Retrospect: Toward Clarifying the Place and Role of Mosaic Law in the American Founding, 1785–1850

This chapter serves as the conclusion to Section One, which focuses primarily on Mosaic Law in the main and related periods under consideration, though it offers some limited reference to Islamic rationalist strains of thinking regarding natural law in relation to divine law which influenced European and eventually American views. The chapter focuses its primary attention on the question of Mosaic Law (inclusive of the Ten Commandments) within the three-volume codex of U.S. Law published in 1795–96 and the three most important collections of American legal decisions and commentaries in the post-founding period, namely those of John Marshall, Joseph Story, and James Kent (1800–1847). How, if at all, did they view and incorporate, or not incorporate, Mosaic Law within their codes and commentaries? This is followed by the same questions in relation to the most important and earliest American historians (1784–1874). How, if at all, did they frame Mosaic Law and/or the Ten Commandments within their histories of the American founding? What role and/or place of importance did they give, or not give it? The findings, or perhaps better said, lack thereof, are telling with respect to the question of the place and impact of Moses the lawgiver on the American constitutional and legal traditions in the critical founding era. It is clear that the authority of Mosaic Law had been circumvented within Christian theology since its New Testament beginnings, with various re-articulations of that circumvention affirmed in medieval Catholic as well as all later Protestant Reformation confessions of faith. The rise of empiricist- and rationalist-based epistemologies across the seventeenth and eighteenth centuries all carried that circumvention to ever-increasing measures, contributing to the declining authority and role of Mosaic Law throughout the crucial period leading up to and immediately following the American founding. It remained a resource, albeit rather limited and diminished, which various key framers of American Constitutional and Common law looked to for guidance, alongside numerous other civilizational-historical sources, inclusive of the Islamic. The early post-founding articulations of American history and identity in the fledgling U.S. law codes, legal commentaries, and histories of the nation, together with the prior strands of the Transatlantic and world historical storyline which informed and shaped them, thus provide an essential context for understanding the place and role of Moses, Muhammad and Nature’s God in Early American Religious-Legal History as depicted in the U.S. Supreme Court Building frieze.