Scalia Speaks – to Jews

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.

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5 responses to “Scalia Speaks – to Jews

  1. Avraham Keslinger

    One could also argue that the Framers put ambiguous language such as”cruel and unusual punishment” in the Constitution to give succeeding generations the power to interpret them in accordance with their values (although linguistically in order to be struck down a punishment would have to be both cruel and unusual). As for non-Orthodox movements, their mistake is that they are not the Sanhedrin. Being that our Supreme Court has been, so to speak, in recess for almost 2,600 years there is no power to reinterpret verses or modify rabbinic law. However, being that the Torah is not in Heaven it would seem that a reconstituted Sanhedrin would have this power

    • Yes – but who says that was their intention? It seems clearer that they intended to allow for modernization through the amendment process.

  2. MYRIAM SOLOMON

    This judgement on the part of the author, Rabbi S. Pruzansky comes from a very righteous view of non-orthodox Jews. I do believe that only Hashem is the ultimate judge. This article is well written and his opinion is quite clear. However, Rabbi Pruzansky fails to consider the danger of this argument. To say that the Torah, is beyond interpretation and to assume that Judaism is rigid and unable to bend to include so many of us, is in effect to ex-communicate millions of Jews world-wide. The Rabbi argues that because I am not an Orthodox Jew I live in “the haze of Jewish ignorance”. I, for one, have claimed my Jewish heritage out of the smoldering embers of the Shoah, despite growing up in a home where our traditions were barely observed. My Father was born an Orthodox Jew in Belchtow, Poland. After surviving the atrocities of the war he could no longer pray to a G-d who could allow the unspeakable suffering he witnessed. Of dozens in his family, only he and his sister survived. He rejected Orthodoxy and observance. In fact I never went to Temple with my parents. We did not belong to a congregation. We were “unaffiliated”. Orthodox means “straight and correct”. I have great respect and admiration for my Jewish friends who have chosen to live every day within the Orthodox parameters. And, I also have great respect for my community and my Rabbis, who are not Orthodox. Our Congregation welcomes all Jews equally, without judgement. My Rabbis are inspired Rabbinic scholars, and can shed light on the darkest days we now face in this crazy, broken world. We are here to rejoice in life, to help the widow and feed the homeless, for “Tikkun Olam” to heal the world which is in great need of healing.
    According to Rabbi S. Pruzansky his is view is Orthodoxy is the only way to live and be accepted as an authentic Jew. Perhaps it is wiser to accept and nurture our people where ever they are, and then do the work of bringing them closer to Hashem? In my unshakable belief my G-d is One of total acceptance, love and goodness. Every year at Rosh Hashanna and Yom Kippur, I pray with all my heart and all my soul and all my might to work for the good of my people. Is it not wiser to build a bridge and find a way to work together ? We need each other to do the work of making peace, and expressing the joy of being alive, to the world.

    • I welcome all Jews! And I’m glad you attend synagogue. But you must admit that the Torah obligates a certain lifestyle and the more we adhere to that (no one is perfect), the better Jews we are. Let’s not set a low bar – just “be Jewish” – but a high bar, including acting Jewish, in the ways you mention and Shabbat, Kashrut, tefila, Family purity, Torah study, etc. That’s not Orthodoxy – that’s the product of a straightforward reading of the Torah, Talmud and Codes. And that is open to every Jew.
      – RSP

  3. “The Jewish people are optimists, addicted to a passionate belief
    that they cannot possibly have enemies bent on their destruction.”

    SOURCE: The Secret Jews (chapter 2, page 53)
    by Joachim Prinz, year 1973, Random House, New York,
    ISBN-10: 0853031851 ISBN-13: 978-0853031857

    ===================================
    In any attempt at defining their specific psyche or “mystique,”
    we must include that most puzzling and yet most revealing
    contradiction in the Jewish mentality:

    the apparent inability of the Jews to understand or predict
    their own catastrophes. The Jews, whose history consists of
    one tragedy after another, have yet to be prepared for any one of them.

    Clemenceau, who as a young man witnessed the most notorious of anti-Jewish trials, the affair of Alfred Dreyfus, is supposed to have remarked that “only the defendant did not understand” the Jewish implications of the trial. It can be safely said that the only ones who were oblivious to the possibility of their own destruction in 15th-century Spain were the Jews.

    So they surrendered, died or lost their fortunes, and those who survived were finally expelled from the land of their birth.

    This sort of blindness has been true throughout Jewish history.
    Jews have always been the last to know what everyone else could have predicted. It is as if they simply do not believe it possible.

    As far as they were concerned, it “happened overnight.”

    They packed up and left. But nothing really happened “overnight.”

    SOURCE: The Secret Jews (chapter 2, page 51)
    by Joachim Prinz, year 1973, Random House, New York,
    ISBN-10: 0853031851 ISBN-13: 978-0853031857

    ===================================
    MICROBIOGRAPHY: Dr. Joachim Prinz was born in year 1902.
    He was a Reform Rabbi in Berlin and one of the first Jewish leaders in Germany to speak out against Nazism. He was expelled from Germany in year 1937 and came to the USA, and served as Rabbi of a large congregation in New Jersey. He was President of the American Jewish Congress from 1958 to 1966 and wrote many books.