Guess What I Read

The Constitution. A few days ago. And the Declaration of Independence. No light novels or like material. I guess that makes me a hopeless conservative, but for me it's simply an interest in our nation's history. In fact I've read about these documents as well.

They're very different instruments, and neither deals with the other. Of course the Declaration couldn't have referenced the Constitution since it hadn't yet been composed, but it didn't happen the other way either. In fact, the Constitution contradicts it in terms of equality and slavery. But they're really unrelated. The former simply justifies actions taken, while the other lays out the structure of our government and our laws. The Declaration of Independence deals with our international relations as well as the relationships between states and the national government. It's philosophical (actually it's the declaration of what had happened already so as to justify the establishment of relations with other nations) while the latter is pragmatic – a plan for running the newly established country. Still it's important to remember that they were written by the same founding generation and that they are the basis for our country and our actions today.

I'm not a lawyer and I'm not knowledgeable about interpretation of the Constitution or any case law that expands on its concepts, but it's hard to understand how we got to where we are based on what I read in the document. I'm sure it's all perfectly explainable, yet I'm baffled by some of what people – people who, I suspect, have never read it – consider their constitutional rights. And I'm similarly amazed at what those familiar with it have done in its name.

Let me specify a couple – and only a couple – of examples of what I mean. They're amendments.

Article I

Congress shall make no law respecting … the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. (emphasis added) – Does that include flag burning, rioting, and violence? Does it include harassing those with whom demonstrators disagree? The courts say it does.

Article XIV

1: … No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. Various amendments specify age (eighteen or above), previous involuntary servitude, and sex. The body of the Constitution prohibits religious tests for office. There is no mention of race, sexual preference, disability, or the like. Perhaps they're reasonable as prohibitions, but they're not listed.

There are many more examples of the “discovery” in the Constitution. “Rights” to privacy and abortion, nowhere mentioned in the framework that established our laws, have been identified by those who would find them. And while Article 1, Section 7, decrees that All bills for raising Revenue shall originate in the House of Representatives, somehow, presumably by additional legislation, that now has become all bills for disbursing revenue. Not that I oppose the system, but I'm bewildered by the fact that we're at a point where what it says is not what I thought it said.

Interpretation and further legislation seem to me to be the primary issues. They're the path to twenty-first century America. When it comes to Congress, and to the representatives we elect, I'm less bothered than otherwise, because those people are answerable to us, and they (their staffs actually) pay some attention to our wishes. We can vote them out of office in less than two years if we don't like what they are doing. And they're charged with the responsibility for making our laws.

Unfortunately the President is above us, even though we elected him, and the courts are free to impose their views irrespective of our wishes. And by their interpretations and social and political biases they establish the law. We have no recourse. Constitutional amendments are difficult, and a convention would lead to a crisis and mischief beyond our imagining. Still, we need a way for public opinion to be heard and considered by those who use their offices to promote their own social agendas. Jefferson, who is credited with writing the Declaration of Independence, believed that we should not be bound by the ideas of past generations and he thought that the laws we follow should be reviewed every twenty years or so.

Perhaps Jefferson's plan is impractical. Opening everything to change at one time can only lead to the possibility of massive and expensive reorganization, and lead to uncertainty as we move from one system to another, but it remains important for those with authority to know what we really want – not just the thoughts of a focus group. A system might be established using the internet (with public internet available to those who lack the capability at home) for citizens to list, by subject or keyword only, their areas of concern. Each time this is done (perhaps every other year) the top ten or so should be listed for public comment – again on the internet. Such comments should later be clarified by a formal questionnaire, with the opportunity to indicate specific concerns if they aren't already covered. Free-text, however, should be limited to avoid rants and to encourage focus on the real issues. I'm sure there are programs that could both arrange and count the comments for public officials to read and would filter out those with expletives or other undesirable content. None of the results would be binding, but publication of the public's vexations might encourage those with the power to do so to consider the views of “We the People.”

It is, after all, our Constitution.

