Sago Boulevard

Thursday, November 10, 2005

Halakhah and Originalism

In light of my previous post, I want to distinguish between what I identified as "God's intention" from the so-called originalist theory of constitutional interpretation. I agree with Nephtuli that there are significant differences but I would go even a step further. The Torah itself is God's message to humanity and thus, interpreting the Torah is inextricably tied to interpreting God's will or intention. Consider an analogy: Somebody writes you a rather vague letter. In trying to make sense of the letter itself, you're also trying to figure out what the author had in mind while writing it. You can't separate those two tasks.

The Constitution, on the other hand, is not simply the will of James Madison or of the members of Constitutional Convention. The relationship of Madison's intention with the text of the Constitution is incidental. The goal of constitutional interpretation is to interpret the Constitution. Madison's intention or that of any of the Founding Fathers is useful only insofar as it helps illuminate the text.