What’s Wrong with Originalism
Recently there has been a lot of talk about Scalia’s judicial philosophy of Originalism, because it is also embraced by Amy C. Barrett who is currently engaged in Senate hearings on her SCOTUS nomination. Leaving aside the impropriety of rushing this nomination ahead of an election, I have a problem with Originalism – the philosophy that judiicial decisions must be based on what the Framers intended to say. Aside from the difficulty of achieving that, I find it a questionable approach to interpretation of the law.
This comes from what I know of the Jewish legal tradition that is well over 3000 years old. If Jews tried to apply Torah law as if we were still a semi-nomadic agrarian society, I doubt there would be any Jews left in the world. Adaptation of those laws begins within the Torah itself. We do care about what Torah law means but we have been amending practices constantly over the millennia to adapt to changing times and circumstances.
What follows is a chapter from a not-yet-published book on the paradox of God-given laws and how their application has evolved. As I understand it, justices do take into account the social impact of their decisions, but setting legal precedent based on the late 18th century in a novel form of government in a society and economy very different from ours seems wrong to me.
SINAI / TODAY – THE SOURCE OF AUTHORITY
At one time the Jewish calendar did not come ready-made from funeral directors and kosher butchers. The 150-year calendar did not exist. In fact, the calendar was proclaimed from month to month. The moon takes about twenty-nine and a half days to orbit the earth and the ancient rabbis were well aware of this fact. Instead of pre-determining that this month would be 29 days and that one would last 30 days the new month was proclaimed by the President of the Sanhedrin based on sightings of the new moon. The most likely reason for traditional Jews observing two days of the festivals is that the proclamation in Jerusalem or Yavneh might arrive in distant communities too late to determine the holiday.
One year the President of the Sanhedrin, Rabban Gamaiel, announces that a certain day was the first day of Tishri and was, therefore, Rosh HaShanah. Rabbi Joshua (who we have already met) however, believed that the testimony of the witnesses was wrong and that Rosh HaShanah was actually later. When Rabban Gamaliel heard about this, he ordered that Rabbi Joshua appear before him on the day that Rabbi Joshua said would be Yom Kippur with staff in hand and money in his pocket, something no religious Jew would do if it were actually Yom Kippur. Rabbi Joshua as very distressed. He was sure that he was right and that the President was wrong.
Rabbi Akiva went to talk with Rabbi Joshua and said that whatever Rabban Gameliel did was right by definition. The Torah says, “These are the feasts of the LORD, the holy convocations which YOU shall proclaim.” (Lev. 23:4) Ever since God told Moses in Egypt, “This month shall mark FOR YOU the beginning of months” (Ex. 12:2) that calendar was in the hands of human courts. Right or wrong, the court determined what the calendar would be.
Rabbi Joshua then went to confer with his colleague Rabbi Dosa ben Harkinos, whose opinion had been the basis of Rabbi Joshua’s dissent and told him the whole story. Rabbi Dosa said to him, “If we question the decision of the court of Rabban Gamaliel, then we will have to question the decision of every court all the way back to Moses. Every court in its day is as authoritative as that of Moses was in his day.” Rabbi Joshua then went to Rabban Gamaliel on day which, according to his own calculation, should have been Yom Kippur. Rabbban Gamaliel greeted him with a kiss and called him, “my master and my student – my teacher in knowledge and my student in your fulfillment of my words.”
This story illustrates a basic principle of Jewish law, but also raises some difficult problems which still perplex us today. On the one hand, we learn that the authority of the rabbis of our day is decisive. On the other hand, it is a basic principle of Jewish law that the older an authority is, that is the closer an authority is in generations to Mount Sinai, the more authoritative the opinion. The opinions of more recent generations in the Talmud always defer to those of earlier generations; and the earliest rabbinic generations
defer to the decisions of the pre-rabbinic Sanhedrin’s and even more to opinions which are found in scripture with the Torah being the absolute source of authority which may not be contradicted.
The problem is that a tradition, any tradition, needs both sides of the equation in order to be a living tradition. There has to be a transcendent basis for the tradition – an origin which says that the tradition has a basis beyond human argument. On the other hand that tradition must be interpreted in order to meet the practical needs of each generation as new situations arise. Without the first, the tradition had no reason to exist beyond the generation that initiated it. Without the second, it would disappear because it will have ceased to be relevant.