Original Intent

I'm one of those people who are reluctant to put words in someone else's mouth. It's a real problem. Straw men are so much easier to knock down than real ones, and they don't fight back. But my inclination is to take people at their word.ⁱ It's not always easy – not because I disagree with them but because I don't always know what they said. So if I want to consider and deal rationally with those words, I'm at a disadvantage.

There was a time when I didn't care what their opinions were; I knew how things should be even if they didn't. Their words were interesting, but only from a historical point of view. I and my contemporaries were as smart as they, and we could reach logical conclusions without their help.

It didn't take long to realize that many others held the same point of view. The only problem was that different people had different “logical conclusions” concerning the same sets of facts. The situation was chaotic – even anarchic at times. Even when the statements made by our founders seemed clear and reasonable, there were many who ignored them because they knew better. When they thought changes were needed they were quick to suggest them.ⁱⁱ Even so, they seemed eager to concede that their ways might not be the best for everyone. At least not for those from other cultures. Right and wrong depended on the teachings of those cultures – they were not absolute. That was my view when I was young.

But as I grew older my thinking changed and it became clear to me that some things were absolute. And I knew what they were. Interestingly I found that many of the truths which I knew to be valid were stated in the Declaration of Independence, and in the context of that declaration and the conditions it described the Constitution seemed, for the most part, like an eminently sensible document. The “Founding Fathers” were on to something, and the idea of radically changing it, whether through legislation or the courts,ⁱⁱⁱ was both a denial of common sense and of our heritage. It's original meaning, and their original intent, should, for the most part, hold sway.

It didn't take long, however, to recognize that we often lack understanding of what that intent was.^iv Although some of the participants took notes and explained what they had in mind, the keeping of records was discouraged, so our knowledge is limited. It's clear, though, from the writings of the time,^v that the Constitution didn't mirror the intent of all the participants; it was a compromise document. And some of the words they used in the eighteenth century had different meanings then – not the ones they have now. Additionally, perhaps some of the words are misprints or other kinds of errors.^vi

What also governed their decisions were the conditions of the time: the conditions they had endured under the English King.^vii That was the context which dictated their intent.^viii

Thus extensive reading and preparation were necessary to understand what the intent was, but it was worth it. And a great appreciation of their foresight resulted. It became clear that their debates resulted in nuanced language and principles that could be applied to most predictable conditions not just those existing at the time but ones that would arise later to test our system. It was also apparent that in some cases judicious – sometimes judicial^ix but not always so – interpretation of our founding documents would be necessary.^x And when such clarifications now emerge – whether through the passage of new statutes or the (re)interpretation of old ones, they are the law of the land. Moreover, the founders realized that there would be a need for amendment^xi of the original document and they provided for it. It's difficult but possible.

Also confusing the issue is the question of whether a particular view expressed then related to a specific problem faced at that time or whether its author saw it as a general principle. How would he apply it, if at all, to a new but, at least from our perspective, analogous situation? Does our extrapolation of the principle faithfully reflect what he would have thought had he lived now?

But an important question remains: “So what?” That was then this is now. Should we in the twenty-first century be bound by eighteenth century thinking? Should we be bound by agreements to which we were not signatories?

Fortunately, however, those are easy questions. The answer is “Yes!” To both of them. If we consider those documents and concepts erroneous we should change them, difficult as that may be. But we should not ignore them. Our society is based on the rule of law, and the rulebook is an old one. We cannot flout our heritage because we didn't make it, any more than we would refuse an inheritance because we didn't earn it.

For me, then, it is clear that the law is the law, and like it or not^xii we are bound by it. Given the opportunity, I would favor reliance on the words of the founders to the extent possible, with interpretation limited to unmistakable analogies unless we, the Founding Fathers of our generation, decide otherwise by altering the document on which our society is based.

Next episode: “An Offer You Can't Refuse” – Try at your own risk.

PS.  Tuesday, November 4th is election day.  Don't forget to vote.

