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

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J.L. Wall

J.L. Wall is a native Kentuckian in self-imposed exile to the Midwest, where he studies literature and over-analyzes Leonard Cohen lyrics.

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  1. Avatar Mike Schilling
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    says:

    the Written Torah requires the Oral

    I did not study Torah with that woman!Report

  2. Avatar DensityDuck
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    says:

    No wonder the USA has always had such a love affair with Israel!Report

  3. Avatar Lyle
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    In particular I contend that a little unpleasantness that killed 2% of the US population from 1861-1865 amended the constitution in a fundamental fashion. The words meant different things before 1861 and after 1865. (Recall it used to be These United States as in the Gettysburg Address, now it is The United States, changing from a plural to the singular is a very serious change). Some of the changes did get incorporated into the 13th 14th and 15th amendments to the constitution.
    A civil war of the ferocity of the US can not help but change the country in a serious way, look at the changes wrought by the English Civil War a 2 centuries or so before the US civil war.Report

  4. Avatar Tim Kowal
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    Incidentally, when I referred to the Constitution “under glass,” I did not necessarily intend all the connotations of immutability that one might draw from it. I also do not deny that words have a life of their own, and the words of our founding documents cannot be interpreted, indeed cannot even be understood even in an ordinary sense, without a context. The words of our founding documents must be construed in light of the proper context. This is basically why originalists are sometimes accused of being just as much “living constitutionalists” as the living constitutionalists are. The difference, I respond, is that while both groups appeal to a context beyond the four corners of the document, for originalists that context is objective, while for living constitutionalists it is not.Report

    • Avatar J.L. Wall in reply to Tim Kowal
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      I suspected as much about your positions (like I said above, I wasn’t trying to accuse you of being a Constitutional Karaite).

      As for the objectivity/subjectivity of the appropriate context for interpretation/application, I suspect that what I outlined above would prefer the adjective “particular” — which I suspect some might call just another term for subjective, but what can I do? (Then again, I suspect the living constitutionalism you were critiquing would find a touch too much objectivity in it.)Report

  5. Avatar Tom Van Dyke
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    Exc, Mr. Wall. If I may—

    There are very many similarities between rabbinical tradition and American constitutional jurisprudence. I’d love to explore the richness of the analogy, but I’ll cut to the chase per combox limitations:

    The current crisis re the Constitution and its interpretation, and why it’s not the Torah and its rabbinical descendants [Mishnah, Talmud, etc.] is that the concepts of God, justice and mercy—“what is ‘good'”—are unchanged. “What is good” is timeless, and universal.

    By contrast, the contemporary [“living”] Constitutional crisis is that terms like freedom, liberty, rights and duties have been emptied of their original conceptual meaning. Therefore, we are left with only words, hollow shells of the concepts behind them.

    To attempt to derive meaning of and in the Constitution therefore becomes sophistry, semantics: a game.

    Michael Makovi, who happens to be a blogbrother at my homeblog “American Creation,” does a conscientious piece on

    http://michaelmakovi.blogspot.com/2009/05/rabbis-glasner-and-berkovits-on-oral.html

    that I found helpful in catching up.

    The halachist recognizes the will of God as expressed in the Tora; he is wholly committed to the law and the teaching of the Tora. But in the mutuality of the covenant, the responsibility has fallen to him to take upon himself the risk of determining, in the light of the totality of the Tora as teaching and living, the manner in which the will of the other party to the covenant is to be realized in a specific situation. Ultimately, he has to do that in the independence of his own conscience, which is imbued with the Tora.

    This is no different than the [Thomistic? Christian?] natural law tradition, which was embraced fully by the Founding generation. [See Blackstone, Alexander Hamilton, The Farmer Refuted, or James Wilson’s law lectures, attended even by “Old Muttonhead” GWash.]

    But we have abandoned natural law in favor of “preference utilitarianism” or any number of content-free schemes and mechanisms, where freedom and liberty become ends in themselves, and the sole end of law and society.

    Thus, although the argument is strong from the rabbinical tradition per Makovi that

    So Rabbi Glasner holds that certain moral values were taken for granted by the Torah and never expressed as concrete mitzvoth, but that they are nevertheless obligatory.

    and

    Rabbi Berkovits took this a step further, and said that Hazal actually used moral values and principles as an exegetical tool in deciding halakha.

    Those universal moral values and principles—which to the Founders both vitiated liberty but limited it—are quaint anachronisms in the 21st century. When we speak of “liberty” today, and why the Constitution demands this or that “living” interpretation of it, it is a word emptied of all and any meaning it held for the generation that wrote the damn thing.

    “Living” constitutionalism is the real Karaitism, me brother, holding us to letter of the law, to the words of a constitution emptied of all the concepts and meanings behind them.Report

    • Avatar J.L. Wall in reply to Tom Van Dyke
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      says:

      “By contrast, the contemporary [“living”] Constitutional crisis is that terms like freedom, liberty, rights and duties have been emptied of their original conceptual meaning. Therefore, we are left with only words, hollow shells of the concepts behind them.”

