The Oral Talmud Episode 48: The Myth of Interpretation with Richard Primus

SHOW NOTES

“ We have a Constitution that's almost impossible to amend but it must change to preserve the constant. And the mechanism for change is that we reinterpret it to keep it true, that it reflects our deepest values and highest aspirations. If we did not reinterpret it, there would arise a dissonance between what we think the Constitution says and who we think we are and who we are as Americans is a people who do not tolerate that dissonance.” - Richard Primus

Welcome to The Oral Talmud, our weekly deep dive chevruta study partnership, discovering how voices of the Talmud from 1500 years ago can help us rethink Judaism today. 

What if the law isn’t what it says but what we need it to say to remain who we are? In this episode, Benay and Dan speak with constitutional law scholar Richard Primus to crack open a question that cuts across traditions: when we interpret sacred texts, whether the Torah or the Constitution, are we uncovering meaning or creating it?

What follows is a collision between legal theory and lived reality. Originalism, precedent, moral intuition, narrative, none of them stay in their neat boxes. Instead, they reveal something more unsettling: the system only holds if we keep it alive. This episode doesn’t just compare Jewish law and American law, it exposes the deeper game that both are playing. The text doesn’t control us. We’re the ones deciding what it means and whether it still speaks for who we are.

Richard Primus is the Theodore J. St. Antoine Collegiate Professor of Law at the University of Michigan Law School, where he teaches the law, theory, and history of the U.S. Constitution. His work on the relationship between history and constitutional interpretation won a Guggenheim Fellowship in Constitutional Studies in 2008. He’s also one of my college roommates and one of my closest friends, so this is an exciting one for me! And I know that it will be for you as well.

Access the Sefaria Source Sheet to explore key Talmud texts and find the original video of our discussion. The Oral Talmud is a co-production of Judaism Unbound and SVARA: A Traditionally Radical Yeshiva. If you’re enjoying this podcast, please help us keep both fabulous Jewish organizations going with a one-time or monthly tax-deductible donation at oraltalmud.com. You can find a donate button on the top right corner of the website.

• Transcript

  DAN LIBENSON: This is The Oral Talmud - Episode 48: The Myth of Interpretation.

  Welcome to the Oral Talmud, a co-production of Judaism Unbound and SVARA: A Traditionally Radical Yeshiva. I’m Dan Libenson…

  BENAY LAPPE: …and I’m Benay Lappe.

  DAN LIBENSON: The Oral Talmud is our weekly deep dive study partnership, in which we try to figure out how voices from the Talmud – voices from 1500 to 2000 years ago – can help us think in new ways about Judaism today. 

  What if the law isn’t what it says—but what we need it to say to remain who we are? In this episode, Benay and I speak with constitutional law scholar Richard Primus to crack open a question that cuts across traditions: when we interpret sacred texts—whether the Torah or the Constitution—are we uncovering meaning… or creating it?

  What follows is a collision between legal theory and lived reality. Originalism, precedent, moral intuition, narrative—none of them stay in their neat boxes. Instead, they reveal something more unsettling: the system only holds if we keep it alive. This episode doesn’t just compare Jewish law and American law—it exposes the deeper game that both are playing. The text doesn’t control us. We’re the ones deciding what it means—and whether it still speaks for who we are.

  Richard Primus is the Theodore J. St. Antoine Collegiate Professor of Law at the University of Michigan Law School, where he teaches the law, theory, and history of the U.S. Constitution. His work on the relationship between history and constitutional interpretation won a Guggenheim Fellowship in Constitutional Studies in 2008. He’s also one of my college roommates and one of my closest friends, so this is an exciting one for me! And I know that it will be for you as well.

  DAN LIBENSON: Welcome back everyone. I'm Dan Levison and I'm here as always with Bene Lapi for another episode of The Oral Talmud. And today we are here with a guest. We've had a number of guests on this show that have been Talmudic scholars or activists or professors of Talmud. And this is our first guest who is not one of those, but he is a professor.

  Uh, our guest today is Professor Richard Primus, who is a professor of law at the University of Michigan Law School. And I should say also one of my oldest friends. So Richard, we're really excited to have you here. Today to talk about some of the connections between how constitutional and just legal American legal interpretation works and what's going on in the Talmud, which are things that Benet and I have talked about throughout the 40 some odd episodes that we've, we've done.

  So we're really excited to, to have you here to really talk about that more formally. So thanks so much for being with us. 

  RICHARD PRIMUS: Great. I'm delighted to be here. Thanks for asking. I'm a big fan of the project and I'm a, you know, a big fan of each of your work. Um, and, uh, and it's always fun, Dan, to talk to you about these things.

  Um, and you know, as you know, like I think about constitutional law all the time for a living and otherwise, and, uh, one of the things that I know I am usually doing when I do that is thinking about Jewish law analogs. So I'm delighted to be here having the conversation. 

  DAN LIBENSON: Yeah. Well, I, I would say that the one place where you definitely do have some, uh, Talmudic chops that I remember very well from college is when you wrote a page of Talmud as, if I recall correctly, this is about 30 years ago, that was about whether the lumpy or the smooth, uh, salad dressing was the appropriate form of salad dressing in the Hillel Dining Hall.

  So 

  RICHARD PRIMUS: yes, I, I did that. I, I was on a crusade, I remember through Harvard Hill to ban the dressing that I referred to as the lumpy and gross dressing. And I tried various argumentative tactics right to, um, and it's true, I, um, in fact, I think I still have the document, but, um, I, I wrote that document. I then created Gamara on the document to explain the punchline of which of course was, um, uh, if you're, you can, you get, you don't have to use dressing at all, you know, but if you do use the creamy, smooth one and not the lumpy gross one, and I found the Talmudic Forum, um, a really effective one, I think, for getting to the conclusion.

  DAN LIBENSON: Well, it's interesting that you say that because our most recent guest was Manam Fish, who is a professor of, uh, actually the philosophy of science. But he is also written about Talmud. And one of his takes on the Gamara is that it's actually the project of the Gamara not to come to conclusions. And that those places where you see that it does come to a conclusion is probably a later insertion by a late editor who wasn't comfortable with that, and that after the Talmud was closed, the people who came after it kind of messed the whole thing up by trying to create law codes and halek decisions when the whole Talmud's point was, we need to be able to live with ambiguity.

