Thursday, February 18, 2016

Justice Scalia: Orthodox or Karaite?

Harry Maryles at Emes ve-Emunah recently published "Why Orthodox Jews Tend to be Politically Conservative".

Rabbi Maryles wrote: Conservatives are strict constructionists or ‘Originalists’ (as Scalia called them). They see the constitution to be followed as the framers originally intended. ... It is this mindset that Orthodox Jews see when they evaluate who they support for the three branches of government.

I agree that Orthodox Jews tend to like Justice Scalia's conclusions (see this statement by the OU and RCA), but I would distinguish between his philosophy and its results. Its results appeal to a conservative who feels at home with the values of the late 18th century, but I believe that Justice Scalia's Originalist method is not at home in traditional Jewish jurisprudence.

As summed up in the National Post, this species of Originalism promotes "the notion that the U.S. Constitution should be interpreted by the original meaning of the words set down by George Washington, Thomas Jefferson, James Madison and the other founding fathers. He believed the framers’ intentions on social-legal issues two centuries into the future are unknowable and immaterial." Since we can't know their intent, we must simply be true to their words.

There is a word for Justice Scalia's approach, within Jewish thought; it's called Karaism - a doctrine of fealty to text above all - a movement branded as heresy more than a millennium ago.

Mainstream Jewish tradition certainly is Originalist, in that we seek to satisfy that which we believe G-d had in mind in creating the Torah. However, we  believe that the Divine intent is knowable and material. We cannot read G-d's mind, but G-d did convey a "spirit of the law" to go along with its mechanics.

So it is that we are given such open-ended jurisprudential imperatives as lifnim mishurat hadin [an obligation to transcend the letter of the law], kedoshim tihyu [an obligation to pursue sacred conduct], Shabbaton [an obligation to create a "Shabbat atmosphere" on Shabbat], and v'shamru et mishmarti [an obligation to establish prohibitions to prevent accidental violation of biblical law]. We are taught to live up to the Divine expectation that we will properly derive and apply these values from the Torah's own text, understand their relevance today, and translate them into law.

To my mind, it is an acceptably small oversimplification to say that the Jewish legal tradition is Creatively Originalist. [An example of an area requiring more careful explanation: the limitations of דרשינן טעמא דקרא.] We are loyal to the message of G-d, and some of our greatest intellects harness their formidable talents to interpret its eternal message and apply it to changing circumstances.

May we ever retain a Scalia-like reverence for the original text, but may we honour that text by applying it anew each day.


  1. Look into this further. I did some reading that suggests Scalia also had a major place in his outlook for the use of precedent to arrive at a result where the original intent was murky. You can't group him automatically with all the legal scholars in his "camp." They also have had other differences among themselves. Moreover, Scalia was not a Protestant but a Catholic, which is also germane to this discussion.

  2. Among the salient differences between the Torah and (lehavdil) the Constitution is that the latter gives fairly broad latitude for amendments (as it should: unlike the Torah, it was the product of timebound human minds). Part of Scalia's issue - and that of many other like-minded conservatives - is the fundamental dishonesty involved in "interpreting" into the Constitution rights and practices that never were conceived of by its framers, rather than going to the trouble of amending it.

  3. More detail on Scalia's legal outloo

  4. Correction to comment above:

    More detail on Scalia's legal outlook:

  5. Thanks for all of your comments; the issue definitely does require more examination, as it relates to Justice Scalia's personal position and to the school of originalism as a whole.