“Tradition is not the worship of ashes, but the transmission of fire.” (Gustav Mahler, 1860 – 1911)
The first official prayer in America’s newly-constituted Continental Congress took place in September 1774. Through this event, Congress firmly emphasized the religious ethos of America’s founding. In particular, primacy and honour was accorded to the 3,000 year-old Hebrew scriptures from which natural law principles – the ethical basis of America’s Constitutional documents – were derived.
The second United States president, John Adams, declared, “I will insist the Hebrews have [contributed] more to civilize men than any other nation. If I was an atheist and believed in blind eternal fate, I should still believe that fate had ordained the Jews to be the most essential instrument for civilizing the nations. . . .They have given religion to three-quarters of the globe and have influenced the affairs of mankind more, and more happily, than any other nation, ancient or modern.”
Furthermore, the opening paragraph of the Declaration of Independence references “the laws of nature” and “nature’s God.” The emphasis on Judaism’s theistic natural law sets the tone for the moral absolutism of the founding document. As Professor Steele Brand explains, “Without God, the Declaration’s claims become sophistry, because the very concepts of justice, goodness, and truth are subject to constant redefinition based on the whims of the moment.”
It appears that even those Founders not fully committed to Judeo-Christian tenets acknowledged the seminal importance of canonical Jewish principles. The Great Seal of the United States, for instance, was designed by Thomas Jefferson and Benjamin Franklin and depicts the Hebrew exodus from Egypt. Moreover, the “only inscription on the symbol of American Liberty, the Liberty Bell, is a verse from the Torah.”
America’s Religious Founding
It is evident that America’s founding documents reflect their authors’ religious convictions. Although, in practice, not all contributors to the documents personally adhered to biblical dogma, the documents clearly reflect the convictions of the majority who embraced Judeo-Christianity. History professor John C. Pinheiro points out that even the liberal Thomas Jefferson was “shaped by the Western intellectual and religious heritage more than even he cared to admit.”
Hence, it is fair to contend the early Puritan religious ideal of America, which John Winthrop in 1630 referred to as the “City upon a Hill,” has formatively contributed, and continues to contribute, towards the unique character of American exceptionalism. As Glenn Moots explains, “Puritan views on society, church, and state have become integral to the British and American worldview”; while that fine intellect, Russell Kirk, understood “Puritanism in America as a bulwark against moral revolution and the modern spirit.”
Carson Holloway, when considering the First Amendment’s “establishment” clause concerning religion, observed that, according to Supreme Court Justice Joseph Story (1779 – 1845) in his tome Commentaries on the Constitution of the United States, the First Amendment was promulgated at a time when “probably the general, if not the universal, sentiment in America” was that “Christianity ought to receive encouragement from the state, so far as was not incompatible with the private rights of conscience, and the freedom of religious worship.”
Therefore, taking into account the Founders’ overall deep-seated religious heritage, traditional Jewish methods of interpreting their legal and canonical literature deserved widespread recognition. Even so, it is to be lamented that these age-old methods do not seem to have been widely adopted in the interpretation of Constitutional papers being, as they are, documents reflecting certain core Judeo-Christian values.
Originalist Exegesis
Originalism can be succinctly explained as a “legal philosophy that supports interpreting laws based on the meaning of the law which its creators had in mind.”
Constitutional scholar John O. McGinnis writes, “Originalism as a method of interpretation, has been a fixture in constitutional law since the Republic’s founding.” Despite its long history of usage, in the present illiberal era originalism has become a highly contested, and frequently disparaged, “method of grounding constitutional interpretation.” With emphasis on the plain textual and conservative meaning of America’s primary legal documents, as intended by its authors some 200 years ago, originalism is mistakenly accused by progressive lawyers of being a “radical methodology.”
In legal circles, the concept of originalism is chiefly relevant to the interpretation of America’s founding documents: the Declaration of Independence, Bill of Rights, and Constitution. The method employed, whether a form of eisegesis or exegesis (i.e., allowing personal nuance or prejudice to influence interpretation rather than letting the text ‘speak for itself’), in understanding these pivotal documents by the highest courts can dramatically affect the social, moral, and cultural life of Americans. The choice of exegetical tools by Supreme Court judges has an immediate and far-reaching consequence in the public square.
To add weight and legitimacy to originalism as an essential interpretive technique for approaching legal texts, cognizance of exegetical methods employed by Rabbinical Jewish scribes from Israel’s Second Temple period (3rd century BCE to end of 2nd century CE) will be considered.
America’s constitutional documents were promulgated only at the end of the 18th century, from which period interpretation first became necessary. Ancient Rabbinic hermeneutical methodologies pertaining to Jewish legal texts, on the other hand, were compiled over 2,000 years ago. Accordingly, the pertinence of Rabbinic interpretation of Jewish legal texts will surely be of benefit in shedding light on the optimal approach to comprehending constitutional, and other foundational, documents. In Jewish circles, ancient Rabbinic methods continue to be used during this contemporary era in understanding Judaism’s core legal texts, especially Halakah – those legal rules for living derived from the Torah (the first five books of the Bible) -themselves complex documents.