  Anyway, let's, let's move on to more serious topics. I, I, um, but I do wanna say like that, that was very memorable. It was 30 years ago, but, um, here's, here's what, where I'm really coming from, from this conversation and why we really wanted to talk to you and potentially other law professors in the future is that I feel like.

  The Jewish project that, I don't know, I don't know exactly know if I wanna call it a legal project. I think that might be a somewhat of a misunderstanding of what the Talmud is about. But let's put it in that category, at least for this conversation, to say like, I think that the project of, of Jewish law as understood by the kind of world of rabbinic education over the last X period of time, uh, I mean, modern times is not benefiting from the kind of discoveries or, or, uh, ideas that flow out of American legal and maybe Anglo-American legal academia.

  You know, in other words, that there are ways of thinking about how one interprets a text or how one, uh, should, uh, or, or the limitations of one's ability to interpret a text that are some of the bread and butter in law schools today. That aren't really the bread and butter of most rabbinical schools today.

  And, and certainly not. The more, uh, the more, let's say on the orthodox spectrum who have a much more simple notion of how one looks at a text and asks this question, what are we supposed to do? And to some extent, that's what I wanna bring out in this conversation. I thought sort of one general question that I could ask you to start it off a, a little bit, but feel free to take this, where, where you wanna take it is, I know you've done a lot of work on this topic of originalism and this idea that at least in America up until recently, and I think thanks to your work to a large extent, people generally think of originalism as a conservative move in.

  In, uh, interpreting a text, interpreting a constitutional text, that originalism is something that conservatives do. And you've written some about how that's not necessarily the case. And I think that the way to see a tool like Originalism, which maybe could explain a little bit, but a tool like that as not necessarily leading only to one, uh, substantive type of outcome, but actually just a tool that can be used in both directions, I think would be a little bit of a helpful way into this question of seeing some of the connections between things that we talk about here, about the Talmud and, and just how all law, all legal systems tend to work, and how sophisticated legal thinkers of today are teaching us to understand some of those moves.

  RICHARD PRIMUS: Okay. I should say that we should differentiate between ideas about legal interpretation and about originalism and constitutional law. As they exist at the forefront of the legal academy and the practice of originalism as engaged in by judges and other constitutional decision makers, and also in the lay public, you know, 'cause it's, um, it's, it's an activity that, you know, people engage in also, uh, in political forums and, you know, around dinner tables also.

  Um, and the practice in many ways might resemble what you are thinking of as the Jewish practice more closely than the, um, so like leading edge academic stuff does, which is, I'm also true in what Bene does. Um, uh, but so let's say a few things about it. In constitutional law, originalism is not just one thing, it's the surname of a family.

  Approaches, right? Uh, both in theory and practice to constitutional law. And like other families, it has multiple members who are alike in some important ways, but no two of whom are exactly the same as each other either. Right. And if you ask, what do originalism have in common? The general answer is, um, originalism approaches the constitution on the understanding that the legal, the legally authoritative content of the Constitution is a function of facts in existence at the time of the enactment of the constitutional text.

  Um, most originalists in the law are also textualists. That means they think the legally authoritative meaning of the constitution. Is locked into the meaning of the text at the moment of enactment. But originalism and textualism are actually conceptually separate, right? They're not the same thing. They have differing ideas about the locus of authority, right?

  Is the locus of authority, the document itself, right? That's textualism, or is it something about the conditions existing at the moment of the creation of the document, which might be about things, about the states of mind of the author or the audience, or surrounding conditions and practices, right? That then, um, uh, would be instead originalism.

  And there's a great deal of confluence and overlap between these things, but they're not the same. Um, and frequently it makes a difference which way you're going as a, the, the idea that. Something about the moment of the enactment of the constitutional text is important to the meaning of the Constitution.

  And therefore, that if you're trying to interpret the Constitution or make constitutional decisions, you need to know something about that moment. That's an old idea. You know, people in constitutional interpretation have, you know, said things about the early moments for as long as there's been constitutional interpretation.

  And, and I should maybe specify, um, originalism and constitutional interpretation isn't only about the 1780s, right? Most of the text of the US Constitution was written in the 1780s. Um, but there are important pieces of it that have been written since in subsequent amendments. Um, strictly speaking, an originalist is not someone who wants to privilege the 1780s, meaning an originalist is a person who wants to privilege the meaning at the moment of enactment.

  So if you're an originalist about the 13th Amendment, which you care about is 1865. Um, the idea that you talk about, argue about the ideas or intentions or understandings, those are all different things, right? We can talk about what turns out the differences between them of some group of agents from the time of enactment is old, I mean, all the way back to the beginning of the republic.

  People have done that. But the idea that that is a distinct method with a theory and a set of values, that it is espousing rather than just like one more thing that you might say in constitutional conversation is a relatively modern idea. Um, it has roots maybe going back to the 1930s, um, or even twenties, but it really gets going in its modern form in the 1970s.

  Um. Then comes to flower in the 1980s in the Reagan Justice Department. Um, and then on the bench in the work of people like Antonin Scalia nominated to the Supreme Court by President Reagan. And, you know, and like, and Bates Scalia, you know, like the whole like, you know, like, uh, a, a cadre of scholars and students, you know, raised up after him.

  Um, and the, the link to conservatism runs in a few ways. The, the, the easy way to think about it, which isn't all wrong, but is very partial, is conservatives are more comfortable with the authority of the past than other people are. Um, uh, for reasons that might be good or bad or neither depending on what part of the puzzle we're in.

  Right? That's an, an easy take and there's something to it, but it misses a whole lot, right? Um, uh. Because radicals also sometimes draw in the authority of the past, right? Um, and in fact, um, uh, the here are two different ways of thinking about the authority of the past, right? Among many, um, one is traditionalist and one is fundamentalist, right?

  The difference is the, the fundamentalist in law or in religion wants to go back to time zero and ask, like, at the moment of law giving what was the law? And to see that as the true law and anything else built on top or developed out of that is corruption or falling away. It's error. It should be swept away, right?

  Um, and since we don't usually live at time zero and like stuff happens, fundamentalism tends to be radical, right? In a strict sense of radical, it goes to the root right? And like it wants to like get rid of everything else. Um, a very different approach to the authority of the past is traditionalism.

  Which asks not about time zero, right? It asks, what did we do yesterday? You know, and the day before that, and the day before that. And sometimes there's correspondence between what we did yesterday and the day before that, and something from time zero. But a lot of the time there isn't, right? And so there's a real struggle, certainly in American law and other traditions also between traditionalist and fundamentalist ways of looking at the past.

