The Covenant Origins of the American Polity

(The title of this post is borrowed from Professor Steven Alan Samson's article in Contra Mundum, no. 10, Winter 1994, online here.)

The thesis of this following essay is highly tentative. I have based it largely on reading secondary sources, and only a few primary sources, and so it is quite likely that I have read too much into the sources, providing ungrounded purely speculation for want of knowledge of the original sources. With that warning, I offer the following:

In the twelfth letter of John Dickinson's Letters from a Farmer in Pennsylvania, we read that we must have "regard for posterity, to whom, by the most sacred obligations, we are bound to deliver down the invaluable inheritance" and that "you are assigned by divine providence, in the appointed order of things, the protectors of unborn ages, whose fate depends upon your virtue."

So according to Dickinson, our constitutions and political forms must be formed with future generations. It seems to me that there are two reasons for this, a practical one and a theological one.

First, for the practical: according to Samuel Rutherford's Lex Rex, question 19,

It is false that the people doth, or can by the law of nature, resign their whole liberty in the hand of a king. 1. They cannot resign to others that which they have not in themselves, Nemo potest dare quod non habet (a principle of English common law, that one cannot sell that which does not belong to him]; but the people hath not an absolute power in themselves to destroy themselves, or to exercise those tyrannous acts spoken of, 1 Sam. viii. 11-15, &c.; for neither God nor nature's law hath given any such power.

Likewise, Samuel Adams states in his The Rights of the Colonists that,

In short, it is the greatest absurdity to suppose it in the power of one, or any number of men, at the entering into society, to renounce their essential natural rights, or the means of preserving those rights; when the grand end of civil government, from the very nature of its institution, is for the support, protection, and defence of those very rights; the principal of which, as is before observed, are Life, Liberty, and Property. If men, through fear, fraud, or mistake, should in terms renounce or give up any essential natural right, the eternal law of reason and the grand end of society would absolutely vacate such renunciation. The right to freedom being the gift of God Almighty, it is not in the power of man to alienate this gift and voluntarily become a slave.

So according to Rutherford and Adams, man cannot even voluntarily sell himself into slavery, for he belongs not to himself, but to God, and one cannot sell that which belongs to God alone. It seems evident to me that if so, then it is all the more so true that one cannot sell one's posterity into slavery. One must frame an equitable and just political form if for no other reason than that one has no right to will an unjust government to his heirs. Even if one desires tyranny for oneself, one has no right to proffer tyranny onto his descendants.

Second, there is a theological reason: according to federalism, one's political constitutions bind not only those present at the original signing of the constitution, but even the descendants. For example, Heinrich Bullinger's A Brief Exposition of the One and Eternal Testament or Covenant of God (De testamento seu foedere Dei unico et aeterno, translated by Charles S. McCoy and J. Wayne Baker in Fountainhead of Federalism: Heinrich Bullinger and the Covenant Tradition (Louisville, Kentucky: Westminster/John Knox Press, 1991)) argues at length that the covenant binds even one's progeny, as evidenced by the fact that in Genesis 17, God speaks of the covenant of circumcision (brit milah) being binding on Abraham's descendants. Based on this, Bullinger argues against the Anabaptists, who practiced only adult baptism. By contrast, Bullinger modeled baptism on circumcision and thus believed in child baptism, just as children had been circumcised previously. Likewise, Deuteronomy 29:13-14 declares that, "Neither with you only do I make this covenant and this oath, but with him that standeth here with us this day before the LORD our God, and also with him that is not here with us this day."

The practical reason is clear enough, I believe. But the theological reason requires explanation. How can a covenant be binding on future generations? According to John Locke's theory of the social contract, how can anyone possibly be obligated by a social contract except those who participated in it (either personally or via their appointed representative)? Indeed, Locke himself permitted individuals to freely withdraw their consent to be governed, instantly withdrawing authority over themselves from the government. If the social contract so weakly binds those who personally participated in it, how can it possibly be held to bind those in the future?

