Tyrannical Absolutism in Conservative and Haredi Judaisms, with Parallels to European Non-Jewish History, and to Modern Orthodox Judaism

I. Of Conservative and Haredi Judaisms

I have been told that Rabbi Moshe Tendler has said that because of the mitzvah to help a neighbor in need, that therefore, one is obligated to support Obamacare.

Perhaps Rabbi Tendler's own opinion is actually different, and was misrepresented by the man who told me about his opinion. But either way, someone certainly holds the above logic - if not Rabbi Tendler, then someone else - and it needs to be answered.

This sort of logic - that because one must support his neighbor, that therefore, he must support Obamacare - is an example of taking the sources too far, and from a simple and vague mandate, deriving an obligation to support a detailed and controversial and parochial program, without considering alternative methods of upholding the same vague and incomplete mitzvah.

This logic is as sound as the Conservative responsum permitting driving a car on Shabbat, on the logic that unless one drives to synagogue, one's commitment to Judaism will wither. For the Conservatives, it never occurred to them that perhaps Jewishness could be strengthened by doing more mitzvot or learning more Torah. They just jumped straight to davening, and ignored the fact that one could not build the Mishkan on Shabbat. (The Torah specifically says that on Shabbat, one must halt the construction of the Mishkan - the Tabernacle, the prototype of the Temple in Jerusalem. If so, how can one possibly countenance violating Shabbat for the sake of a synagogue?)

Those who say halakhah mandates support for Obamacare are grossly oversimplifying matters, and deriving from a simple pasuq (Scriptural verse) an extraordinary obligation, without considering any other possible alternative fulfillments of the simple and vague mandate. They, he, like the Conservatives, are playing fast-and-loose with halakhah, twisting it and reinterpreting it to fit a preconceived and narrow perspective. Halakhah would be and is being forced to say what its interpreters want it to say, rather than letting it speak for itself.

Both are forms of Da'at Torah. Fundamentally, Da'at Torah is simply a form of absolutist tyranny. (See DA'AT TORAH - The
Unqualified Authority Claimed for Halachists by Jacob Katz and Daas Torah: A Modern Conception of Rabbinic Authority by Lawrence Kaplan) The idea is that one man (or group of men) is allowed to dictate to others what must be done, without right of dissent. A corollary that does not necessarily follow, but usually does, is that authoritative sources of tradition and sound arguments of logic presented by the minority or the oppressed are usually ignored by the tyrant, because these go against his tyranny. A tyrant will twist traditions and reason to uphold whatever he has preconceived as ultimately valuable for him, namely his own power.

It is true that the Conservatives made halakhah more lenient, whereas the Haredim have made it more strict. The latter case seems more obviously tyrannical than the former. But we know from Pirqei Avot that there is true liberty only in keeping the law of G-d, and colonial American Puritans believed this as well, calling for "liberty, not license." If so, then both uncompromising stricture by the Haredim as well as permission of hedonism and license by the Conservatives, are both absences of liberty. If the Haredim limit us tyrannically, then the Conservatives simply loose all the bonds and allow us to descend into license and epicureanism. But both are equally absences of true liberty. Both are equally cases of distorting the Torah to uphold one's own parochial views, preventing what is truly beneficial for the common people. Both are fundamentally undemocratic.

Similarly, the Reform and Conservative Jews have fundamentally altered Judaism, making their conversions (giyur) invalid from an Orthodox perspective, because conversion requires halakhically-observant witnesses and certain ritual standards in order to be valid, standards which Reform and Conservative conversions do not meet. And yet, they expect the authorities in Israel to recognize their conversions and accord them legitimacy! Is this not tyranny? They invent a new, unprecedented legal standard and presume to foist its consequences and ramifications upon everyone else. Likewise, the Haredim have invented a new concept of giyur as well, holding that even if the witnesses are valid and the ritual standards are met, that even so, if the convert himself is not observant, that the conversion is invalid. This is unprecedented as well; traditionally, if the witnesses were kosher and the milah and mikvah were kosher, then it mattered not whether the convert himself was observant, and Maimonides upholds this. (See my Laundry List of Sources Relating to Giyur.) The Haredim, however, have forced their opinion upon the entire State of Israel. Both the Conservatives and the Haredim are engaged in absolutist tyranny.

II. Parallels to European Non-Jewish History

So both the Conservatives and the Haredim are fundamentally absolutist tyrants. I would like to draw a historical parallel. In Douglas F. Kelly's book The Emergence of Liberty in the Modern World: The Influence of Calvin on Five Governments from the 16th Through 18th Centuries, we find the following. On page 83, quoting Douglas F. Kelly, "Richard Hooker," in Evangelical Dictionary of Theology (Grand Rapids: Baker, 1984), pp. 531-32, we read:

In order to defend the Anglican Establishment Hooker circumvented both the Puritan appeal to Scripture and the Catholic appeal to Church tradition by going behind both to the primary source of authority: natural law, which is implanted in people's minds by God and comes to full expression in the state. The voice of the people is the voice of God, but is articulated through the civil magistrate. While Hooker held that Scripture contained what is necessary for salvation still the law of nature was primary. As times change, specific laws can be changed, though always in accordance with fundamental natural law. Thus the church cannot be held subject to the letter of Scripture or of tradition; it is free to adjust itself to its own historical context.

The parallel to Zecharias Frankel's changing halakhah to accommodate the zeitgeist cannot be missed.

On page 107, Kelly discusses the reasons that the British Parliament rejected the recommendations of the Westminster Assembly. The British Parliament had appointed the Westminster Assembly (composed largely of Scottish clergymen) to recommend a suitable form of church government. The Assembly recommended Presbyterianism, a democratic form of ecclesiology (church government), with the church independent of state and a separation between church and state, but Parliament insisted that the church be subservient to the state, with an Anglican form of ecclesiology remaining intact as the established state church. Professor Kelly explains the reasons Parliament held this position:

To this factor must be added the widespread influence of the theories of the judicious Hooker, who held that church government is not specifically defined by Scripture for all times and places, but may be adjusted to the historical context in accordance with basic natural law as interpreted by the civil magistrate, who thus has the final say, as we have seen earlier.

