There's a difference in the United States between what is Constitutional and what is constitutional, that is, what is written down in the founding document versus the settled norms of our society that *constitute* who we are. The same can be said for Judaism with respect to the Torah - we need to look beyond the written word to discern the true values our tradition stands for.
Upholding the Spirit of Freedom
In case you haven’t heard, there’s a new Congress in town. The 116th Congress was sworn in last week, consisting, as it has for the past sixty years, of 100 senators and 435 House members as well as 6 non-voting delegates.
But imagine the following alternative history. It’s December 2018, with a lame duck Republican Congress searching for a way to keep power. Alaska Congressman Don Young takes a fresh look at Article IV, Section 3 of the United States Constitution, recalling that Congress has the power to create new states by subdividing existing ones. Congressman Young calls up Mike Dunleavy, governor of Alaska, and by the end of the week, 100 neighborhoods of 100 Republicans each are sketched out on a big map. By the time January 3, 2019 rolls around, Congress has created 100 new states from within the borders of the erstwhile “Alaska” and is prepared to seat 100 new Republican congressmen and 200 new Republican senators. And just like that, you have a never-ending Republican majority in Congress.
Or take another hypothetical scenario, perhaps slightly less fanciful. Assuming that the Supreme Court is planning to take up some key conservative issues in the coming session, the liberal-leaning justices are looking for a way to exert some control. Noting that, according to Title 28 of the United States Legal Code, six justices are required to make a quorum, the four liberals hatch a plan. Without resigning, they agree to just stay home for the next two years. By never coming to work, they effectively prevent the Supreme Court from hearing any cases whatsoever. And just like that, liberal judicial precedents are preserved indefinitely.
According to professor of Constitutional law Richard Primus both of these hypothetical acts are wrong, going against the spirit of American law. Congress can’t just invent 100 new states, and the Supreme Court can’t just decide to stop working. However, both of these schemes are technically “legal,” falling within the proscribed bounds of the United States Constitution. Primus affirms that neither of these plans is precisely “un-Constitutional”; nevertheless, he argues that both are—as he terms it—“anti-constitutional.”
Blogging for the Harvard Law Review, Professor Primus explains that an action can be technically permitted by the wording of the Constitution but still violate the settled norms of American society and can “[do] so in a way that threatens the continued operation of the system more generally.” And in the University of Chicago Law Review, he writes, “[R]ules not appearing in the text [of the Constitution] are nevertheless constitutional because they are important to the structure of government or because they reflect fundamental American values.” In other words, the written Constitution (with a capital C) isn’t the only thing that determines what is constitutional (with a lower-case c).
Laws in the United States develop and change over time, ideally in service of the bedrock concepts of freedom and democracy that America stands for. These essential principles constitute America in a way that the Constitution never can, and adherence to these principles is the highest goal of our legal and judicial systems. To uphold American law requires not slavish adherence to the printed word but rather sustained development of the norms that have governed our country for centuries, advancing, ever slowly, toward a society of liberty and justice for all.
So too with Judaism. In our “Constitution” as well, the Torah, one can find a textual justification for just about anything. But the larger values and commitments of Jewish tradition outweigh any particular piece of the written text. There are any number of reasons why a particular law or idea might be included in the Torah. So a truly faithful Jewish interpretation requires taking into account the “bigger picture” when we encounter a text that puzzles or even offends us.
This week’s Torah portion contains a perfect example. Following the tenth plague, the Hebrews prepare to leave Egypt, where they had lived for four centuries before becoming enslaved. On their way out, Moses pauses to instruct the Hebrews on their eternal commemoration of this day in the holiday we call Passover. The basics of the holiday are laid out, and the rationale is clear: “Remember this day, on which you came out of Egypt, the house of slavery” (Ex. 13:3). We are never to forget this deliverance: “And it shall be for a sign upon your hand and for frontlets between your eyes, for with a mighty hand the Eternal brought us out of Egypt” (Ex. 13:16).
The text goes on to specify who, exactly, is supposed to observe this festival of Passover. The Hebrews, certainly, and their descendants through every generation. Foreigners, on the other hand, should not celebrate Passover, nor bound or hired laborers, while sojourners who have made their home among the “entire community of Israel” may join in the Passover feast. And then the troubling part: “Any slave who has been purchased with money” may, once circumcised, celebrate the holiday of freedom (Ex. 12:43-49).