The answer, I believe, lies in the various conceptions of the social contract. For Locke, the social contract was essentially one's personal act of appointing the government as one's proxy, one's שליח. One can, for example, appoint a proxy to perform a specific task on one's behalf, but all the same, one can revoke this authority from the proxy at any time. One has appointed the government as his personal proxy, but one can withdraw from this relationship at any time, and return oneself to a state of nature. Samuel Adams (op. cit.), for example, states, "The supreme power cannot justly take from any man any part of his property, without his consent in person or by his representative." Evidently, for Adams, the government is one's personal proxy, and so it cannot tax one without one's personal approval, or without the personal approval of one's personal representative. (Not the majority of one's representative's colleagues in the legislature; one's representative's colleagues are not one's own representatives.) Thus, Adams states (ibid.), "All men have a right to remain in a state of nature as long as they please; and in case of intolerable oppression, civil or religious, to leave the society they belong to, and enter into another."

By contrast, for the original federalists - upon whose theories Locke largely but not wholly relied - the social contract was less an appointment of one's personal proxy, and more the swearing by oath of a mutual covenanted relationship under God. One was not so much appointing a personal proxy, as much as establishing a certain religious relationship with God that extended even into the future, much as the covenants with Abraham and at Sinai bound future generations. Such a covenant could do so because it was largely founded not on personal opinion and consent, but on eternal and indisputable Godly norms. John Winthrop expresses such a view in his A Model of Christian Charity:

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 [political] articles [for government]. 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. ... For we must consider that we shall be as a city upon a hill. The eyes of all people are upon us. So that if we shall deal falsely with our God in this work we have undertaken, and so cause Him to withdraw His present help from us, we shall be made a story and a by-word through the world. We shall open the mouths of enemies to speak evil of the ways of God, and all professors for God's sake. We shall shame the faces of many of God's worthy servants, and cause their prayers to be turned into curses upon us till we be consumed out of the good land whither we are going.

Therefore, according to Edwin S. Corwin's The "Higher Law" Background of American Constitutional Law (Ithaca, NY: Cornell University Press, 1955), p. 4, quoted in Steven Alan Samson's "The Covenant Origins of The American Polity" (op. cit.),

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 was considered binding not due to consent of those involved, but simply because it enshrined religious truth, period. God could bind future generations by His covenant simply because His words constitute absolute truth, and so consent is not important. (Nevertheless, God deigned to require consent anyway, asking in Exodus 19:5 for our consent, saying, "Now therefore, IF [emphasis added] ye will hearken unto My voice indeed, and keep My covenant, then...") Similarly, American constitutions also required the consent of the original signers. But the point is that consent was secondary to the constitution's enshrining fundamental, eternal, sacrosanct truth, truths which actually were binding with or without consent.

And all this helps shed light on the attitude evinced by the same John Winthrop elsewhere, in his journal, the The History of New England from 1630-1649, vol. II, p. 87, quoted in the Massachusetts Historical Society's introduction to their edition of A Model of Christian Charity:

For such as come together into a wilderness, where are nothing but wild beasts and beastlike men, and there confederate together in civil and church estate, whereby they do, implicitly at least, bind themselves to support each other, and all of them that Society, whether civil or sacred, whereof they are members, -how they can break from this without free consent [of the others], is hard to find, so as may satisfy a tender or good conscience in time of trial. Ask thy conscience, if thou wouldst have pluct up thy stakes, and brought thy family three thousand miles, if thou hadst expected that all, or most, would have forsaken thee there. Ask again, what liberty thou hast towards others, which thou likest not to allow others towards thyself; for if one may go, another may, and so the greater part, and so church and commonwealth may be left destitute in a wilderness, exposed to misery and reproach, and all for thy ease and pleasure; whereas these all, being now thy brethren, as near to thee as the Israelites were to Moses, it were much safer for thee, after his example, to choose rather to suffer affliction with thy brethren, than to enlarge thy ease and pleasure by furthering the occasion of their ruin.

