James Kugel on the Shema; JAT on Originalism and Textualism (7/24/26)

Professor Kugel offers here this nice historical perspective on Judaism’s prayer and central declaration of faith—the Shema which in Reform Judaism is here It is the claim that there is one God, our God—interpreted over the years (and traditions) as monotheism.

While I am not Jewish in a formal sense, I have absorbed the teachings of Reform Judaism after 25 years (and counting) of Torah Study every Saturday morning. Professor Kugel is one of my favorite authors, so I am fortunate to be on his email list for his weekly offerings that often help me in Torah Study.

This offering recounts how the bare words of the Torah were summarized in the Shema and were interpreted differently than the original words meant if read literally. As a lawyer who has considered the Supreme Court’s Constitutional and statutory interpretation over many years, Professor Kugel’s offering on the Shema meaning for me. If Judaism were limited to the text alone, there would be much in the Hebrew Bible (basically the same as the Christian Old Testament with some variances in content and translation) that would not be meaningful to us today. Alongside the written Hebrew Bible (for present purposes, the Torah, the First Five Books) was the Oral Torah about which I have written here. The Written Torah and the Oral Torah inform Judaism; and the Oral Torah can change the literal meaning of the text. In other words, the Oral Torah can shape meaning for the ongoing Torah. The Rabbis certainly did that in canonizing the Written Torah keeping the Oral Torah alive in and, in a sense, the process continues through the Talmud(s) and Midrash. It is too bad, I think, that Christianity has not absorded the teachings of that continuing process because it would dispel the false claim that the God of the Old Testament (Hebrew Bible) is a God of wrath rather than, as they claim is presented in the New Testament, a God of mercy.

Because I understand that all written text needs interpretation to be meaningful, I am unimpressed with the relatively recent conservative law project called “originalism” and, its cousin, textualism to read the Constitution and statutes (although many textualists claim that textualism is not literalism). My interest in these slogans derives from my federal tax controversy practice over most of my career. I am in the process of finalizing the 2026 editions of my Federal Tax Procedure book for publication on SSRN in early August. I devote a significant words, pages, and footnotes to aspects of statutory interpretation.

I cannot help but think that, if applied in Judaism, originalism and textualism would almost certainly have not permitted the Jewish community to survive over the centuries. Rather, it was the spins on Written Torah through the Oral Torah, the Talmud(s), and ongoing Midrash, that permitted and permit the community to survive. Sometimes those spins are dramatic. For example, the Torah says “eye for an eye” but the community, almost from the time the Torah was deemed canonical, never interpreted the text that way. The wrongdoer must compensate the injured. There are so many instances where the tradition from the Oral Torah, the Talmud(s), and Midrash “updated” the text to make it meet the needs of the community.

Unfortunately, U.S. laws’ current fashions of originalism and textualism inhibit this type of growing with the needs. Perhaps the Supreme Court’s current spin of being influenced by “history and tradition” can smooth off some of the rough edges of originalism and textualism in analogous ways to the traditions in Judaism.

Imagine for the bold claim in one of our canonical texts, the Declaration of Independence, that “all men are created equal.” There is no question that, at its publication and vote in 1776, many (maybe even its principal author, Thomas Jefferson) did not believe that truism applied to blacks, particularly, but also to other then disfavored human beings (such as native Americans). I hope most U.S. citizens now interpret the claim as true for all of humanity. The words are stand-alone claims regardless of what the original speakers or hearers may have believed them to mean (or spun them to mean in their time). At least that is the way we should interpret them now, not as our ancestors would have interpreted them.