Sinai and Philadelphia

Traditional Judaism and American constitutional law both struggle with a challenge that, in its secular form, is called the dead-hand problem. In each system, the fundamental law is something that the people who are governed—converts and immigrants aside—did not choose and cannot change. No American living today participated in the drafting or the ratification of the Constitution, and the Constitution is extremely difficult to amend, and yet the Constitution constrains what democratic majorities of Americans can do in the present. The Revelation at Sinai was even longer ago than the Constitutional Convention, and the text of the Torah is even harder to amend than the text of the Constitution. In both contexts, people are more or less stuck with fundamental law that they did not choose and cannot change.

In the Jewish context, one famous response to this problem is embodied in the formula kulanu hayinu be-Sinai: All of us were at Sinai. According to tradition, God summoned the soul of every Jew who would ever live to Sinai at the moment of revelation, and every Jew ever to live then and there accepted the Torah willingly.

For this response to be helpful, however, Jews must be willing to imagine themselves as having stood at Sinai. The word imagine is critical. Kulanu hayinu be-Sinai can be a useful fable even for a Jew who does not believe it true, in a factual sense, that he or she momentarily existed in a Middle Eastern desert 3,300 years ago. It can be sufficient for that modern Jew to be willing to suspend disbelief for a moment, or to accept the story as an appealing invitation to identify with his predecessors, and therefore to act as if the story were true. But everything depends on that willingness.

The Passover Seder is, among other things, a mechanism for disposing people to be willing to take that imaginative leap. The story of Passover is, after all, a setup for the lawgiving at Sinai. And the traditional Haggadah is explicit about the importance of imagining oneself as part of the story. Most obviously, that text contains the passage that says, “In every generation, a person is obligated to see himself as if he came out from Egypt.” If that project is successful—if a modern Jew can feel as if she participated in the Exodus—then she can also embrace the idea of standing at Sinai and agreeing to the Torah.

Something similar is true of American constitutional law. One of its strategies for addressing the problem of being governed by a Constitution the present generation did not choose, I suggest, is inviting Americans to identify with their legal system’s heroic origin story. If the Framers of the Constitution seem alien, we will chafe at being governed by the decisions of men long dead. But if we identify with the story—if we can imagine ourselves in the shoes of the Framers—then we are more likely to relate to the Constitution as ours, rather than as an imposition upon us.

Like traditional Judaism, therefore, American constitutional law needs mechanisms for helping people imagine themselves as part of a heroic origin story, set long ago. And it does have such mechanisms. One of them, in my view, is the practice of arguing about issues of constitutional law by asking what relevant clauses of the Constitution meant when originally enacted in the 1780s. This practice—often called “originalism”—comes in varying forms. Sometimes originalism involves looking at 18th-century dictionaries to try to determine what particular words meant at the time the Constitution was written. Sometimes originalism involves trying to read the Constitution through the eyes, or the ideas, of James Madison or Alexander Hamilton or other members of the cohort we call the Framers of the Constitution. In recent years, originalism has usually been associated with conservative and libertarian arguments in constitutional law: For example, the movement to recognize an individual right to own firearms argued its cause overwhelmingly in originalist terms. But there is no necessary connection between originalism and any particular political program. Indeed, the Supreme Court justices who resisted the gun-rights movement also argued their position in terms of original constitutional meanings. More broadly, it is usually possible for both sides of a constitutional controversy to argue in originalist terms, because the Framing of the Constitution is, in many domains, open to multiple interpretations.

The fact that it is often possible to make originalist arguments on either side of a constitutional question is often considered a problem. A method of constitutional interpretation, the thought runs, should bring decision-makers to one correct conclusion, rather than letting them go off in different directions. To the extent that originalism is understood as a way for judges to decide constitutional cases, that line of criticism makes some sense. But originalist argument, I suggest, is not only a technology of decision-making. It is also a mechanism for helping Americans feel themselves connected to the Framers of the Constitution and thereby to diminish our sense of being ruled by an inherited law that we did not choose—much as the Seder is a mechanism for getting Jews to identify with the generation that came out of Egypt and willingly accepted the Torah.