Apparently, Winthrop, in the last sentence, is referring to when God promised, after the sin of the Golden Calf, to destroy the Jewish people and make Moses another Avraham, i.e. a patriarch of a new nation, and Moses told God he'd rather be blotted out himself. His basic point is that the relationship among the men is that of a confederacy, i.e. a covenant, whereby they had sworn under God, saying they "do by these presents solemnly and mutually in the presence of God and one of another, Covenant and Combine ourselves together into a Civil Body Politic" (to quote the Mayflower Compact, by William Bradford, which was technically concerned with Bradford's Pilgrims and their Plymouth Plantation and not Winthrop's Puritans and their Massachusetts Bay Colony, but these two groups were ideologically quite similar except as regards some technical details of ecclesiology, i.e. church government, whether to separate from the Church of England (Pilgrims) or purify it from within (Puritans), but both to basically the same end and goal).


This might help explain another peculiarity: whereas Locke allows any individual to withdraw his own consent at any time, the vast majority of federal thinkers did not extend such freedom. Nearly all of them required interposition of inferior magistrates to defend the lay citizens against tyranny. Individual citizens were not permitted to avenge themselves even against actual bona-fide tyranny. There are a few reasons I have seen for this:

1. One reason, as expressed by John Calvin, in a letter of 16 April to 1561 to the French Huguenot leader Admiral de Coligny, was the fear that popular uprising would inundate Europe in blood; see Douglas F. Kelly, The Emergence of Liberty in the Modern World: The Influence of Calvin on Five Governments from the 16th Through 18th Centuries (Phillipsburg, New Jersey: P&R Publishing, 1992), p. 38. Similarly, the French Catholics who oppressed French Protestants told the German Protestants that they were doing so because the Protestants were seditious anarchists; thus, Calvin had to argue - contra the Anabaptists - that Protestant Christians were loyal, law-abiding citizens; see Kelly, ibid., p. 10. And thus, it seems to me in my own personal opinion (I have not read the following interpretation anywhere), Calvin, in Institutes of the Christian Religion 4.20.8, permits rebellion to maintain liberty but not to increase liberty, because the former is not as liable as the latter to result in anarchy and bloodshed. Conservative rebellions are permitted while revolutionary ones are not.
   
2. For Theodore Beza, Calvin's successor, there is a second reason to require inferior magistrates: inferior magistrates were required because political covenants were public matter, not a private one, and therefore had to be abrogated publicly, not privately; see Professor John Witte, Jr. Rights, Resistance, and Revolution in the Western Tradition: Early Protestant Foundations.
   
3. A third reason for the requirement for inferior magistrates to interpose and lead rebellions is provided by Johannes Althusius's landmark 16th-century work Politica. In this work, Althusius provided a unified theory of federalism, using the covenant to not merely describe government, but rather all human society, governmental and not. According to this theory, man is a symbiote, and all of human life can be described in terms of covenants, compacts, and constitutions - whether explicit or implicit - among mutually consenting parties. Families covenant to form towns; towns covenant to form provinces; provinces covenant to form commonwealths; commonwealths covenant to form empires; commonwealths covenant to form international associations. Under such a conception, rebellion was to be undertaken by a given sector of society to whom the covenant was relevant. If so, for example, then if a province violated its covenant with the towns, then it was the towns, not the individual citizens, who were to rebel. Althusius requires interposition of inferior magistrates because it is only the actual members of the given covenant that can avenge themselves. Therefore, in the United States of America, it is the state governments, not the individual citizens, who are to avenge violations of the United States Constitution, for it is the states, not the citizens, who compacted to form the Constitution.

