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Essays, Opinion, & Commentary |
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November 21, 2002
by Steve Farrell
"One man's vulgarity is another man's lyric," indicated a Supreme Court justice over three decades ago. (1) The justice said it, and many have parroted it ever since under the supposition that something very clever, very liberating, very American had been said. Building on this "maxim," the contention today is that consistent with the right to free speech, but more especially consistent with that new 'right of all rights' -- privacy -- every human may say whatever he wants, however he wants, wherever he wants, for whatever purpose he wants without the law running interference - with this "wink, wink" proviso: said speech be politically correct, that is, if "wink, wink," said speech strikes against the existing Christian, capitalist, constitutional order, but if not, "wink, wink," another set of rules apply, rules which severely restrict free speech. That's why under the flattering front of reverencing God's law, and yet respecting that new arbitrary higher law -- man's privacy -- even more, one commandment after another is struck down as "too personal" to have part in the law, or for that matter to have ever had part in the law. One such commandment is, "thou shalt not take the name of the Lord thy God in vain." This commandment is private, is it not, they exclaim! And one may in all fairness wonder, 'Are they right?' With the answer being, 'That all depends.' If the claim is that the law cannot force a man to speak the Lord's name with a spirit of reverence and look of piety on his face, why then, the claim is true enough, as it has always been. Conscience is private, and faith can never be forced. But the command to not take the name of God in vain is a negative law, not a positive law -- opening up the door for a legitimate public application, especially when one considers just what "thou shalt not take the name of the Lord thy God in vain" denotes in its traditional legal sense Oaths Few contend that "thou shalt not lie" does not, and ought not have public application in the law. There are so many laws on the books which reinforce the principle: those which deal with contracts, full disclosure, deceptive advertising, etc. The doctrine stands nearly undisputed. And call this a fact, no one disputes the command when their property interests are on the line. The Creator of Heaven and Earth apparently got this one right -- for now. Yet, a greater form of dishonesty exists, which if violated, brings stiffer sanctions and severer dishonor. It's called perjury, that is, lying under oath, one of the most severe forms of taking the name of the Lord God in vain that is punished under U.S. law. How is this a form of taking the Lord's name in vain? One who lies -- after promising with right arm to the square, "to tell the truth, the whole truth, and nothing but the truth, so help me God," -- has solemnly borne false witness in the name of God, thus polluting his holy name. (2) US laws against perjury have always been acknowledged as being possessed of religious roots and principles. Webster's 1828 Dictionary defines oaths and perjury as follows:
This understanding of the third commandment, predates the Founding Era. The Jewish Publication Society translation of Exodus 20:7 is, "You shall not swear falsely by the name of the Lord your God;" while the King James version of Leviticus 19:12 reads "Ye shall not swear by my name falsely, neither shalt thou profane the name of thy God." J.R. Dummelow's Commentary on the Holy Bible, says of the third commandment: "This prohibition applies strictly to perjury or false swearing, the breaking of a promise or contract that has been sealed with an oath in the name of God. He will not allow His name to be associated with any act of falsehood or treachery. His name must not be taken in vain, i.e., lightly or heedlessly." (3) God's eternal law is the root law whence cometh oaths and perjury, and every citizen ought to understand the root of such laws lest they be led to foolishly dishonor them, denounce them, or discard them. Jurist Samuel von Pufendorf, a man who heavily influenced the thinking of such American Founders as Hamilton, Madison, and Jefferson explains the value of what he called judicial oaths:
That is, in courts of law, honesty is vital. Lives, fortunes, reputations hang in the balance. The solemn judicial oath reminds the oath taker that, 'This is serious business. If one dares, by way of false witness, bring harm to another's life, limb, property, or reputation; or shield him or herself from justice; justice will be served, nevertheless, if not in this life, then in the next.' It is a sober and vital appeal to conscience upon which the reliability of our justice system hangs. George Washington understood this: "Let it simply be asked, Where is the security for property, for reputation, for life, if the sense of religious obligation desert the oaths which are the instruments of investigation in courts of justice?" (5) Washington knew that without belief in the Divine, truth becomes relative, and liars become men of virtue, for under this strange new moral order, the ends justify the means. He warned: "Let us with caution indulge the supposition that morality can be maintained without religion. Whatever may be conceded to the influence of refined education on minds of peculiar structure, reason and experience both forbid us to expect that national morality can prevail in exclusion of religious principle." (6) Washington was right, we ought to pay attention. Promissory Oaths Not inconsistent with this view, President George Washington initiated the tradition of taking the Presidential oath of office, which swears or solemnly affirms fidelity to the US Constitution, with left hand on the Bible, right arm to the square, and the recitation of those closing words, once again, "so help me God." We call this a promissory oath. It's a good idea, and here's why: It reminds presidents that they are public servants and not kings, protectors of man's God-given rights, not bestowers of transient privileges -- and this too: if they betray this higher sacred trust, they are unworthy of their office and will one day be held accountable before the Eternal Judge of the Quick and the Dead, whether impeached or not in this life. The fact that, recently, some oaths have been stripped of the verbiage "so help me God," (whether through ignorance, ill intent, or fear of lawsuit), does not discredit where the root of these laws lay, nor the continued need for solemn oaths, on the one hand, and stiff penalties for perjury, on the other. It does, however, help explain why perjury appears to be on the rise, and why, recently, an American president and his backers treated perjury as little more than a minor transgression, even an exercise of the supposed higher right to privacy. The more God is removed from our minds as the author of the law, the more moral ambiguity becomes the modus operandi, the more the business of presidents and other high public officials may be perceived as being too important to be bothered with such trifles. Without Authority The second principle of American law which sides with the third commandment, concerns authority. An 1831 church doctrine reads: "[B]ehold ... many