A lawyer who makes originalist arguments finds himself imagining the world from the point of view of people who wrote and ratified the Constitution. That lawyer must communicate the perspective of those long-dead Americans. And when you try to speak in the voice of a long-ago character, that character’s story becomes yours. You are the one telling it, after all, and you will probably tell it in a way that is particular to your own imagination. Nomos then follows narrative: If telling the story helps you feel that the story is yours, you will experience the law that emerges from the story as yours, too. And considered from this perspective, the fact that the Constitution’s original meaning is often open to multiple interpretations is a feature rather than a bug. It lets many different people tell the story in ways that let them identify with its narrative.

But how, exactly, do the respective practices of the Passover Seder and American constitutional discourse facilitate this sense of identification? The Haggadah declares that Jews in every generation must see themselves as if they came out of Egypt, but instructing someone to feel something fanciful is not enough to make it happen. Something more psychologically subtle is required. And indeed, I suggest that the Seder is built to facilitate the necessary act of imaginative identification in a sophisticated way, one that is attentive both to the identity-shaping effects of storytelling and to the idea that it is easier to change one’s perspective gradually than all at once. Below, I unpack that work of the Seder by close attention to three key texts. Afterward, I turn to analogs, such as they are, in the practice of constitutional law.

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The word “Haggadah,” which names the book that guides people through the Seder, and the word “Magid,” which names the step of the Seder that deals directly with telling the story of the Exodus, both come from the Hebrew word for “tell.” But neither Magid nor the Haggadah aims to inform an audience by telling it a story. Indeed, the traditional text never tells the story of the Exodus, in the linear beginning-middle-end way. Instead, Magid is a framework for a group activity the point of which, I suggest, is to make the people at the Seder better able to see themselves in a story they already know.

This vision of Magid is best seen if we strip Magid down to three essential texts. The first, which opens Magid, is ha lakhma anya: “This is the bread of poverty.” The second, which follows shortly thereafter, is avadim hayinu: “We were slaves.” The third, near the end, is ke-ilu hu yatza, which states the obligation to see oneself as if one had come out of Egypt. The goal of Magid, I suggest, is to deliver the people around the Seder table to that end point in a frame of mind in which they can imagine themselves in the story. And Magid’s major strategy for achieving that goal is forcing those people to become the storytellers—and more to the point, to become storytellers who tell the story creatively or even idiosyncratically.

Ha lakhma anya is the entry point into ritual story time. Someone at the Seder table holds up a piece of matzo and says, “This is the bread of poverty that our ancestors ate in the land of Egypt.” Note that the language at this opening point is about our ancestors, whom we recognize as existing at some remove from ourselves. The text does not rush us into an act of transhistorical identification by asking us to say, without warmup, “This is the bread of poverty that we ate in the land of Egypt.” Magid thus begins by meeting people where they are. Nothing has yet happened to dispose the people around the table to think of themselves as characters in a narrative from thousands of years ago.

Indeed, the intention of ha lakhma anya to meet people where they are is also signaled by the most basic way in which ha lakhma anya differs from the rest of Magid: its language. Ha lakhma anya is written not in Hebrew but in Aramaic. When ha lakhma anya was written, Aramaic was the vernacular language. At a rabbinic-era Seder, ha lakhma anya would accordingly have functioned in more or less the way that an English reading might at an American Seder today, meeting people closer to their normal present than the Hebrew readings do. So in two respects—by speaking to its audience in its “modern” language, and by presenting the Passover story as a story about our ancestors rather than about us, ha lakha anya respects the difference between past and present.