So I have given three reasons for the requirement that inferior magistrates interpose and lead rebellions: Calvin's utilitarian fear of anarchy and bloodshed, Beza's concern that public covenants be abrogated publicly, and Althusius's sophisticated theory of multiple concurrent covenants in society that each must be abrogated according to their own peculiar terms by their own peculiar parties. But I believe a larger, more overarching reason may exist for the requirement for interposition of inferior magistrates: if the covenant is viewed not as one's personal appointment of proxy (Locke), but as a fundamentally religious covenant with God enshrining sacrosanct and inviolable norms, then it is is binding on future generations even without their consent. Furthermore, according to Romans 13, the government is considered to be from God. Therefore, it is not so easy to free oneself from political authority, and interposition of inferior magistrates - who are themselves members of the government and thus also appointed by God according to Romans 13 - is necessary to free citizens from this divinely ordained and enforced political form. By contrast, however, Locke did not require inferior magistrates. In fact, neither did John Knox nor Christopher Buchanan, both Scots. Knox did not require inferior magistrates because his concern was with idolatrous Catholic monarchs violating the true religion, the avenging of which Knox held all Christians - lay and official alike - obligated to engage in. As for Buchanan, my understanding from Kelly (op. cit., p. 61) is that he - as a Scot following on Knox's footsteps - simply adopted Knox's startling and original abandonment of interposition. But Locke was neither a direct follower of the Scotsmen Knox and Buchanan, nor was he concerned with inherent and explicitly religious issues of bona-fide idolatry as was Knox. So we cannot explain him by recourse to Knox and Buchanan. So his failure to require inferior magistrates is very notable. My argument is that whereas earlier federal thinkers saw the political covenant as fundamentally religious in nature and based above all on sacrosanct and inviolable Divine norms, and therefore binding on future generations even without their consent, and therefore requiring God-appointed (Romans 13) inferior magistrates to abrogate a God-given political form (Romans 13), by contrast, Locke relatively secularized the covenant (I say "relatively" because Locke was still highly religious and still considered divine norms absolutely obligatory and binding), and as such, shifted the focus more to individual consent, whereas federalism tended to focus more on the religious, thus binding the future generations. As an aside, let us return to Calvin and Althusius for a moment. I noted that Calvin required inferior magistrates for a utilitarian purpose, but permitted rebellion to maintain liberty, as opposed to gaining new liberty. I also discussed Althusius's sophisticated theory of a multi-tiered society of covenants. There is an important consequence to this, that defines all of federalism: as McCoy and Baker note (op. cit.), all revolutions undertaken according to such federalism (such as the English, Dutch, and American revolutions, as opposed to the French one) were actually conservative counter-revolutions (such as the type permitted by Calvin). Such (counter-)revolutions were undertaken by a given covenanted sector of society against a party which had engaged in revolutionary violation of the covenant. For example, the English Civil War was fought against a king who had committed treason by subverting English common law and proper Protestant religious liberty (such as with Archbishop Laud's infamous Star Chamber, which bypassed English common law and due process in order to prosecute Puritan dissenters against the Anglican church). Similarly, the American Revolution (referred to by the British as the "Presbyterian Rebellion") was undertaken by state governments against a tyrannical English Parliament and king who imposed onerous taxes and threatened to restore Anglican bishops to America. There, the states operated - according to Reformed Christian federal thought - as inferior magistrates engaging in interposition and nullification of subversion of the covenant by the higher power. Thus, these revolutions, far from destroying all civil and political and societal order and reverting society to an anarchic state of nature - as occurred in France - rather fought against revolutionary action and restored the liberty and freedom that had already previously existed according to the covenant. This essay says nothing about contemporary politics, but if I were forced to give an application, I would say that while I genuinely and passionately and ardently admire the Reformed Christian concept of covenant as being extremely edifying and pleasurable for me, nevertheless, I believe Locke's concept of social contract is more practically useful today. As Justice Joseph Story's commentary on the First Amendment notes, the First Amendment's protection against establishment of religion applies only to the federal level, but not to the states, because federalism requires consensus, and lacking a consensus on the national level regarding which religion to establish, such a decision had to be left to the states, to allow each to establish a particular church as it saw fit. The general principle is that all government must operate by consensus of a nearly unanimous majority, and be entirely non-partisan in nature. So if today, a religious covenantal theory of politics is impossible due to lack of consensus thereon, then the best we can hope for is a secular libertarian one that leaves religion to the private sphere, to subject religion to capitalistic forces, letting the best man win. For the same reason, very much else besides religion would also have to be left to the private sphere, reserving only the bare essentials of maintaining public decency and order to governmental authority. Actually, the Reformed Christian theory would already grant significant basis to such a libertarian endeavor, but that is another subject that would take us too far afield. For now, I will merely note that both Bullinger's Decades (second decade, sixth through ninth sermons) and Calvin's Institutes (4.20) both speak of the magistrate enforcing religion in public in order to maintain public decency and prevent heresy from spreading to one's neighbors. Evidently, the purpose of punishments in the Torah - as interpreted by Bullinger and Calvin - is not to intrude into private conscience and practice, but rather, to enforce public decency. Therefore, only public acts of sin can be punished, and only for the purpose of enforcing basic norms of society, not for the purpose of ensuring the sinner’s passage to heaven, for the sinner’s passage to heaven is his own business, not the government’s. In fact, John Locke himself would completely agree, for what I have just said about Bullinger and Calvin could amply summarize Locke's own A Letter Concerning Toleration. Cf. Professor Steven Alan Samson's Christianity in Nineteenth Century American Law (Antithesis, II, 2, (March/April 1991): 23-29.), showing that 19th-century American Sunday blue laws could be constitutional or unconstitutional (according to the relevant state constitutions, the Fourteenth Amendment not yet existing to incorporate the First Amendment onto the states) depending on whether the law required observance of the Christian Sabbath in order to maintain public decency (constitutional) or in order to ensure the sinner's passage into heaven (unconstitutional).