  In American constitutional law, the name we give to the fundamentalist impulse is originalism, right? That's what that is. It's an attempt to the ground, the law in time zero. And the leading, um,

  and the, the traditionalist approach, which as a matter of practice, has been the dominant approach in American law, let's say, since the end of the 19th century, although it might be changing. Um. Something, it's sometimes called common law constitutionalism. Sometimes it doesn't have a name at all. It's just the practice that we do and we don't theorize it.

  Um, where the bread and butter of constitutional decision making is case law, right. Decisions. Right. When did the court decide last time we saw an issue like this, and what other decisions has the court made that are about issues like this? And then we, we, we, we, we apply the precedent, we analogize and distinguish, right?

  Very much, you know, like people might in rabbinic, you know, analog forums. And then we make the next decision incrementally and we build incrementally the body of law. Traditionalism tends to be a relatively status quo oriented approach. Like it's mostly comfortable with most of what we're doing and our, the changes we make are gonna be incremental.

  And it reposes not coincidentally, a high level of trust in the present decision makers, right? Like we see like the, the decision makers make decisions. Those are authoritative, right? Originalism, like fundamentalism generally is much less trustful in that way. It's radical reformist, right? It wants to oppose the decisions that have been made and sweep them away.

  And here, the deeper reason why originalism has been mostly a conservative art form in American law. Um, it arises as a distinct theory, largely in opposition to the Supreme Court as it existed in the middle third of the 20th century. Um, usually in English speaking systems, I don't know more generally, courts are relatively conservative institutions.

  They're, they're, they're, they're populated by elite decision makers. Um, who are mostly, um, uh, people who've done well with status quo institutions and, and they, and they tend not to think of themselves institutionally as where the reformist impulse should be. Um, but there was a moment in American law where it wasn't like that.

  Um, in the 1930s and forties, in response to the Great Depression, the American Federal Courts signed off on very bold changes in American government associated with Franklin Roosevelt's new deal. The court wasn't the agent of that change, right? But it blessed the change. It said, okay, you wanna do that?

  We are not gonna stand in the way. And many conservatives didn't like that at all. For reasons the conservatives didn't like the New Deal more generally. And 1950s, sixties, the Supreme Court took on. Jim Crow segregation in the United States, especially in the American South. Um, it, the courts became for a short time a very important player in pushing forward a set of liberal social agendas on race and on sex, and even for a little moment on poverty.

  Um, and many conservative legal thinkers reacted very negatively. It's like this, this cannot be right. What, you know, what, what the Supreme Court is doing here in the 1950s and sixties, and when a bunch of people really don't like what the present decision makers are doing. They articulate their opposition in all kinds of ways.

  Some more thoughtful than others. You know, you can find like any number of complaints raised against the war in court, many of them mutually contradictory, but one of the leading themes was. They have gone beyond what the framers of the Constitution thought they were doing. They're making their own up their own stuff, and the way to correct them is to force them to return to the original meaning of the Constitution.

  And so was born in opposition to the Warren Court, the movement that became by the 1980s originalism as we have it, and it's, it is a tool or has been a tool of resistance, right? The, the, the wielded by people who didn't like what the modern decision makers were doing to say, no, you're doing it wrong. We appeal over the head of the present generation of the decision makers to the original lawmaking moment.

  And that's the authority we recognize. And in its name we say that you have strayed. One of the reasons that this is gonna change going forward is that through a combination of like weird electoral results and glitches in the constitutional mechanism, um, and some other things also, um, the originalist movement has successfully captured the courts, right?

  Um, the US Supreme Court, if we had had this conversation five years ago, I would've said the Supreme Court is more conservative today than at any point in our lifetimes. Um, and that was against the, there hasn't been a majority of Democratic appointees on the Supreme Court since 1970. So. Even after 40 years without a Democratic majority in the Supreme Court, several years ago, I would've said it is now the most conservative it's been in our lifetimes.

  And today it's way more conservative than that. Right? And it's not just more conservative, it's also more originalist in method. And it's likely to be that way for a while, right? Um, because the judges serve indefinite tenure, and that means that the present decision makers are bit by bit going to make the law in the present more and more conservative.

  And as that happens, it's less and less gonna be conservatives who need tools of opposition to the present decision makers. Right? The conservatives are gonna become much more comfortable with the institution that we have and the doctrine that we have, and the need for tools of resistance and opposition will pass to the liberals who will find themselves increasingly appealing over the heads of the present decision makers to things like original meaning.

  BENAY LAPPE: Hmm. 

  RICHARD PRIMUS: And because original meaning. Can be read lots of different ways. Um, liberals will find themselves at least as able as conservatives have been to give the original meaning of the Constitution a reading that vindicates the things they're trying to vindicate. 

  DAN LIBENSON: Well, there are two things that what you're saying makes me think about in terms of what we've been talking about, which are related.

  One is that in the traditional reading of the Talmud, and partly by design, and partly I think just by. Failure to, or maybe an inability to do some of the, uh, academic digging through and finding the layers. Everything gets crunched together as like one, one work. And so when we see certain things happening, we don't necessarily realize that this was in reaction to maybe a period of a hundred years of a more conservative period or vice versa.

  And Bennet and I have been trying to tease some of that out. And we have certain theories about who were the liberals and who were the conservatives and what might, but we don't necessarily know what they might have been reacting to. So Ava, for example, one of the heroes of the Talmud and one of our heroes.

  He is a, so he is what we would call a progressive, let's say. But what is he reacting to? What was the society like that he was entering into? We don't really know or we don't know, and we haven't been able to get an answer yet from, from somebody else. So that's an interesting piece. And then the other thing that I'm thinking about is you're talking is specifically that famous story of the oven of where, uh, rabbi Joshua basically says to God.

  Sort of originalist, but originalist progressive argument. He says, he says, God, you had one chance to speak when you, at the moment, what you call the moment of enactment, right? When you gave the Torah, that was your chance. If you messed up and you didn't actually restrict us in a certain way that maybe you meant to, but you didn't, or you didn't get it right in the text, and you said, you know, it's not in the heavens, for example, and he, he misreads that as meaning that you've given us the power to, you know, it's like, well, God, if you wanted to say that, that wasn't what you meant, you should have written it more clearly in the Torah.