But ha lakhma anya also begins to collapse that difference. The opening words of Magid do not say, “This is the matzo which we eat in memory of the bread of poverty that our ancestors ate.” No. The matzo we have before us is not a symbol: It is the thing itself. This is the bread of poverty that our ancestors ate in the Land of Egypt. It is as if the leader of the Seder is saying, “Just a few minutes ago, before I came into this room and sat down, I was hanging out with our ancestors, and they handed me this.” Here, as an invitation into the world of the story, ha lakhma anya plays show and tell with an artifact—the matzo—that is described as transcending the temporal difference. Maybe the people around the table aren’t yet ready to make that leap, the text suggests: The human characters in the story must, for now, be your ancestors rather than you. But we are here to merge with the world of the story, not merely to describe it.

The second text, avadim hayinu, reads as follows:

We were slaves to Pharaoh in Egypt. God took us out from there with a strong hand and an outstretched arm. If God had not taken our ancestors out from Egypt, we, and our children, and our children’s children would still be in bondage to Pharaoh in Egypt. Even if we were all wise, and brilliant, and elders, and learned in the Torah, it would be incumbent on us to tell of the Exodus from Egypt. And anyone who makes more of the telling of the exodus from Egypt is worthy of praise.

Our relationship to the story has now changed. Moments ago, in ha lakhma anya, the story of Egypt was about our ancestors. Now, it is “we” who were slaves in Egypt. To be sure, the third sentence reverts to noticing that it was our ancestors who came out. But it does to explain why the story is indeed about us: But for the Exodus, we would be in bondage. The aspiration is clear. Avadim hayinu wants us to change our perspective so that rather than thinking of the story as being about our ancestors, we begin to think of it as being about us.

Notice how spare this text is. The entire story is told in two short sentences: “We were slaves to Pharaoh in Egypt. God took us out from there with a strong hand and an outstretched arm.” That’s all. Can reading or hearing something so skeletal really do the necessary psychological work? I doubt it. But before avadim hayinu is finished, it tells us what we are supposed to do to get the work done. The key is the last sentence of the paragraph: Anyone who makes more of the telling is worthy of praise.

Imagine avadim hayinu not as a text that is supposed to change one’s perspective but as the instruction for an activity that is supposed to do that work. Imagine, in fact, that there were no Haggadah text, and no prescribed rituals of any kind, between the second and third texts. No four children, no 10 plagues, no ancient rabbis arguing about why the Seder is held at night. Once you read avadim hayinu, you face two hours or so of open time before you say ke-ilu hu yatza. How are you supposed to fill that time?

If you have ever seen an improvisational drama troupe perform, you may have seen a kind of scene work in which the performers spontaneously make up and act out a story based on a bare-bones specification of characters and a setting. Someone—maybe the audience—supplies those basic elements. Maybe the story is about a doctor and a patient in a hospital room, or the captain and first mate on a sailing ship. The performers are supposed to take that kernel and from it tell a story—one that makes sense as growing out of the kernel supplied but which is also creative and original.

So imagine Magid not as a time for reading and commenting on a collection of canonical texts accumulated over the centuries but as a moment for improvisational storytelling. The prompt is the barest statement of the story’s outline: We were slaves to Pharaoh in Egypt, and God took us out. That’s it. Now go to it. Take those elements, and tell us a story. And tell it up: The parting injunction of avadim hayinu directs us to elaborate, to embellish, to make the story more and more. To find ways of telling the story that nobody has found before. Indeed, the prompt is spare precisely so as to give us room to imagine. Don’t whip out a copy of the biblical book of Exodus and use it as a script. Just take this bare outline, and tell me the best story you can.

Why? Because if you accept the challenge to tell the story from just that basic set of elements, and if you do it at any length, you will wind up telling the story in a way that is not exactly the way that anyone else would have told it. Indeed, the more you elaborate your version of the story—and the instructions tell you to be elaborate—the more particular to your own instincts your version will be. And the more you tell the story in your own way, the more you will feel that you inhabit the perspective of someone in the story.