My Recent Political Musings

I've been pretty busy recently, what with ulpan and all, but some things, you just cannot escape. In my free time, I've been reading Faith & Freedom: The Christian Roots of American Liberty by Benjamin Hart, and so of course, the political musings by me have continued. Here are a few recent examples:

Yesterday on Facebook, one friend (Adina) wrote as her status, "genuine question: does it say anything in particular about someone if they are a Conservative before the age of 30?" I answered,

There's the famous statement if a person is conservative while young, he has no heart, and if he is liberal while an elder, he has no brain.

But I completely disagree, totally and absolutely.

For me, my libertarianism is based on two concepts in tandem: the humility that recognizes I have no right to compel others, and the realism that recognizes that government cannot effectively operate by coercion. So my love of my neighbor requires consent, and my political realism requires consensus.

So I believe the liberal and conservative are both wrong. Neither has a brain nor a heart. Both lack the sympathy and love of neighbor necessary to eschew coercion and partisan politics, and both lack the political realism necessary to operate only where there is (nearly) unanimous consensus. Both are fatally flawed, and nearly identical in their essences. The horseshoe model of politics appears correct to me, for liberals and conservatives are more similar than different, I believe.

And because I've just spent a few hours just now learning about Cromwell and the English Civil War of the 1640s, I offer the following tangential remarks, relevant to libertarianism, but possible to be safely ignored by those who do not wish to read my discursive diatribes:

In this regard, I would like to express my love of Rabbi S. R. Hirsch. In his essay "Jewish Communal Life," regarding the fundamentally democratic nature of Judaism, Rabbi Hirsch criticizes the Reformers for enlisting the German civil authorities in the establishment of Reform Judaism. So far, we should not be surprised. But then Rav Hirsch turns right around and criticizes the Orthodox for doing the same! Rav Hirsch was no hypocrite. No sir, he was genuine liberal (to use the word in its authentic sense, to mean almost the same thing as "libertarian"), one who would have made any Puritan or Calvinist quite proud. (Incidentally, the Sephardim of Holland always preferred Calvinism as the most true and Jewish of all Christian denominations.)

All coercion is unjust. "Liberty and Freedom of Conscience" and "No Lords Spiritual or Temporal in New England" proclaimed the Protestants in America against an "Attempt to Land a[n Anglican] Bishop in New England," brandishing in their aid the works of John Calvin, John Locke, and Algernon Sidney, and I would add Rav Hirsch and the entire corpus of authentic Jewish thought (as opposed to Reform and Haredi thought) thereto.

Oh yeah, and Rabbi Benzion Uziel's teshuva on women's suffrage also presents Judaism - or at least its politics - as fundamentally democratic. Rav Hirsch presents the entirety of Judaism's legal system as democratic, but Rabbi Uziel only goes so far as to offer a social contract theory for Jewish kingship and women's occupying rabbinical office.

