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Testing Textualism by Reading Biblical Law

While reflecting on a reading from Leviticus regarding the gleaning laws, Stephen Gottlieb, a professor at Albany Law School, couldn’t help but consider that if the textualists on the Supreme Court were to construe the text, they would read it so as to “absolv[e] us from caring for the poor.” The “’strict’ textual solution,” he writes, would hold that “only farmers [are] responsible to the poor, allowing the rest of us to take comfort from their work.” Indeed, because there are fewer gleanings in modern-day agriculture than before, “the textualist philosophy gradually cancels the maxim itself. The textualists’ approach means the poor can go hungry as gleanings decline in the modern world.”

Textualists are just mean and miserly.

Oh, my. Where to start?

Before delving into the substantive point on gleaning, we might note the Bible does not leave its readers entirely without methodological instruction on how to read the Torah. Moses, for example, twice cautions Israel “You shall not add to the word which I am commanding you, nor take away from it, that you may keep the commandments of YHWH your God which I command you” (Dt 4.2, cf., 12.32).

That doesn’t seem to be a bad injunction to follow, whether construing divine legislation or construing human legislation: Read neither strictly nor loosely, but rather read reasonably. We might note as well that Moses’ words do not prohibit the need for additional human legislation. They rather prohibit teaching that human legislation is divine, and they prohibit obedience to human legislation that would permit or require disobedience to divine legislation (see, e.g., Mt 15.3-5).

Now to gleaning itself. As an initial matter, there’s a subtle, yet curious, initial assertion in Gottlieb’s argument. He writes, “there are scarcer gleanings in the modern day.”

The use of the passive voice is what’s arresting. Its use allows Gottlieb to sidestep the obvious textualist application of the law. Just who is responsible for these “scarcer gleanings in the modern day”?

The command in Leviticus does not merely grant permission to the needy and the stranger to encroach on farmland to gather what crops a farmer may have left in the field. The law in Leviticus 19 affirmatively commands farmers to leave crops in the field for strangers and the poor:

Now when you reap the harvest of your land, you shall not reap to the very corners of your field, nor shall you gather the gleanings of your harvest. Nor shall you glean your vineyard, nor shall you gather the fallen fruit of your vineyard; you shall leave them for the needy and for the stranger.

Crops left in the field for the poor and the stranger are scarcer today than they were yesterday because farmers now reap to the corners of their fields and, presumably, employ better harvesting equipment that leaves fewer gleanings.

This may be entirely justified given today’s urban environment. But Gottlieb rushes past the direct application of the text. He seemingly absolves modern farmers from obeying a text expressly speaking to them, and instead criticizes textualists for ostensibly refusing to create new commands derived from a specific law’s general principle. He writes,

An obvious solution is to identify the objectives of the biblical passage about gleanings and figure out how it might most appropriately be done. Scalia fought that idea. He railed against the possibility that the principles of values that underlie legal injunctions might be interpreted by judges. Liberals might try to figure out how to care for the poor instead of declaring the injunction unworkable.

So here would seem to be Gottlieb’s approach to interpreting legislation: From a specific piece of legislation commanding particular behavior in a particular situation, ignore the expressly-commanded application of the law, and instead deduce a general principle. Then, have judges, under the guise of merely interpreting that specific command, trick out new, specific applications of the law.

Gottlieb suggests unless judges adopt his interpretive methodology in construing the gleanings law, our textualist Bible interpreters would have the poor starve.

How about this instead: Rather than judicially twisting the text of a divine command to apply in cases to which it does not speak, how about looking for the principle itself in the Scriptures, and perhaps allowing human legislators rather than human judges actually legislate new laws without the pretense that they’re merely applying a specifically-written divine law?

Contrary to Gottlieb’s suggestion, the general principle need not be deduced from the gleaning law; Moses expressly states the general principle in generally-worded texts:

Now in case a countryman of yours becomes poor and his means with regard to you falter, then you are to sustain him, like a stranger or a sojourner, that he may live with you (Lev 25.35).

For the poor will never cease in the land; therefore I command you, saying, ‘You shall freely open your hand to your brother, to your needy and poor in your land.’ (Dt 15.11).

Moses presents a welter of specific, divine legislation implementing the general principle. There is the field-eating law (Dt 23.24-25), requirements of no-interest loans, along with Sabbath-year forgiveness of debt and release from a sort of indentured workfare (Dt 15), prohibitions on keeping certain loan pledges (Dt 24), making wage payments to subsistence workers promptly (ibid), and more. All specifically implement the general injunction to care for the poor.

