Rights, commandments, and the literature of citizenship.(Critical Essay)

A commonly circulated list of "Sunday school bloopers" includes the following student error in its comic archive: "Moses went to Mount Cyanide and received the Ten Amendments." What makes the line worth retelling is the felt antagonism between commandments and amendments, between the Decalogue and the Bill of Rights. Both are composed of ten pronouncements. Both are nation-founding law codes animated by the idea of contract or covenant, the first establishing the nation of Israel and the second amending the U.S. Constitution. Both have become oddly unreadable. The Decalogue, written on the tables of the infantile mind through catechistic incantation, represents some of our culture's earliest exercises in rote memorization, posing an equal threat to intellectual and to ethical quickening. The Bill of Rights is illegible for other reasons: it is a surprisingly eclectic text, topical in its provisions, mixed in its itinerary, and often more powerful in what has been derived from it (e.g., the right to privacy) than in what it explicitly guarantees (e.g., that no soldiers shall be quartered in any house without the owner's consent). Stretched here and narrowed there by momentous yet meticulous acts of judicial review, the Bill of Rights, not unlike the Decalogue, exists above all in and through its interpretations. Because the process of expansion and contraction has occurred largely in the courts, few who are not lawyers can recount the provisions in the Bill of Rights with any accuracy, let alone give an account of its architecture. Both texts are remembered forgetfully and loved most often in ignorance.

Because of their basic structure and import, the Decalogue and the Bill of Rights exist in fundamental tension with one another. The Ten Commandments come from outside, addressed to us by a speaker who is altogether other than us, namely, God. Whereas they are written in the second person ("Thou shalt not ..."; "Remember the Sabbath day..."; "Honor thy father and thy mother ..."), the Bill of Rights is written in the third person ("Congress shall make no law ..."; "No soldier shall ..."; "No person shall be held ..."). If it is addressed to anyone, it is not to individual citizens but to the government, taken as the restricted delegation of the people's power to a central agency. In many ways, the Decalogue and the Bill of Rights do not conflict or even overlap with each other. There is no talk of speedy trials in the Decalogue, and no reference to the Sabbath or to idolatry in the Bill of Rights. Yet it is possible to read this and other declarations of rights as in effect overturning the Decalogue, insofar as they install a fundamentally secular form of subjectivity or selfhood in place of the older religious one.

At stake in the relation between commandments and rights are a number of linked logics that gather up the cruxes of modernity itself: the relations between revelation and reason, positive law and natural law, heteronomy and autonomy, vertical axes of subjection and horizontal networks of citizenship. Moreover, these cruxes define the fold of the two tablets themselves, between ritual commandments regulating humanity's relation to the terrible sovereignty of God (1-5 in the Jewish count) and ethical commandments governing interactions among neighbors on the normative horizon of the social (6-10). In the history of the three monotheisms, there are many ways to count to ten. (1) The story of the Decalogue's different countings--indeed, even their formalization as "commandments"--is in large part identical with the dialectical emergence of Christianity and Islam out of and in relation to Judaism's rhythms of letter and spirit, prescription and prophecy. Moreover, literature itself--its "history," in the sense of its constitutive implication in and formative dramatization of the patterns of epochal transformation--finds itself caught up in the same dialectics, intimately linked to the sublime opacity of divine revelation, on the one hand, and the secular exchanges of civil life, on the other. Indeed, literature may be the ultimate galeotto between sacred and secular representations, leaving imprints of the sacred in the sands of modernity while endowing revealed truth with the very different destiny of fiction.

This essay takes its direction from two major works in the field of law and literature, Brook Thomas's American Literary Realism and the Failed Promise of Contract and Victoria Kahn's forthcoming Wayward Contracts: The Crisis of Political Obligation in England, 1640-1674. (2) For Thomas, the promise of contract during the period after the American Civil War--the contract as a legal formalization of the promise, but also the dream of equality that accompanies it--dynamizes the literary scene of contract by engaging it with possible futures. The key word in Kahn's project is romance: by tracking the marriage contract in novels, poetry, and political philosophy after the English Civil War, she demonstrates how both royalist and liberal theories of sovereignty reconciled coercion and consent by imagining political obligation in romantic and erotic terms. Finding its own idiosyncratic itinerary through the landscapes of Thomas's America and Kahn's England via the overarching (or double-arching) question of the relation between commandments and rights, this essay attends to the covenantal status of the Decalogue, the figuration of that covenant as a marriage in rabbinic and philosophical traditions, and the fallout of this union in figurations of the church-state relationship in the early U.S. context.

I begin by reading the Decalogue in the context of Judaism, with an emphasis on the Fifth Commandment as a meditation on the different shapes of covenant in the biblical tradition. I proceed to John Locke's antipatriarchal commentary on the Fifth Commandment, and I end by examining the implications of these exegetical maneuvers for the Bill of Rights, especially the First Amendment. The essay's first section uncovers the romance of covenant in the architecture of the Decalogue and its exegesis, in which the Fifth Commandment, to honor one's father and mother, is key because of its location at the transition between the ritual and ethical tablets of the law. In the narrative unfolding of the Decalogue, the parental couple embodies a first instance of civil society, a union that both negates and reinstitutes patterns of hierarchy through the operation of the contract. Locke is a powerful exegete of the paradoxes of contract and consent, which establish relations of formal equality between parties dramatically unequal on the sociopolitical plane; he revisits the Fifth Commandment to recalibrate the fundamental ratios of political theology--sovereign and subject, parent and child, husband and wife--for liberal philosophy. I then turn to the genesis of the Bill of Rights, using Marx's "On the Jewish Question" as a crib sheet on the fortunes of religion and civil society in America. By reading the relation between rights and commandments in the mode of romance and under the sign of covenant, I aim to use the discourse of rights to counter the disciplinary and hierarchical functionalization of commandments, and to deploy the discourse of commandments against the possessive individualism of rights.