Again on Facebook, and also yesterday, Rabbi Shmuly Yanklowitz asked, "What do you think is the most compelling theory of social change for the 21st century?" One person (Katie) answered,

network theory as a tool and process for social mobilizatio

the main premise is that in the contemporary era people operate extra-institutionally and utilize unembedded (i.e. in terms of not being tied to an organization), interpersonal networks in order to accomplish their goals. networks may be created top-down or bottom-up. some scholars have also studied networks between companies.

I replied,

I was going to say political federalism as epitomized by Johannes Althusius's landmark 16th-century work Politica, building on the theological federalism of Heinrich Bullinger and the Zurich school of Reformed Christianity. ("Federalism" means "covenantalism", from the Latin word "foedus," meaning covenant or brit.)

According to this theory, man is a symbiote, and all of human life can be described in terms of covenants, compacts, and constitutions - whether explicit or implicit - among mutually consenting parties. Families covenant to form towns; towns covenant to form provinces; provinces covenant to form commonwealths; commonwealths covenant to form empires; commonwealths covenant to form international associations.

As McCoy and Baker note in their work Fountainhead of Federalism: Heinrich Bullinger and the Covenantal Tradition, all revolutions undertaken according to federalism (such as the English, Dutch, and American revolutions, as opposed to the French one) were actually conservative counter-revolutions. Such (counter-)revolutions were undertaken by a given covenanted sector of society against a party which had engaged in revolutionary violation of the covenant. For example, the English Civil War was fought against a king who had committed treason by subverting English common law and proper Protestant religious liberty (such as with Archbishop Laud's infamous Star Chamber, which bypassed English common law and due process in order to prosecute Puritan dissenters against the Anglican church). Similarly, the American Revolution (referred to by the British as the "Presbyterian Rebellion") was undertaken by state governments against a tyrannical English Parliament and king who imposed onerous taxes and threatened to restore Anglican bishops to America. There, the states operated - according to Reformed Christian federal thought - as inferior magistrates engaging in interposition and nullification (cf. Martin Luther King, Jr.) of subversion of the covenant by the higher power. Thus, these revolutions, far from destroying all civil and political and societal order and reverting society to an anarchic state of nature - as occurred in France - rather fought against revolutionary action and restored the liberty and freedom that had already previously existed according to the covenant.

But it seems Katie has perhaps already beat me to the punch.

The federalist theory also explains why so many democratic revolutions in the world - beginning with France's, and continuing even today - have so utterly and totally failed. Lacking a Puritanical reverence for covenants and oath, and lacking a federal appreciation of man as a covenanting symbiote, created in the image of a G-d who operates not by fiat but by covenant and contract - these revolutions cannot but result in Rousseau-ian/Robespierre-ian tyranny.

I might add now that according Abraham Kuyper's Lectures on Calvinism, Alexander Hamilton considered "the French Revolution to be no more akin to the American Revolution than the faithless wife in a French novel is like the Puritan matron in New England."

Just about an hour ago today, the ulpan exam I just took had a question asking the student to describe his opinion regarding the proper place of women in the home. I answered at length that marriage is a contractual relationship, and that therefore, the woman's proper place is whatever she and her husband have contractually agreed to. If they failed to set conditions at the inception of the marriage, then either they must come to a consensus during the marriage, or else they must abide by minhag ha-maqom, which is the implicit contract between all members of a society, in contrast to the heretical Reformish concept of minhag avot. As Perchik told Hodel, I wrote in my answer, everything - including marriage - is political. I added that if I had wanted to, I could have added a brief discourse on the ideas of Johannes Althusius bearing on the subject of federalism. After I turned in my exam, it occurred to me that quite accidentally and unintentionally, my answer was relatively egalitarian, in that it perceived women as equal and hierarchically parallel members of the contractual bond that is marriage. Throughout my answer, I rarely spoke of "him" or "her" or "he" or "she", but rather, I spoke of "them" and "they". I didn't mean to be feminist or egalitarian, but hey, so be it.

Also, already on the entrance exam to the ulpan, the question asking for the student to describe his favorite historical period, I answered that I love the 16th-century Swiss Reformation due to its having invented democracy.