We must note that Hooker's theories just so happens to have been one of the theories behind opposition to the Puritan demand to democratize the Church of England. The Puritans wanted to replace Catholic-style Anglican government with more democratic Presybterian government, with a separation of church and state. In opposing this, Hooker relied on reason and logic, but of course, the "reason" he had in mind was not a layman's reason, but the reasoning of the king and his subordinate bishops. The king of England and his bishops supported Anglicanism precisely because it preserved their hierarchical authority, including authority over religion via a state-established church.

We see that Hooker opposed democratization by using a parochial understanding of reason and natural law, namely the king's. Hooker's notion of reason and history changing religious norms is similar to Zecharias Frankel's, who founded the forerunner to Conservative Judaism. Like Conservative and Haredi Judaisms, Hooker claimed to rely on reason and logic, but it was only the reason and logic of a parochial sect of biased individuals, preferring their reason and logic to that of those beneath them, and they used or misused reason and logic in whatever way would support their own power and authority.

III. ... and to Modern Orthodox Judaism

We might note, however, that Rabbi A. I. Kook and Rabbi Dr. Eliezer Berkovits both also held notions very similar to Frankel's and Hooker's. But if we compare their respective views, we will find a crucial difference. Professor Marc Shapiro, speaking about the evolution of ethical notions and conscience over time (in his Thoughts on "Confrontation" and Sundry Matters Part II) says,

Followers of R. Kook will put all of this in a religious framework, and see it as humanity's development as it gets closer to the Messianic era.

He quotes Rav Kook as saying,

ואם תפול שאלה על איזה משפט שבתורה, שלפי מושגי המוסר יהיה נראה שצריך להיות מובן באופן אחר, אז אם באמת ע"פ ב"ד הגדול יוחלט שזה המשפט לא נאמר כ"א באותם התנאים שכבר אינם, ודאי ימצא ע"ז מקור בתורה.

[My translation: "And if a question arises on some Toraitic law, that according to ethical notions, seems to require being understood in an alternative manner [different than its conventional and accepted interpretation until then], then if indeed according to the Sanhedrin it will be decided that this Toraitic law was said only regarding [social or historical] conditions that are no longer extent, then surely a source in the Torah will be found [for the ethical notion that spurred this entire course of investigation]."]

כשהמוסר הטבעי מתגבר בעולם, באיזה צורה שתהיה, חייב כל אדם לקבל לתוכו אותו מממקורו, דהיינו מהתגלותו בעולם, ואת פרטיו יפלס על פי ארחות התורה. אז יעלה בידו המוסר הטהור אמיץ ומזוקק.

[My translation: "When natural morality strengthens in the world - in whatever form it may - everyone is obligated to receive it into his ethos, from its source - viz. its revelation in the world -  and its details will be explicated by the ways of the Torah. Then pure morality, strong and purified, will come into his grasp."]

כל התורה הזאת של מלחמת רשות לא נאמרה כ"א לאנושיות שלא נגמרה בחינוך. כל לב יבין על נקלה כי רק לאומה שלא באה לתכלית חינוך האנושי, או יחידים מהם, יהיה הכרח לדבר כנגד יצר הרע ע"י לקיחת יפת תואר בשביה באופן המדובר. ומזה נלמד שכשם שעלינו להתרומם מדין יפת תואר, כן נזכה להתרומם מעיקר החינוך של מלחמת רשות, ונכיר שכל כלי זיין אינו אלא לגנאי.

[My translation: "This entire teaching of voluntary wars [of conquest] was said only for a mankind that had not yet completed its education. Every heart will easily understand that only a nation that has not yet come to its humanistic educational conclusion - or individuals thereof - will perforce require a matter directed against the selfish inclination [yetzer ha-ra], via the [permission of] taking a beautiful woman captive, in the manner spoken of [in the Torah]. And from this we will learn that just as it is incumbent upon us to rise beyond the law of taking a woman captive in war, so too we shall merit to rise beyond the educational principle of voluntary warfare, and we shall recognize that every vessel of war is naught but shameful.]

It is evident that Rav Kook held that history and moral opinions developing over time could affect the halakhah. Rav Kook held that G-d revealed Himself not only at Sinai, but that also, He continually reveals Himself in time, via a revelation in nature and history. (For a user-friendly explanation of this, see Pinchas Polonsky's Religious Zionism of Rav Kook.)

Rav Kook's concept is similar to the Reformed Christian (i.e. Calvinist or Puritan) notion of federalism ( = covenantalism, contractualism, constitutionalism; the word "federal" comes from the Latin foedus, itself meaning ברית, "covenant"). One of the main features of theological federalism is that man is advancing over history, developing his ethical and intellectual and spiritual characteristics, as a partner with G-d. This advancement is done by G-d's making covenants with men and men with each other. To quote Daniel J. Elazar, Covenant & Commonwealth: From Christian Separation Through the Protestant Reformation - The Covenant Tradition in Politics, Volume II, pp. 176f. (words in brackets are mine):

Covenant also introduced a strong historical dimension to Christian thinking, which was another of the Federalists' lasting contributions to modern theology. As opposed to the often timeless, metaphysical quality of predestination in mainstream Calvinism [of the Gevenan school of Reformed Christianity], covenant [by the Bullinger/Zurich school of Reformed Christianity] linked the idea to God's historical dealings with humanity. When one method failed at the outset of history, God tried another, more extraordinary way to reach man. This attitude continued the experimental approach evident in the Hebrew Scriptures. Cocceius especially emphasized the history of redemption and its present reality. It is by means of covenant that the Kingdom of God is actualized in history. Indeed, given the intense religious fervor at various points during the Reformation, some believed that 'reform' meant an earthly establishment of the Kingdom of God [cf. Winthrop's "A Modell of Christian Charity].

