Home » Posts tagged 'Jurisprudence'

Tag Archives: Jurisprudence

The Second Amendment and the Oral Law

banner-gun-control-debate-940x375As president Obama embarks upon his latest unilateral campaign to repair the world, this time by expanding restrictions on gun ownership, it’s worth revisiting my article on the Second Amendment from 2010.

Perhaps the greatest danger to the Constitution is manipulating its words to validate predetermined conclusions.  By doing so, we violate the talmudic admonition against making the law “a spade for digging,” i.e., a tool to advance our own ends.

To preserve constitutional integrity, we have to familiarize ourselves with the context of its times, then apply those observations to the times in which we live.  That only works when we are committed to honoring the system, rather than exploiting the system to fit our own agenda.

Last month’s Supreme Court ruling affirming Second Amendment states’ rights (and coinciding with the predictable Republican grilling of Supreme Court nominee Elana Kagan over the same issue) has brought back into the spotlight the constitutional ambiguity regarding gun ownership in the U.S. of A.

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed. So states the Second Amendment to the United States Constitution. At first glance, the stipulation seems clear enough. American citizens may own guns, plain and simple.

g4Or maybe not. The qualifying phrase that introduces the amendment appears to restrict constitutional protection to dependence upon a militia, or citizen army, to defend the nation. Accordingly, in times such as ours, when a standing army has assumed responsibility for the common defense, there may be no constitutional guarantee at all. And so, on second thought, the amendment seems to clearly limit the extent of private gun ownership.

Or, again, maybe not.

Perhaps the Founding Fathers meant that, since every citizen ultimately owns an equal share of the responsibility to defend his country, the right to bear arms is part and parcel of each person’s national duty to fight for the public welfare should the need ever arise. This would explain why the authors of the amendment might have mentioned a militia even if they never meant to restrict said right.

So what was the original intent of the Framers? If they were here, we could ask them. Since they are not, each side seems to have a fair and reasoned claim to support its respective position.

Is there any way to resolve the question of what was intended by men who passed away long before our grandfathers were born?

In fact, there may be.

THE REST OF THE STORY

Imagine that, as you pass by a window, you see a man wearing a mask raise a knife and plunge it into the chest of another man lying prone beneath him. You scream for the police, certain that you have just witnessed a murder.

Or, yet again, maybe not.

Now imagine that you were unfamiliar with the concept of open-heart surgery. Only after the police arrive and explain that the man in the mask is a surgeon working to repair the heart of the man on the table beside him will you understand that he is in fact saving a life and not taking one.

Context is everything. It orients us in time, space, and circumstance, transforms isolated acts into links in a chain of connected events, none of which can be understood in isolation. And so, if the words of our forebears sometimes appear to us muddled or imprecise, the surest way to achieve clarity is to examine comments and opinions from the same thinkers and the same era.

terrorists-and-gun-controlHere are a few examples to provide historical context:

James Madison, on the principle of individual rights: [A bill of rights] should more especially comprise a doctrine in favour of the equality of human rights; of the liberty of conscience in matters of religious faith, of speech and of the press; of the trial by jury… of the writ of habeas corpus; of the right to keep and bear arms.

Massachusetts Representative Fisher Ames: The rights of conscience, of bearing arms, of changing the government, are declared to be inherent in the people.

Supreme Court Justice James Wilson, contributor to the drafting of the Constitution:The defense of one’s self, justly called the primary law of nature, is not, nor can it be abrogated by any regulation of municipal law.

Vice President Elbridge Gerry, signatory to the Declaration of Independence, on national defense: What, sir, is the use of militia? It is to prevent the establishment of a standing army, the bane of liberty.

In the context of the times, the intention of the Framers becomes difficult to debate. Only in relatively recent times, when the concept of a militia has become an anachronism, has it become possible to question the true meaning of the Second Amendment.

PRESERVING THE INTEGRITY OF THE LAW

Is there any way for words to retain their clarity despite the persistent evolution of cultural references and values? Is there any method for protecting ideas from the ravages of changing times and sensitivities?

Indeed there is. It predates the United States Constitution by 31 centuries, and it is called the Oral Law of the Torah.

Consider these biblical commandments:

Remember the Sabbath Day and keep it holy… And this will be a sign upon your arm and a remembrance between your eyes … Slaughter your [livestock] in the manner that I have prescribed… Do not seethe a kid in its mother’s milk.

torah-at-sinaiThese precepts, as they are written in the Torah, are impossible to observe. What does it mean to keep the Sabbath “holy,” and what actions — if any — are required to “remember” it? What kind of sign are we to place upon our arms, if elsewhere the Torah prohibits the application of any tattoo, and how do we place a “remembrance” between our eyes? Nowhere does the Torah outline any prescription for ritual slaughter, nor does it imply what is commonly understood, that that the prohibition against cooking a baby goat in its mother’s milk extends to every mixture of meat and dairy products.

