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Torah Aliah and Constitutional Interpretation

In two weeks I'll be doing a Torah Aliah at my niece's Bat Mitsva. For them as don't know, this means I'll be getting up and reading a brief Torah portion during the ceremony. It's a great honor.

It's also a bit daunting, as my Hebrew is awful, and when you read from the Torah you do it without the vowels, and anyway I never learned how to do the singing part (we didn't do it that way in my temple growing up). But the rabbi kindly provided a recording of the portions being sung, and I've been learning & practicing pretty doggedly for the last month or so, and now I think I've got it down.

But of course, for a writer who's a lawyer who's a teacher who's a researcher who's a literary critic, I can't just leave well enough alone and read the darn thing. Me, I gotta chew on the meaning of the passage. And really, interpretation of the Torah is a lot like interpretation of statutes and constitutions in the common law tradition, and so it's right up my alley.

So here's the portion, which is from Deuteronomy 23:16-19:

Torah Aliah

In transliteration it sounds like this:

Lo tasgil eved el avadav, ashehr yinatsehl elecha m'im avadav. Imkha yehshev b'kir b'kha bamakom ashehr ivkar b'akhod sh'arekha b'tovlo lo tonenu. Lo tiyeh kadesha mibinot yisrael, v'lo yiyeh kadesh mibineh yisrael. Lo tavi etnan zonah umichir kelev bet adonai elohekha lekol nedehr ki to'avat adonai elohekha gam shnehehm.

Roughly translated into English, it's:

"Do not return a slave to his master if the slave has escaped from his master. He shall live among you, in whichever of your settlements pleases him; do not mistreat him. Allow no female or male prostitutes among the daughters or sons of Israel. Do not allow either the fee of a harlot nor the price of a dog into the House of the Lord for any vow, for both of these are an abomination to the Lord."

Or, as the King James would have it:

"Thou shalt not deliver unto his master the servant which is escaped from his master unto thee: he shall dwell with thee, even among you, in that place which he shall choose in one of thy gates, where it liketh him best: thou shalt not oppress him. There shall be no whore of the daughters of Israel, nor a sodomite of the sons of Israel. Thou shalt not bring the hire of a whore, or the price of a dog, into the house of the LORD thy God for any vow: for even both these are abomination unto the LORD thy God."

I did a little bit of research into the common interpretations of these passages, both Jewish and Christian, and was struck by what seemed (to my 21st-century liberal ear) both overbreadth and excessive narrowness in the readings.

Take the first passage, which seems to command one to harbor and succor escaped slaves. Taken as broadly as I'd want to read it, it would not only make owning slaves essentially impossible (because every time your slave ran away, your neighbors would have to give him asylum), but to impel one to undermine the institution of slavery elsewhere. By this interpretation, it would have forbidden compliance with the Fugitive Slave Act that preceded the U. S. Civil War.

But the interpretations by the sages say that it applies only to the escaped slaves of gentile masters, and some say that it applies only to Jewish escaped slaves of gentile masters. This is not apparent in the text itself, and the Torah from Exodus onward would seem to be a mandate against slavery generally, but of course there are numerous references to servants and slaves of the Children of Israel throughout the latter three books, so one can see how, in an attempt to make the overall text harmonize with itself, one could arrive at that rather tortured gloss on the language.

But one could read the inconsistency differently: the Torah recognizes that slavery exists among the people and provides rules for how the slaves should be used and treated, but its aspiration is that slavery will eventually be destroyed, and so sets up a matrix in which it will be increasingly difficult to maintain that institution. (I've heard similar arguments (from Michael Lerner, I think) that the laws of kashrut are really designed to turn the people into vegetarians, since the procedures one must go through to make meat kosher are such a pain in the neck that a sane person would just avoid the stuff altogether.)

The passage concerning prostitutes could be read simply as a prohibition on sex-for-hire, or, even more narrowly, on temple prostitution, as the following passage seems to refer too temple prostitution specifically. Temple prostitution (at least by some accounts) seems to have existed in that region in that era, and the Torah (which pretty consistently looks for ways to differentiate the Children of Israel from any of their neighbors) may have merely been forbidding that practice. (I've read lengthy Christian interpretations of this passage which talk about how pernicious temple prostitution was, etc.)

