In his powerful dissent in the Korematsu case, which upheld the internment of Japanese Americans without due process during World War II, Justice Robert Jackson wrote that “if any fundamental assumption underlies our system, it is that guilt is personal and not inheritable.”24 Justice Frank Murphy made the same point in his dissent: “Under our system of law individual guilt is the sole basis for deprivation of rights.”25 This is true; under American principles, the sins of the father cannot be visited upon the son or daughter. Yet the biblical god’s principles command precisely that.
This constitutional command is not limited to treason or the Constitution; it forms the bedrock of criminal justice in America and in any other civilized nation: punish only the guilty.
Punishing the innocent is not a Ten Commandments quirk; it’s a biblical constant. God handed down this barbaric commandment shortly after he slaughtered the firstborn of Egypt, both infants and octogenarians alike. Repudiations of personal responsibility such as punishing innocents (including genocide), vicarious redemption, and vicarious condemnation are rife in both the Hebrew and the Christian bibles. Jesus dying for our sins is the most prominent example. He was innocent, but somehow his punishment absolves others of wrongdoing. The second commandment is no different than putting a gun to an innocent child’s head in an effort to force action from the child’s parents. It is terrorism by an all-powerful being.
Seventeenth-century Flemish engraving depicting Lot (in the doorway with the angels) before the mob in Sodom.
Liberal believers occasionally try to explain away their god’s lust for innocent blood with a story from Genesis 18:23–32. God wants to kill all of Sodom, but Abraham argues with Yahweh, saying that he cannot punish both “the righteous” and “the wicked.” Some Christians point to this as evidence that those Yahweh kills are not actually innocent. But the term “righteous” here does not mean “innocent” or even “good;” it means something closer to “believing in Yahweh.” The next chapter tells the story of Lot’s rescue from Sodom, the same town Abraham and his god are arguing about,26 and it becomes evident that “righteous” is not synonymous with moral, upstanding, or innocent. Lot is the only “righteous” man in the town,27 so Abraham’s god sends two angels to rescue Lot before the city is destroyed. A gang of men come to Lot’s door to rape the angels.
Lot, the “righteous” man, offers up his two virgin daughters to the mob instead. Sacrificing your daughters to an angry mob hardly qualifies as moral, but Lot is “righteous” in the sense that he believes in the “right” god. In this god’s eyes, actions do not determine guilt—beliefs do, an idea that resurfaces in the final five commandments. Abraham’s argument with god is irrelevant; it saves people, but not because they are innocent or moral. In any event, this passage would not show that the biblical god possesses a discerning morality, but only that Abraham, a human, knew it was wrong to kill innocent people and the omniscient deity did not.
From punishing innocent children to prohibiting art to banning freedom of religion, the second commandment is an anti-liberty dictate that thoroughly conflicts with America’s founding principles.
16
Suppressed Speech: The Third Commandment
III. “You shall not make wrongful use of the name of the LORD your God, for the LORD will not acquit anyone who misuses his name.” [or “Thou shalt not take the name of the LORD thy God in vain; for the LORD will not hold him guiltless that taketh his name in vain.” (KJV)]
— Exodus 20:7
“If thought corrupts language, language can also corrupt thought.”
— George Orwell, “Politics and the English Language,” Horizon, April 19461
“Call him Voldemort, Harry. Always use the proper name for things. Fear of a name increases fear of the thing itself.”
— Albus Dumbledore in J. K. Rowling’s Harry Potter and the Sorcerer’s Stone, 19992
Yahweh apparently took the third commandment pretty seriously, for he refused to even tell the Israelites his name: “I appeared to Abraham, Isaac, and Jacob as God Almighty, but by my name ‘The LORD’ [YHWH] I did not make myself known to them.”3 In the more careful translations of the bible, when the word LORD is written in small capitals it is not a generic title, but a substitute translators developed to refer specifically to the Hebrew god, Yahweh. Yahweh was represented by four Hebrew letters, YHWH. This was known as the tetragrammaton, from the Greek for “having four letters.” But given the taboo on using the name, the word “LORD” in small caps was substituted.
