[OS] Solving Constitutional Interpretation
The Devil's Advocate #1: The Inaugural Issue
Hello, dear readers, and welcome to the inaugural copy of The Devil’s Advocate, an official1 Shmuke Unishmersity School of Law newsletter dedicated to providing a platform for unexpressed and unheard arguments concerning legal issues unimpressing, inconsequential, and frankly ludicrous.
Our mission is to showcase underrepresented voices. True to that mission, we are honored to welcome Arden Vermeulestein, a distinguished academic from the Unishmersity of Shmicago Law School best known for his theory of “common mood constitutionalism,” that the central aim of the Constitution is to reflect the modal feelings of Americans, not to “promote good rule” or “promote liberty” as ends in themselves. Since 2021, Prof. Vermeulestain has voiced support for “Jewish derivatism,” the idea that Jews should make the local public law and mores the basis of their faith wherever the preponderance of gentiles is such that halakhic Judaism cannot be the basis of public law and policy in civil society.
What follows we endorse in its entirety and represent as the honest beliefs not only of Shmuke Unishmersity School of Law as an institution, but also of each individual person who currently works at the Shmuke Unishmersity School of Law or who currently is, has been, or will ever be in privity of contract with the Shmuke Unishmersity School of Law.
A New Old Constitutional Interpretive Methodology
By Arden Vermuelestein
The perennial problem of constitutional interpretation is the seeming impossibility of wringing ever-more meaning out of 20-odd pages of spare prose. The normal interpretive canons are unable to determine our grand constitutional questions. Inclusio unius est exclusio alterius cannot determine the meaning of the 1st Amendment at the level of specificity and extension that we have required. Almost 250 years of federal governance under a single, relatively short document has required the judiciary to stretch but few Articles far beyond what could be expected out of any other document in our legal system. This challenge has led to a proliferation of interpretive methodologies, each with different ideas of where constitutional meaning may or may not be drawn from.
The most influential of these methodologies is originalism. Originalism proposes that the original intention of the members of the Constitutional Convention (or, in other variants, the ratifying public) and their understanding of the document they were enacting as the law of the land. This theory has its critics, and they have followers of their own. They often oppose originalism’s theory of obligation, not wanting to be beholden for all time to the beliefs of a public which had never seen a telephone, let alone Taylor Swift. Other times they will oppose the social and political consequences of originalism. Hence, the famous Senate speech “in Bork’s America”:
Robert Bork’s America is a land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens' doors in midnight raids, schoolchildren could not be taught about evolution, writers and artists would be censored at the whim of government, and the doors of the federal courts would be shut on the fingers of millions of citizens for whom the judiciary is often the only protector of the individual rights that are the heart of our democracy.
However, there are also more practical problems with originalism. Originalism requires vast amounts of historical research. It further requires judges to interpret various—often cacophonous—historical documents to determine the beliefs of several million men long dead in the context of several million more men yet longer dead. This process threatens to extend lawyers and judges outside their primary areas of expertise—linguistic interpretation, logical reasoning, and independent judgment—while slowing the pace at which cases may be resolved. Even without considering the originalist theory of constitutional obligation and the consequences, political and social, of originalism, we must ask: is this the constitutional methodology of a “just, speedy, and inexpensive determination of every action”? I think not.
The fact that we have other canons with different ideas about what historical or other evidence is viable does not help things. The proliferation of interpretive methodologies in fact makes the problem worse. By giving judges options of which methodology to choose for any given problem, there are more ways that judges can get to the result they want, whether that is the best result or not. This freedom creates concerning indeterminabilities in our constitutional practice.
We often like to imagine that the problems we face are newer than they actually are, and that our solutions are more creative and ingenious as well. Rarely are we so unlucky. The canons of interpretation were not created with the common law. A fortiori is older than the United States, indeed older than the hyphen between Anglo and Saxon. In Islamic jurisprudence, the analogical qiyas arguments drew conclusions “from the stronger” in the same way a fortiori functions. In the Jewish Talmud, a fortiori arguments were called “kal v’chomer,” meaning “mild and severe.” In ancient Indian logic, kaimutika-nyaya played a similar role. What we call a fortiori is not merely a fortiori: that is just our name for something universal and true. Exclusively within the Jewish Talmud, we see, inter alia, the following correspondences: inclusio unius est exclusio alterius is אין רבוי אחר רבוי אלא למעט (in revuy achar revuy ala lema’at); stare decisis is גזירה שוה (gezarah shavah); in pari materie is בנין אב מכתוב אחד (banyan ab mi’katuv echad).
The Jewish scholars of old confronted the same problem as our modern judges: aging, sparse documents must be applied to new, multifarious situations. The reasoning of the Talmud, with its citations and careful linguistic analysis, goes far in deciding cases. However, for the deep questions of the essence of the Torah, the foundational document at the heart of the rabbinical system of laws, Talmudic reasoning does not suffice. This need for inquiry into the inner emanations of the document—the penumbra, if you will, of its textual significance—is fulfilled only by the tradition of Kabbalah: mysticism.