But I was amazed to read that this passage is commonly interpreted to be a prohibition on all premarital sex and on homosexual acts of any kind (notice how the King James says "sodomites," not "male prostitutes"). To me this seems an unnecessarily broad reading, not justified by the language itself. True, there are other passages in the Torah (Leviticus specifically) that seem to forbid these things, but why take this passage and so extend it?

(I also can't help but reflect on the common conflation of various words for "prostitute" — harlot, whore, slut, etc. — as synonyms for any woman whose sexual behavior does not comport with your idea of sexual morality. This comes up repeatedly in my intro law classes when we discuss defamation, and I point out that matters of pure opinion are not defamatory statements because they are subjective and do not allow for proof or disproof. About once a year, one of my students will ask, "So calling a girl a slut isn't a defamatory statement?" (They always say "girl," not "woman." :P) I point out that it depends on what the jury thinks was implied by that word: if it was to be taken literally (i.e., prostitute) then it is surely defamatory. Further, to accuse an unmarried woman of being "unchaste" was historically regarded as slander per se. But if it is simply an expression of your distaste for this person's behavior, then it's not.)

It's also interesting to reflect on the phrase "price of a dog" in the last verse. Christian theologians pretty regularly interpret "dog" to refer to a pimp, procurer or male prostitute, on the strength of Revelations 22:15 ("For outside are dogs, and sorcerers, and fornicators, and murderers, and idolaters, and whosoever loves and makes a lie.") But this strikes me as a weak connection, because (1) there are plenty of other references to dogs in the Bible and there's no indication that St. John was referring specifically to the "dogs" of Deuteronomy 23:19, and (2) there's at least 500 (and maybe over 1,000) years between Deuteronomy and Revelations, and the language might well have changed in the meanwhile. By contrast, many Jewish commentators think that "dog" may refer to animal sacrifices or to other uses of dogs in Temple rites.

The Torah in general, and the last three books in particular, present a problem for modern interpreters, because they seem to mandate behavior which we would now find repellent. The only way to keep it alive is to give interpretations that can make sense to the reader who is reading it now. Falling back on the "mystery" of God's will is ultimately a non-starter, because it eventually turns the whole document into something alien that is obeyed for the sake of obedience. At the very least, it's hard to believe that an omniscient and omnibelevolent god, dealing with the specific needs of a specific people in a specific social, historical, and environmental context, would lay down rules that He expected to be followed in exactly the same way throughout the centuries, regardless of the situation.

This leads me to a discussion of U.S. constitutional interpretation. Matters of taste naturally enter into this. As a left-leaning person, I'm inclined to give very broad interpretation to, say, the First Amendment (especially the Establishment clause), but to give a somewhat narrower interpretation to the Second Amendment (leaning heavily on the subordinate clause that begins it). I can see how a more conservative reader would take the Establishment Clause in its narrowest sense (if it's not literally an official state religion than it's not a violation) and give the Second Amendment much wider scope (subordinate clauses are irrelevant).

Some people (notably Justice Antonin Scalia) recommend giving the words of the constitution the specific meaning they would have had in 1787 (or, in the case of the two Amendments noted, 1791). He argues that without that anchor, one is free to give the document whatever the heck interpretation one wants, and that therefore the whole notion of "interpretation" collapses. I disagree with this. I think that the more remote a document's origin is from where and when it is being applied, the more difficult it is to apply it at all with a straight face. To the extent that documents define their terms specifically (as many modern statutes do), one is limited to those specific interpretations and there's no way around them. But to the extent that the documents use more highly abstracted (low RINTWIRR*) terminology, they ask to be given fluid interpretations; there is no other reason to use undefined or abstract terms.

Indeed, I would say that one of the problems with modern statutes and regulations is an attempt, in order to avoid litigation and maintain maximum control, to define and subdefine every term to the last nuance and shade of meaning. While this does provide clarity (at least for one who can wade through the lengthy definitions), is also makes the document impossibly rigid and difficult to apply to any but the most narrowly-defined situations.

(*RINTWIRR — Representation Is Not That Which Is Represented Rating. A 10-point scale developed by Robert R. Steele in the 1970s to reflect the fact that communication by language can never be (and should not be) transparent. No word has a RINTWIRR of 10.0 — that is, no word means exactly the same thing to all people who hear it in all situations. Many words have a RINTWIRR close to 0.0, because they have almost no commonality of meaning among different readers. Thus there are no denotations, only the overlap of various connotations.)

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