The Israelites took this commandment as seriously as their god. According to the bible, they stoned a half-Israelite to death for blaspheming during a fistfight.4 Under Jewish law, Jews could blaspheme heathen deities, but, as that incident shows, heathens blaspheming the Jewish god were guilty of a capital crime.5 According to Jesus, breaking this commandment is the one unforgivable sin in the bible: “People will be forgiven for their sins and whatever blasphemies they utter; but whoever blasphemes against the Holy Spirit can never have forgiveness, but is guilty of an eternal sin.”6 And if a parent were to violate this command, Yahweh would kill their newborn child, as he did to David and Bathsheba.7
Thomas Aquinas could not decide whether blasphemy was worse than murder. His indecision is hard to understand, because blasphemy is directed at an unassailable, omnipotent god, while murder harms a fellow human being in the most egregious way possible. In his Summa Theologica, Aquinas wrote:
If we compare murder and blasphemy as regards the objects of those sins, it is clear that blasphemy, which is a sin committed directly against God, is more grave than murder, which is a sin against one’s neighbor. On the other hand, if we compare them in respect of the harm wrought by them, murder is the graver sin, for murder does more harm to one’s neighbor, than blasphemy does to God. Since, however, the gravity of a sin depends on the intention of the evil will, rather than on the effect of the deed…it follows that, as the blasphemer intends to do harm to God’s honor, absolutely speaking, he sins more grievously than the murderer.8
Punishing crimes against the regime more harshly than crimes against other people is typical in totalitarian systems.
But are we sure that blasphemy is really the issue here? For a god, Yahweh’s legislation is remarkably imprecise. “Misusing” or “taking a name in vain” is so vague as to mean nothing yet somehow prohibits everything. In the United States, sloppy legal drafting is grounds for declaring a law unconstitutional. If citizens cannot know what is prohibited by a law, they cannot be expected to obey the law, and it can be struck down as too vague. Then again, vague laws that permit many interpretations are also typical in totalitarian regimes. This is actually one reason the founders carefully defined treason as a crime within the Constitution itself. “If the description of treason be vague and indeterminate under any government; this alone will be a sufficient cause why that government should degenerate into tyranny,” James Wilson explained to a grand jury in 1791.9 Treason, or any other crime, if poorly defined, “furnishes an opportunity to unprincipled courtiers, and to demagogues equally unprincipled, to harass the independent citizen, and the faithful subject, by treasons, and by prosecutions for treasons, constructive, capricious, and oppressive,” added Wilson in a law lecture that same year. 10
Some uncertainty in the law is unavoidable because language expresses the law. In an oblique jab at biblical literalism, James Madison pointed out in Federalist number 37 that even “when the Almighty himself condescends to address mankind in their own language, his meaning, luminous as it must be, is rendered dim and doubtful, by the cloudy medium through which it is communicated.”11 God’s meaning is certainly dim and doubtful in the third commandment, so what does it actually mean? Ambrose Bierce thought it was not an issue of language, but of timing: “Take not God’s name in vain; select a time when it will have effect.”12 A perfectly valid interpretation. Is this really just an issue of language? Suppose I say, “God damn it” or mutter “Jesus Christ�
� in anger. Would I be violating this commandment? Saying “God damn it” is asking god to damn something, so it has a purpose—the request is not in vain. And who says I was asking Yahweh to do the damning? Maybe I was asking it of Zeus or Thor.
Is “Jesus Christ” uttered as an imprecation even using god’s name? The name Jesus Christ is made up of an English word followed by a Greek title. “Jesus” is the English translation of a Latin translation of a Greek translation of a Hebrew name. If Jesus did exist, he would have had a Hebrew name: Yeshua. Yeshua is closer to our Joshua than to Jesus and was a remarkably common name at the time of Jesus’s supposed virgin birth. The Hebrew Yeshua was translated into Greek, and then into the Latin Iesus, then into English: Jesus. Appended to that thrice-translated name is the title Christ, which comes from the Greek christos, meaning “anointed,” i.e., someone daubed with oil. Christos is a translation of the Hebrew mashiach. Christ is not a name, but a title. It’d be better to translate the whole phrase into English: Jesus Messiah. Or, better yet, revert to the original Hebrew—as Jesus was Jewish—and call him Yeshua mashiach ben-Yossef (Jesus, the anointed one, the son of Joseph).