  You know? So that's like a kind of, it's a, it's original, I think. I mean, what would you call, it's like, it's originalism, but it's like originalism of absence rather than an originalism trying to interpret what the text is actually saying. 

  RICHARD PRIMUS: Right? I mean, the, the story of Ana's oven has a very strong resonance also in the other direction because what Rabbi Joshua's move does is privilege, the present decision makers.

  They just say in, in the same moment when, when you say it's not in heaven, or, or at least in that instance, when, when, when Joshua says it's not in heaven, he doesn't just destroy the possibility, um, that his opponents will assign you a, a, uh, a heavenly meaning to the law and defeat him. He also undermines his own ability to win the argument by persuading them about what the heavenly meaning of the law is.

  Right. He, he's, he's just thrown back on his own argumentation now, like, I must convince you, right? Because we're gonna decide here among us, which in American law is a very anti originalist impulse, right? There's a, it's a present. Um, because in American law, one of the opposites of originalist authority is presentist authority, right?

  One of the big criticisms of originalism as a theory of American law is we're supposed to be running a democracy here. And the more authority you vest in a time long ago, especially when you say that that authority can't be changed by ordinary law. Right? There's a constitu, um, the Talmud is hard to amend, right?

  Um, uh, uh, the Constitution is not quite as hard to amend, but almost right to amend the US Constitution. Formally you need a two thirds vote of each House of Congress and a three quarters vote, excuse me, and, and an affirmative vote of three quarters of the state legislatures, 38 legislatures, which, and some of those legislatures have their own super majority rules, which means if you can hold on to 13 state legislative chambers spread anywhere across the country to oppose a change, you can block change forever.

  And 13 out of 99 is not such a high bar, you know, for someone who wants to oppose a change. Um, so one of the major problems that people raise about originalism and constitutional law is. It's a theory that says our democracy is limited in what we can choose to do and how we can govern ourselves on the authority of decisions made long ago, right?

  At meetings that we were not present in. And, and we really can't change it very much. And if that sounds anti-democratic and if we're gonna give more strength to the idea that we know we really should be self-governing, we need ways of being able to make more of our own law rather than just being subject to law that we didn't choose and cannot very easily change.

  Right. Rabbi Joshua's move, like is I think, meant to ameliorate that problem in some ways, right? Say, look like we're gonna, we here are gonna make some decisions. 

  BENAY LAPPE: My brain is exploding with questions. Okay? So I wanna come clean that. What I'm hoping to do in this next hour, maybe now a half hour, is to understand what's going on for the rabbis, right?

  You, you are an expert in interpreting the sacred document, the Torah of America, right? That's the Constitution. Constitution. And as you know, the Talmud is written in a kind of double speak. You suspect that the rabbis are saying one thing, but really meaning something else. They're justifying decisions by pointing to verses in the Torah.

  Sometimes when you suspect by the forced nature of their interpretation of those verses, that they don't really stand behind those proofs. And at other times they very baldly justify radical moves by saying, it's what Mike Kishke tells me. It's, it's s Farah. Um, and. So I have lots of questions for you.

  One is I noticed that the rabbis only name Savara as operating for them. Very rarely compared to how often they at least pretend to be pointing to verses. And my suspicion is because legal systems fall apart, trust in systems fall apart. When you make it clear that it's the judicial discretion or decision making at work, I'd love to hear what you say about that.

  And I'm particularly interested in something you bring out in one of your articles where you say that that judicial decision making and judicial discourse are two different things. The judges might talk one way and operate another way. So I'll, I'll just stop there with my questions. You can Sure. Speak to, to any of those things.

  RICHARD PRIMUS: Sure. So I mean, great questions. Um, I. I wanna start by saying judges are different people from each other. Right. You know, like different judges are a little bit differently. It's, we, when when we talk about what judges, how judges think, and what practices judges engage in, we have to recognize that there are actually a few different things that different people are going on and that the mix of things they're doing is, is different for different of them.

  But it may be mostly the same mix, right? Just like with, with the ingredients in different proportions, in different places. Um, so there is an American legal theory, an idea that we call the autonomy of law. The autonomy of law has a picture of legal decision making that is in the technical sense formalist.

  The, the law is a product of rules. It's as close to algorithmic as we can make it. Um, and, uh, it doesn't mean there are no hard questions. But it does mean that the way cases come out should not in any way be a function of the decision maker, right? We have, like, we have, uh, and, and the law as a discipline for deciding things is, this is why we call it the autonomy of law, autonomous of the values of the decision makers, and also the cultural occurrence of the society.

  Like if you wanna, if you don't like the law, you, you, you shouldn't lobby the judicial decision makers. There are mechanisms for changing the law. They're usually legislative, and that's how you do it. And when we're doing interpretation and adjudication, we're doing something that is autonomous of all those other cultural right and morally laden things.

  Not a lot of leading law professors believe that the autonomy of law actually describes how judicial decision making work, right? We, we differ among ourselves often in assessing how far away from that we are. Right? I myself very much think. Who the decision makers are matters. And that the cultural currents of society matter an awful lot.

  Not because, not mostly because judges think my job is to implement the values of society, but because they can't help it. You know, like, like, like their products of a society and they have a certain common sense and whether they want to or not, they're gonna translate that common sense into their, their decision making.

  Right? In a lot of cases. But I also wanna avoid the other poll, right? There's also a school of thought that says all the things that judges say about rules, right? Be it the text of the constitution or presidential decisions or anything else, right? Um, uh, the, the stuff that's analogous benet in what you're talking about too, like when they quote the verse from the Torah, right?

  That's all smoke and mirrors. Um, and uh, what they do is those are not their reasons. Uh, that's just, um, uh, a show that they put on, right? Really, you they're, they're, they're doing something else and they're just doing what they think is right. And I think that's wrong too in the American system. It's not to say that I don't think that ever happens, right?

  There are a lot of judges in our system, but I don't think that's what's happening most of the time. I think most of the time judges have the experience of being constrained by authority. I think they have the experience of following rules. I think they have the experience of trying to solve the puzzle of the case in front of them.

  And I think that in most cases, that walk in the door of a courtroom, there actually is a right answer on the basis of existing legal authority that 10 out of 10 competent judges will come to. It's just that those aren't the cases we talk about in the common law class, right? Because they're not, they're, they're, they're easy, right?

