Progressive Movement in The Law of Moses and the United States Constitution

There’s an interesting parallel between how Jesus and the apostles saw the Law of Moses and the debates among 19th century slavery abolitionists about whether the United States Constitution served their cause. I conclude that both the Torah and the Constitution were imperfect documents (the Torah intentionally so by the will of God) pointing forward to something more perfect.

Progressive Movement in The Law of Moses and the United States Constitution

An Imperfect Constitution?

Damon Root’s 2020 book, A Glorious Liberty: Frederick Douglass and the Fight for an Antislavery Constitution, presents a fascinating history of the 19th century abolitionist debates over whether the United States Constitution was a pro or anti-slavery document.

Douglass, the runaway slave, intellectual, and anti-slavery activist, had at first imbibed the arguments of his mentor William Lloyd Garrison, namely that the Constitution supported slavery and was thus a “covenant with death and an agreement with hell.”

But after reflecting on the arguments of abolitionists Lysander Spooner and Gerrit Smith, Douglass eventually had to admit, and did so publicly, that the Constitution could and should “be wielded in behalf of emancipation.”

But who was right: Douglass or Garrison?

Well, it’s complicated.

On the one hand, Garrison was correct that the Constitution did not outlaw slavery or even condemn it. While some of the framers wanted such a declaration, others (largely of the southern states) would have immediately left the proceedings if such an idea had been seriously considered. In addition, there are two oblique references to slavery in the Constitution which seem to support it. Article 4, section 2 held that “persons held to Service or Labour in one State” but escaped to another, “shall be delivered up” to the “Party to whom such Service or Labour may be due.”

Article 1, section 2, in discussing how representatives and taxation would be apportioned to the individual states, declared that all non-free persons would be counted as 3/5s of a person–a compromise between the southern states who ironically wanted slaves counted as whole persons to gain more representatives in Congress and the northern states which argued that non-free persons with no political voice shouldn’t be counted in order to gain additional representatives.

But good arguments could be marshaled for Douglass’ side as well. For instance, despite gesturing toward the evil institution, the Constitution doesn’t actually use the word slave or slavery at all. It also provided for the abolition of the importation of slaves at a future date:

“The Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight…” (Article 1, Section 9)

The Constitution is also grounded by the Declaration of Independence which pointed to an original state of creation wherein “all men are created equal, [and] are endowed by their Creator with certain unalienable Rights… among these are Life, Liberty and the pursuit of Happiness.” The Declaration goes on to say that governments are formed by “the consent of the governed,” which seems to contradict men enslaving other men without their consent. These general statements of human rights thoroughly undermine the institution of slavery.

It seems that we must agree with Douglass’ assessment from his transitional period: “Liberty and Slavery–opposite as Heaven and Hell–are both in the Constitution.”

So, what are those of us who now see slavery as a blight on America’s history to think of the Constitution’s unwillingness to attack it head on? One plausible response is to condemn the southern framers as villains and the northerners as cowards for being unwilling to stand by what the Declaration itself called “self-evident.” It’s worth noting, however, that the result of their “agreement with hell” was that slavery eventually became outlawed in all states in accordance with Abraham Lincoln’s prediction that a house divided against itself cannot stand.

Had the northerners created an anti-slavery Constitution, the southern states would have left, probably created their own country, and it is unclear how much longer slavery would have remained in the south. The Constitution, especially taken with the Declaration, presents an imperfect ethic which nevertheless, through its tensions and implications, paved the way for a “more perfect” one.

But as Arlo Guthrie once said, “that’s not what I came to tell you about.”

An Imperfect Divine Law?

It’s no secret that many Americans see the Constitution as a sacred document. For some, this kind of sacredness implies perfection–in the sense of an unassailable, universal standard that is true at all times. But as we’ve seen, that’s not really the case.

There’s perhaps an object lesson here. Many Jews and Christians–particularly so-called theonomists who want to base our laws on God’s “timeless commands”–see the Laws of Moses (also called the Torah) as perfect, unchanging, and universal. On the face of it, their claim seems more persuasive than one for a perfect United States Constitution. Moses got the Law from God, after all. But for Christians who read both of their Testaments carefully, there are stunning contradictions between this assertion of a perfect law code with what the Bible actually tells us about God’s laws given through Moses.