there be who are under ... condemnation, who use the name of the Lord, and use it in vain, having not authority." (7) The Holy Bible, 1800 years earlier, put it this way: "And no man taketh this honour unto himself, but he that is called of God, as was Aaron." (8) Aaron was called to the ministry by a prophet of God, who received inspiration in that regard, and who personally ordained him. The point being, there are proper channels of authority in all things, and in the case of the ministry that authority belongs to the Lord and His church, not the state and its rulers. His kingdom, Christ assured us, is not of this world, and as such the state may not ordain, license, appoint, or regulate the church and its ministry. Nor may it proscribe the positive moral behavior of its members -- meaning it may not force them to give charity to the poor or financial support to this or that church ministry -- to presume otherwise, and to act upon that presumption is to speak for God without authority, to use his name in vain. This is a vital principle of law every American ought to be familiar with. To recognize that the source of such a law is God, and God's laws are unchanging, makes that knowledge ever more valuable, ever more fixed in our national mindset as a protection against that tyranny of the state over church and conscience which oppressed millions during the dark ages, billions under 20th Century communism, and in several cases, thousands under colonial and state governments in early America. Blasphemy The ultimate in using the Lord's name without authority is "in claiming to one's self the distinguishing attributes of Deity," something many Kings, under the Divine Right theory of government laid claim to and which American law rejected. (9) This is a form of blasphemy. You would think we would have done away with this danger in our enlightened era, but no. It is particularly prevalent in leftist leaning states where either a man or the state is worshipped, or where Humanism has been set up as a national church of sorts, the kind which declares all men to be God's, and every man's viewpoint and actions of equal moral validity. Alexis deToqueville, (10) and before him, Plato (11) warned of the same danger in democracies, this false and extreme take on equality which breeds and exalts simple-mindedness, contempt for the law and every form of authority, ushering in on its heels, revolution, anarchy, and finally tyranny to restore law and order and security. Profanity Usually, when one brings up the subject of "thou shalt not take the name of the Lord thy God in vain," most think of prohibitions against profaning the name of Deity, or using the Lord's name as a swear word. This, again, is a partial definition. Profanity implies using the name of God with abuse, irreverence, or contempt such as when one swears or connects God's name to filth, crime, or the unseemly; it also concerns the similar use of degrading, polluted, soul destroying speech in reference to other sacred things, such as the sacred sexual powers or functions of the body, which we sometime categorize as obscenity, or vulgarity, or lewdness. Such laws are now a part, and have always been a part of American law. The earliest examples are found in the first colonial charter in 1629. From that time forward, a common thread in nearly every colonial charter listed as crimes swearing, or cursing, or profaneness; and besides these, the other forms of taking God's name in vain, namely, perjury (bearing false witness) and blasphemy. Justice Joseph Story summarized the common standard from which these laws were drawn in every colony as thus: The laws of England, the common law, and the law of God, which latter law ranked as the guiding star of all law, especially the criminal code. (12) Sure enough, profanity and obscenity laws sometimes have been too strict, and sometimes too lax, but never has there been a time when a majority of Americans have not found the value in setting legal limits, in regards to just how far a man or a woman may go in his or her profanities, obscenities, and vulgarities in public settings. It's just not true, to say that God's laws against profanity are not part of the legal code, and not, in fact, an important part of that code. To this day, extremes in obscenity are not recognized as protected speech; nor are certain forms of lewd speech, which rank as either sexual harassment when between adult and adult, or a crime of the rankest dye when between adult and child. Most public schools have codes of conduct which prohibit profanity, and the courts have backed the right of schools to set such prohibitions. For a long while communication law has prohibited words from being uttered on the air, either for all audiences, or during certain hours, or during time blocks when children are most likely to be tuned in. The movie industry is, by law, required to rate movies in respect to the moral and religious values of parents and children. Few of us object to such reasonable standards, and so it just doesn't make sense to propose to claim that there are no limits to free speech, that such things as sexual harassment, or lewd speech directed at a minor are protected because they are private. There are reasonable limits, and here's the truth, one of the roots of these reasonable limits is found in the third commandment's prohibition against profanity. Hate Speech Finally, a most perplexing question for the "one man's vulgarity is another man's lyric" crowd, ought to be this: Why is it that often the same group which calls it just and constitutional to regulate and prosecute language that belittles or debases homosexuals, or ethnic minorities, declares language that belittles or debases Christians and Jews who worship God and Christ, lyric? If hate speech ought to be regulated (a debatable point especially since current definitions of hate speech are too often vague, and rulings are too often arbitrary), then shouldn't the law be applied equally? Many Christians and Jews find the using of the Lord's name in vain, as well as some of the more reckless attacks upon their sacred beliefs, offensive, and at times, hate-filled, as well. (13) Perhaps this might surprise some, but the intent of early American religious liberty legislation was not an attempt to promote an "anything goes" free-for-all styled religious debate. The Founders hoped for free and open and intelligent debate between the faith's, not the right to slander, to libel, to spew hatred, and thus bring on mob violence or political persecution against one's opponents. Unfortunately, early on, some states and some citizens failed to recognize the difference, failed to define limits, and mob violence and political persecution resulted. If we are not careful, history may repeat itself, this time not with individual churches heaping persecution upon other churches, but the secular state and its misguided supporters heaping persecution upon the church community in general. So here's the truth. Like every other freedom, the right to free speech recognizes reasonable and responsible limits. Prohibitions against taking the name of God in vain is just such a limit -- a limit America's Founders believed in, a limit the Founders descendants (you and I) have been blessed with as a result, and a limit we ought to in a spirit of wisdom, faith, gratitude, and duty defend today.