If we already handle our usual interpretive questions as the ancients did, I propose we ought to do handle our penumbral questions as the ancients did too: through Kabbalistic reasoning. It is not beyond the remit of the law to look for guidance from its fellow-travelers in the tradition of hermeneutics and reason. The problems we face in constitutional law are mirrored in religious scholarship. Seemingly indeterminable questions of substantive due process rights and the fundamental nature of the branches and levels of government lead us to dismay: how can we find a rigorous, adaptive methodology with a comprehensible logic and a richness of sources which will allow us to determine the true and the just? The world has an answer: Kabbalistic analysis.
I expect my suggestion to provide the traditionalist rigor and richness of sources which originalists prefer, as well as the ability to adapt and consider new facts as they arise which living constitutionalists prefer, all while additionally providing more legitimate grounds of argument which all can rationally agree upon. As I have said previously:
The central question is not “How, in principle, should a text be interpreted?” The question instead should be, “How should certain institutions, with their distinctive abilities and limitations, interpret certain texts?” My conclusions are that judges acting under uncertainty should strive, above all, to realize that there is no uncertainty because the fractal-like pattern of Adam Kadmon, which is found in all things everywhere in Creation, applies as much to the US Constitution as it does to the stars, the beasts, and the clods of clay into which humanity was blown.
Perhaps you are a skeptical reader—perhaps you are even an originalist! Allow me to provide an example: in 2008, the Supreme Court found an individual constitutional right to carry firearms under the 2nd Amendment in District of Columbia v. Heller. That decision required extensive historical research, and all that the 80-some pages of careful scholarship did was provoke more than 150 pages of rebuttal. None of this quieted the criticism the Court took from those who believed its decision was politically motivated. Allow me to demonstrate the iron-clad Kabbalistic reasons why this decision was necessary.
However, a full Kabbalistic analysis would be overlong, so allow me to simply demonstrate how such conclusions come with but the name of one party to the case and go no further. The plain meaning of “District of Columbia” is “the capital of the United States.” The kabbalistic meaning is “one who threatens to end the second amendment to the US Constitution.”
“District” comes from the Latin “dis-,” meaning “apart.” This is another form of the prefix “bi-,” meaning “two.” “Strict” comes from “stringere,” meaning “draw tight, press together.” It comes from the same root as strain, stress, and strainer. Each of these words implies a pressure and the threat of breaking or loss of substance. These roots all also share the triplet “STR.” In Hebrew, all words are formed by roots of three letters and correspond to a numerical value. The Gematria value of STR in Hebrew (shin, tav, resh) is 270, which corresponds to כלי מפץ, meaning a smashing or explosive tool. Furthermore, shin, tav, and resh (S, T, and R in Hebrew) are the last three letters of the Hebrew alphabet. From this, we can tell that there is a danger of something ending, breaking, and smashing. Obviously, then, we can tell that the “District” is attempting to put stress on something related to the number two, and that thing may be in danger of ending, or being smashed.
“Columbia” comes from Christopher Columbus. Columbus is the latinized “colombo,” meaning dove. The dove is a symbol of peace. “Columbus” is a latinized symbol of peace. This, of course, refers to Jesus Christ, who is the symbol of peace which became Romanized (i.e. latinized) after his death. This meaning is further reflected in Christopher Columbus’s given name: “Christopher,” meaning “Christ-bearer.” “-opher” comes from the Greek phérein, meaning bearing in the sense of bearing destiny or fate. We are thereby directed to the fate of Christ. Christ’s fate was to overthrow the law as he found it, but also to fulfill it: he would both revolt and amend. In the US legal context, the US Constitution plays the same role as Christ. The Constitution was the result of a revolution against the old constitution of England, but retained much of the old law: it was both a revolution and an amendment. Furthermore, the institution of the US Constitution was a revolution in the history of governance, and also that revolution was amended in the Bill of Rights. The promise of Christ’s fate is the second coming, which directs us to the second Amendment within that Bill of Rights (we are similarly directed here from the “bi-” in “district”).
From this we understand the Kabbalistic significance of “District of Columbia”: one who creates a pressure upon the second amendment of the US Constitution and threatens to end it.
I hope that this makes obvious the power and usability of Kabbalistic reasoning for legal analysis. The tradition of kabbalah is long and rigorous. I am but an interested amateur in the methods of Kabbalistic reasoning—a trained judiciary would put my attempt to shame. Yet even in my meek attempt, I believe I have demonstrated the methodology’s power to lower the costs of decision-making and maximize the predictability of decisions.2
By which we mean unofficial.
Some may be concerned about the Establishment Clause of the 1st Amendnment. But this would not be the establishment of a religion by Congress because the judiciary is not Congress and, as I mentioned above, everything everywhere is the same fractal-like pattern of Adam Kadmon. Kabbalah is merely one tradition which has understood the legal-mystic mechanisms upon which our world is structured.