That’s right; according to this passage, the slave that one purchased with money is invited to participate in the Passover seder. Does this mean that Judaism allows for slavery? Sadly, for much of Jewish history, the answer has been yes. This explains one of the lessons that Maimonides teaches in the 12th century about this week’s parashah. He writes, “A father should instruct his son according to the child’s understanding. For example, he should say to one small or foolish: ‘My son, all of us were slaves in Egypt, like this slave (or maidservant); and on this night God redeemed and liberated us and brought us to freedom’” (Misheh Torah, Hilchot Chametz Umatzah 7:2). Maimonides points out the slaves in the room, making sure the child understands “we’re not like them.” Just imagine these medieval seders, in contexts where slavery was routine, and Jews were grateful that that they were not the slaves.
Examples like these demonstrate that Judaism has coexisted with and even condoned slavery. But just like slavery in the American Constitution, this practice runs against the main values of our tradition. Yes, we have discrete texts that sanction slavery. That’s why in 1861, Rabbi Morris Raphall of New York City insisted that the Bible permitted slavery. But Rabbi David Einhorn of Baltimore countered Raphall with equal force. He argued that slavery was like polygamy, blood-vengeance, and the marriage of war prisoners: the Bible “merely tolerated the institution in view of … deeply-rooted social conditions; … [however, it] never approved of [it] or considered it pleasing in the sight of God.” Rabbi Einhorn asserted that a few scraps of textual evidence can’t constitute a tradition, and they pale in comparison to the myriad Jewish values that require us to treat all humans with dignity, to support the poor and uphold the needy, and above all else to champion the cause of freedom.
The case of slavery is just one example of the battle between textual literalism and values-based interpretation. The predominant view in Judaism is that slavery is wrong – and that’s precisely why we shouldn’t enslave ourselves even to the text of the Torah. True Jewish values require a broader approach that accounts for morality and justice, not just devotion to the written word. The same applies to American law and, I would suggest, structures of power and authority in every aspect of our lives. Our task is to use our best tools of judgment and interpretation to determine what’s right in order to apply what Rabbi Einhorn called “the spirit of the law of God.”
As modern Jews, we hold sacred two national projects: the pursuit of the American ideal and the Jewish vision of a perfected world. Each has its foundational texts, and each is built upon the premise that every generation refines the previous one’s understanding of that text, filling in, age by age, tradition’s moral gaps. The 20th-century Jewish philosopher Joseph Soloveitchik wrote, “Just as the Almighty constantly refined and improved the realm of existence during the six days of creation, so must [we] complete that creation and transform the domain of chaos and void into a perfect and beautiful reality.” This is our holy task; may we embrace it with ingenuity, with integrity, and with truth.
 Primus discussed these hypothetical situations on the podcast “First Mondays” on December 17, 2018. Available online: http://www.firstmondays.fm/episodes/2018/12/17/ot2018-12-inconceivable.
 “Rulebooks, Playgrounds, and Endgames: A Constitutional Analysis of the Calabresi-Hirji Judgeship Proposal.” Harvard Law Review Blog, Nov. 24, 2017. Available online: https://blog.harvardlawreview.org/rulebooks-playgrounds-and-endgames-a-constitutional-analysis-of-the-calabresi-hirji-judgeship-proposal/.
 “Unbundling Constitutionality,” U. Chi. L. Rev. 80, no. 3 (2013): 1079-153, p. 1082. Available online: https://repository.law.umich.edu/articles/671/. Emphasis added.
 Morris Raphall, The Bible View of Slavery (New York City, 1861) as accessed online at https://www.jewish-history.com/civilwar/raphall.html.
 David Einhorn, Response to The Biblical View of Slavery, translated from the German by his daughter, Johanna Einhorn Kohler in Sinai, Vol. 6, p. 2-22, as accessed online at http://www.jewish-history.com/civilwar/einhorn.html.
 Halakhic Man, trans. by Lawrence Kaplan. (Philadelphia: Jewish Publication Society of America, 1983), pp. 105-106.
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