In spite of these and many other ambiguities, the basic practices of the Torah observant community have remained essentially unchanged for over 3300 years. The explanation is simple. Unlike the family encyclopedia which once gathered dust on the shelf and now gathers dust on the CD rack, the Oral Torah forces every committed Jew to see himself as custodian of a living tradition that connects him with the origins of his identity and enables him to live in the modern world without compromising the values of his ancestors.

No longer purely oral, the discussions and debates of past authorities have been recorded for their children in the writings of the Talmud and the commentaries that elucidate them. Unlike the records left behind by the Framers of the Constitution, however, these records have become canonized as part of the structure and process through which Jewish law is determined in each and every generation. Even when questions and disagreements arise, there is no debate within the Torah community over the methods through which answers and solutions are to be found.

Society changes, technology changes, and the values of human beings twist in the winds of time like a weather vane spinning before a storm. Electricity, automobiles, computers, cloning, and in vitro fertilization may have once been unimagined, but we have inherited a legacy that teaches us how those earlier generations would have resolved the problems of our changing world if they were here themselves today. And so the Torah Jew never loses his bearings, for he is guided by the words of his forefathers and finds comfort in the knowledge that the ancient wisdom of the Torah will never become stagnant, corrupted, or out of date.

As my teacher Rabbi Nota Schiller often says, the Oral Torah allows the Jews to change enough to stay the same.

Originally published by Jewish World Review

 

When Prejudices Become Principles

gay-wedding-cake-topperTwo cheers for Freedom to Marry, the gay-rights advocacy group that is taking the unorthodox step of closing its doors for no other reason than because it got what it wants — namely, the redefinition of marriage (according to Anthony Kennedy’s unilateral revision of the constitution).  So I’m adding my small voice to that of the New York Post to praise the group’s president, Evan Wolfson — irrespective of how much I disagree with his position — for having the integrity to take his victory and go home rather than persisting in advocacy for the sake of advocacy.

Which doesn’t mean, of course, that all his allies will do the same.  It took almost no time at all before ABC’s Nightline ran a segment on polyamory, clearly the next step in the dismantling of the nuclear family.  “We’re just trying to be the pioneers like in the civil rights movement,” gushed one member of the “trailblazing triad” trumpeted by network.

Finally, in an inevitable but long-delayed surrender to the tide of history, the Boy Scouts of America have released their hold on traditional values by ending their ban on openly gay troop leaders.  One feeble cheer to the organization for holding out as long as it did.

With the abyss of moral anarchy looming before us, I’m revisiting my thoughts on the subject from six years ago.  At the very least, when archaeologists dig up the remains of Western Civilization some time in the distant future, let them see that Civilization didn’t go down without a fight.

 

“We must be ever on our guard, lest we erect our prejudices into legal principles.”

This concise jewel of wisdom, from former Supreme Court Justice Louis Brandeis, may eventually take its place as either the standard or the epitaph of Western Civilization. While the evolution of social sensitivity can claim an impressive record of civil rights legislation, we have now to question whether our collective obsession with personal privilege threatens the very foundations of the legal system that protects us.

For his inauguration this Tuesday, soon-to-be President Barak Obama has chosen evangelical pastor Rick Warren to deliver the invocation. Instantaneously, the politically correct Left launched its blitzkrieg, excoriating Reverend Warren for the unpardonable sin of supporting Proposition 8, California’s recent gay-marriage ban. Because he used his First Amendment rights to speak his conscience, and because he recognizes his obligation as a representative of religious conviction to defend religious doctrine, Reverend Warren finds himself where almost all defenders of moral integrity now find themselves: under attack by the zealots of moral anarchy.

The offensive against Reverend Warren may not rank among the most disturbing examples in the aftermath of California’s Proposition 8 referendum. In Riverside, California, 40 to 50 signs supporting Proposition 8 were found arranged in the form of a swastika on the front lawn of a Roman Catholic church. Mormon temples in Salt Lake City and Los Angeles, along with a Catholic Knights of Columbus printing press in Connecticut, received packages containing white powder presumably intended to imitate the 2001 anthrax scare. Reports from around the country include harassment, vandalism, and disruption of church services.

ldbinrobesWhat would Justice Brandeis say?

He probably would not agree with Justice John Paul Stevens, who quoted him in his dissent against the June 28th, 2000, Supreme Court decision allowing the Boy Scouts of America to dismiss an open homosexual from his position as scoutmaster. Invoking Justice Brandeis as a beacon of light to dispel the darkness of prejudice, Justice Stevens (together with the three justices who voted with him) cast his dissenting vote in an effort to canonize his own prejudices within the body of constitutional law.