Martin Buber illustrates this idea beautifully with a Hasidic teaching. In a little book of Hasidic sayings called The Ten Rungs, the first teaching in the first “Rung” is as follows: Why do we say in our prayers “our God AND God of our ancestors?” This seems redundant since we worship the same God worshipped by our ancestors. Why do we use both phrases? “Our God” is the God we believe in because of our own faith and our own experience. “God of our ancestors” refers to the God we believe in because of the tradition which has been handed down to us. Experiences which bring us to belief in God when we abrogated by other experiences (see the previous chapter), so we need to be able to fall back on the religious tradition we have because it is tradition. Tradition by itself, however, is not enough because it does not include any personal experiences. We need both.
The history of every religion begins with a revelation made to one person in one generation. That initial revelation, usually preserved in a scripture, is the continuing basis for that religion. In later generations, some will rise and will claim either to receive a new revelation or to teach a return to the original revelation. Every religion needs to respond to changing times and circumstances if it is to survive, but cannot afford to be constantly challenged by new claims to transcendent truths. Every branch of Judaism claims to be the authentic heir to the revelation at Mount Sinai. Every Christian church claims to be the true church. Every Islamic sect claims to be the true bearer of the teachings of the Prophet. Moreover, Christianity claims to be the true Israel and Islam claims to he the true heir to Abraham.
How does Judaism meet this challenge? Our tradition teaches that the Torah existed before Creation and was actually the blue-print for Creation. When Moses ascended Mount Sinai, he went up into Heaven and met the challenges of one host of angels after another until he arrived at the Throne of Glory. Under the Throne of Glory was the Torah which was given to him over the protests of the angels. They wanted the Torah to stay in Heaven, but God reminded them that they did not need teachings concerning eating and conducting business and so forth because angels do none of these things. The Torah was for humanity’s needs.
Moses brought the Torah down from Sinai and gave it to the people. What did the people hear? The Torah says it was only the Ten Commandments. Some rabbis taught that it was only the first two or even the first of the commandments or perhaps only the first words, anokhi (I). It as a Hasidic teacher who said that all that the people heard was the sound of the first letter; but the first letter is an alef whose sound is that opening of the throat –the beginning of sound in which all words are possible. Tradition says that Moses did not bring down just the written Torah, but the Oral Torah which includes all of the teachings and decisions that would grow out of Torah.
Did the Torah received by Moses then include instructions for a Jewish astronaut observing Shabbat on the Moon? Did Moses receive information on the law concerning test-tube babies and insider stock trading? There is a tradition that before he died Moses asked whether future generations would learn the same Torah he had taught the people. God took Moses through time to the classroom of Rabbi Akiva almost a millennium and a half after the death of Moses. Rabi Akiva taught a lesson on the crowns which appear on certain letters in the Torah and Moses did not understand anything Akiva was saying. “Where did his teaching come from,” Moses asked God? Then Rabi Akiva announced, “and this is Torah which Moses received at Sinai.” Even though he could not understand what was taught as Torah after so many generations, he understood that what he had taught contained the potential for teachings which would still be understood after so much time.
The process of interpretation of Torah begins already in the Torah. When the case of the daughters of Zelopahad arose, Moses himself already had to modify the law. Inheritance was to be only through sons, but Zelophhad had only daughters and, therefore, Moses had to correct the law to allow for inheritance by daughters. Ezekiel the prophet was of priestly family and may even have witnessed the destruction of the First Temple. In his vision of a rebuilt temple, he described rules and rituals that did hot exist in the time of the First Temple. Later authorities were so disturbed by this that they tried to exclude parts of the writings of Ezekiel from the Biblical canon. Others said that his vision referred to the Third Temple which will be built by the Messiah and not to the Second Temple which was built in the generations following Ezekiel. Then the Second Temple was built, it was decreed that prophecy was no more. Even the voice from Heaven, which was heard by the Sanhedrin to support Rabbi Eliezer against Rabbi Joshua (see above page), was ignored. “It is not in Heaven.”
Hillel taught that in deciding the law one had to go to the people to see what their needs are. He is famous for his taqqanot, corrections in the law. The most famous of these, the prozbul, is a good illustration of the taqqanah. The Torah teaches that all debts are to be forgiven in the Sabbatical year (Deut. 15:1-2). This was fine while we were an agrarian people among whom debt was incurred only in times of trouble. By Hillel’s time, however, we are more urban and Jews were engaged in trade. Debts were undertaken as a means of expanding one’s business or for increased participation in trade. To forgive all debts every seven years would have effectively barred Jews from many business activities. Hillel, therefore, taught that a debt could be turned over to a court to be
collected by the court for the creditor eve after the Sabbatical year. In this way the Torah was kept, but a loop-hole had been created so that a Jew would not have to decide between earning a living and keeping the Torah.
