Rabbi Pruzansky's Blog

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.

Rav David Lau, the Chief Rabbi of Israel, was our guest this past Shabbat, and his Friday night talk made abundantly clear his passionate love for every Jew regardless of station in life or level of observance. Of course, one would have naturally thought the opposite based on the tendentious, fanatical and demonstrably false story peddled by the media in the wake of the massacre of the Pittsburgh Jews HY”D, since retracted but for which no apology has yet to be offered. It is an object lesson in the current low state of the fourth estate. (i.e., the press).

The lie emerged from a misreading of an interview in Makor Rishon, utterly distorted by a writer for Haaretz known for her rabid anti-Orthodox and anti-Torah biases, and peddled by a gullible media conglomerate in America all-too-willing to besmirch rabbis.

The headline – “Rav Lau refuses to call Pittsburgh synagogue a Bet Knesset” – was simply false. As Makor Rishon reported, when its reporter tried to induce negative comments about Conservative Judaism in the wake of this horror (and how absolutely inappropriate was that?), Rav Lau responded, seemingly in shock, “Mah zeh meshaneh b’aizeh Bet Knesset oh nusach haim mitpallelim?!” – What does it matter what synagogue or text they were praying? There it was, the words “Bet Knesset,” hiding in plain sight, one might say.

The reporter persisted, trying then to extract another headline, “so you’re saying it is a Bet Knesset?” To which the follow-up question would have been: “so why doesn’t the State recognize them? Why aren’t they recognized as legitimate according to the halacha?”

This was an appalling attempt not to solicit Rav Lau’s thoughts and feelings on the murder of Jews but to focus the inquiry on the nature of the religious observance of the victims. The line of questioning was so inappropriate that Rav Lau protested – and pointed out its rudeness and irrelevance, reiterating that these people were Jews, in a publicly-identifiable Jewish place, engaging in all the formalities of prayer and seeking “closeness with G-d.” His answer was right on key to media questions that, in context, were so discordant and tasteless: taking a moment that symbolized Jewish unity and our common fate and trying to exploit it to stoke the flames of controversy and division.

But how can it be that a heartfelt identification with the murdered Jews of Pittsburgh became a dismissal of this synagogue as a synagogue and supposedly an insult to the victims?

There was a time when the primary role of journalists was to report the news. They attempted, often at great hardship, to ascertain the facts and provide those facts in a cogent narrative to the reader. That ended almost fifty years ago. Today, most journalists see their role not as reporting the news but as shaping the news. There is no objectivity; there is only an agenda that they seek to promote. They are not reporters but advocates, and the causes they advocate are so dear to them (in the Jewish world they include radical feminism, hatred of Torah, hatred of Israel, etc.) that reporting falsehoods that advance their agenda is seen as simply  a means to serve the greater good, as they perceive it.

There was a time when journalists prided themselves on their courage in speaking truth to power. Now, too many pride themselves on speaking lies to power if their personal political or religious preferences are thereby served. This is causing untold harm to society for several reasons.

People tend to believe what they see in print even if experience – especially recent experience – should have taught us otherwise. The internet is an intellectual jungle and a moral swamp. The lies that are promulgated with astonishing frequency – here is one: “the Tree of Life Congregation that Shabbat was hosting a brit milah of the offspring of two men,” a lie that caused several fringe rabbinic figures to declaim sheer foolishness – are used as click bait, to grab the eyes but also leave a deleterious imprint on the mind and soul.

A reader has to be even more skeptical about what a journalist writes than the journalist is supposed to be when interviewing a politician or public figure. Or a better idea: simply stop reading outlets or individuals who traffic in falsehoods as a matter of course.

It is as if the laws of lashon hara (evil talk) have been repealed. Classically, lashon hara is defined as information (even true) that tends to disparage another person or will cause his or her reputation to be diminished in your eyes. The public’s “right to know” is not a Torah concept or value. There are a tiny number of general exceptions to this rule –allowances for averting danger or to alerting people to potential harm in shidduchim or business – but most modern journalism is an ethical free-for-all that sees ruining people as a sport and acceptable for the cause.

Indeed, two of the complainants against Brett Kavanaugh have in recent weeks recanted and admitted that they concocted lurid accusations in order to derail his nomination and gain attention for themselves. That is bad enough, and they should be prosecuted, convicted and imprisoned (which will never happen); what is worse is how the media breathlessly reported these allegations that smeared an individual only because it suited their agenda. That is a gross corruption of the freedom of the press; it is possible to have a press that is too free.

Today, it is agenda that governs, not news or facts. And the pursuit of an agenda has now induced several Knesset members to demand that the Israeli government formally recognize the non-Orthodox movements, elevate their stature, and deem them legitimate expressions of Judaism because of the events in Pittsburgh. Talk about striking while the iron is hot! But the grievous attack on our fellow Jews in Pittsburgh, one that has shaken all Jews to the core, does not change the truth of Torah one iota. There were intermarried Jews who were murdered by Nazis during the Holocaust; we do not then permit intermarriage in their memory. There were Jews who (rightly) saved their lives during the Holocaust by eating non-kosher food; that doesn’t mean we commemorate them by eating treif. It is an intellectual non sequitur but the agenda matters more than logic or the eternal truths of Torah.

The contention of these Knesset members is as farcical and publicity-driven as it is insincere. They supported recognition of the heterodox movements the day before the massacre just as much as they did the day after the massacre. So spare us the false piety, as if the murderer compels us to destroy the Torah even as he destroyed the lives of eleven Jews.

Is it possible that the halcyon days of journalism never existed? It could be that facts were always filtered through the reporter, and what was transmitted or omitted was always prejudiced by the reporter’s personal predilections. Maybe – but at least they tried to hide it and pretend they were objective. Perhaps a reporter’s byline should contain his or her top three favorite causes and voting preferences so their writings can be evaluated accordingly.

It is true, as the left often claims, that not every criticism of a leader is Fake News, but there are many criticisms that are clearly Fake News. The mere fact that the term Fake News resonates with the public reflects both its pertinence and its accuracy and underscores the problem of modern journalism.

There is a reason why many journalists (although I’m sure not all) are held in such low esteem today – lower than the President or even Congress. Most of us are still inclined to afford some credence to something that is in print (or on the screen) right in front of our eyes. But having experienced these lies myself, and having been present at events and then read media accounts that had little to do with the event I just witnessed with my own eyes and ears, I know that our initial instinct should be to doubt, disbelieve and then reject much of what we read or hear.

It will change when journalists just report the news and not try to interpret it for us. It will change when there is full disclosure of the journalists’ biases and pet causes. It will change when people stop reading, listening to or watching agenda journalism. It will change when people protest the shaming of good people and the propagation of lies, half-truths and distortions about them.

That is to say, it will not change anytime soon.  So caveat lectorum. Reader beware.