Moses, The Ten Commandments, and the Supreme Court

By Mark David Hall

Professor, George Fox University 


            According to Benjamin Franklin, America’s national seal should include “Moses standing on the Shore, and extending his Hand over the Sea, thereby causing the same to overwhelm Pharaoh.”   Thomas Jefferson suggested adding to this scene “rays from a pillar of fire in the cloud, expressive of the divine presence & command, reaching to Moses who stands on the shore.”


            But 1776 was a busy year, so their congressional committee was disbanded without completing its assignment.  Six years and two committees later, Congress approved The Great Seal of the United States. 


            The final design, assembled by Charles Thomson, Secretary to Congress and first American translator of the Bible from Greek to English, did not include Moses, but it did contain the Latin phrase “Annuit Cœptis”–“He (God) has favored our undertaking.”


            Moses isn’t on the national seal, but the Ten Commandments that he helped produce may be found on government property, especially courthouses, throughout the country. 


            Including in the United States Supreme Court Building, where Justices recently ruled 5-4 that displaying the Ten Commandments in two Kentucky courthouses is an unconstitutional establishment of religion. 


            The same day they ruled 5-4 that a six foot tall granite monument bearing the text of the Commandments on the grounds of the Texas State Capitol is permissible.


            In defense of a Court that might seem inconsistent, it should be noted that four Justices would have prohibited, and four would have allowed, both displays.      

            Those who would have allowed both displays are correct.


            Broadly speaking, students of the First Amendment argue that the document should be interpreted in one of two ways—according to the intent of those who wrote and ratified it or according to contemporary views.


            As suggested by the opening paragraphs of this essay, the argument from original intent is difficult to make.  Virtually no American in the Founding Era believed that the First Amendment prohibited the national government from engaging in religious (i.e. Christian) speech.


            For instance, the same Congress that wrote First Amendment also asked George Washington to issue Thanksgiving Day Proclamations (which he did), appropriated money for congressional and military chaplains, and reauthorized the Northwest Ordinance which states that “Religion, morality, and knowledge, being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged.”


            The argument from contemporary sentiment is similarly bad.  Not only were both displayed approved by elected officials, recent polls show that three quarters of the American people support allowing the Ten Commandments to be displayed on government property.


            “But,” a separationist might object, “polls reflect uninformed opinions.  Only views of legal professionals, especially law professors and judges, should count.”


            Yet the separationist doesn’t mean the views of just any legal professional.  Ask him what he thinks of William Rehnquist, Antonin Scalia, or Clarence Thomas writing their views into law.


            Ultimately, the separationist only wants judges sharing his commitments to write their views into law.  Such an approach has nothing to do with interpreting the First Amendment and everything to do with politics. 


            Politics are fine in the statehouse, but they have no place in the courthouse.  Americans need to be reminded of this important principle lest we find ourselves ruled by judges who think they know better than both the Founding Fathers and the American people.


Mark David Hall is Professor of Politics at George Fox University.  He is co-editor of The Founders on God and Government.

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