State Constitutional Law: Litigating Individual Rights, Claims and Defenses.

Author:Cogan, Neil H.

By Jennifer Friesen. New York: Matthew Bender. 1992. Looseleaf binder in one volume. $140.

And now, O Israel, give heed to the laws and norms which I am instructing

you to observe, so that you may thrive and be able to occupy

the land that the Lord, the God of your fathers, is giving you. You shall

not add anything to what I command you or take anything away from it,

but keep the commandments of the Lord your God that I enjoin upon


I warn everyone who hears the words of the prophecy of this book; if

anyone adds to these words, God will add to him the plagues described

in this book; and if anyone takes away from the words of the book of this

prophecy, God will take away his share in the tree of life and in this holy

city, which are described in this book.(2)


    Abraham, not Moses, gave us monotheism.

    Moses gave us fundamental law -- its forms at least, if not much of its content as well. The forms rule us, not from the grave, but from ever-pregnant texts that shape our beliefs about fundamental law. The recent spate of books on state constitutional law and the prominent criticism of the need for such law prompt this essay about the forms of fundamental law.

    Mosaic fundamental law, set forth in the Five Books of Moses in such texts as the Ten Commandments and the Mosaic Codes, provides the covenantal duties of the people to the Sovereign God and to one another. According to the story related in the texts, God transmitted fundamental law at Sinai through Moses to the people;(3) the law is founded in truth and expressive of justice. Mosaic fundamental law is distinguished from other Israelite laws, norms, and practices not discussed in the biblical texts, such as those governing hereditary succession and commercial law, that were in effect prior to and contemporaneously with the transmission of fundamental law but that God did not prescribe in depth and detail.(4)

    On the face of the texts, the form of Mosaic fundamental law conforming to the Sinaitic story is ostensibly as follows: The law is not withheld, hidden, or discretionary; it is express. Typically, it is not general, vague, or ambiguous; it is specific and intended to be clear. Although delivered orally at first, it is then written.(5)

    There is no other fundamental law; it is exclusive. The law comes from a central, high authority -- God; it is descendent. God's law trumps other laws, norms, and practices; it is supreme.

    Finally, the law does not change, being neither added to nor subtracted from; it is fixed.(6) The law, too, does not cease with the death of Moses or any other prophet or leader; it is enduring, indeed eternal.(7)

    We may rightfully term the form of fundamental law conforming to the Sinaitic story as "the static form." The more express, specific, and written the law, the less judges can add or subtract. The more exclusive, centralized, and supreme the law, the less other laws, norms, and practices can cause it to progress. Plainly, the more law depends upon ancient revelation, the less competing law can arise.

    The Sinaitic story, however, is not all there is. Modem critical Bible scholarship argues that the Five Books of Moses include texts of several writers or groups of writers, such as the J (Jahwist), E (Elohistic), D (Deuteronomistic), and P (Priestly) writers; JE, the historiographer of J and E; and R, the redactor of JE, D, and P.(8) These writers wrote during the course of more than five centuries and in several communities within the Kingdom of Israel, the Kingdom of Judah, and the Transjordan.(9)

    The texts of these writers differ in many respects. They differ in language and style. They differ in their narrative of events from the Creation to the death of Moses. Most important, for our concerns, they differ remarkably at times about the form, content, and validity of laws, norms, and practices.(10)

    For example, P, perhaps more so than other writers, used words more general than specific, such as in God's commandments to Israel to be a holy people: "You shall not coerce your neighbor.... You shall not insult the deaf .... You shall not render an unfair decision .... You shall not hate your kinsman in your heart.... Love your neighbor as yourself...."(11) In addition, each of the writers, but P and D in particular, differs as to such rights as property in women, children, and slaves and such religious duties as tithing.(12) Each of the writers presents us with significantly differing corpora of the fundamental law governing Israel in its covenant with God.

    These differing texts were redacted within one sacred document, known as the Five Books of Moses, and they were canonized.(13) This redaction is remarkable, given the ostensibly static form of fundamental law. It is simply remarkable that a text expressing the covenant between a people and its one God would allow such differences.