Early Rabbinic Exegesis
A study by scholar Yonatan Adler, on the social origins of Rabbinic Judaism, confirms that for over two millennia “the Jewish way of life has been characterized by adherence to the manifold laws of the Torah.” These laws necessarily led to tools of interpretation enabling a clear understanding by the public of their daily obligations. As Adler further explains, “Rabbinic interpretations of Torah came to exert a tremendous amount of influence on the Jewish way of life.” Out of this early milieux, some two thousand years ago in Israel, arose the famed exegetical school of Rabbi Hillel the Elder (110 BCE – 10 CE).
Leader of Israel’s Jewish Supreme Court in early 1st Century CE, Rabbi Hillel formulated seven epochal middot which became the dominant rules of interpreting legal texts. Widely utilized in Rabbinic settings, the rules were subsequently employed by redactors of New Testament texts. The latter scribes were themselves Jewish, and their use of middot is quite noticeable, for instance, in the Haupbriefe (major epistles) of the apostle, Paul. That is to be expected as for many centuries, the Torah was read and analysed by orthodox Rabbinic scribes from which environment the brilliant scholar, Rabbi Saul of Tarsus emerged.
In the New Testament book of Acts, Rabbi Saul – by then known as Paul – explained his Rabbinic background, “I am a Jew, born in Tarsus in Cilicia, but brought up in this city, educated at the feet of Gamaliel according to the strict manner of the law of our fathers, being zealous for God as all of you are this day.” Saul’s mentor, Rabbi Gamaliel, a Tannaim (highly esteemed teacher of the law) and member of the governing Sanhedrin religious council, was a direct successor to the famed school of Rabbi Hillel. This is the Rabbi Saul who later became known as Paul of Tarsus.
Consequently, upon the advent of Christianity, long-established exegetical methods continued as before in both faiths. In concrete application, then, early Rabbinical scribes were the theological and exegetical predecessors of the New Testament’s apostolic writers, claims Richard Longenecker, an authority in this field. Therefore, New Testament writings (with the possible exception of apocalyptic literature) were read, as with Torah, in the plain sense – a simple grammatical-historical reading, known as peshat in Hebrew.
Peshat
As Richard Longenecker explains, “Jewish exegesis of the first century can generally be classified under four headings: peshat, midrash, pesher, and allegory.” By and large, the Rabbis emphasized a strict literal and plain (peshat) reading of the scriptures. An exception was made for those writings such as Song of Songs and some Psalms which could also sustain a poetic or allegorical reading, a so-called poetic metaphor the meaning of which was to be approached through derash – a search for hidden meaning.
Longenecker continues, “It need not be argued at any length that Judaism often took the words of the Old Testament quite literally. Rabbinic literature contains a number of examples where the scriptures are understood in a straight-forward fashion, resulting in the plain, simple, and natural meaning of the text.” The foundation for Hillel’s various middot was use of the peshat sense as a first order reading. Once the text had been contextually grounded, then, if appropriate – as with prophetic or poetic passages – further exegetical techniques such as midrash and allegory could be applied to explore a possible alternate or further understanding.
Hillel’s chief middot prioritizing the peshat sense of a passage, is described as “Dabar halamed me’inyano” – explained as a “meaning established by its context.” Strict adherence to the original context of a passage ensured a valid grammatical-historical reading, as such method was later to become known by Western scholars. Even at this present time, failure to apply a literal-grammatical-historical approach – an originalist, textualist, position – can result in a fatal misinterpretation of the text. This fact became clear in the flawed United States Supreme Court’s 1973 Roe v. Wade ruling, remedied only 50 years later by the Dobbs v. Jackson Women’s Health Organization decision in 2022.
For these reasons, Rabbinical emphasis was, first and foremost, upon the peshat sense of the passage to establish the text’s context. This strategy is especially crucial to the study of halakah – legal concerns which seek to interpret biblical law derived from some 613 rules of the Torah. Chief Rabbi Jonathan Sacks explained that “halakah constitutes the rules of the language of Judaism.” It can be argued that the same approach, which can be understood as an iteration of originalism, should be applied to interpreting America’s founding documents.
Although Hillel’s other middot will, no doubt, also have pertinence in understanding complex contemporary texts, the focus here will be on “Dabar halamed me’inyano” emphasizing the enduring relevance of context, and a peshat reading, in considering legal passages.
The Talmud and the Torah
The peshat sense remained an exegetical imperative through the centuries although, with the emergence of Talmudic Judaism in about 200 CE, prominent Rabbinical scribes espoused differing personal opinions on biblical passages, as is the norm among scholars. Even so, overall emphasis on the plain, literal, and natural sense of the canonical text remained strong.