I        In this case my primary – but not exclusive – interest will be in the words of our Founding Fathers. I'll be referring to them when I don't specify otherwise.

ii       In some instances, however, they had a low tolerance for change. From their perspective – and I am in full agreement – it was only fair if they could pass on their property to their children when they died. It might be reasonable to give public funds to satisfy all sorts of interests – whether the poor, the arts, snail darters, or whatever – but not their money. (They didn't realize that the “public funds” were their money – money whose free distribution is something which, from my perspective, needs to be rethought.)

iii      Or by Presidential decree.

iv      The same is true of Shakespeare and other literary figures. Often we need explanatory notes if we are to understand what they meant. And there are times when the expositor reads (his own) ideas into their words, ideas that, in all likelihood, were never there, attributing them to the author's unconscious, and praising their prescience.

v        Expressing ideas as disparate as the ones we have now.

vi       That's the explanation often used in rabbinical writings. Since there is a general principle in Jewish law that the words of earlier authorities cannot be changed, more recent expounders have to “understand” their words in a way that might not be obvious. They “correct” “erroneous texts” and interpret what their predecessor “meant,” which may be very different from what he said, or they describe unlikely scenarios or conditions that circumscribe the effect of his ruling.

vii      More about the King and the Constitution in a future essay.

viii     Our current context is very different but that doesn't invalidate the Constitution.

ix       In Marbury v. Madison the courts arrogated to themselves the power of the last word in most cases and, for better or worse, that action was not contested.

x        The same is true in other areas. For example, reading religious texts without explanation and interpretation can be difficult. While interpreters often disagree, their discussions may unlock ideas whose presence will have been unexpected. They might also surprise earlier authorities – but that doesn't disqualify them. If those earlier authorities didn't anticipate changed conditions that were in their future, they wouldn't have guessed at the questions they might raise. We can only hope that their wisdom provided enough guidance for us to answer those questions while remaining true to their principles and intent.

xi       In fact, the Bill of Rights – the first ten amendments – was a precondition for ratification by many states.

xii      And there's much I don't like.

Parsing Fancy

                                                                    

The gemaraⁱ has been the backbone of Jewish learning for centuries and, despite any criticisms, is entitled to much of the credit for our survival. When our sages might have been distracted by the world and the cultures around them they focused on the puzzles of the gemara and in creating solutions for them. Their dedication to our heritage was an important contributor to the persistence of that heritage. And the Torah,ⁱⁱ despite what we don't understand, is the basis for what has sustained us.

But the key, in the previous sentence, is “what we don't understand.” Man does not know everything. Nor should he be expected to. Thus we should be willing to accept apparent errors and inconsistencies as areas of our ignorance, rather than try to construct explanations. In some limited cases we admit we don't understand, and that is admirable. But when we say that someone meant something else rather than what he is said to have said, or when we add or disregard a word, we are placing our own egos on a pedestal and, basically, saying we know more than our predecessors did. We're saying that we can figure out what may have confused those who came before us. Unfortunately, taykuⁱⁱⁱ is not used enough. Too often our sages have tried to clarify the words they found in the Talmud but used methods that raise bigger questions in our minds.

Gemara commentaries read like rules for a children's game. They seem to be ad hoc, based on the desired outcome and without regard for reality or previous rules, or that contradict a rule we learned before. Whenever a situation is reached that cannot be resolved using principles with which we're familiar, another rule is introduced that solves the problem.

Sometimes there is a close observation of science, as in anatomy of kosher animals, and sometimes there is a total disregard of science. The fact that the “science” is wrong doesn't seem to disqualify any results based on the errors. We are cautioned against using the Talmud as a science book^iv

The most bizarre explanations are used to justify what was written. The basic premise is that the tannaim were always right. As such, if we don't understand, or if we disagree with one of their decisions, we are obligated to construct a scenario compatible with it. And that's what they “must have been” explaining. And if two disagree, they don't disagree. They were explaining two different situations, even if there is no such indication in the text. So we must hypothesize two such sets of circumstances.

