No, the Constitution Isn't Founded on the Ten Commandments

Of all the ways that the Texas State Board of Education twisted and distorted American history when adopting new social studies curriculum standards in 2010, one of the worst was — as the conservative Thomas B. Fordham Institute has pointed out — the way “biblical influences on America’s founding are exaggerated, if not invented.” The clear purpose of such exaggerations, of course, was the desire by the SBOE’s bloc of religious-righters to promote the idea that the founders intended to create a distinctly Christian nation with its laws based on a conservative Christian reading of the Bible.

Sadly, publishers caved almost completely to the political pressure to include that historical revisionism in the new textbooks they submitted for consideration in Texas last April. As we have already reported, the textbooks teach that Moses was a major influence on the writing of our nation’s founding documents. They also suggest that the roots of democratic systems of government “include elements related to Judeo-Christian philosophy, dating back thousands of years to Old Testament texts and Biblical figures such as Moses and Solomon.” Of course, no one should deny the profound influence religion has played in American history. But textbooks shouldn’t exaggerate this influence to the point of simply making things up.

Scholars, such as those we asked to review the new textbooks, have pointed out the problems with these exaggerated influences. Kathleen Wellman, Dedman Family Distinguished Professor of History at Southern Methodist University in Dallas, has been particularly critical of the “wrong-headed idea that the United States was founded on biblical law.”

We also wanted to point to a 1999 paper by Steven K. Green in the Journal of Law and Religion (subscription required). Green, currently the Fred H. Paulus Professor of Law and director of the Center for Religion, Law & Democracy at Willamette University in Oregon, took direct aim at the claims that American law is based on the Ten Commandments. Excerpts:

Arguments that the Ten Commandments serves as the foundation of American law are but a subset of a larger argument that Christian principles have been incorporated into American common law, such that judges are obligated to respect if not uphold these principles. This maxim, that “Christianity is part of the common law,” has been around since before the nation’s founding, and at times has attracted wide followings and the favor of leading jurists and politicians. As Harvard professor Mark deWolf Howe once wrote, “early state reports are full of cases in which decisions were affected and sometimes controlled, by the thesis that Christianity is a part of the common law.” However, like those who advanced this maxim, few people have examined the historical record to determine the verity of similar claims about the Ten Commandments. The role of this document as a central source of law is generally assumed.

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Accordingly, this article examines the historical basis for claims that the Ten Commandments is “the fundamental legal code of Western Civilization and the Common Law of the United States.” It examines how early political and legal figures viewed the Ten Commandments as “a” (or “the”) direct source of law. At the same time, this article seeks to get beyond the rhetoric that is so easily manipulated to see to what extent early political and legal figures relied on the Ten Commandments when formulating or interpreting the law.

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The historical record fails to support claims of a direct relationship between the law and the Ten Commandments. Absent the failed experiment in seventeenth century Massachusetts and the other Puritan colonies, American law has generally been viewed as having a secular origin and function. Although themes of a scriptural or christian basis for the law existed in England and were echoed in antebellum America, that perspective never gained a significant foothold in this country. At that crucial time of the nation’s founding, attitudes about the purpose and function of the law were imbued with Enlightenment perspectives. Later efforts to reclaim the law’s scriptural roots by relying on the ancient English maxim of Christianity forming part of the common law failed. Express reliance on the Ten Commandments as a source of law was even rarer.

At best, the most that could be said about the relationship of the Ten Commandments to the law is that the former has influenced legal notions of right and wrong. As stated at the beginning of this article, that has always been a noncontroversial fact. But to insist on a closer relationship or to hold the Ten Commandments up as having a special place in the development of American law lacks historical support.

When he testified before the Texas State Board of Education in 2010, Green pointed out the foolishness of requiring students to learn that Moses influenced the Constitution. But state board members dismissed his expertise on the subject and insisted that the new curriculum standards require students to study something that isn’t true. Now publishers have submitted new textbooks that distort the historical truth. Texas is essentially rewriting history.