Hence, from time to time, divergence arose between interpretations of law in the Talmud, commentaries which clashed with a plain reading of the Torah, the foundational text of Judaism. The Talmud is a vast compilation of authoritative Rabbinical opinions on biblical passages, and an analogy would be an originalist exegesis clashing with a living constitutionalist (judicial pragmatist or activist) reading of legal documents in present times.
To illustrate, the great Medieval scholar, Rabbi Rashi (Solomon ben Isaac, 1040 – 1105 CE), insisted that “peshat be presented alongside the darash (a further explication) when he saw the two deviating.” In Mordechai Cohen’s 2020 study of peshat, he mentions Rashi’s grandson, Rabbi Rashbam (Samuel ben Meir, 1085 -1158 CE), likewise stipulated that “a Biblical verse does not leave the realm of its peshat” – a principle still pertinent to Judaism.
In a prominent debate, the dispute was settled when Rabbi Abraham Ibn Ezra(1089 -1164 CE) firmly declared, “The way of peshat will not step aside for derash, for the Torah can be interpreted in a myriad of ways.” In other words, the plain reading protects the true, the intended, meaning of the author as without a rooted context, subjective interpretive excursions can vary considerably.
The Modern Era
Mordecai Z. Cohen believes the imperative of a peshat sense in Rabbinical exegesis has been carried well into “the modern period” This view is supported through a 1944 essay by the prominent Rabbi, Joseph B. Soloveitchik, who wrote, “When [a] halakhic (righteous) man approaches reality, he comes with his Torah, given to him from Sinai, in hand.” Phrased differently: ‘when a devout person faces the reality of everyday life he relies on his Bible, the Torah especially, for guidance, truth, and comfort.’
The practical benefit of a textualist reading is provided by Rebecca Guzman who recounted, after the mass murder by Islamic jihadists on October 7, 2023 in Israel, “It is this Torah that I have turned to countless times since Oct. 7; it is this Torah that has carried me and so many others through. The minutiae of my days is governed by a sense of order and responsibility that has kept me grounded throughout this year; at the most fundamental level, mitzvot (legal regulations) have anchored me.” In this case, Guzman confessed that a plain reading of the scriptures upholds her through the daily trials of life. Ergo, the Bible, and all legal documents, are designed to be understood in a straight-forward and common-sense reading by the average person, without the need for sophisticated exegetical tools.
A Lamentable Omission
In a 1997 article, Professor Adele Berlin explained the lamentable omission of traditional Jewish Rabbinical exegetical techniques by contemporary Western academics and Christian scholars:
“For most of the twentieth century, traditional Jewish exegesis has had little or no place in academic biblical scholarship. Medieval Jewish commentaries and the vast body of midrashic literature were studied almost exclusively in Jewish religious schools and rabbinical seminaries… In secular Jewish circles where Bible was studied, and even more so in non-Jewish circles, traditional Jewish exegesis was often ignored or ridiculed.”
Berlin’s disappointment is understandable: the traditional Jewish approach to exegesis certainly applies to interpretation of canonical Christian scripture, with emphasis on the context of the narrative to determine original meaning. Even those passages in the mutual foundational text of Genesis that could conveniently lead to an allegorical excursus, require a historic context. In this context Chief Rabbi Jonathan Sacks asserted, “Both the Flood and the Tower of Babel episodes are rooted in actual historical events, even if the narrative is not couched in the language of descriptive history.” Strict adherence to this strategy would defeat ongoing attempts to infuse traditional doctrine with populist or ideological mis-readings of scripture, the likes of which have led to Church schisms among prominent denominations and allegations of heresy.
Conclusion
On October 4, 2024, Fourth Circuit Judge Marvin Quattlebaum, Jr. lectured law students on the importance of an originalist reading of constitutional documents. The Judge clarified that the exegetical tools to be applied include: “the actual words of the law, a strategy emphasized by textualists, the context of the law’s adoption, semantics, history, and tradition.” As reported, Judge Quattlebaum then emphasized that “without consistent tools, a person can easily revert to their personal beliefs when resolving legal matters, going against the duty of a Judge.”
It is the concern for a historic, traditional, understanding of legal and biblical texts, as intended by the original authors, that ancient Rabbinic scholars embraced the strategy of peshat – the plain, literal, straight-forward approach to understanding complex documents. This interpretive method has been consistently and successfully applied for over 2,000 years. It is to these faithful scribes that credit must be given for explaining central Judaic texts in a plain, grammatical-literal-historic, and not a subjective, populist or allegorical sense. Faithfulness to the original text has been well demonstrated by Jewish Rabbis over millennia past. Their loyalty to sound exegesis is an example to scholars everywhere.
Consequently, emphasis on a grounded context, approached through peshat, should be insisted upon by those constitutional jurists in whose powers lie the integrity of America’s foundational truths – truths emanating from the moral clarity of its Founders, as based on theistic natural law tenets. By so doing, the core principles of America’s Founding, and its exceptionalism, would be restored to their rightful place. Citizens of the world’s most prominent democracy deserve no less; and their commonweal requires it.
