Oasis Songs: Musings from Rav D
February 19, 2016 / 10 Adar I, 5776
I’d like to begin with a caveat that probably springs from some personal sense of anxiety. My column today is a bit more legalistic than normal. I am well aware that we are a large community with different needs when it comes to Torah study or a weekly message from one of its rabbis. Some of us like emotionally satisfying and inspirational pieces. Others like it when we are challenged to take some sort of action, whether that is political, interpersonal or spiritual. For some, relevance is the key attribute, while wisdom speaks more loudly to the seekers among us. Still others gravitate to more intellectual writings. At my best, I try to combine all of those elements into a single column, but that is not often possible.
Remembering an Icon
This past week one of our most influential legal minds vanished from the scene. Supreme Court Justice Antonin Scalia’s legacy, however, seems poised to endure. His theory of constitutional originalism (we determine what the Constitution means based on the Framers’ original intentions in composing a section of the Constitution), and the more circumspect and modest role for the judiciary that results from this vantage point, has been tremendously impactful. From what I have gleaned, theorists on all sides of the bench apparently now make reference to originalism in their decisions and often recast their thinking through this lens.
Confession: I have never been swayed by originalism and find it logically implausible–more on this below. Justice Scalia’s notion of a limited judiciary, however, is not one I can so easily dismiss. What sort of division of power between the branches of our government will yield the best society? How do we best protect the interests of minorities and the majority? When must the court overrule the legislature and take a stand at odds with society to ensure that the meta-principles of our freedoms can survive momentary societal trends? What role should the courts take when our legislature shirks its responsibilities to make laws that address contemporary problems? Do our answers to these questions change based on the issue (ie, are we nothing but partisans), or do we have a coherent approach that will ensure some measure of reliability and predictability (even though this means that the courts will apply this approach to produce results we sometimes won’t like)?
These are serious questions. How we answer them directly impacts what life in America will look like. They determine what sort of respect we give to the legal system as a whole. They also highlight our societal need to decide how expansive we want our judicial branch of government to be.
Judaism and Originalism
As the process of picking a new Supreme Court judge begins, it seems appropriate to wonder–is there a Jewish perspective on this notion of originalism? After all, the Jewish legal system is the world’s oldest continuous extant body of law, and it is based on the authoritative nature of the Bible, just as the heart of American law makes reference to and refers back to the Constitution. Perhaps Judaism can inform us?
One of the systems of interpretation that our people have used to mine the Torah for inspiration and legal guidance is known by the acronym Pardes. This refers to four different levels or approaches, including homiletical and mystical readings of the Torah. The closest Jewish corollary to the American notion of originalism may be in its expression of the “p’shat,” or the straightforward meaning of a Torah passage. This surface reading attempts to determine what the meaning of a given passage is in its context.
What is fascinating is that we have a tremendous amount of Jewish law that is derived not only from the surface meaning, but from the mystical streams as well. Joseph Karo, one of the most important Jewish legal minds and the composer of the Shulkhan Arukh actually had a non-human mystical teacher who apparently would visit him in the middle of the night. Pretty cool!
Even on the level of p’shat, though, it is hard to say that Judaism has a notion of originalism. For example, we often understand the plain meaning of the text to be what the rabbis of the Talmud say it is. In more recent centuries, scholars of the Bible believe they can discern the history of its composition. For those who believe that the Bible has a history, determining the p’shat (Jewish originalism) becomes even harder. In which society was a law composed? What was the intention behind it for that time and place?
For the more traditionally-minded, who hold that God is the sole author of the Bible, determining intention is no easier. How can mere mortals know what God intended? Is the Torah written in chronological order? For Rashi, no, for Ramban, yes. We have countless arguments, in other words, about what the plain sense meaning of a Bible verse is, and even then it is not always the determinative factor in deciding the law.
What all of this gets to is that originalism may give us some emotional satisfaction that we are tied to the past and the traditions that sustain us. Nonetheless, it seems to be a non-verifiable approach, whether we are discussing the Bible or the American Constitution. Certainly, some due diligence is required to understand what we can of the original context and meaning. But intellectual honesty requires knowing that not only can’t we pin it down, but that the entire effort is a bit suspect.
As I tried to explain earlier, I suspect the real impetus for the legal theory of originalism is tied in with a notion of a more modest judiciary with a curtailed notion of judicial review. I reckon that so long as we remain a highly polarized society, Congress will tend to avoid addressing the big issues that confront us. But in life, denial rarely works. Things rise to the surface. If our legal representatives won’t address the ills of society directly, we can be assured that the high court will. And if the high court won’t, people will eventually take to the streets.
Much is at stake in the next Supreme Court appointment. I’d like to think that the stakes would be less high if we the people held our elected officials to greater account, and demanded they address the concerns of the day. That’s ultimately on each of us.