  Those are the easy cases. Um, Jewish law also has easy cases, right? They're not the ones we argue about. We argue about the hard cases. What makes a, there are two things that could make a hard case hard, right? One is there might be a right answer, but it's complicated, right? You gotta work for a while to figure it out, right?

  The other is, there's not a unique right answer to this one. You can make better and worse arguments, but this question is, is not fully answered by pre-existing authority. And here the interpreter has to be, maybe creative, has to exercise judgment. Um, that exercise of judgment and creativity need not reduce to like, what do I want?

  And then make it go that way. Sometimes it's a question of asking, okay, like, what if I try to make sense of this set of materials as a whole, you know, um, uh, what do I think, you know, that should lead me to, but, but those are, those are the places where different judges' values. Different judges, common sense about what justice is, about, how government is supposed to function.

  Those things will play and they'll play reliably. And I, I think everyone knows this, you know, when, when, when we fight in politics over who's gonna be appointed to the Supreme Court, it, it's not usually because we don't think that person is a competent lawyer. It's because we think that person has a different common sense of how the government should function from some other person.

  And therefore, in this small but important set of cases, the common sense will go differently. Now, skilled judges definitely know how to pull sources and arguments to make the argument point in a particular direction, but that doesn't mean that they're not constrained by the fact that those are the arguments.

  And also by the fact that, and also I think they're somewhat constrained by the need to give an explanation. To an audience, right, that is going to judge them. Right? But I do think, um, uh, that judges, even when they're very smart people, like the rest of us, are often not fully self-conscious about what they're doing and that it's in, in, in any thick, normative culture.

  We have practices of saying things that don't make sense, taking at face value, but that we recognize as, you know, ways of expressing, um, uh, other ideas that we just sort of agree to treat as reasonable. Um, uh, maybe it's a particularly bad week to give this example, but it's a usually a pretty good example.

  Um, uh, God save the Queen, right? Um, uh, to this day, statutes of parliament in the UK are prefaced with be it enacted by her most Gracious Majesty. Nobody thinks the queen legislates. That's not what that means. Or for most Jews I know next year in Jerusalem, right. It doesn't express actually an intention to be in Jerusalem next year.

  Right. It expresses something else. You can invoke that idea sometimes in an argument to push someone in a certain way by making salient to certain kind of values or certain community connections. American law has lots of things that are like that. I don't think the judges are always fully conscious, uh, just as I, I don't think that you know that, that the Jews are always fully conscious or like what that I'm saying is actually the rule that motivates me and what that I'm saying is a conventional thing that we say because we're part of this community.

  BENAY LAPPE: Tell me if I'm right. One thing I I learned from reading a a bit of your scholarship is that it's not like one judge is a textualist period and is a textualist and uses that method in all cases, but different kinds of cases might induce the judge to utilize different interpretive tools. 

  RICHARD PRIMUS: Yes, I think that's definitely true.

  And it's true along a couple of different dimensions, right? Some articulate and theorized and some less So, um, articulate and theorized might go like this. The Constitution is not the only source of legal authority in American court, right? There's the constitution, there are statutes passed by legislatures.

  There are cases decided by courts. There are regulations, you know, ordained by administrative bodies, and there are very sophisticated legal theorists who. Will say, I should use different tools for making decisions on the basis of these different kinds of texts, because they are different kinds of texts and I need to understand differently how they're produced and what I'm supposed to do with them.

  Um, uh, here's an example. Uh, not from the, I'll, I'll, I'll, I'll, I'll come to law in a moment, but just to make the point really clear, um, in over the domain of most constitutional decision making, I'm not primarily an originalist, but there are texts about which I am an originalist. So, for example, I'm an originalist about the grocery shopping list.

  If I, I haven't been to a supermarket in a year, but if I go to the grocery store carrying a document, right? And the document says two eggs, and I come home with two eggs, I have failed. And when my wife says to me, what are you doing with two eggs? You're supposed to have 24 eggs, right? Because what I mean by two eggs is two dozen eggs.

  And, um, I I, it is no defense on my part to say, but you wrote two eggs, right? Like, that's like, like, I mean like there's a clever like stage of intelligent development maybe when you're about 11, when you think that's a good defense. And it's very funny and your parent is proud of you for making the move.

  But when you actually go grocery, that's not how you do grocery shopping. That's not how you use a grocery list, right? When I go to the grocery store, if it's a list that my wife wrote, and I'm the person who went, I'm acting as her agent and as her agent, my responsibility is to use the documents to accomplish what she wanted to be accomplished.

  Which I'm supposed to know means two dozen eggs, and that's on me, right? If I decide not to be an originalist about that text, but maybe when the text is the constitution. It's different because I, we, the, we, the Americans today we're not the agents of a principle who wrote the Constitution in the 18th century.

  Right? That's not the relationship that that we have with them. But like they say what to do and we're just here to carry. No. Right? So that rationale for treating the document that way falls away. So about each text and about each text within the law, you have to ask, okay, what project am I supposed to be engaged in with this guidance?

  Right? And you have to apply the set of interpretive tools that match that project. Most judges, I think even most smart judges don't have fully worked out. To the question. So what am I supposed A lot of judges just like use the tools that come to mind, but I mean, uh, but some judges do. Justice Scalia with whom I dis disagreed about a lot of things.

  I wanna like, give proper credit. He had a different theory of statutory interpretation from his theory of constitutional interpretation. Um, it's like, it's a different text. I gotta do a different kind of thing with it. 

  DAN LIBENSON: The le the thing that you were saying about the, the, that it's a different America, you know, we're not necessarily their agents.

  It just, it's just um, got me thinking about this project of the, of the Talmud, but also how we are trying to look at the Talmud. So sometimes, for example, we've talked about, again, back to that story we've talked about how. Rabbi Zer in that story. He is actually right in the sense that he's saying, um, you know, but it says this in the Torah, you know, like he's saying.

  Right. You know, and, um, and he, we, you know, Benet calls him a verse pointer, you know, and, and he is saying, but it says it right here, you know, and, and Rabbi Joshua basically says, you know, well, but we don't listen to that. Or we we're gonna read a different, and one of the things that, that we've taken from that is to say, well, maybe that's what, you know, ultimately, rabbi Joshua is telling us to do that to him 2000 years from now when hi the version of saying, but this is what Rabbi Joshua would've wanted, you know, isn't, isn't right anymore.

