A new book by Yale law professor Akhil Reed Amar entitled America’s Unwritten Constitution advances the thesis that the written Constitution “cannot work as intended without something outside of it — America’s unwritten Constitution — to fill its gaps and stabilize its meaning.” This unwritten Constitution “helps make sense of the text” thus sparing Americans from the damage bound to ensue were judges to follow what Amar calls a “clause-bound literalism.”
If Amar’s point is well-taken regarding the Constitution how much more compelling is it when applied to the absolute indispensability of an oral complement to the Written Torah. When it comes to the Torah the stakes are not impeachment and elections. They are literally the stuff of life-and-death; people will live or die depending on what sort of “work” is prohibited on Shabbos or what constitutes betrothal and marriage.
New York Times columnist Stanley Fish expands Amar’s point further noting that in truth “we have unwritten constitutions in every area of our discursive life. Whether it is the law or higher education or politics or shop talk or domestic interactions utterances and writings are meaningful only against the background of a set of assumptions they do not contain. Textualism is not only a nonstarter in constitutional interpretation; it is a nonstarter everywhere.”
Fish is making a point similar to that which l’havdil Hillel HaZakein made in Shabbos 31a when approached by a prospective ger who claimed not to believe in the veracity of Torah shebe’al peh. Hillel sat the fellow down and taught him the alef beis but in the next day’s lesson identified each of the letters differently than he had the previous day. When questioned about the contradiction the great Tanna explained that his point was to show that even something as basic to everyday life as the alphabet relies on an oral tradition.
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