My alternative title for this post was “Was Moses a Strict Constructionist?” I was a little worried what Google would do with that one so I opted for something more conventional.
I was listening tonight to Horace Cooper, an African-American conservative politico on the Tavis Smiley radio show extol Sam Alito’s virtues as a “strict constructionist.” He fairly accurately portrayed the constitutional debate on the subject as a battle between those who see the Constitution as a living document open to interpretation as circumstances change within society; and those who hold that the original document and the Framers original intent are all that judges need or should use in determining constitutional precedent.
This got me thinking about a wonderful passage from the Talmud which I learned in my first Talmud class at the Jewish Theological Seminary. It’s that wonderful old chestnut about Rabbi Eliezer’s dispute with the Rabbis in which he invokes God Himself to prove the correctness of his legal opinion:
…In that day Rabbi Eliezer refuted every one of their [the Rabbis’] objections. But they did not accept his view.
He said to them, “If the law is with me, let this carob tree prove it.” The carob tree was uprooted from its location by a hundred cubits. And some say ‘four hundred.’
They said, “One cannot find proof in a carob tree.”
He replied, saying to them, “If the law is with me, let the water duct prove it.” The water duct turned back on itself [the water flowed upstream].
They said to him, “One cannot find proof in a water duct.”
He replied, saying to them, “If the law is with me, let the walls of the beit midrash (“rabbinic academy”) will prove it.” The walls tipped over [as if to fall].
Rabbi Yehoshua rebuked them saying: “If scholars try to beat each other in halacha (“law”), how is it your concern?” They did not fall, out of respect for Rabbi Yehoshua. And they did not straighten, out of respect for Rabbi Eliezer. And they still stand bent.
He [R. Eliezer] said to them: “if the law is with me, the heavens will prove it!” A bat kol (“heavenly voice”) issued forth: “Why do you dispute Rabbi Eliezer, when the law is with him in everything!”
But Rabbi Yehoshua arose and said: “Not in the heavens is it…” [Deut. 30:12]. What did he mean by “not in the heavens?” Said Rabbi Yirmiya: “The Torah has already been given at Mount Sinai; we give no credence to a bat kol, because You had already written in the Torah at Mount Sinai, ‘Decide according to the majority’” [Exod. 23:2]
Rabbi Nathan met Elijah. He said to him, “What did the Holy One Blessed Be He do then?”
He said to him, “He laughed and said, ‘My children have beaten me. My children have beaten me.”‘
From Tractate Baba Metzia 59b (and in Hebrew).
(translated by Richard Silverstein)
Poor Rabbi Eliezer ended up on the wrong side of the Sages, who burned all of his written opinions & excommunicated him. God punished them for their actions by bringing a blight which destroyed the harvest. And although excommunicated, Rabbi Eliezer continued to be held in the deepest respect in Israel.
I think that phrase “My children have beaten me” is one of the more wonderful ones in the entire Talmud. For it presents a vision of a God who tangles with his people, who disagrees with them at times, but who nevertheless loves them and allows them to beat Him at His own game. In addition, this passage posits a tradition in which God provides a framework (the Torah) and leaves to His people the responsibility to interpret it and live within it from day to day (through the Talmud).
What is refreshing about this view compared to the aridity of “constructionism” is the notion that Jewish law is not divine per se. It is not fixed in its meaning as revealed at Sinai. It is alive. Jews may even interpret the law wrongly and God has no power to correct them because the sole interpretive responsibility is theirs.
This Talmudic story is a great commentary on the sterile contempoary constitutional debate about “strict constructionism” and “original intent.” Imagine, if you will, the nine justices in conference debating the merits of a thorny constitutional issue. Justice Scalia addresses and rebuts the arguments of every single justice yet the majority is still against him. He throws up his hands in frustration and exclaims, “if the law is as I say, then let John Marshall take my side.” The ghost of Marshall appears before the assembled multitude and declares: “The law is with Scalia.” Yet the majority replies: “Marshall does not decide the law.” Scalia then exclaims: “If the law is as I say, then let Madison take my side.” The ghost of Madison appears in the room and declares: “The law is with Scalia.” The justices still stood firm saying: “Madison does not decide the law.” Finally, in utter exasperation, Scalia says: “If the law is with me let all the Framers say so!” The assembled multitude gray-haired elders appear before the justices and say: “The law is with Scalia.” Yet the justices do not budge and reply: “our Constitution is interpreted only by the nine of us and the Framers have a say in the matter.”
To that the ghosts of the Framers smile and say: “Our children have bested us!”
In Judaism, God and Moses are not originalists. So what’s so sacred about ‘original intent’ to the Scalias of American jurisprudence? If the Jewish God lets his children interpret the Torah for themselves and against His will, then why can’t nine justices think for themselves based on their best constitutional judgment? Why do they need to invoke the red herring of strict constructionism and original intent?
To these Federalist Society types, I say: our Torah has been around a lot longer than your Constitution. 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 ponder why you’re at odds with one of the world’s great legal traditions.
And the next time you read that Tom DeLay, Newt Gingrich or George Bush invoked Judeo-Christian values as a code word for hijacking Jewish tradition for their own narrow political purposes, just remember this post and tell them: “Not so fast, buddy. You can have the “Christian” but you can’t have the “Judeo.”
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