Commandments and legal history" thread appears to have been pruned.

 

[Cleopatra]

I am terribly sorry for that ceo_esq

I blame myself because one of my last year's students in Law School remembered your introductory post that I have distributed them ( yes I have distributed this opening post of the JREF forums in the graduating students of the Law School --to 200 students) and asked me for a copy because he had lost it. I neglected to print out one.

Oh well. Maybe Claus has a copy.

 

[Cleopatra]

Ceo_esq, check this. You might find it equally interesting.

 

[Cleopatra]

Claus had saved this thread among other things.

You can access it here. I know that you posted it to keep it here but the data is not lost. Maybe we can repost it.


Thanks Claus!

 

[RandFanJr.]

I'm not presenting this as a criticism but as a suggestion. I mean part of why you post is to have people entertain your view, be willing to accept it and they will do so more favorably if you calm them down and dispell certain fears they have built up. Sometimes by debating with a lot of fundamentalists on the issue who would quickly have taken many of your arguments as support for your side (and quoted you to no end, some even after you have made the calrification).

One would think that skeptics would be less likely to make such assumptions. That fundamentalists would use Ceo's text out of context or simply misapply them does not excuse those who should be critical thinkers.

Your suggestion is a pragmatic one Dialectic, I can't speak for Ceo_esq but I find it frustrating none the less. I guess it is the nature of humans and must be expected, allegedly skeptic or not.

Ceo,

Outstanding responses and my thanks to Cleopatra and Claus. I had not read that original post.

 

[tamiO]

Thanks Claus!

Yes, a big thank you to Claus!

As I am from Alabama and have to deal with these "Moore" fans in day to day; I used the information in the thread to make good argument with them.

 

[ceo_esq]

Yes, many thanks to Claus.

Incidentally, there's been some further movement today in Roy Moore’s ongoing legal wrangles:

Lawyers for Roy Moore filed court papers Thursday reiterating his contention that the special state Supreme Court that ousted him from office should have considered whether the federal court order Moore disobeyed was lawful.

The latest papers were filed in response to documents Attorney General Bill Pryor filed opposing Moore's reinstatement as chief justice.

"For this court to refuse to examine the unethical and unlawful nature of the underlying court order removes any ethical foundation of ethics proceedings, sets a dangerous precedent mandating unconditional obedience to unlawful and unethical court orders and denies Chief Justice Moore due process of law," Moore's lawyers contended in their filing Thursday.

The state Court of the Judiciary removed Moore from office in November, ruling that he violated state judicial ethics canons by refusing to obey U.S. District Judge Myron Thompson's order to remove a monument to the Ten Commandments from the state judicial building's rotunda.

(full story)

Appealing his removal from office isn't the only thing that's keeping Moore busy these days, though:

A measure introduced in Congress would bar federal courts from reviewing state court rulings that permit "acknowledgment of God."

The Constitution Restoration Act was introduced in the House and Senate in response to last year's court-ordered removal of a Ten Commandments monument from the Alabama Judicial Building.

Much of the work on the legislation was done by Roy Moore, who was ousted as Alabama's chief justice after refusing a federal court order to remove the monument he installed.

(full story)

 

[ceo_esq]

Check out this vengeful piece of legislative score-settling drafted by Roy Moore and currently pending in committee before the U.S. Congress. I like how it not only justifies Moore's behavior but also provides for punishing all of the federal judges who done him wrong (technically it's not a bill of attainder, but it ensures that any future judges who presume to invoke the Constitution to prevent the public acknowledgement of God will suffer the same humiliating censure and job termination endured by Moore himself).

 

[Brown]

Check out this vengeful piece of legislative score-settling drafted by Roy Moore and currently pending in committee before the U.S. Congress.

What a load of crap. Shame on the lawmakers who introduced or sponsored this pompous nonsense.