    A likely explanation is that while the form of Mosaic fundamental law conforming to the Sinaitic story is presented in what appears to be a static form, much of that law was in fact the product of what we may rightfully term "a progressive form" of lawmaking. Modem critical Bible scholarship informs us that the texts of J, E, D, P, and others reflected a crystallization of understandings and traditions that had evolved over centuries and that had been influenced by the transmission of differing texts, by contact with differing Israelite and non-Israelite tribes and peoples, and by the differing influences of political, economic, and social events within the region.(14) The scholarship informs us, too, that the evolution and influences notwithstanding, each set of understandings and traditions was considered divinely transmitted, certainly at the time of its crystallization and no doubt through the process of evolution as well.(15)

    Thus, when R, the redactor, set to work, he or she had the combined text of JE and the texts of D and P, each fixed and divinely transmitted. Each had much in common with the other -- the covenant between the people and God and the structure of Mosaic fundamental law -- but each differed from the other, too, even regarding the content and wording of the Ten Commandments.

    As best we know, R edited the narrative accounts of JE, D, and P into the wonderful narratives we now have. But he or she left the legal corpora of the writers intact, despite their significant differences.(16) The redactor did so, I suggest, because each set of legal texts did adhere to the same concept of covenant and to the same structure of Mosaic fundamental law, and because each set of legal texts did assert divine transmission. Under these circumstances, no set could be ignored or discarded, or even revised.

    R thus left us with an example -- a most influential example -- of a people who were given, who were able to accept, and who thrived for fifteen centuries on a text that combined at least three differing accounts of fundamental law.(17)


    Both the static and progressive forms of Mosaic fundamental law influenced the framers of American constitutions and documents -- even the positivists among them, for whom Reason had replaced God.(18) This is not to gainsay the influence of the natural law philosophers, English lawmakers, and the Hebrew and Christian Bibles upon the content of American fundamental law. The influence of the Five Books of Moses on the form of American fundamental law, however, is both important in fact and useful for analysis.

    On their face, the forms of American constitutions and documents relating to fundamental law have many of the characteristics of the static Mosaic form. They are written, express, and specific.(19) They are explicitly fundamental(20) and -- within their jurisdictions -- supreme.(21) This is not surprising because American fundamental law began with the Massachusetts Body of Liberties, its form reflecting the strong influence of the Mosaic Codes.(22) American fundamental law continued with Penn's Laws Agreed Upon in England, its form influenced by both the Hebrew and Christian Bibles.(23)

    The reality of American fundamental law, however, is that the progressive Mosaic form has been dominant. Thus, although there are state and federal constitutions and bills and declarations of rights in written form, many refer directly or indirectly to or assume the existence of natural rights not written in the texts.(24) Although the texts are express, most -- if not all -- assume or refer to principles such as judicial review and separation of powers. As is well known, just as the progressive Mosaic form uses words such as love and fair, so American fundamental texts often use words that are not specific but invitingly -- or irritatingly -- open-ended.(25)

    More importantly, just as English lawmakers before them, so American Framers were familiar with centuries-old arguments, renewed in the seventeenth and eighteenth centuries, that the Five Books of Moses must have been written by authors in addition to or other than Moses.(26) While they may not have been familiar as yet with J, E, D, P, JE, and R, the Framers were aware that the sacred text contained a variety of versions of fundamental law, inconsistent in important respects and worded variously. The acceptable variousness of fundamental law in the Bible was a significant concept in the mind of American Framers, leading them to believe, and to act upon the belief, that each community's insight into natural law and the rights of Englishmen was worthy of respect.

    Thus, it is entirely unsurprising that the Massachusetts Body of Liberties, the Laws Agreed Upon in England, and such important subsequent texts as the Virginia Declaration of Rights were in variance with one another. Nor is it surprising that state constitutions and state constitutional construction have borrowed from other state constitutions and constructions whatever is fitting and comfortable and have...

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