Comparing Peshat to Constitutional Originalism

By Rebecca Heilweil

Rebecca Heilweil is a freshman at the University of Pennsylvania.

Religion and legal doctrine have a long, shared history. Before church and state began to move apart, moral ecclesiastic authority and legal force held equal importance.  Canon law was often written within civil code, citing Biblical verses. But more than simply providing another source of statutes, Abrahamic religion underlied the meaning and authority of political compacts.  The Mayflower Compact, for instance, considered America's first constitution, recognizes God, and creates a parallel between the famous biblical covenant and its own political doctrine.

Most early colonial legal documents, perhaps saving Roger William's, which celebrated the non-denominational nature of Rhode Island, embraced Christian rhetoric. References to the Holy Trinity and Jesus Christ were abundant. However, when comparing methods of interpreting religious and legal documents, it is interesting to note the similarities between how rabbinic scholars discuss the Jewish Torah and the Supreme Court analyzes the Constitution.

For as long as humans have considered our relationship with faith, we have struggled to understand and standardize how we interpret rules and the words that construct them. The Torah has its own version of textualism, for instance, and forces rabbis to debate what Hebrew phrases ought to mean. Thus, the popular notion of a separate church and state is challenged through an alternate lens. Our methods for understanding the doctrines of both institutions are surprisingly analogous. This is most clearly demonstrated by a comparison of originalism, a conservative judicial method for American statutes, and Peshat, a theory of rabbinic interpretation.

The Dartmouth Law Journal describes originalism as "the view that the interpretive obligation is to discern and apply the Constitution’s original meaning to current cases." [1] Originalism is one of the more conservative judicial interpretive methods, often resulting in decisions that align with Republican Party lines. The doctrine's proponents on the current court are Associate Justices Clarence Thomas-- known for his quietude-- and Antonin Scalia, famous for his humorous and eloquent writing.

Justice Scalia's originalism centers upon the idea of "original meaning.” He believes that courts should be applying the Constitution's words just as they meant to the Founders at the time of the document’s writing. Scalia fears that involving more than the pure meaning of a statute will invite judicial activism, writing that "the main danger in judicial interpretation of the Constitution -- or, for that matter, in judicial interpretation of any law-- is that the judges will mistake their own predilections for the law." [2]

In short, Scalia worries reading past statutory text will inflate judicial power and overpower democratic processes, putting justices in charge instead of the people. It is perhaps for the same reasons that rabbis support Peshat interpretation. Chabad.org describes Peshat as the "simple interpretation of the Torah. When the verse says (Genesis 1:1) that "In the beginning G-d created the Heaven and Earth," it means exactly what it seems to mean, in a very literal sense." [3] Alternatively, the method of interpretation suffers from the same critiques as originalism. Skeptics worry that meaning cannot simply be derived "literally" and offer that an interpretative method attached to a time period prevents a more modern and fluid religious understanding. Stephen Garfinkel, in his piece "Applied Peshat: Historical-Critical Method and Religious Meaning" writes that "literalism...is not a more 'accurate' understanding of the biblical text and may be a distortion of it as often as not." [4]

Another definition of Peshat seems to more easily match the originalism of Justice Thomas, who seems to care more about public understanding at the time of a statute's writing, not simply the original meaning to the Founding Fathers. "What distinguishes original meaning originalism,” offers Professor Lee J. Strang of the University of Toledo, “Is the sources from which it draws meaning: dictionaries of the era and other founding-era documents. However, since original-meaning originalism’s goal is the text’s original public meaning, the universe of available data includes all evidence of contemporary conventional usage." [5] And, similarly, according to the Jewish Virtual Library, Peshat can be, "the usual accepted traditional meaning as it was generally taught" [6] This conception of Peshat also has more public, general form, just like Thomas's originalism.

The question remains of whether looking to an original meaning or definition is an important task. Other theories of both biblical and statutory interpretation prefer less historically constrained doctrines. Loose constructionists favor laws and rules that can "stretch more." They wonder why we care so much about the past.

But Justice Scalia does not think that question requires an answer. He will jovially retort: “My burden is not to show that originalism is perfect, but that it beats the other alternatives, and that, believe me, is not difficult.”  

[1] Kiran Iyer, "Justice Scalia, Justice Thomas, and Fidelity to Original Meaning," The Dartmouth Law Journal (Spring, 2014).
[2]Ralph A. Rossum, "The Textualist Jurisprudence of Justice Scalia," Claremont McKenna College, http://www.claremontmckenna.edu/salvatori/publications/RARScalia.asp.
[3] Naftali Silberberg, "How is the Torah Interpreted?" http://www.chabad.org/library/article_cdo/aid/819698/jewish/How-Is-the-Torah-Interpreted.htm
[4] Stephen Garflinkel, "Applied Peshat: Historical-Critical Method and Religious Meaning,” Jewish Theological Seminary of America (1993).
[5] Lee J. Strang, "The Jurisprudence of Constitutional Restoration is Original, but Not All Conceptions of Originalism," Library of Liberty and Law (April 10, 2014).
[6] Louis Isaac Rabinowitz, "Peshat," Jewish Virtual Library, http://www.jewishvirtuallibrary.org/jsource/judaica/ejud_0002_0016_0_15649.html (2008).
Photo credit: Flickr user Laurie Cate