Levine on The Constitution as Poetry @TouroLawCenter

Samuel J. Levine, Touro College Law Center, has published The Constitution as Poetry 49 Seton Hall L. Rev. 737 (2019). Here is the abstract.

Building upon a body of scholarship that compares constitutional interpretation to biblical and literary interpretation, and relying on an insight from a prominent nineteenth century rabbinic scholar, this Article briefly explores similarities in the interpretation of the Torah — the text of the Five Books of Moses — and the United States Constitution. Specifically, this Article draws upon Rabbi Naftali Zvi Yehudah Berlin’s (“Netziv”) intriguing suggestion that the interpretation of the text of the Torah parallels the interpretation of poetry. According to Netziv, this parallel accounts for the practice of interpreting the Torah expansively in ways that derive substantive legal rules and principles far beyond those found in the relatively narrow wording of the text. Moreover, Netziv explains that deriving these interpretations, which, at times, seem far removed from the literal reading of the text, requires a level of technical expertise similar to the skilled literary analysis necessary for thorough, thoughtful, and meaningful interpretation of poetry. Based on Netziv’s insight, this Article focuses on two methods of interpreting the Torah and the Constitution that may otherwise appear to present an anomalous approach to understanding a legal text, but which are standard and important methods of literary analysis when applied to poetry: first, the expansive interpretation of a provision, a brief phrase or, at times, a single word, to establish a wide-ranging set of principles and ideas; and second, somewhat conversely, the interpretation of a provision, seemingly stated in categorical terms, but understood to incorporate qualifications, limitations, and exceptions. In either case, both the Jewish legal system and the American legal system accept the authority, if not the competency, of judicial experts to understand, interpret, and apply the text in ways that may not be apparent, and that may be difficult to accept outside the technical practices of biblical and constitutional exegeses. Finally, and perhaps as a further justification for these methods of interpretation, this Article concludes with the observation that, beyond their literary forms, the Torah and the Constitution share poetry’s design to function as a timeless text, susceptible to meaningful application and containing important lessons for the foreseeable — and unforeseeable — future.

Download the article from SSRN at the link.