If saying “Jesus Christ” doesn’t violate the commandment, what about saying “oh my god,” or texting “OMG”? What about ubiquitous Jesus bumper stickers and T-shirts? And, given that there is no god to answer prayers, aren’t all appeals to heaven in vain? To paraphrase Joseph Lewis, one of the greatest atheist activists of the last century: Thou shalt not take the name of the LORD thy God in vain? Thou canst not use the name of God in any other way.13
The due process clauses of the Fifth and Fourteenth Amendments require laws to “give adequate guidance to those who would be law-abiding, to advise defendants of the nature of the offense with which they are charged, or to guide courts in trying those who are accused.”14 Legislation violates these amendments if it fails to do so. Laws prohibiting loafing, wandering, or strolling, for instance, may be meant to curb loitering but are too vague to explain what they actually prohibit and are often struck down.15
As a law, the third commandment would raise more questions than it answers: What constitutes a wrongful use of the name? Does it have to be the actual name, or will any mention of god suffice? What if you wrongfully use the name of somebody else’s god? What does it mean to use a name in vain? Any law so vague would violate the US Constitution.
If the third commandment prohibits blasphemy, which is not at all clear, then it must be conceded that this commandment had some repressive and embarrassing influences on laws in the United States and abroad, both before and after the founding. (This is one of several negative Judeo-Christian principles that have influenced America since the founding by impeding progress.) Nearly thirty-five years after the First Amendment was adopted, John Adams wrote to Thomas Jefferson questioning the American commitment to liberty because of blasphemy laws:
We think ourselves possessed, or, at least, we boast that we are so, of Liberty of conscience on all subjects, and of the right of free inquiry and private judgment in all cases, and yet how far are we from these exalted privileges in fact! There exists, I believe, throughout the whole Christian world, a law which makes it blasphemy to deny or to doubt the divine inspiration of all the books of the Old and New Testaments, from Genesis to Revelations. In most countries of Europe it is punished by fire at the stake, or the rack, or the wheel. In England itself it is punished by boring through the tongue with a red-hot poker. In America it is not much better; even in our Massachusetts…. Now, what free inquiry, when a writer must surely encounter the risk of fine or imprisonment for adducing any argument for investigation into the divine authority of those books?…I think such laws a great embarrassment, great obstructions to the improvement of the human mind. Books that cannot bear examination, certainly ought not to be established as divine inspiration by penal laws.16
Adams was certainly correct that blasphemy laws are embarrassments; they are obstructions to the human mind that stifle free inquiry. They retard progress and destroy societal well-being. Afghanistan, Egypt, Iran, Kuwait, Pakistan, and Yemen are some of the countries that actively enforce and brutally punish blasphemy today, including with whipping and execution.17 Raif Badawi was jailed in Saudi Arabia in June 2012 for “insulting Islam” and was sentenced to 10 years and 1,000 lashes. His wife, Ensaf Haidar, and children fled to Canada, and his attorney was arrested. The first 50 lashes meted out received international outcry, but, as of this writing, Badawi remains in jail and under threat of another 950 strokes for peacefully speaking his mind.18 All these nations suffer under the iron hand of religion. But criticism of religion is the true beginning of freedom. Criticizing the system that claims to punish you for your thoughts is the first step against totalitarianism.