Regarding homosexual marriage, I wrote yesterday (here):

I basically agree with the posters there that the Torah prohibits homosexuality. I don’t have much more to say than that. When Queen Elizabeth asked John Knox why he was so darned sexist, he basically answered that the Bible said what it said, and he couldn’t do anything, and I’ll reply basically the same way now, regarding homosexuality, the irony of my so completely disagreeing with Knox regarding the Bible and feminism notwithstanding.

What I would say, however, is that the Torah prohibits homosexual acts, not the desire. Furthermore, the Torah permits us to punish homosexuals only when they have two witnesses to their act who properly warned them. Absent two witnesses and proper warning, I cannot do anything to homosexuals. And even if the proper warning is in fact offered, the Talmud prescribes that the sinner must respond, “I know, but I will sin anyway.” This is a very different response than the one which the homosexual today would offer, something to the effect that the Reform movement has freed him from the yoke of the Torah. His response would evince his being an unintentional sinner (b’shogeg or b’anus), whereas the Torah mandates that only deliberate and conscious sinners (b’meizid) can be punished. Today’s homosexuals would be unintentional sinners, in that they are not aware that the Torah is from Sinai and such.

The purpose of punishments in the Torah, evidently, is not to intrude into private conscience and practice, but rather, to enforce public decency. Therefore, only public acts of sin can be punished, and only for the purpose of enforcing basic norms of society, not for the purpose of ensuring the sinner’s passage to heaven, for the sinner’s passage to heaven is his own business, not the government’s.

And given that the purpose of the punishment is to enforce public norms of decency and morality, it is implicitly understood that punishments are to be performed only when they will accomplish that task. If, however, punishments will only alienate people and besmirch the public image of the religious authorities, leading to backlash, then the Torah itself would demand that the punishments not be enforced. For this reason, Rabbis Akiva and Tarfon said in Makkot that had they served on the Sanhedrin, they never would have executed anyone, and Rabban Shimon ben Gamliel completely agreed, with the exception that he would still execute murderers. So apparently, all three rabbis would have made sure that no homosexuals were ever executed.

By the way, Puritan theory would completely agree with the above, which is why I believe that Orthodox Judaism, Puritan Christianity, and libertarianism (think Tea Party and Ron/Rand Paul) are such close partners.

So that's what I've been thinking about recently.

UPDATE, Thursday, September 2, 2010:
Today, on the final exam for ulpan, I wrote yet another political essay. The question was whether it is permitted for people - including students and teachers and workers - to strike or not. I began by citing a dispute between Rabbis Moshe Feinstein and Haim David Halevi. The question was whether a schoolteacher of Torah may strike, and Rabbi Feinstein answered that because it is forbidden to be bitul torah, that therefore, such strikes are forbidden. Rabbi Halevi, however, disagreed, saying that the mitzvah of talmud torah is incumbent upon the parents, not the teachers, and that the teachers are merely shelihim, delegated proxies, engaged to fulfill the mitzvah on behalf of the parents. Therefore, Rabbi Halevi explained, strikes are surely permitted for schoolteachers of Torah. I then cited Samuel Rutherford's Lex Rex, which said that nemo potest dare quod non habet, that one cannot give to another that which is not his to begin with, which Rutherford explained to mean that one cannot appoint an absolute monarch over oneself, for one's own freedom and liberty and health belong not to oneself, but to G-d, and that one cannot surrender these properties of G-d to a monarch. Similarly, I continued, Samuel Adams's "The Rights of the Colonists" says that because the right to freedom is the gift of G-d, man cannot surrender this to a king, and that if men do in fact surrender this - whether through fear, fraud, or mistake - this renunciation is ipso facto null and void. I compared this to Hazal's explanation of why the slave who refuses to leave his master has his ear bored: the ear which heard at Sinai, "I am the Lord your God," but who he (the man) has chosen a new master in place of G-d, that ear shall be bored. Similarly, Hazal explain that harut `al ha-luhot ("engraved on the tablets") ought to be read as herut ("freedom"), for ein bein horin elah mi she-`osek b'talmud torah ("there is no freeman except he who occupies himself in the study of Torah"). Likewise, I said, the Declaration of Independence of the United States of America proclaims that "we hold these truths to be self-evident, that all men are created equal, endowed by their creator with the unalienable rights to life, liberty, and the pursuit of happiness," (and I explained, as an aside, that "pursuit of happiness" means the freedom to live a wholesome and pure life, in a religious manner, under the aegis of G-d's kingship). Therefore, I said, it is surely the case that striking is permitted.