  Yes. And it's actually more true to Rabbi Joshua's, uh, who he was to reverse, you know, to say, we don't follow Rabbi Joshua anymore because the whole point of Rabbi Joshua is to say, we don't follow, you know, the verse pointing Yes. Anymore. And, and I'm just thinking about like, and I don't know if this exactly fits to what you're saying, but I'm thinking about like.

  Thinking about that old document that the Constitution, the Tama, is like a seed being planted and out of that grows a tree and the law of the tree is different from the law of the seed. And so just to go back and sort of read the seed document, uh, as if that 200 years or 2000 years didn't happen is a mistake.

  RICHARD PRIMUS: Yes. I mean, um, Thomas Jefferson with whom I disagree about many things in constitutional law, I think he was meant he did not take the Constitution very seriously, actually, um, uh, wrote, you might as well require a man to wear the coat that fit him when he was a boy. 

  DAN LIBENSON: Mm-hmm. Right. 

  RICHARD PRIMUS: As to Right. Complete the um, uh, and he, he said as to, you know, um, demand, I'm, I'm not getting the second part of the quote verbatim.

  Correct. Um, uh, uh, as to demand, you know, that if people remain in law forever under the regime of their Barbaras ancestors, right. Like, like we change. Right. You just said, and, and, but, so I agree with you about Rabbi Joshua, that to say, I don't see any other sensible application of Rabbi Joshua except to say, okay, like you were the decision maker at that moment.

  You made the decision, but like, you don't get to make this right. Okay. Um, part of what Rabbi Joshua and Rabbi Elia are, are arguing about is what is our process of legal decision making? Right. Um, you can say, but it says right here, and that works if you have consensus in your legal culture that's saying, but it says right here, wins the argument.

  If we imagine Zer as shocked when this happens, it's because he thinks that's the culture he inhabits. And what's happening to him is he's being confronted with the fact that it isn't right, or at least it's not on this day. Right. Um,

  but um, there's a way in which the joke is also on Rabbi Joshua because verse pointing hasn't gone away. You know, like Joshua made his claim a very long time ago and people still verse point a lot in Jewish law. Right. Um, they do it, I think because it's hardwired into Jewish culture that the Torah matters, right?

  It's hardwired into Jewish culture that the Torah matters in a big way. Right. Um, and that makes the text of the Torah. An easily mobilizable resource in any argument in Jewish law. Right? It hasn't gone away. Right. Um, if it were, if it had gone away, that would be different. But, but it's, it's lying around.

  Right? And one of the things that we do is point to it. Um, similarly, the Constitution functions, like Benet said, it's the Torah of America in a bunch of ways. That's true, right? It's an easily accessible text, right? I mean, here's one of my copies and it's only one of the copies that like I could reach, you know, right now, right?

  Um, uh, it's not all that long. Anyone literate can pick it up and open it and start pointing at verses, um, and even though it is the case. Well, and really important point of analogy,

  if you walked into an observant Jewish community today, hierarchically observant. Um, and all you knew was the text of the Pentateuch, you would have a hard time saying, oh yes, everything lines up. This corresponds right. The law and practice is like all from here, right? Um, similarly, uh, and anthropologists who came to the United States and studied how our government functions would be very hard pressed to reverse engineer the Constitution that we have from it, right?

  There's a lot of disconnect between the text of the Constitution and the way our government actually functions. Um, we are committed as a matter of public principle, and I think as a matter of sincere belief among a lot of us, to the proposition of the Constitution is authoritative, but we also are committed to a lot of practices that are hard to square with that belief unless you either, unless you choose to ignore things.

  So here are a couple of easy examples. Um, uh. Can the president of the United States order uniformed members of the armed services to attend mass and take communion? Right. Catholic church style on the eve of battle. Every properly socialized American, including every American lawyer knows the answer to this question is no.

  Right? And if that ever happened and you told me to do something about it, I would like walk downtown to federal court and I get you an injunction in 12 seconds. It's the easiest case there is, right? Um, why? Well, every American knows the answer is the First Amendment, but I have a problem. Go read the First Amendment.

  The First Amendment says Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof. President's not Congress. Um, I understand that there are a lot of words in the Constitution that are open to interpretation. What exactly is the free exercise of religion?

  We have legitimate arguments about that. But if Congress can mean president, then the authority of the text is not doing the thing that people who think the texts have authority is doing. Right. You can't get there from here. Right? But I've not yet met the law. Well, that's not true. I've rarely met the law student and I've never met the practicing lawyer who says, oh, I guess you're right.

  I guess the president can do that. Right? Um, can Congress enact a law that sets income tax for white people at 20% an income tax for everybody else at 40%? We all know. Of course not. Right? Um, and if you ask, you know, the lawyer or the law student, why not? The first answer is the equal protection clause, right?

  Which is part of the 14th Amendment. The trouble is the equal protection clause starts no state shall, and Congress is not a state either. Now the culture of constitutional law has ritualized explanations for these things, right? Miash essentially, right? It says, oh, true, that text doesn't say this. But we have this other text in this other place that the untutored reader competent in English and not socialized into our culture would never have any clue meant, you know, that Congress can't do that.

  But which we have decided to say means that Congress can't do that. And part of what you learn when you learn the craft of being a constitutional lawyer is the ritualized explanations for how you get the text and the practice to line up, which you could never intuit by yourself because they're not actually functions of the text, right?

  Um, the thing is, that's, that's my explanation, right? There are other people. Who are, you know, are intelligent folks who are, you know, tenured professors of law at respected American law schools who take the ritualized, what I call ritualized explanations much more seriously. So know Richard, this is not some ritualized, you know, indirection meant to rationalize a practice and let us hold onto the idea that we are applying the constitution.

  That's really what it's like. That's the real explanation. And on the quality of that explanation depends whether Congress can tax people differently according to race. My view is no. Like there are some things that are actually from the text and there are some things that are inferences from the text and there are some things that are stories that we tell to staple things that are important to us, to the text, to preserve what is one of our most important values of the system, which is our ability to continue to say and to believe in good faith.

  The Constitution is our supreme law. And I think that that's a thing that goes on in Jewish law too regularly ramp, right? I I, I would say even, I know I've talked a while here, but, but, but, but, but, but if you'll forgive me, I'll, I'll, I'll, I'll, I'll, I'll push it just a little this way. Um, a few years ago in the Cornell Law Review, I wrote a little essay called the Constitutional Constant, in which I say, essentially this there, what is a constant and what is a variable in constitutional law, the orthodox picture is what the, the field calls the pre-commitment picture.