About one thousand years ago in Rhineland, Rabbenu Gershom, the great legal authority of his age, noted that there were certain deficiencies in the laws regarding women’s rights. Men could divorce them without their consent and, theoretically at least, could even remarry without divorcing (while women could neither initiate divorce nor remarry without a divorce). Rabbenu Gershom, therefore, decreed a taqqanah to the law which required the consent of a wife before a divorce could be final and also forbade a husband to remarry without a divorce being final (but women still could not initiate a divorce or remarry without a divorce – which we will come back to). Although technically limited in scope, this decision is still considered binding on all Ashkenzi Jews, even today.
It seems apparent that Jewish tradition holds the Torah sacrosanct even while allowing for changes in how the laws are applied which seem to violate the plain sense of what is stated I the Torah. This was true and there are many examples to prove it beyond those given here. Why is it no longer true that traditional Jews are known for such dynamic and creative responses to modern problems in applying the law? Why are there streams of Judaism with differences among themselves as to how to interpret the Torah and apply it to Jewish lives?
Two centuries ago the world was shaken by great revolutions which had a profound effect on Judaism. The enlightenment suggested new ways of thinking, even new ways of thinking about religion. The American and French Revolutions for the first time made large numbers of Diaspora Jews full citizens of secular states. The founder of Habad Hasidism once commented that Napoleon (who exported the French Revolution all over Europe) was good for the Jews and bad for Judaism. Jews would now have civil rights more or less equal to the rights of the majority. However, Jews also had the right to simply drop out of Judaism into a secular society. At one time a Jew had to become Christian to be accepted in the larger society. Now a Jew simply had to agree to live by the same laws as everyone else and could remain a Jew.
Almost immediately Reform Judaism came into being. Napoleon brought an end to the Holy Roman Empire in 1809, declaring an end to Jewish legal disabilities. Already in 1808, a Jewish activist, Israel Jacobson, who was much influenced by Enlightenment thinking, began to organize the Reform movement in Judaism. Even though reactionary forces tried to turn back the clock after Napoleon’s fall, Reform Judaism survived and flourished. The idea of being a “German of the Mosaid religion” began to take hold. By the 1830’s, there were Reform congregations all over Central Europe and the movement crossed the Atlantic with émigrés fleeing reactionary regimes and began to establish this new movement in the New World.
The Reform movement sought to create a form of Judaism which would meet the needs of Jews who would be actively involved in an emancipated society as equals. Many
prayers were read in German and sermons likewise were preached in German (or whatever the local vernacular was as the movement spread). Mixed choirs performed, the liturgy was shortened with most nationalistic and messianic references deleted. Bar Mitzvah was replaced by Confirmation which included girls. In these and in other ways, Judaism was reformed so as to make it appealing to Jews who wanted to blend in with the broader society and who did not want to seem to be too exotic.
Of course, the traditional rabbis did their best to quash this new development. They had the sympathy of the authorities in many places and Reform congregations were sometimes closed by government decree. However, Reform was an idea whose time had come and it would not disappear. Then a German Rabbi, Samson Raphael Hirsh, became a new kind of opponent to Reform He taught that one could be an observant traditional Jew and a full participant in a modern emancipated society at the same time. It would not be necessary to abandon tradition, only to distinguish between Torah tradition and customs which did not have the force of law but which had served to make traditional Jews seem alien. Orthodox Judaism was born.
In America, the Reform movement became a broad umbrella under the creative leadership of Rabbi Isaac Mayer Wise. This important leader founded the first American Yeshivah, congregational organization, and rabbinic association which were respectively called Hebrew Union College, The Union of American Hebrew Congregations, and the Central Conference of American Rabbis. The term “Reform” appeared in none of these names for a reason – Wise hoped to include all varieties of interpretation of Judaism under one banner which would be American Judaism. Unfortunately, there were very real divisions in American Jewry and then the banquet for the first graduating class of Hebrew Union College featured treyfe seafood on the menu (an obvious set-up by the radicals). The traditionalists left to create their own movement which became the Conservative movement.