But if Justice Stevens argued with the reasoning of colleagues in the majority, presumably he accepted the authority of their decision. Not so the moral and legal vigilantes who have deputized themselves as protectors of the American People against both due process of law and the erroneous decisions of the United States Supreme Court.

Back then, government officials and corporate officers across the country began cutting off financial support to the Boy Scouts and restricting their access to public and private resources. Sounding the charge, predictably, was the New York Times, which asserted that “by allowing a group that bans gays to use public facilities and supporting it, they violate their anti-discrimination statutes.” This, of course, was patently false for two reasons. First, BSA never issued any ban against gays, but only refused to allow leaders in its organization who openly advocated behaviors antithetical to BSA’s core values. Second, and most important, is that BSA was not violating any anti-discrimination statues, since that was precisely the point on which the highest court in the land has just ruled.

Lest we erect our prejudices into legal principles.” Wasn’t this kind of self-righteous legalistic coercion precisely what Justice Brandeis warned against? Nothing about the policies of the Boy Scouts, who then faced accusations of prejudice, could be reasonably considered prejudicial. Quite the contrary: through their choice of leaders they have always endeavored to inculcate traditional morals and values among a generation of young people bombarded by the relentless media messages of self-indulgence and self-absorption. That they were vilified for adhering to a moral code should have raised a cry of outrage from every parent, every teacher, every community leader, and every responsible citizen in the nation. But all we heard instead, from the highest elected offices on down, was mealy-mouthed equivocation about diversity and open-mindedness.

Sometimes, however, we can be so open minded that our brains fall out. Indeed, the larger issue now, as then, is whether our personal-rights mentality has given birth to an amoral culture that is systematically becoming mandated by law. Even now, those activists who have announced their intention to turn their backs on Reverend Warren when he delivers his invocation are within their rights to do so and should not be legislated against. But what they consistently fail to realize is that respect for differing opinions that are reached through reason and integrity is essential to the survival of a free and democratic society.

Do we really want to live in the kind of lobotomized society where there is no greater sin than judgmentalism? By definition, where there is no judgment there is no justice. By intuition, where there is no civil discourse there is no civilization. To bash each other over the head with legalistic bludgeons is to act like cavemen, and it leads down the road to social chaos far more directly than it does toward social utopia. It doesn’t allow much room for personal freedom, either.

If there is any change that we should truly hope for, it is that this new administration will lead us into a new era in which we stop demanding that the law protects our every right and start acknowledging our responsibility to uphold the system that makes it possible for us to have any rights at all.

Originally published on Jewish World Review

Elbowing God Out

the-pledge-of-allegiance-and-an-american-flagBack when I possessed the charming innocence of a twelve-year-old, I took offense at the wording of the Pledge of Allegiance. Why, I wondered, was I expected to pledge my allegiance to a flag? Proclaiming loyalty to my country I could understand, but to a piece of fabric?

Moreover, as I had concluded with unshakable, preadolescent self-confidence that human existence was nothing more than a cosmic accident, I found the phrase “under God” equally offensive.

So while my classmates were loudly reciting the full text of the Pledge of Allegiance, I was quietly editing my own recitation: I pledge allegiance… to the United States of America… one nation… indivisible, with liberty and justice for all.

By my final year in high school, however, having acquired a sufficient measure of sophistication to appreciate the importance of symbolism, I no longer resented being asked to swear loyalty to a flag. But we weren’t reciting the Pledge of Allegiance any more, so I had no chance to mend my ways.

I was also less certain concerning the existence of a Creator. Six years of secondary education had opened my eyes to a universe so enormously complex that to embrace any world view as extreme as atheism seemed the height of arrogance. The phrase “under God,” therefore, struck me as a comforting expression of humility, that we as a nation recognized the grandeur of our universe and conceded its unfathomability.

Perhaps the circuit court judges who ruled the phrase “under God” unconstitutional might have interpreted the law with more humility if they had familiarized themselves not only with the letter, but with the spirit of the Constitution. Perhaps they might have better understood the intent of the Framers if they had read, or remembered, the words of Alexander Hamilton: “The sacred rights of mankind… are written, as with a sun beam in the whole of human nature, by the hand of the divinity itself; and can never be erased or obscured by mortal power.”

ScreenShot2014-08-01at3.09.15PMConsidering the many references to the Almighty among the writings of the Framers of the Constitution, it’s astonishing how often we hear the Constitution invoked as the basis for expurgating every reference to God from the public arena. If the founding fathers weren’t afraid of mentioning God in the Declaration of Independence, why should we fear the utterance of His name in our courthouses or schools? But many among us are afraid, afraid with a fear born of insecurity.