  The Constitution makes rules at time. One, that can be enforced at time. Two, because we're worried that if we let ourselves make the decision unconstrained at time two, we'll make the decision badly, right? Because at time two, we'll be scared. Time two will be weak and lack resolve, or at time two, we'll wanna get something done.

  And so we'll run rough shot over, you know, someone who's weak, right? So we're gonna make decisions now, right? Um, uh, sometimes the, the model is Odysseus and the sirens, right? He ties himself to the mast so that he won't make the bad decision that he knows to make. Sometimes how we say the constitution is the people sober legislating for the people drunk, right?

  Um, that's one model of how constitutional lawmaking works. And on that model, what's constant is the content of the rules. And for the system to work, that has to be constant. That's the orthodox model. And common law does work that way sometimes, right? Um, uh, we don't decide each time how long the president serves.

  The president serves four years, but a lot of the time that's not how Ka law works. A lot of the time there's a different thing that's constant and it's this. The Constitution is the repository of the deepest values and highest aspirations of the American people. That is constant, that is hardwired. That will not change.

  The thing is the content of the deepest values and highest aspirations of the American people does change, right? How could it not? I can't always predict how it will change and might change in ways. I do like it, but it's gonna change through all of history, right? People change. And that means that if the constitutional constant is gonna be maintained, if it's going to continue to be true, that we regard the Constitution as the repository of our deepest values and highest aspirations as our highest law.

  The Constitution has to change its content, and if we had a constitution that was easily amendable. Formally we would change by amendment, but we have a constitution that's almost impossible to amend. But it must change to preserve the constant. And the mechanism for change is that whether we mean to or not, we reinterpret it.

  We reinterpret it to keep it true, that it reflects our deepest values and highest aspirations. 'cause if we did not reinterpret it, there would arise in dissonance between what we think the Constitution says and who we think we are. And we will not tolerate that. Who we are as Americans is the people who do not tolerate that dissonance.

  BENAY LAPPE: That's fascinating. Okay. Tell me if I've got this right. So the constitutional constant isn't what the Constitution says. It's the fact that the constitution must match our changing, uh, and enlarging or narrowing understanding of our deepest. Values and highest aspirations. Did I get that right? 

  RICHARD PRIMUS: Yes, that's right.

  And usually when I pr you, you, you have collapsed perfectly, accurately. Um, what I usually is put in two different propositions, and I'll tell you why. It doesn't mean you're formula. There's anything wrong with your formulation. Usually I say proposition one because I'm talking to an audience that's resistant to this idea, right?

  So Proposition one, the constitution is the repository of the deepest values and highest aspirations of the American people. Everyone nods, right? Everyone agrees with that proposition. Two, the content of those values and aspirations changes over time, right? Right. And then like, that's just empirical. And if one, and if two, the content of the constitution has gotta change.

  BENAY LAPPE: Fabulous. Okay, I got another question for you. Going back to one oh, law 1 0 1. 

  RICHARD PRIMUS: Yeah. 

  BENAY LAPPE: All of my students, all of my students can rattle off for you the five sources of law reflected in Jewish jurisprudence in the Talmud. That's cra minha ma Torah verses custom precedent legislation and moral intuition. And they will also know that only two of those, another verse or averse and moral intuition of those five have the power to overturn Torah 

  RICHARD PRIMUS: Uhhuh.

  BENAY LAPPE: Okay. And I always tell them, you know, I always say, you know, if there are any lawyers in the room, and of course there are always lawyers in the room in the bait Me rash, this will sound familiar to you because it's just how law works. But I actually don't know. Are there, you know, is there a set of sources that simple and are some of them available only to overturn the constitution?

  How does that work? Okay, 

  RICHARD PRIMUS: wonderful. So the answer is yes, right? I mean, what you're talking about is the grammar of an argument, right? Like what counts as an argument, right? In this conversation, right? And in your conversation, these are the five things that count as an argument, right? And what it means to be a properly socialized participant in an argument rather than a person who no one can understand, right?

  Is that, you know, what counts as an argument here, right? Um, there's been more than one attempt. Now, I don't know, you might tell. I'd be super interested to know from you, Benet, I don't know how articulate the rabbis of the Talmud were about your list of five. How much they exercise that as a matter of craft and the way that a native speaker knows the grammar of the language.

  Right? Um, most constitutional lawyers, good ones, have a craft, native speaker sense of what the arguments are. There's been more than one attempt to render that grammar into a, something like the list of five. Right? Because this is what grammars do, right? It's like my, my, my fourth grade grammar teacher, to whom, I mean, no disrespect, right?

  Taught me, you know, like these are the rules of English grammar, you know, and like you apply. Whereas then I got older and I learned, no. What that means is that like there are people who speak English as native speakers and these are attempts to systematize what they do most of the time, right? 

  BENAY LAPPE: Yes. 

  RICHARD PRIMUS: So, um, the shortest list, and it's misleading, right?

  But everyone at least agrees on this. Of the constitutional, we, we, we, um, we, we, we sometimes call them the modalities of argument. Um, uh, I don't love the term, but we often use it. The shortest list is text history and structure. Um, uh, structure. Uh, all of those things are ambiguous, right? Um, uh, text, when we say text history and structure, what we say text means is the words of the enacted constitution.

  That might mean the meaning of the language. It might mean something about how the, like words in the constitution relate to each other, right? Like, it's the kind of argument that you can do within the four corners of a document. History means a few different things. It includes both what I call the originalist argument and what I called traditionalist argument.

  If you're talking like where, if it's the kind of traditionalist argument that says the government has always done it this way, right? The government has always done it this way. That creates a presumption, not a conclusive presumption, but a presumption that it's constitutional. Because we don't presume that the way everyone has always done it is wrong.

  Right? I I, I believe in, on your side of the street, Benet, we say nu right or right. Um, uh, or it's like one of several things that we might say to, to invoke this idea, right? Yeah. Um, structure, which is super interesting, is deeply ambiguous as between at least these things. One, the structure of the document.

  The US Constitution has Article one, article two, article three. Article one is about Congress. Article two is about the president. Article three is about the courts. We got some other articles. Also. Sometimes when you go to interpret a document, it matters where this text is, right? This is, um, uh, you know, source critics will say, that's not in Genesis, that's in Deuteronomy.

