Monday, November 07, 2005

Judaism and Strict Constructionism

Richard Silverstein at Tikkun Olam argues that the Halachic system is at odds with strict constructionism. He brings down the famous Talmudic passage in tractate Baba Metzia 59a, where despite divine support for the position of one of the rabbis, the Halacha was decided according to the disagreeing majority. From this story he concludes that strict constructionism and halachic interpretation are inconsistent:

"So to the strict constructionists I say: our body of law has been around a lot longer than yours (constitutional law). And if “the law is according to the majority” (i.e. that the law is decided through contemporary judicial deliberation and not through channeling the Framers) is good enough for the Talmud, you might want to sit and ponder why you’re at odds with one of the world’s great legal traditions."

In a symposium in Commentary Magazine, Alan Dershowitz in essence made the same point (using the same story).

My understanding of the analogy goes like this: G-d had an original intent but we follow the opinions of the later generations, even when it conflicts with that intent. Applied to the Constitution we would say that even if the framers had an intent, we ignore the intent and later generations decide the law. In other words Halacha is a precedent for a living Constitution.

The analogy is flawed, and I believe that his argument also rests on a flawed assumption and a lack of understanding of what strict constructionism means.

First, strict constructionism has nothing to do with framers intent. It's simply another way of referring to textualism (although not all textualists are strict constructionists). Textualism means interpreting the text according to its simple meaning. When the text is unclear, that's when textualism ends and another interpretive method must be employed. Many judicial conservatives will supplement textualism with originalism, which deals with framers' understanding (not intent) but the two need not go hand in hand. Hugo Black was a textualist, but was not an originalist. People too often confuse these terms.

Second, he assumes that since G-d decided the question one way and the majority decided the question differently, that they are ignoring his intent. But originalism is not about pretending we are James Madison. The task is to determine how the principles were understood and apply those principles to the facts today. Madison might have done it one way, but we can apply them differently and still be originalists. So the Rabbis could have been basing their decision on G-d's intent, but just disagreeing with how to apply his intended principles.

Lastly, Halacha and constitutional law are very different in nature. One of the most common criticisms of originalism is that it makes the law too rigid. An originalist interpretation of the Commerce Clause would make much of federal law and all administrative agencies unconstitutional. Clearly our society cannot survive that way.

But the founders were prescient enough to provide us with a tool to change the Constitution if it's arcane: The Article V Amendment power. If the Commerce clause, interpreted according to its original understanding, is insufficiently broad enough for a federal government in modern society, the Constitution can be amended to give Congress that power.

Halacha has no such process. All Halachic decisions are judicial and cannot be overridden democratically or through amendment. So Halacha requires flexibility and broad interpretation to avoid becoming irrelevant. Therefore a different mode of interpretation must be employed. The systems are sufficiently different to make any such comparisons moot.

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