Adams wrote the above condemnation in a letter to Jefferson, who had particular reason to loathe these statutes. Had they been enforced, Jefferson himself could have been prosecuted for taking a razor to the New Testament and cutting out all the supernatural nonsense: the virgin birth, the resurrection, the miracles. The man who drafted the Virginia Statute on Religious Freedom, on which his friend James Madison based our First Amendment, did not think such laws in keeping with liberty. In an 1814 letter, Jefferson attacked blasphemy laws:
I am really mortified to be told that, in the United States of America, a fact like this can become a subject of inquiry, and of criminal inquiry too, as an offence against religion; that a question about the sale of a book can be carried before the civil magistrate. Is this then our freedom of religion? and are we to have a censor whose imprimatur shall say what books may be sold, and what we may buy? And who is thus to dogmatize religious opinions for our citizens? Whose foot is to be the measure to which ours are all to be cut or stretched? Is a priest to be our inquisitor, or shall a layman, simple as ourselves, set up his reason as the rule for what we are to read, and what we must believe? It is an insult to our citizens to question whether they are rational beings or not, and blasphemy against religion to suppose it cannot stand the test of truth and reason.19
American principles dictated a diversion from laws like the third commandment, laws that had been tried early in our history but were found too oppressive. This commandment runs afoul of the First Amendment several times over, violating the two religion clauses and the speech and press clauses. “It is not the business of government in our nation to suppress real or imagined attacks upon a particular religious doctrine,” said the Supreme Court in 1952.20 The Supreme Court has also noted that laws prohibiting “sacrilegious” speech “raise substantial questions under the First Amendment’s guaranty of separate church and state with freedom of worship for all.”21 Given this history and the constitutional conflicts, any influence this commandment had was not positive. At best, it was a lighthouse that warned the founders away from regulating speech in the name of god.
Robert Ingersoll mounted an eloquent attack on an archaic New Jersey blasphemy law in May 1877, defending Charles B. Reynolds, who had been charged under the law before a packed courtroom in Morristown.22 (In 2018, Morristown and Morris County were the site of another watershed religious freedom case. The county was giving away millions of taxpayers’ dollars to churches so that they could repair their buildings and the active congregations could continue to worship. I litigated the case to the New Jersey Supreme Court, which agreed, unanimously, that this violated the state constitution: citizens cannot be taxed to support religious worship.23)
Reynolds had been a preacher, an itinerant Seventh-day Adventist. The ex-reverend moved from preaching about the Saturday sabbath in a tent to lecturing on freethought in that tent.24 He aroused local ire with his freethinking and was eventually arrested and charged. Ingersoll attacked the law as counter to American principles. Blasphemy laws suppress “intellectual liberty” and “without that, we are poor miserable serfs and slaves,” he argued. Like Adams, Ingersoll observed that “the ignorant bigots of this world have been trying for thousands of years to ru
le the minds of men by brute force. They have endeavored to improve the mind by torturing the flesh—to spread religion with the sword and torch.”25
Charcoal portrait of Robert Green Ingersoll, c. 1875.
The history of the New Jersey blasphemy law Ingersoll challenged is particularly interesting. It was passed before the Constitution was written and was not enforced until the 1877 case Ingersoll waded heroically into. Ingersoll expounded on the law’s sad history; it “was passed hundreds of years ago, by men who believed it was right to burn heretics and tie Quakers at the end of a cart, men and even modest women—stripped naked—and lash them from town to town…. [The statute] has slept all this time…there never has been a prosecution in this state for blasphemy.” New Jersey and its “people became civilized—but that law was on the statute book. It simply remained…. Nobody savage enough to waken it. And it slept on, and New Jersey has flourished.”26
Ingersoll thought the rationale underlying the law was ridiculous:
Did anybody ever dream of passing a law to protect Shakespeare from being laughed at? Did anybody ever think of such a thing? Did anybody ever want any legislative enactment to keep people from holding Robert Burns in contempt? The songs of Burns will be sung as long as there is love in the human heart. Do we need to protect him from ridicule by a statute? Does he need assistance from New Jersey? Is any statute needed to keep Euclid from being laughed at in this neighborhood? And is it possible that a work written by an infinite being has to be protected by a legislature? Is it possible that a book cannot be written by a God so that it will not excite the laughter of the human race?27
The Founding Myth Page 22