  The same sentence might mean something very different, right? So, uh, there the assumption is because by a different author in different times and different circumstances, right? With the, with this kind of structural reading of the Constitution, article one, article three were written on the same day, you know, and approved at the same time by the same people.

  But it matters. This is Article one, and this is article three. It's about different, different, that's one kind. That's one thing that structural argument can mean. The other more interesting thing that structural argument can mean is not the structure of the document, but the structure of the machine, the government, the institutions like we have.

  Congress, what kind of a beast is Congress? We have federalism, not just an idea as an idea, but as a going concern. Like what does the central government do and what is it good at? What do the local governments do and what are they good at? What are the distinctive decision making pathologies to which each kind of decision making institution is more subject, right?

  These are questions about the structure of the machine, right? And you make an argument about those things sometimes to figure out what to do. Sometimes the the lines among the arguments blur when someone says, I'm making you a structural argument. One question always to ask them is, are you really making me an argument about the structure of the machine?

  Is a going concern or are you making me an argument about structure that relies on something like, let's say reading the Federalist papers where they talked about what the federal government will do and what the state governments will do. That's an originalist argument about how people thought the machine should work.

  And sometimes knowing how people thought the machine should work is illuminating, but don't confuse it with knowing how the machine works, right? Like if you, um, uh, uh, if you take your car to the mechanic and the, the mechanic, you know, can read the manual that was written when your car was new 20 years ago, or the mechanic can look at your engine sometimes what you want the mechanic to do is look at the engine, right?

  And not at the, okay, text history and structure. The, I'll say one more thing about these and then I'll expand the list. The conventional view is that that's a hierarchy text, then history, then structure. Um, the most important kind of argument is the text. Um, uh, uh, uh, cons. Judges often say we start with the text, right?

  And you have to write, and the, the text governs if it, if it, if it speaks. Um, I have a different view about how argument works in practice. I think in practice the arguments that win in hard cases are the arguments where the structural arguments and the historical arguments make sense. They say We're structure makes sense, means if you decide this way, the machine will work properly.

  And the historical argument mean 'cause, um, what is history for, in constitutional argument, it's for a bunch of different things. Sometimes it's data about how the machine works. Sometimes it's a record of authority, but sometimes it's identity, right? It's narrative. It's the story of who we are and we make, um, uh, uh, uh, the Great Robert cover.

  A law professor who Strat, who like also dabbled on both sides of the line that we're talking about, wrote a wonderful essay in the Harvard Law Review many years ago called Nomos A Narrative. Right? And the idea that like a legal system imports a set of stories, um, and they're mutually supporting, right?

  So if you could tell me a good story about, I mean this is law in general, not just Con Law. I frequently have to remind my students, whoever tells the best story wins. Um, and in Con Law, the story that you're trying to tell, it's a good story, is who are we, the American people? If you tell that story in a convincing way and you have a good structural argument right now, your solution will make the machine work well.

  The text has a way of coming along for the ride. They say once we learn what those things require, we're very good at reading the text to point in the same direction. So I usually like to, to when I have students at a certain advanced point to explain, yeah, if you read what the judges say, they say we start with the text and maybe they think that way or maybe some of them.

  But really we end with the text, right? Like, um, uh, some of those skilled rhetoricians in American constitutional history have known this. If you read the Greatest Opinions of the Chief Justice John Marshall, and you note the order in which he makes his arguments, the text comes late because his strategy is by the time I start talking to you about the text of the Constitution, you should already be persuaded that my substantive resolution is the right one.

  If I can convince you of that, I can get you to read the text my way. If you don't think that you're not gonna read the text my way. So, text history structure. There are more, um, uh, uh, one really wonderful contemporary law professor who knows a thing or two about Jewish interpretation also who actually says that I'm a fair amount of how he thinks about text and interpretation and law, um, was from many, many, many readings as a child of the Hagar.

  Um, and I believe him, um, uh, has recently published a paper in which he counts something like 14 different kinds of argument. You can group them as 14, you can group them as six, right? But the basic category, there's text history structure, there's precedent, right? Which means both the precedent of government practice and judicial case law.

  Um, there is, um, there's ethos. Who we think we are as a people, and its appeal to values. And usually that appeal is strongest when it comes embedded in a story, right? About who we are. Um, uh, there's prudence, there's like, um, uh, there's institutional capacity. Like, yeah, you're making me a really good argument about what the law should be, but if I order that, you know, it's gonna be a disaster, right?

  Why? Because people won't listen to me if I order that right? And then the, the authority of the system will crumble. Or because I don't have the authority to order the three other things that would be necessary to make your thing work, right? There's an argument from institutional capacity. Um, I formally, well, when you talk about what's necessary to overturn, right?

  The thing that we normally talk about overturning in Con Law is judicial precedent. Like will we overturn Plessy versus Ferguson? When we get to Brown versus education Board of education, will we overturn Roe versus Wade? Will we overturn Citizens United? The strong originalism is valuable to the people to whom it's valuable, in part because it is a form of argument capable of overturning precedent because it's an appeal to the fundamental.

  Um, but if you ask me what you really need to convince people of, to convince them then to read the original sources, and the way that we get them to overturn is about structure and about values and about narrative. 

  BENAY LAPPE: And would you say that's what Kennedy was doing in the Lawrence decision? 

  RICHARD PRIMUS: I think, well, you know.

  I have never been a fan of Justice Kennedy. I should explain that. I should say like, I mean, I, I, I'm a fan of Lawrence and I'm a fan of Romer and Obergefell and several other decisions that he made. Um, his opinions, I think, as a matter of craft, are dog's, breakfasts, um, uh, they're not really well theorized, but if you ask what's he channeling in something like Lawrence, yeah.

  That's a lot of it. Mm-hmm. Mm-hmm. 

  DAN LIBENSON: Mm-hmm. Well. So I guess we're, we're outta time, but I mean, we'll, we'll, you know, we, we've said this before with guests, and we've said this before with things that we've studied that you usually end a chapter of Talmud by saying had LA will return to you. Uh, so hopefully it's more that you'll return to us, but, uh, but, but I really thank you, Richard, for this really great conversation.

  It's gonna get us, I think, thinking in new ways and, and I hope that we could continue it 

  RICHARD PRIMUS: anytime. It's delightful to see and talk to both of you, um, and to, to learn with you about these wonderful things. 

  BENAY LAPPE: Richard, thank you so much. 

  DAN LIBENSON: All right. We'll see you next week.

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