On Originalism: Mourning Rabbi Halivni z”l

This last week has been a real doozy when it comes to the Supreme Court. Between the landmark decisions in expanding gun rights, eliminating the protection of abortion rights, seeming delusion of the division between church and state, limiting the role of the EPA, and now states’ roles in Federal election reform, I am dizzy. It is challenging to keep up with it all. It feels that the world is changing too fast and not for the better. It is unlikely that we have seen the end of this socially right leaning super majority on the court. What is driving all of these changes? It seems to be part of their conservative political/social agenda, but their claim it is part of their legal philosophy of Originalism. I am not sure they have much credibility, but what does that even mean?

Originalism is a type of judicial interpretation of a constitution (especially the US Constitution) that aims to follow how it would have been understood or was intended to be understood at the time it was written. It is founded on the belief that a text should be interpreted in a way consistent with how it would have been understood or was intended to be understood at the time it was written. They assert that all statements in the Constitution must be interpreted based on the original understanding “at the time it was adopted”. This concept views the Constitution as stable from the time of enactment and that the meaning of its contents can be changed only by the steps set out in Article Five. This notion stands in contrast to the concept of the Living Constitution, which asserts that the Constitution should be interpreted based on the context of current times and political identities, even if such interpretation is different from the original interpretations of the document.

This concern of their judicial interpretation came into focus a couple of days ago with the news of the passing of Rabbi David Weiss Halivni z’l. Born in 1927, Halivni was raised in Sighet, Romania, by his mother and his maternal grandfather, Isaiah Weiss, a prominent rabbinic scholar. Recognized as a talmudic prodigy (ilui), Halivni was ordained before reaching the age of 17. When they were occupied by the Germans, the family was confined to the ghetto of Sighet, and then deported to Auschwitz, Halivni being transferred to forced labor in Silesia. The sole survivor of his family, Halivni was liberated from the concentration camp of Ebensee, in Upper Austria, in May 1945, and came to the U.S. in 1947. Through the coincidence of a relative of Saul Lieberman being employed in the Bronx orphanage where Halivni was, he soon met that scholar, and so was taken under the wing of the leading academician in the field of rabbinic literature. Following undergraduate studies at Brooklyn College, in tandem with residence in the Yeshivat Rav Chaim Berlin, and graduate study at New York University, Halivni pursued a doctorate of Hebrew letters under Lieberman at the Jewish Theological Seminary of America where he joined the faculty as professor of Talmud and Rabbinics.

Through his magnum opus Mekorot u-Mesorot -Sources and Traditions, Halivni developed a source-critical approach to the Talmud, aiming to uncover earlier, variant readings and textual substrates altered in transmission. This methodology and aspects of Halivni’s personality, provided a basis for characters and for a paradigm of critical talmudic study dramatized in the first two novels of Chaim Potok . In the mid-1980s, Halivni left the Seminary for a professorship at Columbia University and also participated in the founding of the Institute of Traditional Judaism. He also became the Mara D’Atra at KOE, a prayer community on Manhattan’s Upper West Side. I had the fortune to learn from him while at Columbia, pray with him at KOE, and later while studying to be a Rabbi at YCT to be the intern at Ramath Orah where he was a congregant.

Many people, who were much closer to him and his work, have written some amazing tributes to him. I am sure that much more will be said about this luminary, but for now I wanted to focus on the subject of his undergraduate course. It was based on his book, Peshat and Derash: Plain and Applied Meaning in Rabbinic Exegesis (1991)

From the days of Plato, the problem of the efficacy and adequacy of the written word as a vehicle of communication has challenged us, yet the mystery of how best to achieve clarity and exactitude of written expression has never been solved. The most repercussive instance of this universal problem has been the exegesis of the law embodied in Hebrew scripture. Peshat & Derash is the first book to trace the Jewish interpretative enterprise from a historical perspective. Applying his vast knowledge of Rabbinic materials to the long history of Jewish exegesis of both Bible and Talmud, Halivni investigated the tension that has often existed between the plain sense of the divine text (peshat) and its creative, Rabbinic interpretations (derash).

The first level is peshat, taking the text at face value, in context . This doesn’t quite mean “literal”, because we of course take into account idioms, metaphors, personification, etc. The peshat is the message that the originalauthor intended to get across to the original audience. This is compared to derash, the way the rabbis of the Mishnah, Midrash and Talmuds – interpreted the text.  In derash we ask why the text is phrased the way that it is. Rabbinical literary techniques plumb the depths of the text to find new meaning, or may bring out lessons that may not have been intended by the original authors. It gets interesting in the discussions by the Rabbis which reveal that, in some cases, they felt that derash was discovering the original meaning of the text, while in other discussions they clearly understood derash as filling-in-the-blanks – creating new meaning. For example Rashi, the famous commentator, often accepted much derash as literally and historically true, aka peshat. But commentators like Rashbam, Abraham Ibn Ezra disagreed with Rashi.

All of this is to say that it is clear that one cannot understand Torah properly and adequately if one lacks the requisite tools to decode, read, and interpret the text. Halivni’s efforts were to provide those tools. Halivni also addressed the theological implications of the deviation of derash from peshat and explores the differences between the ideological extremes. The religious right denies that Judaism has a history. The religious left claims that history is all that Judaism has.

Halivni’s comprehensive and critical narration of the history and repercussions of Rabbinic exegesis is of interest to students of scriptural traditions, hermeneutics, and legal texts. Of all week’s the absence of his nuanced and deeply grounded approach to legal text is palpable. Halivni had a profound and important response to Originalism.

Much ink has been spilled in the attempt to define the peshat and derash of the Constitution. It could happen that in a given debate, everyone could agree that one of the proposed interpretations is a peshat one, while the other interpretation is a derash one, and yet disagree with one another as to which one is which! In fact, a well-known aphorism contends that “My interpretation represents the peshat, while yours represents derash.” One can clearly be an Originalist and maintain an orthodoxy to the nature of the law without having to conform the institutional chauvinism, bigotry, racism, or homophobia that was the original meaning of the Constitution.

My fear with SCOTUS is that they do not listen to the words of Rabbi Tzaddok. He taught:

Do not act as a counselor-at-law (when serving as a judge). Do not make the Torah a crown to magnify yourself with, or a spade with which to dig.

Avot 4:5

The judges have become tools of the political profess as compared to scholars who use tools, like those Rabbi Halivni z”l tried to teach, to make sense of the law and justice in the land.

Maybe Rav David Weiss Halivini’s memory be for a blessing.


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