Yesterday’s Senate hearings on Judge Sotomayor were a variation on the theme of “the rule of law, not of men” in all senses of the word “men.” Conservative senators reframed the argument as “the rule of law, not of the empathy of a wise Latina.” Liberal senators reframed the argument as “strict construction-ism versus the Constitution as a living document.” All these issues are critical, but what no one seems to understand is what it means that our law is founded on a written document—the U.S. Constitution.

To the left is a photo I took about two weeks ago in the Pergamon Museum in Berlin. It is a Hittite document from about 825 B.C. (from Sam’al, a.k.a. Zincirli). The markings are ancient Hittite, one of the earliest forms of script. (Feel free to link to this image, but please do not copy it.)

What American Senators (and judges) don’t seem to understand is that our legal system is founded on documents older than this, which—like this—were first carved in stone, because only stone was permanent. If the Founding Fathers had wanted to, they could have had the Constitution or the Bill of Rights carved in stone, too. But they did not.

Now, the courts rely on legal precedents (“stari decisis”), which are also not carved in stone. But if they continue to insist on doing so, they had better learn a thing or two about my field, textual criticism: the art and science of analyzing a text to determine its origins and development. The Constitution did not spring from the forehead of Zeus, and it is not carved in stone. It is a set of fundamental principles that we, the People, have agreed to abide by.

Nor is the Constitution a comprehensive compendium of laws. It contains no references to critical modern issues, such as abortion, the Internet, or pornography. (I don’t think it even contains the phrase “public domain,” but I could be wrong.) But it is an incredibly wise framework for laws that cope with unstoppable social change. (I agree with what Judge Sotomayor tried to say about social change before her interrogator cut her off.)

What Is a Text?

Law is text. The word is the law. A text is a surviving, extant document on a platform (stone, papyrus, paper, CD, etc.). The text per se consists of utterances in a human language that is written in a script. And when a text is referred to by a society as its fundamental law, well, both God and the Devil are in the text’s details.

The Origins of the Constitution

Not all nations have a written constitution, Great Britain, for instance. But most nations do have seminal legal documents. For the British these include the Magna Carta and Common Law as articulated by William Blackstone (who wrote during the American Colonial Period). As a result, we Americans also refer to the Magna Carta and Blackstone for “common law.”

Most Western societies also derive their law from very ancient Middle Eastern texts, including the Code of Hammurabi (the stele is now in the British Museum) and the Ten Commandments.

In this country, we also rely on the Declaration of Independence, the Federalist Papers, and Lincoln’s Gettysburg Address.

The Tower of Babel or the Tower of Babble?

Unfortunately—IMHO—the U.S. Constitution did not contemplate a federation of 50 states spread over thousands of miles with hundreds of millions of citizens. We now are overburdened with laws and legislatures and legal precedents from thousands, if not millions, of “case law decisions.” Yesterday Senator Feinstein admonished Judge Sotomayor that “legislators have to be able to legislate.” I couldn’t help but ponder whether this is really so.

Now we have 51 legislative bodies (the 50 states plus Congress), innumerable regulatory agencies, and numerous “independent judiciaries” (Supreme Courts, Appellate Courts, Federal Courts, Circuit Courts, Family Courts, Juvenile Courts, Traffic Courts, and more).

One of the effects of all these courts is what is sometimes called “judicial activism.” When conservatives apply this label to judges, they mean judges who expand the Bill of Rights to include abortion. But having several times personally experienced judges who blatantly defied the letter of certain laws, I believe there’s a class of judges in all the courts who simply think they know better than the lawmakers.

Do Men and Women and Different Races/Ethnicities Experience Law Differently?

Yes. However, the Senate Judiciary Committee doesn’t have a clue about what this means.

• Sidebar: I am so passionate about this issue that I spent six years writing a book about it: The Posthumous Wife. I can’t find a publisher for it, though. So far, the manuscript has been read by individuals who are either among a certain ethnic/religious minority or are white men. None of these people can stand the book, because it’s all about the way Western law and the Judeo/Christian tradition (not to mention the Islamic tradition) treat women. It’s admittedly an angry book, but with a very happy ending. Are there any women publishers out there? Especially in Europe? Please contact me.

My Fantasy

In my dream legal system, the U.S. Supreme Court would study the writings of the Enlightenment philosophers to whom the Founding Fathers turned for an alternative to British Common Law. The Justices would all study the 17th-and-18th-century English language and try to understand the vocabulary and the conceptual underpinnings of the Constitution. Then, instead of looking beyond the Constitution to the World Court or international treaties for inspiration when they find the Constitution to be silent on an issue, I wish they would consider the world as it was in 1776.

The Constitution is constructed to liberate our society from 1776—from tyranny (that is, from monarchy, from the rule of one man and his family and his cronies in a hereditary oligarchy). It is designed to ensure citizens of property rights (“the pursuit of happiness”—a phrase of great importance for individualism) and personal privacy rights and rights of autonomy (“secure in our persons”).

If the Supremes would simply keep these few concepts in mind—democracy and pursuit of individual happiness by protection of private property, privacy rights, and rights of autonomy—I think both sides of the aisle in Congress would be pleased with their decisions (IMHO)—but I am not a lawyer.