Like most of my friends and colleagues (and most Americans as well), I deplore the Supreme Court’s Dobbs v Jackson decision which denies the right to abortion. It has been likened to the infamous Dred Scott v Sandford case of 1857, in which Chief Justice Roger B. Taney ruled: (1) “a negro of the African race” is “an article of property” with “no rights which a white man is bound to respect”; further, (2) such “property” may never be considered American citizens and (3) have no right even to plead their case in court; also, (4) laws protecting free states from adopting slavery are unconstitutional. Like Dred Scott, Dobbs too will go down in history as a nadir in the annals of American jurisprudence.
What is worse, in our case, is the expectation of more to come, as the Roberts Court (suspiciously looking more and more like the Thomas Court) opens the door to a reversal of Obergefell v Hodges (2015, granting the right to same-sex marriage); Lawrence v Texas (2004, allowing same-sex couples the right to sex in the first place); and even Griswold v Connecticut (1965, permitting contraception).
Much has been said about the Jewish opposition to Dobbs. Little has been said about a Jewish approach to originalism, the conservative judicial philosophy behind it.
Scholars disagree on just what legal originalism is. The term seems to have been popularized by Paul Brest, a Stanford law professor, who saw it as an approach to law that “accords binding authority to the text of the Constitution or the intentions of its adopters.”[i] By now, there are many definitions. Is the actual intent of the Constitution’s “adopters” the issue (and can we even know what that is)? Or is the goal simply to understand the original words in their original context – the sort of thing seminary students do when they trace the ambiguous meaning of a biblical word in one particular verse by seeing how it is used less ambiguously in other verses. In either case, originalism does not just seek out those “original” intentions or meanings; it also prejudices them at the expense of more contemporary understandings and sensibilities.
An example from Dobbs revolves around a stipulation in the 9th amendment: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” But what exactly are those “other” rights? Dobbs assumes a standard arising out of a 1997 ruling (Washington et al v. Glucksberg) which denies the right to a physician-assisted suicide, on the grounds that the “extra” 9th-amendment rights must be “deeply rooted in the Nation’s history and tradition,” and suicide is not so deeply rooted. So too, says Justice Alito, “a right to abortion is not deeply rooted in the Nation’s history and traditions.” If there was no right to abortion way back when, then there must be no right to abortion today.
Originalism’s opposite is a kind of legal evolutionism, generally called “living constitutionalism”: the perspective that likens law to a living organism that changes with time. The constitution is (1) a set of words in (2) a particular context. But the writers of those words also held (3) core values that governed the words they chose. In a different context (our own), we must attend not just to whatever the words meant originally but to the moral values that prompted them. Justice William J. Brennan, Jr., for example, saw the constitution not just as words with a single time-stamped meaning from the past, but as “a sublime oration on the dignity of man, a bold commitment by a people to the ideal of libertarian dignity protected by law.”[ii] He interpreted our formative texts with “dignity” as their underlying and unchanging principle.
Does Judaism have a position in this debate?
Like any legal system, Jewish law too has both conservative originalists and moral evolutionists. The question of legal philosophy cannot, therefore, be deduced from the internal evidence of the legal system alone. But Jewish wisdom is not only textual: it is historical. Perhaps Jewish history touches upon the originalist/evolutionist divide.
Our history’s most damning evidence against originalism is rabbinic Judaism itself. There would be no rabbinic Judaism (and no Jews anymore) if we had applied originalism to the Bible. Absolutely nothing about Jewish law and practice depends solely on the original meaning of the Bible’s words. The Bible accepted slavery; women were chattel, married off by their fathers to men who could divorce them at will; stubborn and rebellious children were to be stoned; “an eye for an eye.” None of that survived the thoroughgoing interpretations that the Rabbis applied to come up with the kind of Judaism that has sustained us ever since.
By the late Middle Ages, however, a trend toward originalism set in. Medieval codes like the 14th-century Tur and the 16th-century Shulchan Arukh were increasingly treated as a new set of “original documents” from which textual confirmation was required. But there were exceptions even there — Moses Isserles (1530-1572), for example, famously performed a marriage for an orphan bride after sundown on Shabbat, because he was afraid that if he waited until after Shabbat was over, the bride’s uncle would renege on the promise of a dowry and the marriage would fall through. His justification? “When there is reason to worry about the dissolution of the potential married couple [and] the embarrassment of an unmarried woman, someone who tends toward leniency will not be remiss.”[iii]
In the 19th and 20th centuries, the issue recurred and gave us the dawn of Jewish denominationalism. Conservative Judaism’s historical approach to halakhah was a modern statement of evolutionism as opposed to medieval originalism. Reform Judaism went farther: stressing the limits of halachic evolution, Reform Jews wrote responsa that sometimes expressly overturned all precedent, given the moral tenor of the times in which new challenges arose. It seemed self-evident, for example, that women should be cantors and rabbis; and that same-sex marriage should be permitted. In retrospect, we can see Reform, Conservative, and Reconstructionist Judaism as insurrections, in their own way, against originalism; even within Orthodoxy, and within the halachic system as Orthodoxy understands it, there are liberal evolutionist interpreters, not just originalists.
Jewish history contains a set of inflexion points where a living constitutional approach allowed Jewish texts to retain their appeal rather than fall prey to originalist protectionism. Yes, “protectionism”: that is the right word. Originalists see themselves as protecting the purity of sacred texts, sometimes at the expense of the people who are held hostage to them.
Fortunately for the Jewish People, most of us are not subject to the originalist choice of text over life. Unfortunately for the American People, an originalist court majority is now fully in charge of our lives, and we are increasingly suffering the consequences.
[i] Lawrence B. Solum, “Originalism Versus Living Constitutionalism: The Conceptual Structure of the Great Debate,” Northwestern University Law Review 113:6 (April, 2019), p. 1252, n. 9.
[iii] Sh’elot Ut’shuvot Harama (Jerusalem: 1990), #125, p. 488-495.