Footnotes 1. Cohen v. California, 403 U.S. 15 (1971) 2. Talmage, James E. Conference Report, October 1931, Second Day-Morning Meeting 51, Church of Jesus Christ of Latter Day Saints. 3. As quoted in Millet, Robert L. Selected Writings of Robert L. Millet: Gospel Scholars Series, Salt Lake City: Deseret Book Co., 2000, p. 447. 4. von Pufendorf, Samuel. On the Duty of Man and Citizen: Book I, Chapter XI, Oceana Publications Inc. Wildy & Sons Ltd. New York, U. S. A., London, reprinted 1964. The original: Cambridge, from the House of John Hayes, Printer to the Celebrated University 1682 At the Charges of John Creed, Bookseller, Cambridge. 5. Washington, George, Farewell Address. 6. Ibid. 7. Doctrine and Covenants 63:62, Church of Jesus Christ of Latter Day Saints. 8. Holy Bible, Hebrews 5:4. 9. Talmage, James E. Conference Report, October 1931, Second Day-Morning Meeting 50, Church of Jesus Christ of Latter Day Saints 10. Alexis de Toqueville, Democracy In America. 11. Plato, Republic. 12. Story, Joseph. Commentaries on the US Constitution, Book I. Chapters 3 through Chapter 16, 1833. 13. General George Washington, during the Revolutionary War, was one Christian who was offended by such insulting, disrespectful language. Said he to his troops: "Many and pointed orders have been issued against the unmeaning and abominable custom of swearing; notwithstanding which, with much regret, the general observes that it prevails, if possible more than ever. His feelings are continually wounded by the oaths and imprecations of the soldiers, whenever he is in hearing of them. The name of that Being from whose bounteous goodness we are permitted to exist and enjoy the comforts of life is incessantly impeached and profaned in a manner as wanton as it is shocking." His solution? "For the sake, therefore, of religion, decency and order, the general hopes and trusts that officers of every rank will use their influence and authority to check a vice which is as unprofitable as wicked and shameful. If officers would make it an inviolable rule to reprimand, and, if that won't do, to punish soldiers for offenses of this kind, it would not fail of having the desired effect." This military code did not force anyone to be religious, it merely required (and in practice, only invited) them to be mindful of the feelings of those who did. Author's notes on Judicial Oaths 1. How is it that judicial oaths apply to those of various belief systems? Pufendorf answers: "In oaths the formula, in which God is described, while invoked as witness and avenger, must be adapted to that belief or religion which the taker of the oath cherishes in regard to God ... [N]o one thinks he is swearing by God, if under another formula or under another name than that contained in his own religion, -- the true religion in the opinion of the deponent. Hence also he who swears by false gods, whom he however holds to be true, is certainly bound, and in case he deceives, really commits perjury. For under some special concept he had before his eyes a general notion of deity, and so, in knowingly forswearing himself, he has violated, so far as in him lay, the reverence due the majesty of God" (von Pufendorf, Samuel. On the Duty of Man and Citizen: Book I, Chapter XI). 2. Doesn't the Constitution forbid religious tests? Yes, but judicial oaths should not be confused with religious tests, which tests require men to confess or demonstrate a positive belief or loyalty in God or Christ or to a particular denomination, or else be disqualified from office and/or have the privileges of citizenship revoked. Judicial oaths by contrast are but a pricking of one's conscience, a tool of persuasion in a most serious situation, and if the man or woman under oath still chooses perjury, the punishment so far as the government is concerned is mere justice (negative law) for having done harm to another or to society in general through his or her perjury. Whereas, the religious punishment involved for perjury is reserved to the next life (which the government has no part in), and to a man's conscience.
NewsMax.com contributing columnist Steve Farrell is the former managing editor of Right magazine, a widely published research writer, a former Air Force Communications Security manager, and a graduate student in constitutional law. Have a comment? Contact Steve at StiffRightJab@aol.com. |
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