The Torah, The Constitution, and the 4th of July

The Constitution must never be allowed to become an idol, just as the Torah must never be allowed to become an idol.
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In his speech that became known as "The Spirit of Liberty," delivered in New York City's Central Library, in the midst of World War II, the preeminent judge and judicial philosopher, Learned Hand, asked, "What do we mean when we say that first of all we seek liberty? I often wonder whether we do not rest our hopes too much upon constitutions, upon laws and upon courts. These are false hopes; believe me these are false hopes. Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can even do much to help it." (As quoted in Time magazine, July 4, 2011)

There is a great deal of talk these days about the Constitution, about liberty and American values. In a cover story this week in Time, editor Richard Stengel asks if the Constitution still matters. Of course it does, but how we interpret it, how we try to understand what the framers meant, and how we apply it today is presenting us greater challenges than perhaps it did in the past. Stengel writes, "As a counterpoint to the rise of constitutional originalists (those who believe the document should be interpreted only as the drafters understood it), liberal scholars analyze the text just as closely to find the elasticity they believe the framers intended. Everywhere, there seems to be a debate about the scope and meaning and message of the Constitution. This is a healthy thing. Even the framers would agree on that." (ibid.) On this July 4th weekend, as we celebrate our country and all of the amazing contributions it has added to the world, including the ideals and values of the Declaration and the Constitution, I wanted to share some thoughts about how this struggle to understand the meaning of an original document, formulated in a different time, in a different era, by very different people, is a very Jewish idea, one that we in fact gave to the world thousands of years before 1776.

We don't have a constitution, but we do have a Torah. And, like the debate we are having today in regard to understanding what the framers meant when they crafted the Constitution, Jews have been arguing about the original intent of the Torah pretty much since...well, since the Torah itself! There are laws, statutes and directives in the Torah that have been subject to debate, discussion and overruling, starting with the daughters of Tzelofchad, which we will read about in a few weeks, who question the Torah's earlier ruling about inheritance only being for sons, and Moses inquires of God and the rule gets altered. There are verses in the Torah that were explained away by the rabbis of the Talmud as either not applying any longer, never applying or they get made so complex to enact that they eventually fall away. What the Jewish tradition has that almost no other religious tradition shares, and which a great deal of modern jurisprudence is based on, is the Talmud and all the subsequent later codes, all of which work to explain the meaning of the original document, the Torah, and what it's framer (or framers depending on your view) meant. The Torah condones the death penalty while the Talmud pretty much outlaws it. The Torah tells us to take our malcontent children to the gates of the city and if they can't be reformed by the elders, to stone them to death. The Talmud tells us that never happened and never should happen. Sorry!

And, in the reverse, the Torah is pretty clear about what keeping kosher should look like, and it is pretty simple, while the rabbis of the Talmud and later codes expanded the laws and made them quite complex. We have a long history of interpreting our Torah, redefining its meaning, and using very advanced and creative hermeneutical tools to either alter, or in some cases, downright change, what the original meaning seems to have been. We have the principle of PARDES, which is a rabbinic literary invention, whereby each word of the Torah has four levels of interpretation: the literal meaning, peshat, a more subtle or hinting reading, remez, a creative commentary, drash, and a totally hidden or mysterious meaning, sod. Through this technique, and many others, commentators, most famously Rashi, 11th century in France, have sometimes completely changed the text from what it literally says. Our tradition is incredibly fluid and flexible and always has been.

Today, both in American life and in our Jewish life, we are facing challenges from those that want to read both of our foundational texts, the Constitution and the Torah, in a literalist manner. I will leave the legal aspects of the Constitution and how to understand it to the lawyers and experts, but from what I have read and studied, the framers seemed to want a document that would grow and develop in meaning based on the growth and innovation of the new country they were founding. As Stengel writes in his Time article, "There have been few conflicts in American history greater than the internal debates the framers had about the Constitution. For better or for worse -- and I would argue that it is for better -- the Constitution allows and even encourages deep arguments about the most basic democratic issues." The Torah, I would argue, has a similar make-up, namely that we have been arguing about, discussing, and interpreting the meaning of the text for thousands of years. And, we know that the times were different for the framers of the Constitution as they were for the authors of the Torah. Cultures were different, practices were different, perhaps we might even say that morals were different.

The framers of the Constitution, while giving us freedom of religion and speech, also thought blacks were 3/5's of a human and slavery was okay. The Torah also thinks that slavery is okay, even as it seeks to give rights to slaves that never existed. And, in interpreting text for today, we are called upon to use our own minds, hearts and experiences to understand and apply meaning. Just as the Constitution didn't know from healthcare, military drones, the internet or globalized commerce, and so lawyers and judges must figure out how to legislate on these matters based on what they think the intent of the framers was, along with later precedent and case law, so too the Torah didn't know from many of the cultural and religious issues facing us today in modern American life: from end of life decisions that involve modern medicine to using technology to bring Shabbat services to homebound seniors. And, because it is so timely with New York's landmark marriage equality law passed just last week, I believe that the Torah verse from Leviticus that has been used for generations to deny gays and lesbians their equal rights in our tradition, must be finally read away with the same Talmudic logic and thinking that was used to read away killing our wayward children. We have changed, evolved, moved as a society and culture, even if some don't agree. Remember, plenty of people thought slavery was still okay, and the Civil War didn't finish the job when it comes to racial discrimination. As Judge Hand told us, we must sometimes trust our hearts and not our texts.

However, another timely issue that fascinates me, and directly relates to this discussion is that of circumcision. While this merits an entire sermon, I want to end with this thought: Why is it that this ritual, which appears in Genesis, is really, for the most part, one of the only so-called "primitive" rituals from the time of the Bible that we still follow and practice without any real challenge or dispute. Sure there are fringe groups of Jews that have always been against brit milah, but 99% of Jews, religious and secular, follow this ancient ritual without question. Sure, many moms have trepidation, but they still do it. We have never stopped doing it and today, in the face of ridiculous legal challenges, which have thankfully been abandoned in Santa Monica but continue in San Francisco, Jews of all stripes, along with Muslims and religious freedom advocates, are fighting for our right to continue this ancient practice, even as we don't do most of the ancient Biblical practices any longer. Why is that? Fascinating question.

And so, as we celebrate this 4th of July, let us be grateful that we live in one of the freest countries ever to exist, yet we are not perfect. The Constitution must never be allowed to become an idol, just as the Torah must never be allowed to become an idol. One midrash teaches that Moses shattered the first tablets as a reminder of that notion. We must always do battle between fear and liberty, between power and freedom. That is the great gift, and great challenge, of being human. Thomas Jefferson said it best, when he wrote, "All, too, will bear in mind this sacred principle, that though the will of the majority is in all cases to prevail, that will, to be rightful, must be reasonable; that the minority possess their equal rights, which equal laws must protect, and to violate which would be oppression." That is our great challenge, as Americans and as Jews. May we ponder deeply on this, our nation's birthday. Shabbat shalom and God bless America.

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