Apparently, whereas Calvinism involved a Maimonidean abstract metaphysics, Bullinger's federalism entailed a Kuzarian/Hirschian concern for G-d's activity and relationship with man over time. (Speaking to Professor Menachem Kellner, I once expressed the opinion that for Rabbis S. R. Hirsch and Eliezer Berkovits, Judaism was a combination of Maimonideanism and Kuzarism. I said that if for the Kuzari, Judaism is a mystical religion of history and experience, and for Maimonides, Judaism is a rational religion of abstract philosophy and intellect, then, I said, Rabbis S. R. Hirsch and Eliezer Berkovits would see Judaism as a rational religion of history. That is, they would take the rationalism of Maimonides over the mysticism of the Kuzari, but place this within the context of the Kuzari's historical-experiential concept of religion instead of within Maimonides's abstract and philosophical concept. Professor Kellner showed me that he had already expressed a similar viewpoint of his own in a forthcoming introduction to Berkovits's God, Man, and History.)

Similarly, to quote Charles S. McCoy and J. Wayne Baker, Fountainhead of Federalism: Heinrich Bullinger and the Covenantal Tradition, p. 14:

In federal theology, this dynamic element is affirmed by viewing the creation of the world and humanity, not as complete, but as developing toward ever greater fulfillment within the unfolding economies of the covenant of God. God's covenant is not a static order but a pattern of changing relations in the word toward greater justice and love. Sixth, federalism, either tacitly or explicitly, holds views of human nature and history. Both humanity and history are understood developmentally, as moving toward fulfillment, and humans are understood as social and covenantally shaped and committed. The mix of good and evil in history and the compound of original goodness and fallen sinfullness in human nature eliminates the possibility of an easy optimism or a notion of automatic progress with reference to the future. Yet there is, among federalists from Bullinger to Johannes Althusius, John Winthrop, and James Madison, a strong element of hope within republics shaped for the federal perspective.

Now then, Rabbi Kook, Rabbi Berkovits, Zecharias Frankel, and Richard Hooker all held that the zeitgeist could be used to develop the Torah. The difference, however, seems to be that whereas Frankel and Hooker held that reason and the zeitgeist alone were sufficient, by contrast, Kook and Berkovits held that notwithstanding the important role of reason and the zeitgeist, that even so, everything must ultimately accord with the Torah. (Kook specifically said, על פי ארחות התורה, "by the ways of the Torah," and David Hazony, in his introduction to Essential Essays on Judaism, reproduced as Eliezer Berkovits and the Revival of Jewish Moral Thought, argues that Berkovits can be distinguished from Conservative Judaism based on the former's strict adherence and uncompromising loyalty to the integrity of the halakhah.) In federal (again, meaning "covenantal" or "constitutional" or "contractual") terms, the revelation of G-d in history and its covenantal import must never be taken to contradict G-d's prior revelation at Sinai. For the theological-political federalists, any covenant or constitution or contract between man (which they compared to G-d's covenants with man) was null and void if it contradicted G-d's original covenant. Man had full power to form contracts with his fellow (and in fact, he was urged to form political constitutions with his civil government, so as to advance the redemption of mankind), but only so long as they conformed to the original, supreme contract. Likewise, Kook and Berkovits allowed morality and history to shape the halakhah only so long as this did not contradict prior and authoritative traditions and revelations from G-d.

Frankel and Hooker allowed man's unaided reason to suffice, which often resulted in one single man's or movement's tyranny. Frankelian Conservative Judaism twisted the laws of Shabbat beyond any resemblance to their true meaning, ignoring other possible alternatives to achievement of the desired end, simply to uphold its own institutional integrity and authority. Hooker opposed democratizing church government and granting liberty with a separation of church and state, instead preferring hierarchical authority in the form of a state-established church, simply to uphold the authority of the king and his lackeys. Similarly, Haredi Judaism will twist the Torah to uphold its own parochial beliefs. By contrast, Rabbis Kook and Berkovits held that history and nature could change the Torah only insofar as the prior revelation of G-d at Sinai permitted this. No man had absolute power, according to them, for ultimately, G-d's original revelation bound all equally, giving no man license to lord over his fellow in a manner contrary to G-d's revelation.

The Essence of Libertarianism

The essential idea of libertarianism – in my personal understanding, at least, which conflates it (perhaps erroneously) with classical liberalism (think John Locke) – is that of social-contract. According to social-contract theory, the civil government is formed by the freely granted consent of the governed. Government is formed by citizens, and it has authority only because they have granted it their consent.

This is part of the larger concept of federalism (which comes from the Latin word foedus, "covenant"), in which all of human life and society is viewed as a series of interrelated social relationships, such as the family, the church, the town, etc. Each unit is independent and sovereign within its own sphere, and it forms mutual contracts (or covenants, or compacts) with other units. Each covenant entails a constitution (either explicit or implicit) delineating the respective rights and responsibilities of each party. For example, families will contract together to form a town, and each family will usually retain the right to decide what they will have for dinner, and so they will retain their natural sovereignty. Under federalism, all relationships are mutual and consentual, and all parties to the contract are equal within their own spheres. All power is horizontal, not vertical, and rather than one party being superior to another, instead, all parties are equal, and the difference lies in their different spheres. For example, the national government for the United States would be equal in power to the state, but its sphere would be different, including, for example, the power to raise a military and coin money, but not including the power to regulate intra-state commerce.