Note something that avadim hayinu saliently omits: Moses. If one were to tell the story of the Exodus by trying to reproduce the canonical version, Moses would have a central role. But the traditional Magid text never mentions Moses, neither in avadim hayinu nor anywhere else. Traditionally, Moses’ absence is explained by saying that the Hagadah does not wish to take the focus off of the real hero of the story, who is not Moses but God. But that seems like an unsatisfying rationalization. It is hard, after all, to imagine that including Moses in the Hagadah would eclipse the significance of God. (The author of the Bible does not seem to have had this concern.) But there is another potential eclipse that is more plausibly worth guarding against: If the story comes with a well-known Israelite character, the improvising storyteller will be less likely to develop other Israelite characters. So perhaps the real value of leaving Moses out is not that including Moses would obscure God’s role in the story but that including Moses would leave less room for us to insert ourselves.

A story about Moses is a story about Israelites who died long ago. But if the frame of the story we are supposed to elaborate contains nothing at all about the people who were slaves and who came out of Egypt—not even the name of the leader—then there is a gaping hole for the storyteller to fill. If the storyteller takes seriously the challenge to fill in the story creatively, he or she cannot help telling it in his or her own way. And the more a person tells a story his or her own way, the easier it becomes for the storyteller to identify with the story.

Once you’ve spent two hours telling the Exodus story your own way, you will be more able to imagine yourself as having come out of Egypt. It’s your story now. And the more you identify with the story out of which the law emerges, the easier it will be to experience that law as yours, rather than as an imposition upon you.

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The problem of fundamental authority inherited from the deep past, rather than chosen by people in the present, is at least as troublesome in American law as it is in traditional Judaism. Traditional Judaism can always fall back on the claim that the Torah is authoritative by divine commandment. American law cannot. Moreover, in a system that prizes individual liberty and democratic decision-making, the fact that our modern choices are constrained by a fundamental law imposed on us from the past could be distinctly uncomfortable. Yes, the Constitution is formally subject to amendment, but the rules for amendments are extremely hard to satisfy—hard enough that amendment is rarely a realistic possibility—and even those rules for amendment are rules imposed from the distant past. This is the conundrum that constitutional theory calls the dead-hand problem: Once the Founding generation is gone, the people whose democratic choices are constrained by the Constitution are ruled, the saying goes, by the dead hand of the past.

But just as traditional Judaism can get people to think of themselves as having chosen the Torah if it can get them to identify with the narrative of the Exodus, American constitutional law can take the sting out of the dead-hand problem if it can get modern Americans to identify with the narrative of the Framing. If we can imagine ourselves as part of the origin story—as part of the community that chose the fundamental law—then we will be less bothered by the fact that we did not, in fact, participate in making that choice. It will still be true, of course, that we the living did not write or ratify the Constitution. But if we identify with the narrative of those who did, we can experience the Constitution as ours, rather than as an imposition on us.

Constitutional culture accordingly needs mechanisms—analogous to the Seder—for fostering a sense of narrative identification with the people who wrote and ratified the Constitution. One of those mechanisms, I suggest, is originalist interpretation—that is, the practice of arguing constitutional issues by reference to the ideas of the Founding generation. A decade ago, when the Supreme Court confronted the question of whether the Second Amendment guarantees an individual right to own firearms, the justices debated not just the meaning of the words of the Second Amendment but what meaning those words would have carried to people at the Founding and how people of the Founding generation would have understood the amendment’s purpose. Last year, when the Supreme Court refused to say that electoral gerrymandering raises constitutional problems, the court’s argument included the observation that the Founders considered gerrymandering an acceptable practice. As of this writing, the court is considering whether a sitting president’s personal affairs may be subject to a criminal investigation by state authorities, and one big piece of the argument, on both sides, is about how the Framers would have thought about this question.

