I've been listening in the car and while doing dishes this week to recordings of the oral arguments at the Supreme Court over the Affordable Care Act. I took two semesters of constitutional law during college, so I'm one of the people who understands why there is so much talk about the "commerce clause" rather than, say, the justice of the health care system in a broad sense.
So this posting too is not primarily about the justice of the health care system. I have written and spoken about that -- for instance here, in a letter I wrote to President Obama in 2009 and read to the congregation. I don't believe the Torah has a position on whether a single-payer system, or a regime of mandatory coverage minimums coupled with subsidies for the purchase of health insurance, is more right. I do believe that care of the sick is a primary moral responsibility of society, as well as any smaller community. If you're a strict libertarian, you could hold that the while the state or Federal government can't guarantee this, people and groups have a moral responsibility to do so. I've been working for a while on a program that would get at these deeper questions of political philosophy; stay tuned.
In any case, it's been interesting as a student of both the Talmud and the Constitution to listen to the arguments. I revel a bit in the presence of three Jews on the Court (33% of the Supreme Court vs. less than 2% of the U.S. population)! There is something distinctly Jewish about the three, whether it's Justice Breyer's and Justice Ginsberg's public statements about justice and Tikkun Olam, or Justice Kagan's testimony that she likes to eat Chinese food on Christmas Eve.
More than that, I appreciate the Talmudic style of the oral arguments. I love in particular to listen to Justice Breyer. Part of it is his sonorous voice (no apologies for sounding here like a sports fan or a music critic). What's best about Justice Breyer, though, is that he asks questions that truly probe and test the arguments, and he directs them at both sides.
Interpreting the Constitution is parallel in many ways to interpreting the Torah as a source of law. The Torah and the Constitution each have a combination of specific provisions and generally stated principles about justice and rights. It's clear in the Torah that a capital trial requires at least two witnesses -- that's a specific "constitutional" statement, akin to the Constitution's provisions defining a fair trial.
Often in the Talmud, one encounters the Torah's statement that "people are created in God's image" as a general, legal principle. So, for instance, the rule (!) in Leviticus 19 to love your neighbor as yourself is conditioned by the more general statement. If you don't love yourself at the moment, you must nonetheless treat others with respect and concern because they are created in God's image.
There are two related, big differences between the jurisprudence of the Torah and that of the Constitution. The Torah was written once, while the Constitution can be amended. But, according to the Talmud, the Torah is a "living constitution." There is no philosophy of originalism when it comes to Torah law. We say this in the blessing after an aliyah. The Torah is both Natan lanu Torat emet, "a Torah of enduring truth that has been given", and Chayei olam nata b'tochaynu, "ever-living, planted within us."
My own Bar Mitzvah parasha was Shoftim, about the justice system. There it says (Deuteronomy 17:8-9): "If there a matter too difficult for you...then you shall get up and go up to the place that Adonai your God chooses, and come to the levitical kohanim and to the judge that will be in those days, and make an inquiry, and they will tell you how the matter shall be judged." According to the Talmudic interpretation of these words, whoever the judge is "in those days" has the final word on the legal meaning of the Torah -- whether or not the judge is as great as Moshe.
The meaning of this authority, and how much latitude it gives, are of course as much debated among rabbis as is the true meaning of the Constitution among judges.
Some people might listen to the arguments at the Court and see only politics, or arcane words disconnected from justice. There is that. But at their best, the justices are grappling with their understanding of our Constitution, and the words in it that define the structure and system of our "more perfect Union." The justices approach the words, and the commentary on them in books of cases that are a lot like our Talmud and Torah commentaries, with great care. Though the Constitution was not written by God, it has a unique stature. Through the American people in each generation, working in tandem with the leaders and judges who have tried to express its meaning in new words.