According to all this, the government has only the powers which members of society choose to grant it. Everything else must be left to private enterprises. In fact, the government itself is a sort of private enterprise. The government is simply one member of society among many others. To quote The Covenant Origins of American Polity by Professor Steven Alan Samson:

Furthermore, decentralized political institutions required the existence of healthy social institutions, which included voluntary associations. … It is this combination of ingredients that lends a peculiarly libertarian quality to American social institutions. The civil government was regarded as a constituent rather than a constitutive element of society. ... One of the great practical advantages of the covenant design is the possibility of reconciling a number of self-governing entities within a larger union or commonwealth, such as family, church, and state.

The government has only the powers granted by the citizens because all men retain their own natural powers until and unless they delegate them to another. For example, all men have the right to defend themselves against attackers, and so they can delegate this power to the government. (Actually, because all men have the right and even the duty to defend their neighbors against attack, the government does not require the consent of its citizens to enforce basic rules of justice.) To quote Cato’s Letters:

The two great laws of human society, from whence all the rest derive their course and obligation, are those of equity and self-preservation: By the first all men are bound alike not to hurt one another; by the second all men have a right alike to defend themselves.

...

Government therefore can have no power, but such as men can give…no man can give to another what is none of his own…

...

Nor has any man in the state of nature power…to take away the life of another, unless to defend his own, or what is as much his own, namely, his property. This power therefore, which no man has, no man can transfer to another.

...

Nor could any man in the state of nature have a right to violate the property of another…as long as he himself was not injured by that industry and those enjoyments. No man therefore could transfer to the magistrate that right which he had not himself.

...

No man in his senses was ever so wild as to give an unlimited power to another to take away his life, or the means of living… But if any man restrained himself from any part of his pleasures, or parted with any portion of his acquisitions, he did it with the honest purpose of enjoying the rest with greater security, and always in subservience to his own happiness, which no man will or can willingly and intentionally give away to any other whatsoever.

Because the government, according to this, is a collection of voluntarily consenting individuals, the citizens can always withdraw their consent to be governed, stripping the government of its authority over them. Therefore, it behooves the government to limit itself to merely enforcing strict justice and any universally and axiomatically held principles (such as enforcing Puritanism among citizens in a thoroughly Puritanistic society, for example), because otherwise, citizens will simply withdraw their consent. If the government continues to assert its authority even after citizens have withdrawn their consent, then the government is simply a thief who may be punished as all thieves may be.

Thus, the government has only powers which the citizens have granted, or which are considered axiomatically authoritative simply because they enshrine Truth with a capital "T." For example, men may defend themselves against thieves, and so the government may do so too. In Puritan societies (the Reformed/Calvinist tradition invented federalism and social contract theory, by the way), Puritanism was taken for granted as authoritative and true, and anyone who disagreed was considered to be simply wrong, and was expected to leave town and find somewhere else to live.

To quote Professor Samson again (in turn quoting Edward S. Corwin),

The attribution of supremacy to the Constitution on the ground solely of its rootage in popular will represents, however, a comparatively late outgrowth of American constitutional theory. Earlier the supremacy accorded to constitutions was ascribed less to their putative source than to their supposed content, to their embodiment of an essential and unchanging justice.... There are, it is predicated, certain principles of right and justice which are entitled to prevail of their own intrinsic excellence, all together regardless of the attitude of those who wield the physical resources of the community.

In other words, the Constitution as held to be authoritative not because it was approved by the majority, but rather, simply because it was true, period. You cannot argue with Truth, with a capital "T." Now, then, of course, men lack an empirical way to establish the absolute truth without any admixture of error or bias. But the best we can do is consider whatever is nearly unanimous to be the truth. Under social contract theory, the government can engage in those things only which enjoy nearly universal assent. If it can be characterized as partisan, then it is ipso facto illegal for the government to engage in it.

The central idea is this: the government is your proxy, your agent, your שליח. Anyone’s proxy has only those powers which he has granted him. The government is meant to be everyone‘s proxy, and therefore, it can do only those things which everyone agrees to. (Or at least, which nearly everyone agrees to. In Puritan society, for example, a non-Puritan was simply considered to be outside the bounds of ordinary people and society. Likewise, in Biblical Israel, anyone who violated Shabbat was simply a criminal, violating what was considered a fundamental norm for society binding all people and accepted by all reasonable people.)

Fundamentally, what libertarianism enshrines is humility. It accepts that no man has the right to coerce his neighbor. If your party occupies 51% of the legislature and your opposition occupies 49%, the libertarian accepts that he has no moral right to coerce the minority. He accepts that any act of coercion by one person over another or one group of people over another group is simply an act of tyranny and violence and evil. There is no difference between one man bullying another, and a whole group bullying another. To quote Ralph Waldo Emerson’s Politics:

Every man’s nature is a sufficient advertisement to him of the character of his fellows. My right and my wrong, is their right and their wrong. Whilst I do what is fit for me, and abstain from what is unfit, my neighbour and I shall often agree in our means, and work together for a time to one end. But whenever I find my dominion over myself not sufficient for me, and undertake the direction of him also, I overstep the truth, and come into false relations to him. I may have so much more skill or strength than he, that he cannot express adequately his sense of wrong, but it is a lie, and hurts like a lie both him and me. Love and nature cannot maintain the assumption: it must be executed by a practical lie, namely, by force. This undertaking for another, is the blunder which stands in colossal ugliness in the governments of the world. It is the same thing in numbers, as in a pair, only not quite so intelligible. I can see well enough a great difference between my setting myself down to a self-control, and my going to make somebody else act after my views: but when a quarter of the human race assume to tell me what I must do, I may be too much disturbed by the circumstances to see so clearly the absurdity of their command. Therefore, all public ends look vague and quixotic beside private ones. For, any laws but those which men make for themselves, are laughable. If I put myself in the place of my child, and we stand in one thought, and see that things are thus or thus, that perception is law for him and me. We are both there, both act. But if, without carrying him into the thought, I look over into his plot, and, guessing how it is with him, ordain this or that, he will never obey me. This is the history of governments, – one man does something which is to bind another. A man who cannot be acquainted with me, taxes me; looking from afar at me, ordains that a part of my labour shall go to this or that whimsical end, not as I, but as he happens to fancy. Behold the consequence. Of all debts, men are least willing to pay the taxes. What a satire is this on government! Everywhere they think they get their money’s worth, except for these.

