The Scandal of Scalia and the Scandal of Halakhah

The triumph of the late Justice Antonin Scalia emerged when he formulated a systematic analysis of how the Supreme Court should read the Constitution of the United States.  At least since 1803, the Supreme Court has had the power to overturn government actions if the Court finds that the legislature or the executive have gone beyond what the Constitution permits.  The court has generally exercised this power without articulating a clear theory of how it interprets the Constitution.  Justice Scalia proposed a theory for reading the Constitution, called “originalism,” “textualism,” and “deference.”

According to Justice Scalia, the court should root its readings in the words of the Constitution, and interpret those words to mean what the writers and ratifiers of the Constitution meant in the late 18th century.  If standards have changed in the past two centuries, the legislature has mechanisms for amending the Constitution, but the Court should not change their reading of the Constitution to get results that match modern sensibilities.  The Constitution is not a “living” document, changing with the times, but an “enduring” document, or even a “dead” one, that means what it has always meant.

Apart from defending the Constitution with historical precision, Justice Scalia maintained, the Court should generally defer to elected branches of government.

The scandal of Justice Scalia emerged when he tried to apply these clear principles. Sometimes the original ratifiers of the Constitution disagreed about what the words meant.  Sometimes trying to figure out what the 18th century lawyers would have thought of modern questions seems futile.  Justice Samuel Alito burlesqued one of Justice Scalia’s originalist questions with this observation: “I think what Justice Scalia wants to know is what James Madison thought about video games. Did he enjoy them?”

Sometimes an originalist or textualist interpretation could support either side of a dispute. Even worse, sometimes Justice Scalia himself abandoned his systematic reading entirely, apparently to get the result he wanted.  Justice Scalia found “individual gun rights” in the second amendment, but historians think the writers did not intend that at all.  “Bush vs. Gore” seemed entirely free of principles.

The triumph of halakhah emerges as Jews link to each other across the centuries and around the world with scrupulous fidelity to authentic practice.  We succeed in producing a recognizable Jewish culture with elegant variations, but shared core values. Sometimes we succeed in producing individuals and even societies that exemplify the virtues of Torah.

The scandal of halakhah emerges when we try to articulate the principles by which we determine these authentic practices.  Do we follow the rules of the Talmudic rabbis as well as our greatest scholars can determine those rules? Or do we pay more attention to the early rabbis, the Rishonim? Or do we follow the most recent authorities? How much weight do we give to custom? Can custom override black-letter law? How much weight do we give to the mystical sources? Should a decisor bow to the will of other great rabbis, or follow his own logic?  Does a scholar have to defer to one of the great rabbis? Does a scholar have to explain how he arrived at his decision?  None of these questions has a definitive answer.

Especially now, we know the sometimes ugly political process by which the United States chooses Supreme Court Justices.  We do not have a transparent process by which the observant community chooses great rabbis.  Ask any sampling of observant Jews which rabbis should have decisive voice in determining halakhah, and you will get conflicting answers.

Justice Scalia’s revolutionary analysis has not succeeded in convincing his fellow Justices.  The court continues to muddle through interpreting the Constitution without a convincing explanation for how to do this interpretation.  The goal of the Constitution, building a democratic and free nation, has largely succeeded.  Even though we do not understand how the court reads the constitution, the Supreme Court has sometimes – but not always–succeeded in keeping the American government on a path towards democracy and freedom.

In the same way, we Jews disagree about almost any formulation of how the process of halakhah works.  We have not succeeded in explaining by what process we interpret the laws of the Torah. Perhaps, though, as we muddle through applying halakhah, we intermittently reach the goal of Torah, enabling Jews to live as “a holy nation and a kingdom of priests” (Exodus 19:6), compelling the admiration of even non-Jews.  If and when we succeed, then Torah “is our wisdom and understanding in the eyes of the nations, which will hear all these statutes and say, ‘Surely this great nation is a wise and understanding people’” (Deut. 4:6).

About the Author
Louis Finkelman teaches Literature and Writing at Lawrence Technological University in Southfield, Michigan. He serves as half of the rabbinic team at Congregation Or Chadash in Oak Park, Michigan.
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