I am clearly the product of the 1960s and 1970s. Many of my first political views came about while running around Telegraph Avenue in 70’s Berkeley. But, over the years, I moved very far toward the center from the positions of my youth. In some cases I have to admit I moved right of the center point. One of those areas was that of constitutional interpretation. I used to read both the Cato Supreme Court Review and the constitutional analysis from the American Constitution Society; only the former was anything I could really relate to. Even though I’ve become more tolerant of those who broadly interpret the constitution, I still read the Cato Supreme Court Review every year and I think it’s the only solid annual summary of the supreme court year. But, my mind is much more open than it once was.
A digression (But not really)…..
One thing I really dislike about organized religion is dogma. I admit that I have very little tolerance for fundamentalist Christians, Muslims Jews, or anyone else who will set aside science and rational discourse purely because they believe every single word of their holy scriptures. For example. when someone denies the science of evolution through random variation because their old book says the Earth was created in 6 days, I really don’t get it at all. Some of the smartest people I know fall into that group and I don’t understand how. I love studying Torah. But, I can’t take a single word of it as anything but multiple layers of meaning. Jews don’t study the bible as if it has only one single literal meaning. We look at it as being a beautiful text of manifold layers. In particular, there are 4 distinct layers of meaning in Torah study. They are:
The P’shat Layer
P’shat level is the plain sense of meaning of the words. We read that G-d created Eve from Adam’s rib and we understand the story. This it the level where my fundamentalist friends stop.
The Drash Layer
Drash is the first interpretive level in which we try to understand what the story means, even allegorically, to us personally. This is the level that I am most interested in. What does “6 days of creation” mean? Six Earth days? Six “God days”? Six increments of geological strata? What? And what can we learn from it? This is what I like to do.
The Remez Layer of a story provides deeper hints about what the story might be telling us if we analyze it closely. For example, Remez might consist of understanding the gematryia (or numerical value) of each letter or word. I’m not saying that I believe this, I’m just saying it’s a technique. Here we look for deeper meaning.
This is a level of mysterious and coded meaning. It is generally a mystical interpretation that I have to admit I enjoy discussing but which I don’t believe has all that much relevance for myself.
So, here I was: acting like a strict constructionist about the US Constitution but constantly getting visibly agitated by those who take the same hard-line toward scripture. And the realization of that hit me like a rock. All of the sudden Ruth Bader Ginsberg’s interpretive method made sense to me! By no means does this mean arbitrarily rewriting the constitution. I love it too much to believe we can do that. But it does mean that I need to be willing to accept that some very smart people can, should, and will try to adapt its words to the 21st century. I don’t have to agree with them when they try to use the commerce clause to justify all manner of legislation that they feel like trying to pass, for example. But I do need to respect them even if they don’t think what I think they should think. My rationale is simply that I can’t be intolerant towards people who want to take a hard-line stance on a document like the Bible and then take the same hard-line stance on other documents, myself. It’s just not in my nature.
Perhaps we can learn a lot by applying religious texts to our modern life and, perhaps, we can learn equally much by applying the words of our founders to that same modernity. Unless, of course, you want to assume the infallibility of either document. In the latter case, we know it’s not perfect because we have an amendment process born of the inherent compromises in its creation (unless you think the 3/5 rule, for example, indicates infallibility!). In the former case, my opinion is that no religious document is infallible because I refuse to believe that only one group of the world’s people is “right”. That too is not in my nature.
So, I will still use the Cato review as my gold standard for constitutional review. But, these days, I’m far more flexible when in comes to progressive interpretation. I may disagree with some progressive interpretations but I don’t think it’s “wrong” to interpret.
Then again…….. I could be wrong 🙂
‘Course… That’s not in my nature either.