Under federalism, all associations are contractual and mutual. Therefore, there is no tyranny and no unjust coercion, because every association has been freely and voluntarily entered into, with stipulated terms. The government is accepted as a contractual union of willing individuals, horizontal and parallel with other bodies of society, not vertically superior, exercising only those powers which citizens have granted it, making it their approved proxy.

Because federalism was created by the Reformed/Calvinist Christians, it was assumed by them that all human contracts and constitutions must agree with the highest constitution of all, the Bible. Any law which violated the Bible or natural law (which was considered identical to the Bible except that it was written on men’s hearts and consciences rather than on paper) was ipso facto illegal. Later thinkers who relied on natural law or other higher laws, to invalidate any law that was unjust, were following the same type of thinking. For example, Martin Luther King, Jr. - who was, after all, a reverend - in his Letter from a Birmingham Jail, says,

You express a great deal of anxiety over our willingness to break laws. This is certainly a legitimate concern. Since we so diligently urge people to obey the Supreme Court's decision of 1954 outlawing segregation in the public schools, at first glance it may seem rather paradoxical for us consciously to break laws. One may well ask: "How can you advocate breaking some laws and obeying others?" The answer lies in the fact that there are two types of laws: just and unjust. I would be the first to advocate obeying just laws. One has not only a legal but a moral responsibility to obey just laws. Conversely, one has a moral responsibility to disobey unjust laws. I would agree with St. Augustine that "an unjust law is no law at all."

Now, what is the difference between the two? How does one determine whether a law is just or unjust? A just law is a man made code that squares with the moral law or the law of God. An unjust law is a code that is out of harmony with the moral law. To put it in the terms of St. Thomas Aquinas: An unjust law is a human law that is not rooted in eternal law and natural law. Any law that uplifts human personality is just. Any law that degrades human personality is unjust. All segregation statutes are unjust because segregation distorts the soul and damages the personality. ... Thus it is that I can urge men to obey the 1954 decision of the Supreme Court, for it is morally right; and I can urge them to disobey segregation ordinances, for they are morally wrong.

Similarly, Henry David Thoreau's On the Duty of Civil Disobedience says,

Can there not be a government in which majorities do not virtually decide right and wrong, but conscience? - in which majorities decide only those questions to which the rule of expediency is applicable? Must the citizen ever for a moment, or in the least degree, resign his conscience to the legislator? Why has every man a conscience then? I think that we should be men first, and subjects afterward. It is not desirable to cultivate a respect for the law, so much as for the right. The only obligation which I have a right to assume is to do at any time what I think right. ... He who gives himself entirely to his fellow men [i.e. including his conscience] appears to them useless and selfish; but he who gives himself partially to them [i.e. giving only his obedience and ignoring his conscience] is pronounced a benefactor and philanthropist.

Now, Thoreau was hardly a religious Christian, and King was actually a social-democrat, not a libertarian. But we see the same concern for a higher law, for absolute and sacrosanct canons of right and justice, which no government, no matter how popular or democratic, may violate. And of course, the Reformed Christians did not invent the concept that obedience to G-d and the Bible comes before obedience the man; they may have perfected this doctrine and make the most use of it in practical politics, but Christians had already for centuries at least theoretically believed this.

In fact, federalism was modeled on Reformed Christians’ studies of covenant (ברית) in the Bible, and originally, their entire conception of government was based on its duty to enforce the Bible and punish sin. The rights that we are familiar with, especially in the Bill of Rights, originally grew out of the Protestants’ grievances against the Catholics. For example, they demanded protection of their right to freely practice Protestantism, which developed into general rights of freedom of speech and association.

Similarly, Reformed Christians demanded democratic-republican government and separation of powers and checks and balances and explicitly written constitutions, all to protect against government tyranny, which they considered dangerous because of the Christian belief in the sinfulness of man. (This does not mean that man is wholly sinful. The Reformed Christians believed that while man was sinful due to Original Sin, he was nevertheless also good and holy, due to his being created in the image of G-d and having the law of G-d written on his heart and conscience in the form of natural law. Calvinist "absolute depravity" meant not that man was entirely depraved, but rather, that every single last bit of a man had some admixture of depravity mixed in with his goodness.) When Rousseau and the radical philosophes in the French Enlightenment believed that it was not human sinfulness, but rather human institutions, that gave rise to injustice, the result was a license to tyranny. Without the belief in human selfishness and sinfulness, one will grant a free license to the elites and the government's officials to do as they desire. Without the belief in human sinfulness, the government is left without limits or checks, and tyranny results.

The Reformed Christians pioneered the concept of the two-kingdoms, later referred to as sphere-sovereignty. Under this concept, the civil government and church were to be completely independent and parallel, each having the same amount of power and sovereignty, but only within their respective spheres. The church's job was to preach the word of G-d, while the civil government's job was to enforce the word of G-d as appropriate. Neither entity had any authority over the other, and the civil government was to enforce Christianity not because the church forced it to, but simply because Christianity was considered the Truth (again, with a capital "T"), and if it didn't enforce Christianity, then it would have to enforce some other philosophy. All philosophies are subjective and biased, and so why is one any better than the other? But the point for us now is that the Reformed Christians limited the civil government and church in their powers, prescribing for each one a strict and unalterable sphere of influence, beyond which all activity for each respectively was forbidden. The Reformed Christians thus understood that governments had their proper purposes, but that they must be limited from engaging in any activity outside these purposes. Absolutist government was out of the question, and was viewed unequivocally as beyond the pale. While the Reformed Christians still believed in established churches, they at least acknowledged the basic principle that everything had to be limited to its proper sphere. And in fact, the Baptists, whose view prevailed in America, took this same concept even further, and held that the government should limit itself to protecting life and property, and that the church should be entirely privatized and decentralized, and that morality should be left to it. The Reformed Christians and Baptists differed in degree, but they both held the same basic view of the two-kingdoms, that church and state should be separate, each with its own jurisdiction.