Indeed, what is more terrifying than the unknown, and what is less known than what awaits us when we depart this mortal coil? As Prince Hamlet pondered: “To sleep? Perchance to dream! Ay, there’s the rub.” For the devout atheist, there is no greater dread than the haunting suspicion that he might be wrong, that there might truly be a Creator and an accounting before Him upon arrival in the hereafter. To the atheist, every reference to God is an unwelcome reminder that the rest of the world is not so certain that our existence is random and without purpose.

The great Rabbi Joseph B. Soloveitchik summed it up like this: “All extremism, fanaticism and obscurantism come from a lack of security. A person who is secure cannot be an extremist.” And, indeed, extremism in the form of radical religion or radical nihilism is one and the same. The 19th century anarchist used techniques not unlike the suicide bomber of today to advance his own variety of jihad. The modern anarchist uses manipulation of the law to advance his cause, supremely confidant that he understands the Constitution better than its authors.

The Talmud describes how, during the last days of the second Temple in Jerusalem, the Jewish people observed the law of the Torah meticulously according to its letter. But they failed to look beyond the letter of the law, to strive for understanding and fulfilling of the spirit of the law, to labor in applying the essence of the law toward the transformation of their character. This failure, together with a senseless hatred born of mutual suspicion, mutual contempt and, ultimately, the uncompromising assertion of their own egos, resulted in the destruction of the Temple, the deaths of millions of Jews, and the beginning of our long, dark exile scattered among the nations of the earth.

It has been observed that the word ego is in fact an acronym for Elbow God Out. A daily reminder that we should receive our national freedoms with humility is among the surest means of preserving those freedoms for our children. Close to two thousand years ago, instead of subduing their egos before the Highest Authority, instead of subjugating their ideological differences to the pursuit of shalom, peace, the Jews distorted Divine law to serve their own agendas, thereby sealing their fate and the fate of the Temple.

The sages teach that any generation that does not rebuild the Temple is considered to have destroyed it. But if we return to the law with humility and reverence, then we can truly hope to rebuild that which for so long has been lost.

Adapted from an article previously published by the St. Louis Post-Dispatch, the Baltimore Sun, and Aish.com.

Turnaround, or fair play?

imagesLast week, John Roberts reported for jury duty, not as Chief Justice of the Supreme Court, but as John Q. Public at Maryland’s Montgomery County courthouse.  He wasn’t selected in the end, but he came within measurable distance of serving as an ordinary juror on a case that would determine damages in an automobile accident.

Does this reflect what’s best in America, that no one is exempt from performing his civic duty?  Or is it symptomatic of the most absurd form of political correctness, which demands equivalence in all arenas and all situations, no matter how un-equivalent they may be?

So what do you think:  would it have been worth shutting down the highest court in the land so that our top jurist could sit in the place of an average citizen?  Leave a comment with your take on the question.

Church vs. State

imgresHere’s a quiz question:  When was the phrase “separation of church and state” first introduced into American jurisprudence?

a)  1789; b)  1800;

c)  1840; d)  1947

Most of us would answer 1789, with the ratification of the United States Constitution and the First Amendment, guaranteeing religious freedom.

Guess again.

According to Columbia law professor Philip Hamburger (cited by Eytan Kobre in Mishpacha Magazine), the first use of the phrase was during the presidential election of 1800, when defenders of Thomas Jefferson responded to attacks that their candidate was anti-religious by invoking the “need to separate religion from politics.”  Jefferson himself used the phrase in a letter in support of Connecticut Baptists who feared political oppression.  Jefferson’s overture was ignored by religionists who could not imagine the absence of religion from public life, even in their own defense.

Around 1840, when Catholics in New York City began claiming access to funding for religious schooling, Protestants responded by asserting church and state separation, eventually seeking a new constitutional amendment to that effect in the 1870s.  When that effort failed, reinterpretation of the First Amendment became their next strategy.

But it was only in 1947  in Everson vs. Board of Education that, despite a 5-4 split in the Supreme court ruling, the justices agreed unanimously that a “wall of separation between church and state” was implicit in the First Amendment.  The majority opinion was authored by Justice Hugo Black, a former leader of the Ku Klux Klan in Alabama.

Thus, the origins of a tradition that everyone thinks believes goes back to the framers — most of whom would be horrified by the popular outlook that has come to define the First Amendment, in the words of Joseph Lieberman, as protecting not freedom of religion but freedom from religion.  The “wall of separation” has been critiqued by Justice Clarence Thomas as “born in bigotry,” by Justice Potter Stewart as “nowhere to be found in the Constitution,” and by former Chief Justice William Rehnquist as “a metaphor based on bad history, a metaphor which has proved useless as a guide to judging.  It should be frankly and explicitly abandoned.”

Writes American University law professor Daniel Dreisbach:  “Indeed, this wall has done what walls frequently do — it has obstructed the view.  It has obfuscated our understanding of constitutional principles…”