Interpreting the Constitution (Nu?)

It seems that we Americans will always struggle between the opposing poles Constitutional interpretation: strict and loose. Depending on who you ask, you can get a variety of opinions on the framers of that revered document; either:

1. They were so forward-thinking that they were able to create a document which could bend and stretch and adjust to meet the country's changing needs as it grew into the entity it is today.

2. They were so forward-thinking that they were able to codify laws and regulations that were needed in their day and in are still primary in ours, without alteration; their ideals and goals are still relevant today.

3. They were good men with good intentions, and two hundred years ago the Constitution made a lot of sense, but the challenges we face today are so dramatically different, and the world so changed, that we must reinterpret (if not abandon) certain outdated portions of the Constitution.

4. They were so backward that they created a system of laws that were not even relevant in their day, much less ours, and really the government should just get the hell out of my life and leave me alone (except for its job of protecting the country from enemies).

Whew.

The assumption following the first opinion is that we must constantly look to the Constitution to see how it should be interpreted to maintain its relevance. Freedom of speech is great, after all, but you can't yell "fire" in a crowded theater. For example, the second amendment's guarantee of a right to bear arms was relevant for a country which was fighting for its freedom against a colonial power, but does not mean that individuals in a time of peace should be able to wear concealed weapons. This is a right which must be reinterpreted in light of our current situation, allowing certain citizens to possess certain types of weapons in certain situations with certain permits.

The second opinion leads to what we tend to call a "strict" interpretation of the Constitution, in which rights and responsibilities set down in the Constitution are followed to the letter of the law. For example, the second amendment means you, as a citizen, have the right to buy, own, and carry any weapons you want. And you can't be burning no flags, you hear?

Those who believe the third opinion might say to hell with you, Mr. Heston: no guns for anyone! Ever! Those deer are our brothers!

And that fourth opinion? Libertarians (nuff said).

But you know this, right? After all, you're reading blogs, and you probably have a blog yourself, so we assume you have just enough education to be dangerous (like me, skewering the Constitution in full view of the entire world). So why am I bothering with this exegesis? Because I had a stunning revelation the other day about Americans and our battle with the Constitution. Ready for it?

Written Law and Oral Law

As a Jewish American, I am astounded at the similarity between the thousands-of-years-old discussions around the Talmud, and the hundreds-of-years-old discussions around the Constitution. The Talmud is, very briefly (and my wife could do a much better job with this, but it's my blog, so you're stuck with me), the oral law of the Jewish people. It's how Jews, represented by their rabbis, interpret the Torah (some of you may know this as the Old Testament). For thousands of years our tradition has poked and prodded at the word of God, trying to figure out exactly what the Torah means and how we're supposed to act in our role as The Chosen People (cue orchestral music in a minor key). There's a story:

Moses is at the top of Mt. Sinai, and God is dictating the entire Torah to him. God has just gotten to the part where he tells Moses, "Thou shalt not boil a kid in its mother's milk."

"God," Moses interrupts. "Do You mean we shouldn't cook meat with milk?"

God repeats: "Thou shalt not boil a kid in its mother's milk." Moses is a little unsure.

"Oh, I think I've got it," he says, "You mean we shouldn't eat meat products with dairy products?"

God repeats: "Thou shalt not boil a kid in its mother's milk."

Moses tries again: "So, we should have separate dishes for milk and meat meals, and then another two sets for Passover?"

God repeats: "Thou shalt not boil a kid in its mother's milk."

Moses, pretty sure now: "Got it -- we should have two separate dishwashers so the meat and dairy dishes never get even close to each other, and we shouldn't eat chicken with dairy either because chicken sort of looks like beef. And we should wait two hours after a dariy meal before eating meat, but wait eight hours after eating brisket before having a nice piece of cheesecake." Moses pauses, waiting for confirmation from God, and then hears God's voice coming from above:

"Fine, do it your way."

We Jews have a lot of experience in reading into things, and not only trying to figure out what some guys said two hundred years ago but even what God thinks!

So now when I listen to the Supremes talking about which way to swing on a particular judgment, or folks on talk radio debating whether the Federal government has the right to levy taxes, I admit to you that I chuckle a little. It sounds so very familiar, and I think that's a good thing. Debating the meaning of laws, making sure we think we know what we're doing, is a great way to stay relevant (or, should you prefer, "keep it real") and stay on track. B'hatz'lachah, America -- good luck in your continuing adventures.