The practice of arguing constitutional questions in originalist terms has been heavily and trenchantly criticized in the academic literature, and on multiple grounds. For one thing, originalist arguments can often be made on either side of question, such that asking judges to decide on originalist grounds might have the effect of licensing those judges to go either way. And there is also the dead-hand problem: There is something profoundly undemocratic about letting the ideas of Americans long dead prevail over the values of the American people today. Nonetheless, the practice of originalist argument persists, and robustly. So it pays to ask what the appeals of originalism as a practice might be, above and beyond whatever utility it might have as a decision-making device. Part of that appeal, I suggest, is that engaging in originalist argument fosters a sense of narrative identification with the lawmaking generation. In so doing, it deflates our sense of being bound by a law we did not choose.

The judge or lawyer who makes an originalist argument has the experience, imaginatively, of standing in the shoes of the Founders. The more a judge or lawyer engages in the activity of trying to describe the world from the Founders’ perspective, the more he might blur the difference between those Founders and himself. Like an actor who comes to identify with (his conception of) the character he is playing, the lawyer making originalist arguments can experience a kind of imagined communion with the people he is trying to channel. If I am here telling you how Madison thought, then I am the Vicar of Madison: I feel Madison within myself. Once we understand that the activity of originalist argument fosters that feeling, it is no longer a mystery why the seriousness of the dead-hand problem has not caused originalism to disappear. On the contrary, it is precisely because the dead-hand problem is serious that originalist argument seems necessary. It is a way of fostering the state of mind in which the dead-hand problem is less troubling that it otherwise would be.

This way of understanding the social function of originalism in constitutional law is, to say the least, not the way most self-described originalists understand their activity. But it has, I think, a certain amount of explanatory power. It also raises many more questions than can be addressed here. So rather than attempting a comprehensive discussion, I will simply mention one danger that might arise in a system that uses this kind of argument to foster identification with the heroic narrative—and by suggesting a solution that is itself rooted in the traditional Magid text.

The danger is overconfidence. A person in whom the act of storytelling fosters a subjective feeling of identification with the Framers—or with the generation of the Exodus—might come to think that his or her own way of telling that story is the right one. If I successfully blur the distinction between myself and them, I am liable to think that they really were a lot like me. For example, if I feel a sense of identification with the Founders, and if my intuitions about presidential power lead me to think that a state prosecutor should (or should not) be able to investigate the personal affairs of a sitting president, I am likely to project that view onto the Founders—and then to think, in good faith, that I think what I think about the issue because I am being loyal to a decision made at the Founding. That pattern of thinking can be dangerous. It is likely to lead to bitter conflict with people whose intuitions about the issue at stake, and about the story of the Founders, are different from yours. Indeed, the greater your sense of subjective identification with the Framers, the harder it might be to engage other people’s conceptions of the Framers as reasonable alternatives, rather than as based on ignorance or even lies.

The Passover-based solution for this problem is a word in Magid’s third crucial text. The word is ke-ilu—as if. In every generation, one is obligated to see oneself as if—ke-ilu—one had personally come forth from Egypt. One is not obligated to believe that one actually came out of Egypt. One is obligated to imagine—to see oneself in an as-if way, and to remember that the act of identification is only as-if. That nuance can prevent different people, each of whom identifies with the heroic story, from thinking that his or her conception of the story has a privileged claim that excludes someone else’s conception. I wasn’t really there, after all; I’m imagining. In fact, if you give me the improv cue again next year, I might tell the story a little differently from the way I told it this year. And if the constitutional lawyer can remember that his conception of the Founders might be as-if—that his sense of the Founders’ ideas is likely to be significantly shaped by his own storytelling inclinations—then it can be easier to engage people with different ideas about constitutional law without thinking that a true vision of the Founders will decide the question dividing them.

The last line of avadim hayinu—all who elaborate on the story deserve praise—is an exhortation to tell the story your own way. The word ke-ilu—as if—is a reminder about the responsible limits of what might flow from that creativity. The magic of Magid thus works in an intermediate zone, one where the participants can inhabit the imagined role deeply and authentically enough to feel that the story is theirs while still remembering that they are engaged in an act of imagination.