And, since the Torah is the word of G-d, there are no errors^v in it. Here again we may have to “explain” what appear to be inconsistencies. And there are no extra words.^vi Thus every one must carry a lesson and we have to figure out what it is. It does not matter that there may be no obvious support for our position or that someone else may have a completely different explanation – one diametrically opposite – or a contrary opinion. “These and these are the words of the living G-d.”^vii

So how can we explain what doesn't make sense? The Rabbis have used many different methods. For example:

They [two authorities who seem to disagree] must have had different versions.

He meant something other than what seems to be the case. What he actually meant was ...

That word doesn't belong here.

There's a word missing.

There's a different rule in this specific case [even though the case seems comparable to another that was decided differently.

We have no choice but to reverse the opinions of the two authorities quoted.

There must have been a copying error.

There seems to be an answer for everything. I recognize the tradition that those closer in time to Sinai have a more accurate idea of Torat Moshe^viii than later generations so that the more recent cannot disagree with their predecessors.^ix I am less certain about the idea that they, therefore, are always right. It seems to be our view that they cannot make mistakes. If there is any statement that does not make sense or seems to be in disagreement with another, the mistake is ours and we must reevaluate our interpretation of what we read. I am troubled by the hoops we pass through in order to make a statement fit in to what we know. It often means that they have to suggest, and we have to accept, some unlikely, or even bizarre, scenario that would justify a statement, or we are expected to accept the view that something “must” mean the opposite of what it seems to say, or that it was copied wrong. Anything to ensure that the tanna^x (or whoever) is right. We turn them into deities who are infallible, even though we claim to believe that only Hashem^xi is infallible. By doing so, by refusing to accept the idea that one of them can make a mistake – we risk having all of Shas^xii called into question, especially painful if we are convinced that what we are defending contains errors.

And if we cannot accept all the explanations, there is always the approach of “Bottom line Judaism.” With such an attitude, we do not deny the Rabbis' conclusions, even if we don't understand the route to them. As we learn from the Torah, we must accept their interpretation of the law. But that does not mean that we accept the explanations they give for reaching their conclusions. It is hard to give complete credence to the explanations of two Rabbis who have reached the same conclusions by diametrically opposite routes, and who disagree with each other's arguments. But their conclusion is binding on us.

We may be determined to understand though. So how can we deal with what doesn't seem to make sense? Ask someone who knows – or claims he does – someone who can decipher the text and provide an interpretation that seems to be valid. But when seeking an explanation of contrary ideas, bizarre scenarios, and scientific errors, it is better not to allow the expert to demand the provision of a specific example, because he is likely to focus on the example and not address the basic principle – even if he's familiar with that principle and its problems. One of the “explanations” which I have cited is likely to be used as justification for what is written.

So we have to be careful when we choose someone to help us, or when we decide on the explanation of a great authority from the past. We may stand on the shoulders of the giants who preceded us, but if they fall we'll be badly hurt.

Next episode: “Something For Everyone" -- Except you.

i      The portion of the Talmud that “explains” the Mishna, which is, itself, an explanation of the Torah – both the part that is written and the portion given to Moses at Sinai but not written down at the time.

ii     The first part of the Bible, otherwise know as the “Five Books of Moses,” the Chumash, and the Pentateuch, among various other designations.

iii    “It stands.” It may not be resolved but the point will be elucidated when the Messiah comes.

iv     Or history book, or whatever.

v      On the other hand, there may be errors in the interpretations of those words, although that is unlikely. Indeed, the Rabbis were not wrong even if there are mistakes in the documents we have now. Any apparent errors are those of the people who followed them.

vi     See previous note. The extra words represent errors by the copyists, not by the ones who originally spoke the words.

vii    Babylonian Talmud, Eruvin, 13b.

viii   The Torah of Moses.

ix     But they are free to offer their own explications of the meaning of those who preceded them.

x      One of the Rabbis whose words – from the first or second century CE – appear in the Mishna.

xi     G-d.

xii    The Talmud.