The Reformed Christians also believed that the very existence of government was due only to the sins of man, and that therefore, government was necessary to cause men to fulfill their duties. (Cf. Pirqei Avot, chapter two: "Pray for the welfare of the government, for without it, man would swallow his fellow alive.") But implicit in this notion is the fact that government has a strict purpose, and that any activity beyond this is forbidden. If government is meant to curb man's sins, then it is a necessary evil, and that government is best which governs least. To quote Thomas Paine's Common Sense,

SOME writers have so confounded society with government, as to leave little or no distinction between them; whereas they are not only different, but have different origins. [Cf. Samson above, that "The civil government was regarded as a constituent rather than a constitutive element of society."] Society is produced by our wants, and government by wickedness; the former promotes our happiness positively by uniting our affections, the latter negatively by restraining our vices. The one encourages intercourse, the other creates distinctions. The first is a patron, the last a punisher.

Society in every state is a blessing, but government even in its best state is but a necessary evil; in its worst state an intolerable one; for when we suffer, or are exposed to the same miseries by a government, which we might expect in a country without government, our calamity is heightened by reflecting that we furnish the means by which we suffer. Government, like dress, is the badge of lost innocence; the palaces of kings are built on the ruins of the bowers of paradise. For were the impulses of conscience clear, uniform, and irresistibly obeyed, man would need no other lawgiver; but that not being the case, he finds it necessary to surrender up a part of his property to furnish means for the protection of the rest; and this he is induced to do by the same prudence which in every other case advises him out of two evils to choose the least. Wherefore, security being the true design and end of government, it unanswerably follows that whatever form thereof appears most likely to ensure it to us, with the least expence and greatest benefit, is preferable to all others.

...

Here then is the origin and rise of government; namely, a mode rendered necessary by the inability of moral virtue to govern the world; here too is the design and end of government, viz. freedom and security. And however our eyes may be dazzled with snow, or our ears deceived by sound; however prejudice may warp our wills, or interest darken our understanding, the simple voice of nature and of reason will say, it is right.

Libertarianism often results in a concern for localized rule. The reason is that if government requires consensus, then all action must be limited to the smallest geographic region where that consensus is achievable, which is usually relatively small in size. For example, Justice Joseph Story (appointed by James Madison and presided 1811 to 1845) explained, in his magisterial Commentaries on the Constitution of the United States, that the First Amendment prohibits favoring or establishment of religion by the national government not because involvement in religion is ipso facto illegal – indeed, he emphatically noted that government involvement in religion is quite a good and laudable thing – but rather, he said, because there was no consensus on the national level, and so government involvement in religious matters had to be left to the states, where consensus could either be formed, or where power could be further handed down to a more local level of the federal relationship, such as counties or towns.

Story also considered that any punishment of heretics or dissidents to be inherently wrong. That is, while he favors the government’s establishment or favoring of religion, he opposes punishing nonconformists. But even as he argued this point, quoting John Locke, he reiterated that government support of religion is good, and that civil society cannot endure unless religion is its foundation, and he asserted that Locke agrees with this.

Story also believed that while government involvement in religion is quite good, nevertheless, it is a fact that because of man’s sinful nature, the government is liable to often abuse this power. Rather than argue as an atheist would, that government involvement in religion is ipso facto unjust, Story instead argues that this power is completely legitimate and just and laudable, only that it is liable to be perverted and misused, and that therefore, what would otherwise be a good power for the government to have, must be limited if not denied.

For a good excerpt of Story’s views on the First Amendment, showing all this, see here.

In fact, I would hazard the opinion that due to all this, that the First Amendment must be sui generis. Whereas the rest of the Bill of Rights enshrines absolute and unalienable human rights, granted by G-d (see the Declaration of Independence), by contrast, the First Amendment is relative and not absolute. (I speak only of the prohibitions of respecting and establishing religion, not the prohibitions on restricting free exercise, free speech, and free association.) That is, men do not have an absolute right to the First Amendment's prohibitions of respecting and establishing, even though they do have an absolute right to the rest of the Bill of Rights. As the Ninth Amendment states, the Bill of Rights is not even comprehensive, and if the government repealed the Bill of Rights, even then, the rights it enshrines would remain, as they are granted unalienably by G-d, and no man can remove that which is not his, just as he cannot grant that which is not his. But the First Amendment is different. As Justice Story shows, the prohibition of respecting and establishing is a relative value, not an absolute one. The Bill of Rights originally applied to the national government alone, not encumbering the states. But this was a technical limitation, and if any state failed to protect the right to due process or freedom of speech or association, for example, then Justice Story would bemoan this miscarriage of justice, and sadly note that unjust as it may be, the national government has no ability to force the states to protect the unalienable rights of men. Similarly, for example, slavery was regarded as evil, but the national government had no power to prohibit it among the states, because slavery was intra-state commerce. It was only the Fourteenth Amendment that changed this. But Justice Story's attitude regarding the First Amendment is different: he holds that the prohibition of establishing and respecting religion applied only to the national government, but that the states may and even should establish or respect Protestant Christianity! He believed the states would be negligent and criminal if they did enforce the First Amendment on the state level! So the First Amendment is a very different right than the rest of the Bill of Rights, being relative rather than absolute. This being so, I would hazard the opinion that even when the Bill of Rights was incorporated onto the states via the Fourteenth, even then, I would say, the First Amendment's prohibition of respecting and establishment should not have been considered to have been incorporated, because this prohibition is a relative one, not an absolute one, and it is not a human right protected by due process. By contrast, however, the rights of freedom of speech and association and free exercise of private religion are in fact human rights, and should have been incorporated, as indeed they were. This is all especially so, because if the rights of men are granted by G-d (see the Declaration), then how can men have a G-d-given right to be free of religion??!! Such a position is absurd!! Likewise, being that the First Amendment is largely Christian in orientation, being based on Christian theories of the separation of church and state, it would be absurd for the very Christian First Amendment to prohibit all respecting and establishing religion as an inherent and absolute human right, for if so, the First Amendment would contradict itself! The First Amendment is itself a thoroughly Christian document, and all rights are granted by G-d, so the First Amendment's protections for the non-religious must be relative than absolute ("religion" for the Founders indicating Protestant Christianity).

