Thursday, April 28, 2005

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face today are so dramatically different, and the world so changed, that we must reinterpret (if not abandon) certain outdated portions of the Constitution.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).

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.


someguy said...

Great post, B-due. I don't think the familiar echoes you hear in those arguments are there by chance. On the contrary, they are proof of the debt all Americans owe to the Jewish people for our freedom, morality, and the rule of law. Thanks for the reminder! :)

Chandira said...

Oh, that made me laugh... :-)

I don't know of any religion that doesn't have the most absurd laws.. Life could be so simple, happy and free.

TRES CEE said...

i have considered this dairy cooking commandment on boiling a kid in his mothers milk and I am not sure exactly what it means concerning cooking except that I am sure it would mean that at the very least a kid should not be killed when a suckling kid, is that correct, and if so, would as a suckling kid be in his mother's milk for sure as it is consumed and he becomes in the milk and then the milk becomes in him, part of the kid, and if so, this could mean if the Messiah was to be a picture of a Lamb that He was not to be killed or sacrificed as a child, Could that be a possible interpretation and has this ever been considered as prophetical concerning the Messiah and his Coming.

TRES CEE said...

on the consitution, I believe options one and two are probably both a proper way to look at the Constitution and I believe if one reads and understands what the Framers of the constitution says about the constitution that it can be understood more completely in that light, in every age there are those who wish to write in a document that which will benefit them, so the urge to profit by changing the interpretation such as in Louisiana, where the Definition of Gambling was changed to allow the passing of Laws permitting River Boat Gambling when Gambling went Nationwide during Edwin Edwards administration there, so that now Gambling is Legal, I am not against it, but the urge to profit, the way is Open to Distort the law's intent, the action is taken in unethical or immoral manner, the law is executed after New Intent is come into being and you have profit Realized and by change in immorality or change of intent of Law, and profit realized legally, how now, geencee

Luke Neuman said...

thanks so much for this post, it was great, and made so much more real now that I just got back from 4 months in Israel... I love the Jewish people and their religion... sometimes though it is taken too far... I give it to them, however that they are doing their best to obey God, which is noble and commendable. Too bad the chosen people just barely missed the point.