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The Talmud Meets the Constitution

The Brookings Institute, in partnership with the Center for the Constitution, has just launched a new site called ConText. Its purpose? To crowd-source scholarly and popular commentary for the underappreciated notes of James Madison on the debates of the Federal Constitutional Convention of 1787.

The project, which aims to surround the notes themselves with columns of explanatory information, has a fascinating inspiration, explains Benjamin Wittes, Senior Fellow in Governance Studies at Brookings:

There is a model for this sort of thing, but it’s not a model from the American constitutional tradition; it’s the Talmud—the multi-volume exposition of Jewish law that developed after the Romans sacked the Temple in Jerusalem. The Talmud is a series of debates—and commentaries on those debates—on a text called the Mishnah. …On a page of Talmud, a passage of Mishnah is physically surrounded by layers of commentary text, more and more of them as the centuries wore on. So in the center of the page is a short passage, by tradition, of course, Divine, but often in practice dry as dust; yet radiating out from that passage is centuries of wisdom and thought. It is not merely a form of crowd-sourced scholarship, but it is a visual means of expressing that scholarship and crowd-sourcing that seemed to me to have broad application to the exposition of lengthy and difficult historical texts like the Notes.

The internet age has given rise to many intriguing mash-ups, but none quite like this. Indeed, it was only a few centuries ago that the Talmud was banned, censored and even burned publicly en masse and accused of denigrating gentiles, ridiculing Christianity and promoting unethical Jewish practices. The corpus is still feared in less enlightened parts of the world like Iran, where the adjective “Talmudic” is typically used to label all things sinister (e.g. “Netanyahu’s case for ongoing Talmudic death and destruction“).

It is this historical and contemporary legacy which makes the fusion of the Talmud with one of the Western world’s most famous texts so remarkable. Seen in this context, the unlikely marriage of the Western canon with the Jewish canon is a promising portent  not just for scholarship’s quest for understanding, but for our society’s struggle against prejudice. Via Meadia wishes it the best of luck.

Somehow, though, we suspect that in the dim and dark caves where the anti-Semites live, work and tell the world that they are just a bunch of innocent anti-Zionists cruelly mislabeled by vicious and deceptive Jews, the news that US scholars are turning to the Talmud for inspiration in studying the Constitution is going to be taken for yet another sign that those insidious Jews are at it again. First it’s support for Israel, then come the Talmudic Constitution studies, and next will be compulsory phylacteries for school children and federally mandated kosher school lunches.

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  • Walter Sobchak

    Just what I always wanted. James Madison commented on by the sort of leftist trolls who typically comment on the internet.

    The virtue of the Talmud is not the mass of commentary, it is that commentary was edited by brilliant redactors. Not one internet snark in a thousand would survive that editorial process.

  • Andrew Allison

    Although I must agree with @1 that Internet comments leave much to be desired, the objective of the ConText site appears to be to illuminate rather than critique Madison’s Notes. One would expect that the moderators are capable of making that distinction.

  • Kris

    As I mentioned in a previous comment, some Iraqi muckamucks are trying to drum up a scandal over the alleged transfer out of Iraq of ancient Jewish scrolls and books, among them a very early edition of the Talmud. I was reminded of a quote from an old Jewish book: “Hast thou killed, and also inherited?”

  • Chase

    Alan Dershowitz has written some good essays mixing constitutional debate with Talmudic scholarship. In one essay on Judicial Review, Dershowitz refers to a debate in which one of the ancient rabbis seems to be right on a technical point, but the others don’t accept his conclusion, and some of them ask God to give an authoritative opinion – that opinion being the “original intent” if you will. He does, and the other Rabbis rebuke God for interfering in a human debate. Their argument was that while God was the source of the law, it was the sole prerogative of human beings to interpret the law. And, so the story goes, “God agreed, laughing with joy. My children have defeated Me in argument.”

    (Shouting fire: civil liberties in a turbulent age, pg. 392) And Dershowitz’s citation in the book is (Babylonian Talmud, Baba Mezi’s a 59b.)

    Dershowitz makes an analogy between this story and American Constitutional interpretation, with God having the same role as the founding fathers who wrote and ratified the constitution. And just as Rabbis in this story establish their right to interpret Gods laws in a flexible way, Dershowitz argues that Judges should have some latitude in terms of interpreting the Constitution in light of present day needs. The story is intended to argue against Originalism. Whether Dershowitz is right or wrong is not for me to say, but I think some people who enjoyed Prof Mead’s original posting might like this story too.

  • Jim.


    Is that story one of the classic definitions of “chutzpah”, right up with the story of the kid that asked a court to have mercy on him for having killed his parents, on account of his being an orphan?


    I seem to remember your discounting the Pauline letters’ value to the Bible overall; would it help you to consider looking at their value in terms of how they are Talmudic commentary on the Gospels? After all, Paul was the most learned in the Jewish tradition, of the followers of Christ. “New Scripture!” he must have thought. “I must comment!” 😉

  • Luke Lea
  • Diana

    Not so fast.

    Are you quite certain that the familiar page arrangement of the Talmud is not borrowed from the Glossa Ordinaria?

  • Alex Schindler

    Well a “divine” center is certainly a strange way to describe the Mishna being commented upon in the Talmud. The Mishna is an earlier statement of existing Jewish law, whether biblical or rabbinically legislated, edited circa 200 CE and made of statements over a nearly 200 year period, most of them a bit later than Jesus. At no point does it claim to be of “divine” origin; its careful editorial process, led by Rabbi Judah “the prince”, is described in the Talmud itself.

    and the “centuries of commentary surrounding a page of talmud” are a mere convention which emerged after the printing press. Traditionally a manuscript of talmud included nothing in the tractate but each Mishnaic snippet and the pericope of talmud which discusses it — no material later than the redaction of the talmud itself, which depending who you ask may have been anywhere from about 500 CE (the traditional view, maintaining that it was all completed by Ravena and Rav Ashe) all the way to a couple centuries later. medieval commentaries like rashi or his grandchildren the tosafot, are by no means de rigueur, especially since the manuscript used for what has become by far the most common printed edition of the talmud — called the “vilna shas” — is riddled with errors, emendations, and outright censorship to avoid the Christian censors of Ashkenazic Europe.

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