Unenumerated Constitutional Rights and Unenumerated Biblical Obligations: A Preliminary Study in Comparative Hermeneutics

In his 1986 Yale Law Journal article, Robert Cover wrote of an explosion of legal scholarship placing interpretation at the crux of the enterprise of law. As part of the continuing emphasis on hermeneutics in constitutional interpretation, a body of literature has emerged comparing constitutional textual analysis to Biblical hermeneutics. This scholarship has been based on the recognition that, like the Constitution, the Bible functions as an authoritative legal text that must be interpreted in order to serve as the foundation for a living community. Levine looks at a basic hermeneutic device common to both Biblical and constitutional interpretation, the identification of unenumerated principles through reference to textually enumerated principles. Levine observes that, in addition to the numerous obligations listed in the Torah, legal authorities have interpreted the Torah to impose many other obligations not enumerated in the text. The Essay suggests that a similar methodology to that employed in Jewish law has been applied to the United States Constitution to derive rights beyond those enumerated in the text. Levine thus examines the ways in which American judges and constitutional scholars have relied on forms of textual analysis that find analogues in the interpretation of the Torah by Jewish legal authorities