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August 25, 2013 / conservadox

Dvar Torah- Nitzavim

Moses says the Torah “is not in the Heavens” (Deut. 30:12).  Tigay notes that in the Talmud, this language is interpreted to mean “that the authority for interpreting the Torah is not in God’s hands… This is a halakhic counterpart of the idea that the intent of the original framers of the Constitution is not determinative of its interpretation.”

Tigay’s analogy strikes me as a pretty rough one.  There really isn’t any original meaning beyond the text of the Torah, and the rabbis don’t claim to be rejecting this meaning (leaving aside an odd folktale or two).   By contrast, the Constitution at least has some historical record, even if it doesn’t answer most of today’s questions.  It can certainly be said, for example, that the drafters of the Constitution did not mean to mandate legal abortion or gay marriage.

Moreover, Judaism (especially Orthodoxy) has become a much more rigid system than Constitutional law.   The Supreme Court feels free to overrule precedent if it makes no sense or the reasons for the precedent no longer apply; by contrast, Orthodoxy (and even Conservative Judaism in some cases) tends to treat precedent as sacrosanct even if the reasons for a rule of law no longer apply.   For example, the original reason we couldn’t mix poultry and dairy is because people might confuse chicken with beef or lamb- not very likely today!

Jewish law is very different from both American judicial conservatism and American judicial liberalism.  Judicial conservatism often focuses on the original intent, understanding and/or text of the rule, and relies on these ideas to justify overruling precedent.  Judicial liberalism tends to rely purely on policy, also giving precedent short shrift.


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