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.

What’s astounding to contemplate about the Jewish heterodox movements is that they oscillate between two illogical poles of thought. At times they read Torah shebiksav as literally as would a Southern Baptist preacher ignoring Professor Amar’s elemental logic not to mention a documented multi-generational chain of Torah transmission. There isn’t a legal code in all of recorded history that would leave ambiguous even untranslatable hundreds of essential terms but that is precisely what they impute to the foundational legal system of the Western world in denying the reality of the Oral Tradition.

But at other times moved by the Spirit – of the law that is – they run roughshod over the Torah’s written text using their own value systems to insert imagined laws into the Torah that are flat-out contradictions to those that actually exist. But then these are the same folks who accord the status of holy writ to Roe v. Wade the 1973 Supreme Court decision in which in a bout of judicial hallucination Harry Blackmun found a right to terminate nascent life hiding in the “penumbras and emanations“ of the Constitution. The renowned liberal constitutional scholar John Hart Ely wrote in its aftermath that what is “frightening about Roe is that this super-protected right is not inferable from the language of the Constitution the framers’ thinking respecting the specific problem in issue any general value derivable from the provisions they included or the nation’s governmental structure.”

The only thing more astounding to consider is that all of these issues are virtually ignored in the published writings of heterodox theology.

I CAN HARDLY WAIT  The Yomim Tovim have come and gone and Parshas Bereishis is behind us. That means a change of the clock is just weeks away which for me builds anticipation of the magical phenomenon of Shabbos in the fall. To be sure Shabbos in the fall and winter months comes with challenges: the fleeting nature of Shabbos day which seems to end soon after it has begun and of course Seudah Shlishis coming so soon after the midday seudah has been completed.

Every Shabbos and type of Shabbos is precious. But I suppose one’s store of memories and experiences going back many years help determine to which type of Shabbos one feels most emotionally connected. For me it’s the Shabbos of walking to and from shul or a simchah braving the blustery weather the multi-colored leaves crackling underfoot; the Shabbos table whose warmth light and laughter contrast so starkly with the frigid dark scene just beyond the living room window; and with the seudah complete savoring the long leil Shabbos stretching out ahead in the company of family and good friends the latter group including my seforim.

And then there’s that added bonus of the autumn Shabbos called the autumn Erev Shabbos. Be it winter summer fall or spring an axiom of Jewish metaphysics (Murphystein’s Law?) often dictates that the necessary preparations and errands will expand to fill all available time until sundown. And if that’s the case I prefer fall time’s palpable sense of countdown to greeting the rapidly approaching Shabbos Queen to the illusion on long Fridays that one has all the time in the world to get ready. Certainly this is the time of year that the transition from frenzied Erev Shabbos to tranquil Shabbos serves most vividly as the weekly mashal that Chazal use for the relationship between Olam HaZeh and Olam HaBa.

Of course this is all easy for me to say having been relieved for many years now of the need to rush home from work in the city thrown upon the mercies of afternoon traffic patterns or perhaps even worse the vagaries of theNew York Citysubway system. Ah yes even now the mention of “signal trouble at Broadway-Nassau” or “sick passenger aboard” is enough for the palpitations to begin.

And that’s assuming one can get out of the office with enough time for an uneventful trip home. But that’s a big assumption considering yet another law of nature with which once upon a time I was all too familiar which states simply that workplace crises usually happen on Friday and usually after noontime thereon.

I remember the scene well: It was 1991 and I was a young associate at a large Manhattanlaw firm the token yiddel at a pure-bred WASP firm that had been part of theNew York landscape for 140 years. This was during the heyday of the “mergers and acquisitions” frenzy and I’d been brought in as a bit player on my firm’s litigation team handling a multi-billion dollar suit spawned by one particular mega-deal gone sour.

Somehow I’d written a legal memorandum that made a point important to our case and I’d been asked by the head of litigation the estimable John W. Castles III and a younger partner debonair Banks Brown to brief them on what I’d written. And needless to say it was Friday afternoon. I recall explaining to a graciously understanding Mr. Brown: “Banks how do I explain this to you? In about two hours from now I go time-traveling. I’m setting sail in a spaceship for a place called Shabbos a whole ‘nother world where I’ll be incommunicado for a full 25 hours. That’s just the way it is.”

And that’s just the way it was.