To be sure, along with Gottleib, a textualist could easily recognize that much of the specific Mosaic legislation concerning the poor no longer achieves the purpose of providing for the poor in today’s modern, largely urban environment. (Although things like Goodwill stores might apply the gleaning insight in an urban environment.) But rather than pretending to trick out ostensible applications of specifically-worded divine statutes, as Gottlieb would have us, the textualist would have us take the honest, accountable step of writing and enacting new legislation. It would be merely human legislation, to be sure, but human legislation implementing God’s expressly revealed general principle rather than masquerading as a direct application of divine legislation.

Reader Discussion

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on October 11, 2018 at 12:04:56 pm

“You shall not add to the word which I am commanding you, nor take away from it, that you may keep the commandments of YHWH your God which I command you” (Dt 4.2, cf., 12.32).

That doesn’t seem to be a bad injunction to follow, whether construing divine legislation or construing human legislation: Read neither strictly nor loosely, but rather read reasonably.

Really? What language should Moses have used to admonish people to read things strictly?

Query: Did the Heller court apply Rogers’s method for construing the 2d Amendment? I could see construing the 2d Amendment to apply only to the military/militias, or to apply to permit anyone to use “arms” as they existed circa 1790, or to permit people to own “arms” willy-nilly. But the actual court decision looks a lot more like legislation than the one-and-only-possible-interpretation of Constitutional text.

However, if you understand the 2d Amendment within the larger context of the Bill of Rights—as a right reserved to the people, written in anticipation that the day might come when government would not want to honor such a right—then it would make sense that the Court might want to inject some substance into its interpretation. To say that the 2d Amendment is amenable to multiple interpretations, and thus the Court should remain inert until government picks a constitutional one, would defeat the idea of having a right enforceable against government.

Yet similar reasoning might apply in many contexts. “Yes, the legislature’s formula for calculating just compensation is inadequate, and thus unconstitutional. But there are other formulas to choose from—and because the legislature has not yet selected from among the constitutional formulas, the court cannot grant you any relief.” No one would support such a holding, right?

No, courts should not act as legislatures. But when issues come before the court, and legislatures have FAILED to act (or failed to act adequately/Constitutionally), what is a court to do?

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nobody.really
on October 11, 2018 at 16:34:05 pm

"No, courts should not act as legislatures. But when issues come before the court, and legislatures have FAILED to act (or failed to act adequately/Constitutionally), what is a court to do?"

Make plain in its written decision that the problem is a Legislative one and may not be addressed by the Judicial.
Cruel? Dispassionate?

So what: it is the Law BEFORE the Justices that must be addressed not the *policy* question.

BTW: Your Heller discussion is off point. Arms are arms, period. Using your analysis, one could (someone such as I for instance) then rightly claim that the artillery pieces which decorate my front lawn are permissible. After all, the militia DID in fact possess, indeed, constructed, such arms.
And it is far more straightforward than you would suppose in your assertion that the choice is to remain inert or arrive at a different interpretation. Simply stated the 2nd Amendment RECOGNIZES the pre-existing right of self defense. Neither grand theories nor specific policy prescriptions are required to be proffered by the Justices (or anyone else).

BTW 2:

At times, I mistake you for the patron in the pub in a Bud Light commercial. recall, he sits aloof, and when offered a Bud Light by the King, demurs and expressed a desire for "mead". the king assents to his request. Not good enough apparently for this rather particular patron. He then asks if it is autumnal or summer mead. again, the king assents. And again, this dainty, persnickety fellow asks if it is hardy or mild.
The king loses his patience and provides what to the viewer (and i am sure the other patrons) a much deserved comeuppance and has him placed in a pillory.

All for the crime of being just a tad bit too *particular*.

I wonder, do you still want the mead?

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gabe
on October 11, 2018 at 21:27:18 pm

“No, courts should not act as legislatures. But when issues come before the court, and legislatures have FAILED to act (or failed to act adequately/Constitutionally), what is a court to do?”

Make plain in its written decision that the problem is a Legislative one and may not be addressed by the Judicial.
Cruel? Dispassionate?

So what: it is the Law BEFORE the Justices that must be addressed not the *policy* question.

BTW: Your Heller discussion is off point. Arms are arms, period. Using your analysis, one could (someone such as I for instance) then rightly claim that the artillery pieces which decorate my front lawn are permissible. After all, the militia DID in fact possess, indeed, constructed, such arms.
And it is far more straightforward than you would suppose in your assertion that the choice is to remain inert or arrive at a different interpretation. Simply stated the 2nd Amendment RECOGNIZES the pre-existing right of self defense. Neither grand theories nor specific policy prescriptions are required to be proffered by the Justices (or anyone else).

The 2d Amendment says, “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” Based on this language, the Court ruled that people have the right to “traditional” arms for self-defense in the home.

Where does the limitation to “traditional” arms—and not, as you observe, artillery pieces—come from? That’s hardly the context suggested by “well-regulated militia.” Scalia pulled it out of its ass. Or, to use the language of public policy, the court made a policy judgment—the kind of judgments we traditionally leave to legislatures, but which Scalia was only too happy to usurp.

