The Polis in Post-Modernity III: Constitutions Written and Oral, Living and Dead

(Note: This post began as a comment to Tim’s post this morning, grew into a full-fledged response, then developed into a sort of continuation of this series.  But elements of all three are mingled. You’re warned)

Several months ago, I was drinking my morning coffee and reading a paper on halakhic legal/ethical categories via a comparative study with Constitutional law.  I finished reading and had the thought, “It’s not like the Constitution is the Talmud, so, really, what’s the big deal? It’s easy!”  I finished my coffee, went to the sink to rinse out my mug and/or pour another cup, and froze with the realization, “The Constitution is exactly like the Talmud!  That’s why everything’s so damn complicated!”*

To lay out the metaphor above in a little more detail: if the (idea of the) Constitution-under-glass is analogous to the (idea of the) Written Torah, then the tradition of Constitutional jurisprudence is analogous to the Oral Torah.  Because I, like Levinas, am proud of my Pharisaical heritage, there was something about the wording of Tim’s conclusion—the implication that the whole of the Constitution is “the document preserved under glass in Washington”—that I found unsettling.  It sounded, that is, like something a Karaite might say.  Not that I mean to accuse Tim of being a Karaite!  Far be it from me—especially when I imagine he would likely beat me in an argument on Constitutional law.  I nodded along to most of his post—my complaints are, rather, about an Originalism that sacralizes the parchment of 1787.

Speaking non-parochially, the problem with the Constitution as merely and only “the document preserved under glass in Washington” is that such a document is, above anything else, a museum exhibit.  It is a frozen Constitution—and therefore (and more worryingly) a frozen tradition.  We need Constitutional law and Constitutional jurisprudence—both liberal and conservative; progressive and Originalist—for the same reason that the Written Torah requires the Oral:

Only the Oral Tora, alive in the conscience of the contemporary teachers and masters, who can fully evaluate the significance of the confrontation between one word of God and another in a given situation, can resolve the conflict with the creative boldness of application of the comprehensive ethos of the Tora to the case.  Thus, the Oral Tora as halacha redeems the Written Tora from the prison of its generality and “humanizes” it.  The written law longs for this, its redemption, by the Oral Tora.  That is why God rejoices when he is defeated by his children.  Such defeat is his victory. [emphasis mine – JLW] (Berkovits 97)

But herein lies the difference—and the significant difference—in the terms of my initial analogy.  Jurisprudence and Constitutional law do not deal with confrontations between “one word of God and another,” but between one word of man and another.  The Supreme Court et al. do not interpret and apply a text immaculately passed down from Sinai, every comma already in its place.  They interpret at text that came from argument, from compromise, that was then written down, that was already attempting to apply certain general, universal Truths (found through Reason, rather than revelation—but when you begin capitalizing such words, where, exactly does one begin and the other end?) to a particular time, place, and situation.  The Constitution of 1787, with its various subsequent amendments, is more akin to the Mishna, the earlier segment of the Talmud, than to Written Torah.

We live, then, not merely after the age of the Prophets, but in the age of the Gemara (the latter segment of the Talmud, a commentary on the Mishna), with all the multifarious voices, the rambling, long-winded discussions, arguments that reach no conclusion, and lack of consensus among even those who agree with one another.  But we live in the age of Gemara, before its redaction and codification, before political history forced “a spiritual calamity of the first magnitude” (Berkovits 101): the writing of the oral, forcing it into a “straitjacket.”  The arguments, in Constitutional law, are still open.  This is a marvelous, terrible, dangerous, glorious freedom.**  The arguments—the battles over the meaning and nature of the tradition itself—are the “continuities of conflict” which MacIntyre identified as the markers of a tradition’s vitality.  I would go further.  The arguments are the tradition.  They are, indeed, the Constitution itself.

And so both sides are wrong: those who, with Chemerinsky, would declare the arguments closed and settled and proceed to write our own, American, Shulcan Aruch, and mistake the Constitutional tradition for God’s word, commentary for text; and those who would avoid the need for the commentary, confusing the Constitutional text for God’s word, and seal the tradition in a state still too-general, and, eventually, too outdated.  But the greatest sin of both is their implied (or perhaps inherent) dismissal of the equivalent to “the classical halachic ‘problem’: That the strict adherence to one law is in conflict with the strict adherence to another obligatory principle.” (Berkovits 91)  Neither allows the flexibility required when, due to a particular situation, the Constitution is found to be in contradiction with itself.

In such a case, how does one decide which principle or law holds, and which gives way?  Do we dare say that it must always be a certain one?  Does that not freeze the Constitution into lifelessness, into something worthy only of a museum exhibit?  And, perhaps most importantly, “[W]here does he find the authoritative basis for his decision? … Where, then will he find the answer to this question—in which book, in which code?  In no book, in no code.  He must make the decision by himself, in his own … conscience.” (Berkovits 91-2)  The answer, says Berkovits, will not be purely subjective—but (and here I substitute “Constitution” for “Halakha”), “just because of the subjective element involved in it, it will be a truly Constitutional solution to a genuinely Constitutional problem.”

And so, even though

the “Founding Vision,” whether it was, whatever it was, however noble it may or may not have been, can never be wholly relevant to the American future,

the Constitution(al tradition), mutatis mutandis in Herakleitian inevitability, can be wholly relevant to that American future.

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*Admittedly, when it comes to the Constitution, we don’t have to deal with anything quite so messy as the transmission of authority cited in Pirkei Avot 1 in conflict with what modern textual criticism tells us about the transmission of authority, so it is, in that respect, a bit easier.

**Oh, how I long for it in Jewish law!  Instead, I’m left in contradiction, perhaps sometimes even antagonistically, to it, with no clear method of resolution.  The only authority I can cite, at times, is my own—but I, in the face of the Law (and here even if my knowledge of it were as it should be, even were I a master of Talmud), have no authority.

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You have no doubt noticed references to “Berkovits #”.  These refer to the essay, “Conversion and the Decline of the Oral Law,” by Rabbi Eliezer Berkovits, as printed in Eliezer Berkovits, Essential Essays on Judaism, Shalem Press, 2002.

Emmanuel Levinas’ defense of the Pharisee and Pharasaical/Rabbinic Judaism can be found throughout Difficult Freedom (particularly whenever he criticizes Simone Weil), but most explicitly in the short essay, “The Pharisee is Absent.”