Ilana-Davita: Weekly Interview[s]

Ilana-Davita has posted another entry in a series of Weekly Interviews she has been running. This time, her interview was with...me! :D

See Ilana-Davita's post, Weekly Interview: Michael.

The Meaning of Covenant and Constitution

To quote Winthrop's "A Model of Christian Charity" (the source of the phrase "a city on a hill"), in turn quoted by Sources of American Federalism: Founders, Reformers & Ancient Hebrews by Kelly O'Connell:

Thus stands the cause between God and us. We are entered into covenant with Him for this work. We have taken out a commission. The Lord hath given us leave to draw our own articles. We have professed to enterprise these and those accounts, upon these and those ends. We have hereupon besought Him of favor and blessing. Now if the Lord shall please to hear us, and bring us in peace to the place we desire, then hath He ratified this covenant and sealed our commission, and will expect a strict performance of the articles contained in it; but if we shall neglect the observation of these articles which are the ends we have propounded, and, dissembling with our God, shall fall to embrace this present world and prosecute our carnal intentions, seeking great things for ourselves and our posterity, the Lord will surely break out in wrath against us, and be revenged of such a people, and make us know the price of the breach of such a covenant.

Similarly, according to Mark David Hall's The Influence of the Reformed Tradition on the American Founding, Part II,

For Reformers, families, churches, and civil governments should be grounded in agreements between humans that are witnessed and enforced by God. Of course they did not invent covenants, but they significantly emphasized their use and significance; particularly with respect to civil and ecclesiastical authorities. Moreover, as represented well by Brutus’s first covenant, they believed that God makes covenants with peoples, much as He did with the ancient Jews. These covenanted people then have an important role to play in God’s plan to bring about His kingdom on earth. Failure to keep these covenants, clergy routinely warned in sermons known as jeremiads, would result in God’s punishment. The rights and responsibilities associated with such covenants would have an important influence in America.

Rabbi Aryeh Kaplan used to wonder at the fact that by making a neder, you could sanctify anything in the world and incorporate it within the Torah. If you make a neder to eat a cookie, then it's a mitzvah like eating matzah on Pesah. If you make a neder to avoid eating cookies, then it's an `averah like eating pork. When Puritans made covenants and constitutions, that included oaths to G-d, they were making their civil constitution as binding as any law in the Torah!!! Think about that. Breaking any term in the United States Constitution is like bowing down before an idol. Dwell on that. Let that simmer in your brain. Isn't this simply awesome??!!"

Furthermore, if an oath is made, then if the government violates its oath, this means that its violation of the civil constitution is no longer a mere civil infraction, but is actually an act of idolatry. Once the ruler has invoked G-d regarding the constitution, any violation of the constitution is not merely a crime among men but is rather a sin against G-d Himself, and it is more explicitly religious in nature. This makes it easier for the people to justify rebellion against the government, for now, it has not merely infringed their civil liberties, but it has even risen up against G-d Himself, and the people, in rebelling against the government, are standing up not for their own liberty, but for G-d's own glory. Perhaps the simplest rebellion in constitutional history was for John Knox to justify deposing Queen Mary ("Bloody Mary") based on her idolatrous Catholicism and infringing on G-dly Protestantism, and when the ruler takes an oath in G-d's name regarding the civil constitution, it brings the situation closer to Knox's: not quite so stark and extreme, but still similar.

Hitler and Jewish Intermarriage

Today, someone voiced the oft-expressed opinion that the Holocaust ought to serve as as a motivation for a Jew to avoid intermarriage.

I think the criticism of Jews who intermarry is unfair. To expect people to marry Jewish in order to oppose Hitler's work is unreasonable.

Hitler's work was evil primarily due to his murdering humans, not Jews. Obviously, Hitler had a motive for specifically singling out Jews (as well as gypsies and homosexuals, and others), but in the end, what was evil was his murdering humans, not individuals. Hitler explained himself, saying that Jews represented the invention of conscience, and that the desired return to paganism necessitated the death of the Jews, every last one of them. Nevertheless, despite his Jew-specific motive, his actual evil itself was his murdering humans, and he would have been just as evil had he murdered 6 million Christians instead of 6 million Jews.

As such, for a Jew - or any human, for that matter - the Holocaust's moral evil has little to do with Judaism per se. So why should it be a motive for a Jew to marry a Jew? Hitler's evil was murdering humans, not his extinguishing Judaism per se, and therefore, the Holocaust can serve as no motive to marry a Jew. The Holocaust can serve only as a reminder of the importance of the prohibition of murdering any of G-d's children.