Such work invites recourse to a hermeneutics that is neither biblical nor legal in the strict senses native to those fields, but literary in its provenance and methods. This hermeneutics takes its bearings from the birth of law into literature and literature into history at Sinai, working among genres and epochs with an ear attuned to the encrypted narratives, foundational metaphors, and dramatic scenarios that divide and join them. My larger project is to propose reading documents like the Decalogue and the Bill of Rights as exempla of a distinct genre and tradition of writing that I term the literature of citizenship, conceived as a series of open letters, formulated out of a loose yet exacting set of promises posed at determinate points of time but to indeterminate audiences. Although the literature of citizenship includes texts from literary genres (Sophocles' Antigone, Shakespeare's Othello, Ralph Ellison's Invisible Man, Pedro Almodovar's and Krzysztof Kieslowski's films), it also comprises foundational and occasional documents, such as the Decalogue and the Bill of Rights, the Declaration of Independence, Martin Luther King Jr.'s "Letter from Birmingham Jail," Vaclav Havel's Open Letters, and Michael Moore's Fahrenheit 9/11. Such texts are extraliterary (i.e., legal, epistolary, rhetorical, documentary), yet their incisive, iconic, inaugural, or interventionist forms dramatize and reconstitute key myths and rhythms for literature and politics in the West. (3)

A Tale of Two Tablets

Although Judaism and the different branches of Christianity count the commandments differently, all traditions concur that the Ten Commandments are organized around a fundamental fold or split. On one tablet stand the ritual commandments that regulate the relation between God and humanity, and on the other stand the ethical commandments that address the relations of human beings to each other. Christianity temporalized the two tablets into the image of a historical movement: from ritual to ethical law; from a national document to a universal one; indeed, ultimately from Judaism to Christianity. If the first tablet establishes a covenant between God and Israel, the second tablet generalizes that covenant to include all humanity. The second tablet would also appear, then, closer to a theory of rights, founded on the reciprocity of individuals in a horizontal social order, whereas the first tablet, framed by the cryptic name of God, approximates more closely a logic of pure command, resistant to economies of socialization and based on the radical heterogeneity between the giver and the receiver of the law. In Christian historical dialectics, the first tablet becomes identified with the Old Testament as the era of law, whereas the second becomes the hallmark of the brotherly love that drives the universal mission of the gentile church. As Christian typology (the figural relation between Old and New Testaments) is reborn and reworked in the rhythms of modernity (from the old dispensation of faith to the new dispensation of reason), this split turns back on the Decalogue itself, which assumes the mantle of revealed law in opposition to the laws of nature and reason--that is, the discourse of rights. Thus the very statement that rights have replaced commandments is itself based on a certain mobilization of the Decalogue's defining fold between the ritual and the ethical, the revealed and the natural, the religious and the political, the particular and the universal. (4)

In the Jewish count, the Decalogue begins with God's statement of his historical bond with Israel: "God spoke all these words, saying, I the Lord [YHVH] am your God who brought you out of the Land of Egypt, the house of bondage" (Exod. 20:1-2). (5) As the rabbis have noted, there is a striking redundancy in the text's insistence on God's speaking: "God spoke [v'y'daber] all these words [kol ha-davarim], saying [limor]." To explain the iteration, the traditional commentary goes in two directions at once: toward the radical singularity of God's expression, on the one hand, and the equally sublime multiplicity of his speech, on the other. The medieval French commentator Rashi argues that God spoke the entire set of commandments in a single incomprehensible and terrifying utterance; Maimonides adds that God's speech lacked distinct phonemes; another commentary reinforces this image of radical condensation by suggesting that God's voice had no echo. (6) Yet Rashi then writes that after speaking the commandments all at once, God began to repeat them one by one, but even this was more than the people could bear, and they begged Moses to shield them from God's terrible voice by speaking the commandments for him. God spoke twice, a doubling that instituted the folds of tradition (2:102). Thus God repeats his own utterance, Moses transmits it, and the stone tablets on which the commandments are inscribed are destroyed and replaced. Moreover, the Decalogue appears twice in the Torah: first in Exodus and again in Deuteronomy, where Moses retells the story of the exodus to a new generation of Israelites born in the desert. In the primal scene of the enunciation and transmission of the Decalogue, the unbearable singularity of the law gives rise immediately to the repetitions that preserve it, a deutero-nomos (second law, second telling) that both transmits and deflects its force; in the words of Psalm 62, an authorizing topos for the exegetical tradition, "Once God has spoken; twice have I heard this." (7) The scene of transmission is already a scene of translation, tradition, and commentary--a …