The late, great Justice Antonin Scalia not only led the so-called conservative wing of the Supreme Court for several decades but was also a legal thinker whose opinions, even his dissents, shaped this generation’s jurisprudence, and probably that of the next several as well. He was quite literate, forceful and colorful in his dissents, and was also a sought-after speaker, and some of those speeches have been collected in a book entitled “Scalia Speaks.” So what does this pious Catholic have to teach Jews? A lot.
On a mundane level, he noted in one talk that when he was young and rambunctious, whenever he wanted to go to a place of which he knew his parents disapproved, he would argue his case by pointing out that everybody else was going. (How often do parents hear that?) To which their invariable response was: “You’re not everybody else.”
Jewish parents can certainly take that message to heart. One of the challenges of modern life, and in particular warding off the harmful effects of much of modern culture that is as vacuous as it is tawdry, is to teach our children that they are not like everybody else. We are part of a nation that was set aside by the Creator to embody and promulgate His moral code, a code that most of the rest of the world rejects or ignores. So, yes, we cannot just immerse ourselves in the totality of Western culture and kasher it by giving it a Jewish flavor. We are called upon to be different, to set an example for others, and to revel in what Scalia called the “apartness” that he felt as a young Catholic. That “apartness” meant that activities that were perfectly permissible for others were not to him – and in our context, for us.
The bulk of the book, though, focuses repeatedly on the revolution that Scalia effected in Supreme Court jurisprudence, an odd sort of revolution in that he sought nothing more that to restore the theory of law that had governed the Court since its inception until, say, the early 1960’s. It is what legal thinkers call “originalism,” essentially calling for faithfulness to the original text of the US Constitution. Obviously, he was not completely successful, but the problem itself is one of the primary reasons for much of the polarization and dysfunction in American politics today.
Scalia noted repeatedly that he did not perceive “originalism” as trying to ascertain the original “intent” of the Framers of the Constitution (a somewhat esoteric if not mystical process) but rather the original “meaning” that they ascribed to those words and clauses. For example, the Eighth Amendment’s ban on “cruel and unusual punishment” could not have meant capital punishment because such was permissible and routinely executed when the Constitution was enacted. There can be no constitutional right to an abortion because such was illegal in colonial times when the Constitution was adopted. Military chaplains cannot be an unconstitutional endorsement of religion because such existed in Washington’s army and when the republic was established.
All these and other changes have come about, and engendered tremendous unrest in society, because of the theory of the “living Constitution,” the notion that the Constitution must reflect, to quote one of Scalia’s nemeses (Chief Justice Earl Warren), “the evolving standards of decency that mark the progress of a maturing society.” (In the most extreme iteration of this idea, former Israeli Chief Justice Aharon Barak held that Israel’s High Court must decide its cases “according to the views of the enlightened community in Israel,” enshrining a judicial tyranny in which the Court has the last word on every aspect of political and social life in Israel that it wishes to address, and I mean every, while willfully ignoring the views of religious Jews whom he considered to be unenlightened.)
There are several problems with this approach. For one, “evolving standards of decency” or “the views of the enlightened community” are both subjective and undemocratic. They essentially take a judge’s personal predilections and carve them into law – without public support or legal authority. They make the judges into the law itself, rather than have judges interpret the law.
Secondly, as Scalia points out with typical sarcasm, this attitude towards the superiority of modern mores suggests that “societies always mature; they never rot. This despite the twentieth century’s evidence of concentration camps and gas ovens in one of the most advanced and civilized nations of the world.” So beware those who wave their personal opinions on a banner and proclaim them to be the views of “enlightened” people, and woe to those who do not share those opinions.
Thirdly, the Bill of Rights was enacted to protect minority rights from majority tyranny, and the resort to the subjectivity of the “living Constitution” undermines that very notion, as we have seen. The Supreme Court (in Kelo, in which Scalia dissented) grossly interfered with private property rights simply because the government decided it had more lucrative ways as to how that property could be used. Or, note how the Court’s narrow decision discovering a constitutional right to same-sex marriage very quickly – and predictably – resulted in attempts to suppress the rights to freedom of religion and expression to traditionalists, whether bakers, florists or others.
Even worse, when one generation’s liberal judges wrap themselves in the mantle of “enlightenment” or “progress,” they unwittingly prompt another generation’s illiberal judges to grant similar substance (and infallibility) to their own decisions, and that is harmful to democracy.
The US Constitution, in an inspired way, has a mechanism to deal with injustices, and even with “evolving standards of decency.” It is called the amendment process, and it is inherently democratic, if a bit slow. But unresolved moral issues from the founding – slavery, for example – were dealt with first through war, of course, but then through passage of the Equal Protection clause of the Fourteenth Amendment. Note as well that the Nineteenth Amendment in 1920 granted women the right to vote – through a reasonable democratic process – but it would not have dawned on the Supreme Court to “find” the right to vote in the Equal Protection Clause.
A more reasonable and judicious approach to modern controversies – abortion, same-sex marriage and the like – would be similarly to subject them to the democratic process, state by state, or when appropriate, through Congress. Having the Supreme Court issue decrees from on high as if these matters are now settled has distorted the democratic process, incensed about half the population, and transformed the nominations process for Supreme Court justices into a political circus, and understandably so. Justices are no longer interpreting the existing law but are supposed to make the law, shape the law, create the law and bring about the social changes that the “enlightened public” desires. In effect, they too have become politicians, and that also undermines the integrity of the Court.
We need not leap too far to perceive how the same dynamic has torn apart the Jewish world and left us factionalized and divided. The non-Orthodox movements have long interpreted the Torah based on what they deem to be the “evolving standards” of secular society. In roughly less than two centuries, these “enlightened” folk abolished the laws of kashrut and Shabbat, transformed the synagogue by removing the mechitza, imposed female clergy on the Jewish public, and adopted a steady list of liberal social causes as if they were mandated by Torah and even though most are proscribed by the Torah.
But while the Constitution is man-made and fairly subject to human amendment, the Torah is of divine origin. Its mitzvot are “adjusted” at our peril. These heresies have naturally inspired massive assimilation among their adherents, as the Torah has become so malleable as to be meaningless except as a source of platitudes. Even more troubling than the decline of non-Orthodoxy is the enormous rise in the number of unaffiliated Jews, today a plurality in American life. Why remain connected to a Judaism that just mimics and reinforces one’s political conclusions? Instead, they “have abandoned the source of the living waters to dig for themselves broken cisterns that cannot contain any water” (Yirmiyahu 2:13).
Justice Scalia speaks to us as well. It is uncanny, but perhaps not surprising, how the deformation of American jurisprudence has paralleled that of Jewish jurisprudence (or vice versa) and with very similar consequences. One hopes that the recent additions to Supreme Court (opposed in apocalyptic terms by so many Jews!) will restore the constitutional balance and the supremacy of democracy, and that Congress should get back to the business of legislating. But we must hope, pray and do everything in our power to reach out to our fellow Jews, disappearing one by one into the mists of assimilation, the fog of intermarriage and the haze of Jewish ignorance, to reclaim their heritage, bolster our people and hold on to their eternal destiny.