Where did the limitation to defending the home come from? Again, that’s hardly the context suggested by “well-regulated militia.” Scalia pulled it out of its ass. Or, to use the language of public policy, the court made a policy judgment—the kind of judgments we traditionally leave to legislatures, but which Scalia was only too happy to usurp.

Scalia concluded that the 2d Amendment did not create a right to carry weapons in a concealed basis. Where in the text did Scalia find authority for that statement? Scalia pulled it out of its ass. Or, to use the language of public policy, the court made a policy judgment—the kind of judgments we traditionally leave to legislatures, but which Scalia was only too happy to usurp.

Scalia concluded that the 2d Amendment did not necessarily defend the rights of felons or the mentally ill from carrying arms, or forbid prohibitions on people’s right to carry arms into “sensitive places” such as—surprise—government buildings. Where in the text did Scalia find authority for that statement? Scalia pulled it out of its ass. Or, to use the language of public policy, the court made a policy judgment—the kind of judgments we traditionally leave to legislatures, but which Scalia was only too happy to usurp.

Scalia concluded that the 2d Amendment did not limit laws imposing conditions and qualifications on the commercial sale of arms. Where in the text did Scalia find authority for that statement? Scalia pulled it out of its ass. Or, to use the language of public policy, the court made a policy judgment—the kind of judgments we traditionally leave to legislatures, but which Scalia was only too happy to usurp.

The statute being challenged in Heller required guns at home to be disassembled or stored with trigger locks to avoid accidental killings—are real problem. Scalia did not deny that accidental killings occurred, but concluded that the burden of trigger locks would limit people’s ability to use guns for self-defense in the home. I could well find this a reasonable conclusion. But a constitutionally-compelled conclusion, such that no other conclusion was possible? No. Scalia made a policy judgment—the kind of judgments we traditionally leave to legislatures, but which Scalia was only too happy to usurp.

So I can well support gabe's conclusion that the Court should have said, "the problem is a Legislative one and may not be addressed by the Judicial [branch]." But I suspect that gabe doesn't actually believe the position he has articulated.

On the other hand, I could also support an alternative conclusion--even if it required the court to make a million niggling policy judgments--if we understand that the Court was trying to give weight to a right that people hold against the power of government. In that case, we understand that the Court cannot use the legislature's inaction as a limitation on the Court's action.

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nobody.really
on October 12, 2018 at 10:41:49 am

Sounds reasonable BUT:

One may also observe that Scalia may have looked at the actual practice and habits of both the citizenry and the authorities of the time that the 2nd A was ratified. Doubtless, there were some restrictions, more informal than statutory, limiting firearms perhaps to the mentally infirm as an example; however, there is no recorded instance of a requirement that colonial gun owners were compelled to disassemble their weapons or limit their response time to a threat by installing a trigger lock.
Such an *observation* could allow one to draw a conclusion somewhat different than the one advanced by nobody. Thus, it is a "constitutionally compelled" reason because it takes into evidence that actual practice, and derivatively, the meaning and substance of the right.

Where you observe juridical flatulence, i see considered observation of historical practice.

And I do believe the position I have articulated. News today that Washington State Supreme court has deemed the death penalty unconstitutional - the usual "racial bias" argument. Perhaps, rather than accepting more BS from UW sociologists, the court could have cautioned the State to exercise more oversight WHEN State Prosecutors choose to demand from juries the application of the death sentence.
Perhaps, sovereign immunity laws allow the allegedly "biased" prosecutors to demand such a penalty on a racially biased basis without consequence. Perhaps etc etc BUT - the law itself, on its face, is neutral. Does (let us say) prosecutorial misconduct negate the Legislatures duly enacted statute? Should the law against "bribes / tax evasion? be overturned because Federal Prosecutors denied Senator Ted Stevens exculpatory evidence.

Surely, you do not wish to allow the Legislature to be neutered, do you and to be replaced by considered *wisdom*, narrow and near sighted as it is, by the view from the bench?

So I ask again, do you still want that mead? Ha!

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gabe
on October 12, 2018 at 17:14:05 pm

[T]o you still want that mead?

Ok, wine-guy, have you ever tasted a mead you liked? I mean, seriously? Renaissance Fair folk claim to like the stuff--but they have to, don't they?

"Oh, so this is your latest batch of mead? You must be so proud."

"...yes ... we must...."

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nobody.really
on October 12, 2018 at 19:12:28 pm

luvv'd it!

think Van Morrison here and "You're as sweet as Tupelo Honey" as a compliment to the Renaissance mead maker.

Oops, i forgot - IT IS Honey!

Egads, sir, egads!

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gabe

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