Covenant and the Law

As the Supreme Court and others struggle with legal claims about this election, it’s worth considering just what precedes law and gives it validity.

Over three millennia ago, a new people formed out of a motley assortment of tribes and hebraoi, herders on the edges of the rigid, hierarchical Bronze Age city states. What made them a people was not their coming together per se—tribal groups had aligned, and then clashed or drifted apart, many times before. Nor was it simply the result of sharing cultural practices or the newfangled idea of a written legal code.

What made them a people was commitment to a covenant.

When Moses came down from the mount, this people’s central history tells us, he brought concrete evidence that YHWH would bind himself to this new people, if they bound themselves to him and to one another. Not through force or power, as with many deities, nor as a transient agreement for the moment, but as the core of who they were and were to be.

Every aspect of that new people’s identity and their interactions with one another rested on a mutual sacred commitment. Laws and daily practices derived from it and had no standing otherwise.

It’s hard for us to fully appreciate how very different that was from every people then around them. It truly set them apart in a unique way.

A little over two centuries ago another new people again bound themselves to one another in a covenant, pledging their sacred honor to a framework that would form the principles under which power would be constrained and oathbreakers sanctioned.

Knowing this would be a government of imperfect people covenanting with one another directly, rather than through a holy source, they established basic mechanisms aimed at balance of powers across different branches of government, constraints on the use of official powers by individual officials, and participation of the people in judging innocence or guilt when offenses were charged.

It was an ambitious undertaking and one deeply dependent on that shared covenant. Without such a covenant, without that commitment to one another, John Adams told the Massachusetts Militia in 1798,

Avarice, Ambition, Revenge or Galantry, would break the strongest Cords of our Constitution as a Whale goes through a Net. Our Constitution was made only for a moral and religious People. It is wholly inadequate to the government of any other.

Not only blameworthy motives like greed but even “Galantry”—the equivalent today of a desire to nobly advance others while accruing virtue points—could, Adams warned, destroy the bond that ties us together as a new people. 

Important as written laws are, it is not enough to obey the letter of those laws, nor even to search for (or invent) a spirit behind the law. When the difficult cases arise, it is the covenant, the chosen binding of us into a people given shape in the Constitution, that makes the republic work.

If we can speak of the tree of liberty that shelters us all, then allowing non-citizens to vote, deliberately removing election integrity mechanisms and turning a blind eye to fraud, allowing the families of officials to peddle influence—these are poison injected into that tree’s very roots.

Voting is the place where our covenant with one another plays out in long lasting ways. To debase the voting process is to debase the covenant between us, and thereby corrode our identity as one American people. And it inevitably destroys our liberty as a result.

The poison that kills us as a people can seem sweet at first. Adams went on to warn:

But should the People of America, once become capable of that deep . . . simulation towards one another and towards foreign nations, which assumes the Language of Justice and moderation while it is practicing Iniquity and Extravagance; and displays in the most captivating manner the charming Pictures of Candour frankness & sincerity while it is rioting in rapine and Insolence: this Country will be the most miserable Habitation in the World. 

There’s a whole lotta simulation goin’ on right now, including calls for comity and ignoring election fraud. Calls to “move on.”

But pretending things are basically fine and making nice won’t cut it. Either we renew our covenant with one another or the American people can no longer be said to exist and we dissolve into the morass that has characterized most other places during most of history. What comes after that will be painful and slow to resolve.

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About Robin Burk

Robin Burk started her career wearing bell bottom jeans in the basement of the Pentagon, where she had the challenging privilege of interacting with computing legend Grace Hopper, and in Silicon Valley, where she wrote one of the first commercially deployed Internet protocol software stacks. The remainder of her first career half was spent in roles through senior executive in small and mid-sized tech companies serving defense and national security customers in the US and abroad. After the attacks of 9/11 Robin taught in two departments at the U.S. Military Academy (West Point). Returning to the Beltway area, she grew a fledgling research grant program in the new discipline of complex network systems at the Defense Threat Reduction Agency, center of U.S. counterWMD expertise, then led a team that addressed national security and commercial applications at a major R&D organization. Today her passion is helping organizations and individuals make the best responses to disruptive tech-driven change. Along the way she picked up a PhD in artificial intelligence and some DOD civilian medals. She is currently being trained by a young English Cocker Spaniel whose canine appreciation for social compacts rivals that of Confucius and his followers.