In connection with the Senate confirmation hearings of Justice Amy Comey Barrett, terms like “originalism” and “living constitutionalism” have been discussed extensively. Justice Barrett is known as an “originalist,” whereas Justice Ruth Bader Ginsburg, whom the former has been nominated to replace, was known to espouse the view of a “living Constitution.” On a simple level, originalism describes a judicial philosophy focusing on the original meaning of the text of the Constitution and how the Founding Fathers intended it to be understood when it was written. Originalists argue that new legislation as opposed to new interpretation of the Constitution is the best way to bring about social change and secure minority rights. The judicial philosophy of a living Constitution considers the Constitution to be a living document able to encompass society’s changing, evolving values. Judges who employ this approach can more creatively interpret the Constitution to reflect prevailing values and morals in society and adapt to the changes of today.
In applying the doctrines of originalism and a living constitution to halacha, our Jewish legal system, I have heard some say that orthodox Judaism views halacha with the doctrine of originalism, whereas non-orthodox Judaism views halacha with the doctrine of a living Constitution. In other words, they claim that orthodox Judaism believes that we can’t change halacha and must instead preserve the intent of the halachot at their inception, whereas non-orthodox Judaism believes that halacha is a living, breathing system that is meant to change and evolve with the times when necessary.
I believe that this analogy is flawed because there is a fundamental difference between secular law and Jewish law in this regard. The debate between originalists and proponents of a living Constitution is not whether we believe that the original law that was written is inherently sacred and/or immutable. Both of these groups believe that the law can be changed. The only question is how to change the law. According to originalists, the legislature can change the law by enacting laws that are not unconstitutional or by amending the Constitution. In contrast, those supporting a living Constitution believe that the judiciary can change the law by being more creative in interpreting the Constitution beyond the literal meaning of the text. Originalists probably tend to be more conservative on social issues than proponents of a living Constitution because it probably takes longer for the Constitution to be amended or constitutional laws to be enacted than it would be for the judiciary to rule that an existing law is unconstitutional. Both groups are not making a value judgment about the immutability of the rights set forth in the Constitution. Both groups believe that a collection of really smart, talented individuals assembled and created a very impressive document called the Constitution that, for the most part, other than the amendments, has stood the test of time. However, the debate is only about the process of interpreting the Constitution and not about the substance of the laws themselves.
Halacha is fundamentally different than secular law in this regard. Part of halacha involves chukim, rules that are not intuitively obvious. For example, why must a valid Get require a transfer of the Get from a man to a woman? Additionally, why is a homosexual act forbidden? A tenet of orthodox Judaism is that the Torah itself is Divine, and humans try to understand and interpret its Divine laws. On the one hand, halacha is more flexible than originalism as Rabbinic leaders have creative power to sometimes apply halacha to modern cases by methods that would seem to go beyond the literal meaning of halachic texts of early generations. For example, creating a workaround for a Pruzbul so that Shemitta doesn’t cancel loans, or creating a mechanism whereby we can sell our chametz to a non-Jew only to repurchase it after Pesach seem to go beyond the scope of the letter of the halacha as each of these laws was written in the Torah. On the other hand, the Rabbinic leaders are not amending the Torah; rather, they apply the halacha to their era in a manner that is consistent with a close reading of the letter and spirit of authoritative halachic texts. Their application must be based on their understanding of the original values, rules and legal principles that were transmitted from God to Moshe at Sinai. In other words, Rabbinic leaders are like living constitutionalists in that they can be very creative in their rulings. However, unlike living constitutionalists, their rulings are not necessarily based on the morals and values of the day; rather, their rulings are based on their understanding of the values of the Torah as applied to the facts of the day. As such, even though we may tend to think that an originalist position is more closely aligned with a traditional orthodox position, that does not seem to be the case. Originalist and living Constitution advocates assert that man is the ultimate source of values, whereas halachists assert that God is.