Chekhov's Gun

A while agoⁱ I discussed some of the “rules” of writing. One I didn't mention then – one that has subsequently bothered me for a variety of reasons – is “Chekhov's Gun.” As he put it, “If you say in the first chapter that there is a rifle hanging on the wall, in the second or third chapter it absolutely must go off. If it's not going to be fired, it shouldn't be hanging there." ⁱⁱ An earlier statementⁱⁱⁱ of this principle reads, "If in the first act you have hung a pistol on the wall, then in the following one it should be fired. Otherwise don't put it there."

Although the goal of this principle is apparently to tighten up the text, to avoid red herrings, that hardly seems to be adequate justification. Indeed, I can't imagine a Russian who would shun herring. Nor would generations of them be likely to have condemned Reds.^iv,v I'm not Russian, but I find this rule to be misplaced.

Why hang a gun on the wall and tell the reader about it if not as a plot device? Perhaps the goal would be to tell us a little about the wall, or the person who hung it. Or about the gun itself. Is the weapon a part of a larger display? Is it intended to depict the history or nature of the wall, room, or dwelling where it is found? If the action takes place in the United States, does the gun tell us anything of the owner's view of the Constitution – specifically the Second Amendment? Is he simply a collector? Would a gun of great value – perhaps an historical relic – testify to the owner's wealth?

Put otherwise, there may be other reasons in the mind of the author than mayhem to hang the gun on the wall. Further spinning of the yarn may clarify that point. Or it may not. The significance of the description may be left to the reader. His interpretation is an important part of the story.

Interpretation has always played a major role in the understanding^vi of a passage – sometimes rivaling or even overriding its apparent meaning. Such interpretations may provide help in the understanding of what was written, but since they represent the view of the interpreter, it is likely that they will contain his biases. Thus there may be many, contrary, interpretations of the same work. The explications and annotations offered my clarify the original author's intent, or they may be totally off base and contradict him. Reading an interpretation may tell us more about the interpretor than about the text.

One of the joys of reading is that you're free to create whatever images in your mind that the words before you suggest. Your image may be very different from that of the author, because you'll be bringing to the encounter a background and experiences different from his. That doesn't mean that he's right and you're wrong, only that your views of what was written vary. Not a big surprise. Just as two witnesses may see a crime differently, two readers of a work may have contrasting views of what the author intended. In fact, the author may not be completely aware of what he has written, and the interpreter may understand it better than the one who wrote it. We're not always conscious of all that we write or say, even if it seems correct at the time.^vii

Recognizing that there may be very different constructions put on a single body of text,^viii having a variety of interpretations available to you, may enhance your understanding of what you've read can widen your understanding. Biblical interpretation, the explication of literary works like Shakespeare, and the understanding of history are only three of the areas in which the interpretation of texts plays a major part. Perhaps a particular construction is unsatisfying, or even wrong, it will give the reader a perspective he might not have had otherwise, and it can contribute to his own thinking about the subject in question. Utility and function, however important, aren't the sole criteria which govern meaning.

Chekhov's error^ix was that he believed that the author's perspective was the only one, and that all the pieces had to fit together neatly. Life isn't that way, however useful such a view is for a short-story author.

I think Chekhov was too quick on the trigger with this one.

Next episode: “Soothing The Savage Beast” – Beast, breast. What's the difference?

i     Writer's Bl... June 19, 2011

ii    Memoirs, S. Shchukin, 1911. Cited in Wikipedia.

iii    1904. Another iteration, according to Wikipedia, was stated in 1889. Use of this principle can be found in Uncle Vanya.

iv    They certainly wouldn't live to tell about it.

v     All right. I admit it. Chekhov lived before Russia became a communist state.

vi    And in the clouding or confusion of its meaning.

vii    Not only are there unconscious areas of uncertainty, there are conscious ones as well. For example, there are occasions when the story doesn't even have an ending and the reader is free to imagine what happened next.

viii  Reading comprehension tests make this very obvious, although they don't necessarily clarify meanings for you.

ix    Or at least what I consider an error.