      The giant lacuna in my comparison, I realized while writing it, is that: if the written Constitution is more Mishna than Written Torah, then what, in Constitutional matters, is prior to it? I don’t have a good answer to the question (which is why I didn’t ask it, let alone try to answer it, above). While I agree with you that we can’t say it’s the same as that which was prior to it at the time of its writing — and while I’m also not about to pretend that this is a good thing — the tone of my thinking would be slightly less pessimistic.Report

      • Avatar Tom Van Dyke in reply to J.L. Wall
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        says:

        Mr. Wall, I’m combox status, not mainpage. Your fine essay triggered many thoughts, and not a small bit of my previous research into my favorite topic-nexus, the American Founding and the nature of rights.

        “Living” constitutionalism is the real Karaitism, me brother, holding us to letter of the law, to the words of a constitution emptied of all the concepts and meanings behind them.

        I think I’m prepared to defend this argument, JL. Thx for spurring its formulation.

        then what, in Constitutional matters, is prior to it?

        Exactly. I touched on Blackstone, Hamilton, Wilson infra above, and let’s add the D of I, which was declared one of the “organic laws” of the United States in the 1th US Congress. Rights, and “the right to have rights.”

        And I completely get your comparison of rabbinic tradition to constitutional theory and jurisprudence. If I didn’t make myself clear, Judaism begins with the existence of an objective truth as to how man should lead his life. The Founding era [and before] agreed, calling it “natural law.”

        James Wilson, who signed the Declaration, was one of the biggest mouths at the Framing, gave influential lectures on law and was appointed to the Supreme Court:

        “The law of nature and the law of revelation are both Divine: they flow, though in different channels, from the same adorable source. It is indeed preposterous to separate them from each other.”
        James Wilson, Of the Law of Nature

        The scriptures don’t conflict with reason: Rabbi Dr. Eliezer Berkovits meets Founder Justice James Wilson, I make it, JL. You can get there from here, wherever “here” may be.Report

  6. Avatar Burt Likko
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    says:

    I’m nicely charmed by this notion:

    The arguments are the tradition. They are, indeed, the Constitution itself.

    It dovetails into something I raised in a different forum not too long ago — in response to the notion that the Constitution was purportedly written in layman’s language for laymen to understand. It was not; it was written by elites, a great many of whom were lawyers, in language that deliberately glossed over profound differences of opinion so as to enable agreement on particular language.

    If interpreting and applying that language were easy to do, we would not need a robust judiciary of co-equal power with the President and Congress; nor the tradition of English common law as a foundational guide into how that judiciary should function. We do have both, though, and that is all for the good, characterizations of the judges who play critical roles in advancing that debate as “mandarins” notwithstanding.Report

  7. Avatar James K
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    says:

    I freely admit I know nothing about Jewish theology, but it seems to me that the major difference between the Torah and the US Constitution is that the Torah is purportedly a Divine Command from an allegedly omnipotent being, whereas the US Constitution was not intended to be for all time – that’s why it has an amendment process.

    You need an abstruse body of scholarship around the Torah because new situations keep coming up that it doesn’t anticipate. By contrast, if a new situation comes up in US law, you can change the damn thing.

    That’s not to say interpretation has no place in constitutional law, all laws need to be interpreted because written words don’t speak for themselves. But the solution to obsolescence in the US constitution already exists, there is no need to invent another solution.Report

    • Avatar J.L. Wall in reply to James K
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      says:

      But there have been, in 230ish years of the American Constitution, only 27 amendments — and 12 of those came in the first 15 years. (The fact that no amendments were passed between then and 1865 might be evidence in support of Lyle’s point, on the Civil War, above.) And I doubt, unless we were faced with a glaring procedural problem, that any amendment could pass at present or the foreseeable future, barring a drastic shift in the nature of our politics.

      The changes in the nature of American government, and the practical application of the Constitution, meanwhile, have far outpaced the amendments to it. A federal income tax required an amendment (because of specific text in the Constitution and interpretive court precedent); the New Deal required a court ruling — that is, Constitutional interpretation. An income tax was foreseeable in 1787; the New Deal, less so. But its Constitutionality (or lack thereof) was “in” the text of the Constitution in the same way that the rabbinic tradition is “in” the Torah.* (There is a Midrash: God takes Moses to the classroom of Rabbi Akiva, who is lecturing. Moses cannot follow the discussion; it all sounds alien to him; he’s horrified that his descendants have turned to alien learning. He says, “What is this?” Akiva responds, “It is the Torah that God gave to Moses on Sinai.” And Moses is contented.)

      Or, shorter version: I think that the amendment process was already uncommonly effective and that it requires a kind of polity we do not have at present. And sense the tradition of judicial interpretation isn’t wholly new, and dates almost as far back as the Constitution itself…

      *Oh, sure, there are plenty who would disagree with me on this from either flank. But let’s not kid ourselves.Report

  8. Avatar Mike Schilling
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    says:

    There is a Midrash: God takes Moses to the classroom of Rabbi Akiva

    There is an Asimov story that a time machine brings William Shakespeare to a 20th century college Shakespeare course. He fails it.Report

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