Sermon: Jewish Originalism or Living Judaism

Written by Rabbi Josh Levy — 7 May 2022

As a student and teacher of Jewish law – or, more accurately, of our relationship as Progressive Jews with the halachic process and its outcomes – the leak this week of the draft ruling of the American Supreme Court on abortion carries for me a particular – if maybe slightly niche – interest.

This morning I don’t want to speak about abortion itself. I am going to assume you know where I am on the issue, or at least can work it out. What I want to focus on is the legal argument that underlies it and parallels with our own legal tradition. Because, behind this debate, and made explicit in Justice Alito’s draft ruling, is a question of relationship with text.

The overturning of Roe vs Wade is not only a victory for the evangelical Christian Right, but also for a particular way of reading the American Constitution – for what is known as Originalism.
Originalism, as Alito himself has explained, “is the idea that the Constitution has a fixed meaning; it doesn’t change”. It means, and this is the crucial bit, “It means what people would have understood it to mean at the time it was written”. That is, the text must be, indeed can only, be read through the lens of its authors or its original interpreters. That which they did not know, or experience, or believe, is not relevant to how the text is now understood; the changing context is irrelevant to how we must understand that document. As one commentator put it, it is, in effect, a ruling ‘to repeal the 20th Century’.

In the context of the Abortion ruling, originalism states that only those rights explicitly protected at the time of its crafting are protected by the constitution today. That which the writers did not explicitly reference cannot be understood to be protected, nor can they be extrapolated from other ideas in the text.
This particularly affects those rights concerned with bodily autonomy, sexuality and marriage. As Alito writes, “The constitution makes no reference to abortion and no such right is implicitly protected by any constitutional provision”. As has been pointed out by a number of commentators, the draft ruling could, theoretically, allow states similarly to argue that same-sex, or even, inter-racial marriage, are not constitutionally protected, because they are not specifically protected and should be left to the discretion of the states.

The parallels between this kind of argument and our relationship with the Jewish legal tradition will probably not be lost on you. Just like America, Judaism has its originalists. Indeed, if we were searching for a word to describe the now dominant way of reading in many parts of the Jewish world, ‘originalism’ would be a good choice.

Jewish ‘originalism’ is slightly different in as much as it does not go back to the original sacred text. Judaism, while built on the foundations of bible, is formed by the rabbis, who were often radical in their subversion of the biblical text. What becomes ‘untouchable’ in Jewish originalism is their work – the earliest layer of interpretation itself, the outcomes of that early halachic exercise. Jewish originalism states, to adapt Alito’s explanation, “Torah has a fixed meaning; it doesn’t change. It means, it can only mean, what the early rabbis understood it to mean at the time in which they developed Jewish law”.
The originalist claim in Judaism is made explicit in a prominent rabbinic tradition that their own interpretations were themselves given by God to Moses on Mount Sinai. God says that Torah means what the rabbis say it means. This is reinforced by the rabbinic doctrine of yeridat hadorot – the decline of the generations – which states that all subsequent generations are of lesser intellectual and spiritual ability, thereby entrenching the earlier interpretations as authoritative.

In some ways, Jewish originalism is an even more powerful force than that in America, because of the absence of a legislature. Were it not for the skewed way in which the American system of government has evolved, which while designed – in the words of Alexis de Tocqueville – to prevent a Tyranny of the Majority, has now come to entrench a Tyranny of the Minority in which small red states have disproportionate power – were it not for this, it would be open to the national government to pass legislation, indeed even to amend the constitution itself.
By contrast, our tradition has no elected government, no legislature, no possibility of using legislation to adapt to changing context. Theoretically there are measures that are open within the halachic method which would allow further radical change, for example what is known as a takkanah. The most famous example is that of Rabbeinu Gershom in 1000CE which effectively ended polygamy in Ashkenazi communities. But even where a takkanah is issued – which is rare in modern times – their reach is limited, as is their authority. As an example, the ongoing issue within Orthodoxy of agunah – women whose husbands refuse them a religious divorce – could theoretically be resolved in a very straightforward way by takkanah, but cannot be for lack of agreement about who could actually do so, and what authority it would have. So, instead, agunah can only be resolved by harnessing the compulsion of a secular court, for the absence of a legislative solution.

Just as originalism is strong and growing in strength in American politics, so too it is in Judaism. Originalism is winning. Ultra-orthodox organisations, such as Chabad, are growing in influence and power. Within Orthodoxy there has been a marked shift not only to the right, but to the page, and especially to narrow reading of codified text.
Lived practice, which often allowed for diversity and moderation, has become subservient to strict reading of the text. As the Orthodox thinker Hyam Soloveitchik wrote in his extraordinarily important essay, “Rupture and Reconstruction: the Transformation of Contemporary Orthodoxy”: “If I were asked to characterize in a phrase the change that religious Jewry has undergone in the past generation, I would say that it was the new and controlling role that texts now play in contemporary religious life.” Soloveitchik bemoans the loss of lived, evolving, Jewish tradition; the shift of authority to texts and their enshrinement as the sole source of authenticity – a parallel to the originalism of the American constitution.

So, what do we do with this Jewish originalism.
In response, it is important to remind ourselves that there is another way.
In opposition to American legal originalism stands the idea of a ‘living constitution’ – the view that the text holds a dynamic meaning; that it can and does evolve and respond to its changing context. Practice evolves without a need for formal addition or amendment through an ongoing process of reading and interpretation – one which takes account of modern needs, and does not require us to be handcuffed to early understanding.
Central to this are core principles – including, for example, the ideals of liberty and equality referred to in the 14th amendment – rather than the specifics of how they are applied. The constitution is understood not to be limited to its moment of writing but to provide these broader protections as understood in our context, not the context of the author.

Just as there is this idea of a living constitution so there is an ideal of a living Judaism; one which continues the exercise of evolution, of reading and interpretation in dialogue with each other, our context and the page. Not a rejection nor a rewriting of the original texts, but a belief that it continues to be capable of adaptation, evolution and renewal.

Just as American ‘living constitutionalism’ points to broad concepts such as life, liberty and equality of protection – arguing that these, rather than the specifics of how they were interpreted at one moment in time, are the defining feature of their textual heritage – so living Judaism points to principles in our texts and say that these are what is key in determining what is truly Jewish.

One such example, can be found in our portion this morning. The idea of hillul hashem, the prohibition on desecrating the name of God.
A narrow, originalist, reading sees it in the context of priesthood, and their behaviour – that is what it means in our Torah portion. The Jewish originalist reading – bound to the interpretations of the rabbis – primarily sees it in terms of martyrdom, which was, of course, their own pressing concern.
But those of us who read our texts as a living, evolving conversation, understand that it contains a broader idea. That, as Jews, one of our primary responsibilities is to behave in such a way that God’s name is sanctified, rather than to bring God’s name into disrepute by behaving in a way that is a chillul hashem, a profanation of the divine name. It demands that we behave in a way seen as good by those around us – something which (like ideas of liberty, or equality) is inherently a question of context.

Of course, the real, impactful, issue at stake in America today is the future reproductive rights of millions of American women; the potentially devastating impact this will have on their lives; the possibility – likelihood – of a wave of hugely oppressive, persecutory legislation in a majority of American states that will adversely effect especially poorer women.
But underlying it is another fundamental question- one which may come to define much of the future of America, and one with which we too need to grapple. If we are in relationship with a foundational, defining text, how do we read it?
Whether our text is divine in origin or human, whether thousands of years old or only 235, an ‘originalist’ way of reading is on the rise; we need to fight for the concept of a living tradition and a living text.