The first clear indication of a problem with the Law of Moses in the New Testament comes from Jesus. In Matthew 19, Jesus points to the creation account of Genesis to argue against divorce. His oft-times theological opponents the Pharisees point out what they perceive as a flaw in his argument: “‘Why then,’ they asked, ‘did Moses command that a man give his wife a certificate of divorce and send her away?’”

If the Law of Moses is absolutely perfect, then they’ve backed Jesus into a corner. But what does Jesus reply?:

“Moses permitted you to divorce your wives because your hearts were hard. But it was not this way from the beginning. I tell you that anyone who divorces his wife, except for sexual immorality, and marries another woman commits adultery” (Mt. 19:8-9, NASB).

In other words, God’s original intent for creation trumps His instructions to Israel. The former points to a universal natural law; the latter to imperfect and temporary guidance for a certain place and time. In other places in the New Testament, the notion of an imperfect law which is passing away is also noted in reference to circumcision (Acts 15:23-29, Gal. 2:19-20), food laws (Gal. 2:11-12, Mk. 7:19), festival observances (Col. 2:16) and the temple sacrificial system (Heb. 7:11-12, 9:10, 9:23-28).

But how can the Law of Moses be inspired by God and imperfect at the same time? In the western theological tradition, we like to think of a God whose decrees are always perfect, meaning universally applicable and without flaw. While this law code is not flawless or eternal, it is perfectly fitted to God’s purposes for it, which include 1) creating a bridge between an imperfect people and perfect God so that they might dwell together, 2) preparing Israel for the coming of their Messiah, and 3) distinguishing God’s people from their neighbors by giving them guidance superior to the Ancient Near Eastern world in which they lived while also meeting them at their unique place and time in history.

To give an example particularly pertinent to our discussion, the Torah allowed for some forms of slavery–usually a limited time indentured servitude, but lifelong slavery did exist in some cases. This practice of slavery, which had become indispensable to settled life in that time, made Israel like its neighbors. On the other hand, the Torah also regulated the institution in ways that made the Israelites stand out from their neighbors. Whereas the 18th century Babylonian Code of Hammurabi enjoined the death penalty for anyone who housed a runaway slave (law 16), the Torah encouraged the practice (Deut. 23:15-16).

While Hammurabi gave penalties for knocking out the tooth of higher classes of men but not slaves (laws 200-202), an Israelite master who damaged the tooth or eye of his slave was required to let them go free (Ex. 21:26-27). The Ancient Near Eastern norm was to make slaves into absolute objects, but, as scholar William Webb noted in his book Slaves, Women and Homosexuals: Exploring the Hermeneutics of Cultural Analysis, “[the Torah] make[s] significant modifications to the institution of slavery relative to [its] broader culture” as one example of what he calls a “redemptive-movement hermeneutic” where the Scriptures point a trajectory forward compared to the culture in which they were written.

Perfect Imperfection

The Law of Moses was superior in many ways to the law codes of Israel’s neighbors, but it nevertheless did not reflect God’s original intention for humanity that we find in the creation account of Genesis 1-2 where all men (and women) were created equal. Instead, the Torah allowed for a form of slavery even as it sought to regulate it and make it more humane. It also pointed to a more perfect command of loving one’s neighbor as oneself (Lev. 19:18)–an ethic that would eventually end slavery in America.

Much like with America’s founding documents, these discrepancies in the Law of Moses allowed for both pro and anti-slavery forces to appeal to it in the lead up to America’s Civil War. The Constitution of the United States, with all of its contradictions, is an imperfect document that points to a perfect moral standard between human beings–a principle of self-ownership which presumes non-aggression and personal freedom. The Law of Moses also has contradictions that create a need for resolution. We might expect the Torah to be a perfect revelation of God for all ages, but that isn’t what it is.

It’s a bridge between where ancient Israel was in their historical context and where the perfect and eternal God always is. This represents a balance between what libertarian rapper Zuby said in a recent podcast interview with Reason Magazine’s Nick Gillespie: that progressives compare society to an ideal that’s never existed in history and find us falling short while conservatives compare our present society to history and are gobsmacked by how much progress we’ve made.

As people living today, our challenge is to appreciate and celebrate the wisdom that came before us–”for whatever was written in earlier times was written for our instruction” (Romans 15:4)–but also to continue pressing forward to realize the highest principles contained in our founding documents.

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