The motive for marrying a Jew must be sought elsewhere. I believe that Rabbi Meir Kahane expressed it well when he said that refusal to marry a gentile for any reason save a religious one is racist. That is, the only reason to avoid marrying a gentile is belief in Judaism, and absent that belief, refusal to marry a gentile is racism. In other words: if a non-religious committed him- or herself to marrying only another Jew, Rabbi Kahane would accuse this Jew of racism - Rabbi Kahane would denounce this Jew, not praise him, for his commitment to marry only another Jew! If we wish Jews to marry Jews, we must teach them Torah, not guilt them with the Holocaust.

Arizona, Mexicans, and the Third Amendment

If the Supreme Court can use loose-constructionism (read: post-modernism), then so can we.

The Third Amendment reads,

No soldier shall, in time of peace be quartered in any house, without the consent of the owner, nor in time of war, but in a manner to be prescribed by law.

Now then, Webster's dictionary gives the etymology of the word "soldier" as,

Middle English soudeour, from Anglo-French soudeer, soudeour mercenary, from soudee shilling's worth, wage, from sou, soud shilling, from Late Latin solidus solidus.

One contemporary and modern definition for "soldier" is

one who shirks work.

Therefore: a "soldier" can be interpreted as someone who shirks work (whether this means money-earning vocation or the "work" of learning English and The American Way). Also, a "soldier" is anyone who will cost the civil government at least one shilling of welfare payments.

Thus, illegal Mexican immigrants can be considered as soldiers.

Ergo, the Third Amendment protects us from having to host illegal Mexican immigrants in our homes. Now, what is our home? Well, for Arizonans, Arizona is home! Thus, the Third Amendment protects Arizona residents from having to host illegal Mexican immigrants in their state.

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Of course, I am being completely and totally facetious. This is a parody of what I believe to be the drivel coming from loose-constructionists. The point of my argument is simply to mock loose-constructionism as being a patently absurd and ridiculous opinion and hermeneutic.

As Justice Clarence Thomas said,

Let me put it this way; there are really only two ways to interpret the Constitution -- try to discern as best we can what the framers intended or make it up. No matter how ingenious, imaginative or artfully put, unless interpretive methodologies are tied to the original intent of the framers, they have no more basis in the Constitution than the latest football scores. To be sure, even the most conscientious effort to adhere to the original intent of the framers of our Constitution is flawed, as all methodologies and human institutions are; but at least originalism has the advantage of being legitimate and, I might add, impartial.

Views of the "Living Constitution" inevitably bring us to the realm of Richard Hooker and Zecharias Frankel. Hooker held that the laws of the Bible could be interpreted by the civil magistrate according to contemporary social and cultural conditions. Frankel held that Jewish law could be modified according to the will of the people and the zeitgeist. According to both, there are no absolutes. Neither the Bible (both the Jewish and Christian portions, according to Hooker) nor Jewish law (for Frankel) have any binding value. They say whatever we want them to say. It is completely arbitrary and antinomian. Whatever contemporary social and ideological and cultural conditions happen to be, you reread your legal texts accordingly. But if so, then why have your legal texts at all? Why not just cut out the middleman and rule law according to the cultural and historical and ideological conditions themselves? If you reread your constitution to fit the zeitgeist, then just save yourself the trouble and entirely dispense with your constitution altogether and just go straight for the zeitgeist.

In his essay "Judaism Up-to-Date," Rabbi S. R. Hirsch replies to those Reform Jews who believed that it is the mission of Judaism to be "up-to-date." Rabbi Hirsch replies that if it is Judaism's mission to be in conformance with the zeitgeist, then why bother having Judaism at all? If Judaism's mission is to be identical with German Enlightenment (as the Reform Jews claimed in Hirsch's time), then why waste your time with Judaism? Just go straight for German Enlightenment itself and save yourself all the time and trouble.

The Constitution's Rejection of Utilitarianism in the Bill of Rights

There is an excellent article on the Reason blog, Gun Shy, concerning the recent Supreme Court decision upholding the Second Amendment (the right to bear arms)'s applicability to the states based on the incorporation by the Fourteenth Amendment.

I find it pathetic that the decision was only five-to-four, meaning that four of the judges held that the Constitution is not binding anymore. The cited Reason article amply demonstrates the fallaciousness of the dissenting minority judges' opinions; see there. I wish to focus on an insightful statement that the article makes:

Every right can be abused, with results that are immoral, illegal, or both. Freedom of speech can be used to spread hateful ideas, promote pernicious political philosophies, slander the innocent, or engage in criminal conspiracies. If there were no potential for harm from exercising a right, there would be no need to protect it, because no one would try to restrict it.

In other words: the very presence of a given right in the Declaration of Independence or the Constitution implicitly declares that the practice of the given right is dangerous (or potentially so), but that it must be protected anyway, whatever the consequences, simply because all men are inalienably endowed by their Creator with those rights. If the exercise of the given right were not harmful to society, then no government would ever try to infringe or limit it, and there'd be no need to guarantee that right in law. If speech did not threaten anyone, then no one would try to infringe it. For example, if I want to express my opinion that lasagna is better than spaghetti, no government protection of my right is necessary, because no one is threatened or offended by that opinion of mine. If all opinions were so innocuous, then no protection of the freedom of speech would be necessary, and its mention in the Constitution would be unnecessary.

So there goes a utilitarian argument that the government can infringe people's rights for the sake of the greater good. If that were the case, then the Bill of Rights wouldn't exist in the first place, because it'd be clear to all that everyone's rights can be infringed the moment the government deems it necessary and proper. The only time anyone ever tries to limit anyone's speech is when they feel threatened by it, when they feel that the speech is detrimental to the greater good. So in the natural state of affairs - i.e. where no constitutional protections whatsoever are extent - everyone would be accorded his full rights by government except when it (the government) feels threatened by it (that right). So the very existence of the Constitution is tantamount to an explicit rejection of utilitarianism. The Constitution declares that explicit lists of rights are needed, because those rights must be protected regardless of their harm to society.