The proliferation of movements in American Judaism did not stop there. A Reform rabbi, Felix Adler, created the Society for Ethical Culture, which is intended to be the rational and ethical elements of Judaism, without any of Judaism’s ethnic or particularistic elements. This movement is not considered part of Judaism. A Conservative rabbi, Mordechai Kaplan founded Reconstructionalism which is a branch of Judaism which emphasizes community and Jewish civilization with a somewhat radical theology. Since World War II, a number of Hasidic sects, including one effectively founded in America (the Bostoner), have tried to maintain the cultural and religious life they knew in Eastern Europe maintaining that only in this way will Judaism survive in America. The Havurah, or fellowship movement, which arose out of the ideals of the late sixties and early seventies has, in effect, constituted itself as a movement. There is even a Humanistic Judaism and “Jewish Science.” All of these in one way or another are providing responses to the challenges of the Enlightenment and the Emancipation. Within these movements, at least the larger ones, there are sharp divisions of opinion on how to solve the challenges of Jews living in an open but non-Jewish society.
The problem of divorce, for example, has bee very much aggravated by the existence of marriage and divorce as civil institutions. Marriage is easy. If a Jewish couple lives together, they are, de facto, and therefore, de jure, married. It does not matter who officiated or even if no one officiated. Divorce, however, requires a specific legal procedure with an Orthodox court of rabbis. Only about 10% of American Jews call themselves Orthodox. The rest belong to other movements or to no movement. Since the divorce rate for Jews approaches that for non-Jews in America and is, therefore, very high and since a great many divorcees remarry, a very serious problem arises. If a Jewish woman marries, divorces, remarries and has children in the second marriage, if there was no religious divorce, the children of the second marriage are illegitimate, mamzerim. Mamzerim are not allowed to marry any Jew, except another mamzer or a convert to Judaism, and their children would also be mamzerim essentially forever. This problem is so serious that the Talmud suggests (Kiddushin) intermarriage in his case. If a male mamzer marries a non-Jewish woman, their children will not be Jewish and, therefore, not mamzerim. These non-Jewish children can convert to Judaism and marry any Jew and the family line is saved. There is no other remedy once the status of being a mamzer has been determined.
The Reform movement simply opted out of the entire situation by declaring long ago that civil divorce is accepted as binding. The Conservative movement has included, after a good deal of controversy, a clause in the wedding contract that requires a couple to go to the Conservative rabbinical court in case of a civil divorce. Orthodoxy has found no remedy. Rav Moshe Feinstein, the most authoritative legal decisor of the twentieth century in America, decided that if the original ceremony had had a non-Orthodox rabbi as officiant, it was null and void as from the beginning. Only kosher Orthodox weddings would require a get (religious divorce). This decision, of course, raises other problems, but it does not solve all of the problems even for the Orthodox. First of all, not all Orthodox rabbis accept Rav Feinstein’s decision. Second, it is still only the man who can bring a divorce into a Jewish court. If a man refuses or if he becomes incompetent or if he simply disappears, the wife is stuck, an Agunah (literally “chained”). Some Jewish husbands even hold up civilly divorced wives for blackmail before they will grant a get. The result is an unknown number of manzerim who may be in for a shock if they want to marry someone from a traditional family or if they want to marry in Israel. These days Orthodox rabbis investigate the background of brides and grooms who come to them which also aggravates the problem. Some Orthodox rabbis are offering legal devices to solve the problem, but none is widely accepted and none grants to women equal rights and protections.
Why is it that the Orthodox will now write a taqqanah to solve a problem of such great proportions? Essentially, they maintain that there is no rabbi alive who has the authority to write a taqqanah that will be widely accepted. The principle of the authority of a rabbinic court having authority in its own day has effectively been abandoned. The scope of the problem is so overwhelming that most Orthodox authorities and many traditional Conservative authorities, as well, believe that to make accommodations to an open society in this way is to give in and to abandon the tradition to assimilation.
There are many other issues which lack solutions because of this quandary. Intermarriage is widespread. Should conversion to Judaism be made easier? Should converts be actively sought as they once were but have not been for at least a millennium and a half? Should children raised as Jews by Jewish fathers and non-Jewish mothers be accepted as Jews? Can a common standard for conversion to Judaism be found? These issues are hotly debated between the movements and even within the movements. It seems vital to the future of Judaism that we regain a sense of balance between the demands of Sinai and demands of the world in which we live. The restoration of the co-existence of these opposites is essential to the future of Judaism.