Venerate, Amend...and Violate

Abstract

Practically every national constitutional document contains formal provisions for the amendment of that document. Amendments offer the specter of evolution, adjustment and adaptation of the constitutional design. Yet, at the same time, constitutional amendments are more then reflections of generative, inventive change. They are also, almost necessarily, destabilizing symbols of constitutional imperfection. As such, amendments to the foundational text challenge, the notion that the Constitution is a “kind of Ark of the Covenant of the New Israel that is America.” A “divinely inspired” text, “the most wonderful instrument ever drawn by the hand of man,” does not easily accommodate the very concept of amendment.

If the notion of amendment is a difficult one to contend with in the context of a secular religion in which the Constitution is the central pillar, it becomes unbearable when the author of the constitution is not merely divinely “inspired” but is truly divine. For religious systems that are based on divine texts, acknowledging the very possibility of “self-conscious reformism” that amendment of these canonic texts entails is nothing short of revolutionary and perhaps even heretic. Thus, a theory of constitutional amendment that expressly exists in secular constitutional regimes, including those that profess constitutional faith, has no room, as such, in most major Western religions. Human beings, no matter how wise, simply cannot (descriptively) and should not (normatively) amend divine law.

The article addresses the fundamental conundrum that is presented by notions of perfect and complete divine law and the need for, and the reality of, human-initiated changes to that law throughout the ages. It does so through the prism of Jewish legal tradition while suggesting that this legal tradition is “optimally different” from our own legal world when the theory of constitutional amendments is concerned.

The article considers the ability of Jewish authorities to deviate from the laws set forth in the Torah, the divine foundational text, and makes two claims in this context. The first is that Jewish law has always given questions such as “could rules promulgated by the halakhic, human, authorities deviate from the divinely ordained law of the Torah?,” a qualified affirmative answer. Despite the divine source of Torah law it was recognized early on that halakhic authorities could act in extraordinary emergency capacities to deal with exceptional circumstances when application of the ordinary law would produce unacceptable results. Acting in such capacity the halakhic authorities could, and did, set aside parts of the God-given Torah law and at other times suspended ordinary laws, promulgated emergency measures, and resorted to extralegal sanctions that had not been authorized under the Torah. Moreover, even in non-emergency circumstances we can find numerous examples — in rabbinic legislation and judicial decision-making — that deviate from the Torah. Indeed, in this “ordinary” context some such demonstrations go as far as overruling permanently the dictates of the Torah.

The second claim is that the legal basis for the sages’ ability to deviate from and violate the Torah is not always clear. Indeed, I suggest that the ambiguity about the legal foundation of such radical authority or power may be purposeful. Some halakhic authorities identify the source of their authority as present within the constitutional framework — the Torah — itself. Yet others seem to recognize that their actions had been devoid of legal authority. Rather than invoking their widely-recognized broad interpretative powers and attempt to make the claim that their actions and decisions had been in accordance with the dictates of the Torah, they accept, albeit tacitly, the need to act in contravention of the Torah. Moreover, and significantly, rather than argue for legal authority to act as they did, those sages base their actions on an extralegal power.

It is thus that the article is positioned in direct dialog with the modern literature about emergency powers and the “exception.”

Keywords: Jewish law, legal history, constitutional law, amendments