As Justice Antonin Scalia slips into history, across the fractured American spectrum there is a consensus: Beyond the specifics of any particular case, Scalia did something precious and vital: He challenged us to think seriously about the Constitution and its meaning; about the intentions and blessings that are the legacy of the Founding Fathers.
Scalia was famously an “originalist,” an approach to Constitutional interpretation based on humility to the “sacred” text itself, an approach often debated. How much fidelity or elasticity we exercise in interpreting Torah — the Jewish constitution — is an ongoing Jewish debate, too, most famously by the Karaites, whose halacha is essentially, but not entirely, a literal reading of the Torah, as opposed to the Rabbis, who at times took remarkable liberties with the same text.
The Talmud — of no use to the Karaites — tells of a case in which Rabbi Eliezer offers supernatural proof to support his dissenting opinion. If he is correct, he says, let the carob tree uproot itself; let water run backwards; let the walls cave in. All happened. But Rabbi Yehoshua (arguing the majority opinion) declared that there was no basis for determining law by trees, water or walls. Rabbi Eliezer then called on Heaven itself to substantiate his dissent, and a voice from Heaven did. Rabbi Joshua rebutted, “the law is not in Heaven,” and the majority ruling stood.
And yet, one doesn’t have to be an originalist for the spirit and intent of our own founding documents to be welcomed at the deliberations of our courts.
History, and the authenticity of our Jewish lives, will be a judge all its own. We owe it to ourselves to ask whether our decisions are honestly arrived at, or whether it is too great a coincidence that our legal and halachic interpretations fit our preconceived politics or self-interest — liberal or conservative?
Scalia would quote Justice William Douglas, otherwise his liberal opposite, who said, “We are a religious people, whose institutions presuppose a Supreme Being.” In difficult times, may that Supreme Being bless us with the judges we need.