Also, just now, I posted the following link to Facebook: Wikipedia, "Corporatism", and I commented:

‎"The first truth is that the liberty of a democracy is not safe if the people tolerate the growth of private power to a point where it becomes stronger than their democratic state itself. That, in its essence, is fascism—ownership of government by an individual, by a group, or by any other controlling private power." --- Franklin D. Roosevelt

In other words, we cannot let private individuals and private enterprise be collectively more powerful than the government. The government must be more powerful than the sum of all individuals in society, in order for liberty to predominate. FDR was not content with a limited government that protected man from the abuses and crimes of his fellow man, but otherwise left every man free to live his life as he desired. Instead, FDR desired a vast leviathan that was more powerful than the sum of all the private individuals and businesses in the entire country. He felt that men could be free only if they were slaves to the state. Harut `al ha-luhot, al tikreh harut elah herut, she-ein bein horin elah mi she'oseq b'shilum masim. ["'Engraved on the tablets.' Don't read, 'engraved,' but rather 'freedom,' for there is no freeman save he who pays taxes."]

Yitzhak Rabin: Arch Racist-Imperialist

According to "Rabin thought peace with Arafat was only a ‘long shot’, b David Horovitz in the Jerusalem Post (5 March 2010), we read,

Yitzhak Rabin considered the likelihood of reaching a peaceful resolution of the Israeli-Palestinian conflict with Yasser Arafat to be only "a long shot." But he attempted it, reluctantly, via the Oslo process, because he recognized that Muslim fundamentalists were gradually winning over the hearts and minds of the Palestinians of the West Bank and Gaza, and that their domination would mean "the certainty of no settlement at all."

That was the explanation offered by Rabin on Wednesday, November 1, three days before he was assassinated, to Yehuda Avner, his long-time English speechwriter and friend, when Avner met with Rabin in his Jerusalem office ahead of a planned return to the prime minister’s employ. "It is either the PLO or nothing," Rabin said.

...

Rabin, in Avner’s account, gave a considered and detailed explanation, which is published here for the first time. It offers a unique insight into Rabin’s thinking and motivations immediately prior to his assassination, and underlines how profoundly Rabin recognized the escalating threat posed by Iranian-spearheaded Islamic fundamentalism to the stability of the region and to the prospects of viable compromise with the Palestinians.

...

The Israel-Arab conflict, he [viz. Rabin] said, "was always considered to be a political one: a conflict between Arabs and Israelis. The fundamentalists are doing their level best to turn it into a religious conflict – Muslim against Jew, Islam against Judaism. And while a political conflict is possible to solve through negotiation and compromise, there are no solutions to a theological conflict. Then it is jihad – religious war: their God against our God. Were they to win, our conflict would go from war to war, and from stalemate to stalemate. And that, essentially," the prime minister summed up to his longtime adviser, "is why I agreed to Oslo and shook hands, albeit reluctantly, with Yasser Arafat. He and his PLO represent the last vestige of secular Palestinian nationalism. We have nobody else to deal with. It is either the PLO or nothing. It is a long shot for a possible settlement, or the certainty of no settlement at all at a time when the radicals are going nuclear."

In other words, Rabin was an imperialist. He brought Arafat out of exile in Tunisia so that he could try to foist him on the Arabs in the West Bank. Rabin preferred Arafat's secular nationalism to the growing Iranian-style religious nationalism, and he thought he could force the Arabs to accept one kind of nationalism over another, against their own wills, simply according to what Rabin preferred. Rabin was thus a racist imperialist who considered the Arabs disqualified from choosing their own government.

Here is, I believe the difference between the right and the left-wing in Israel: the right-wing, as Rabbi Meir Kahane expressed, takes the Arabs' words at face-value. If the Arabs say they want to kill us, we'll believe them. But at the same time, we'll accord them full sovereignty over their own actions, within their own territory. (Of course, the land of Israel is not their territory, but that's not the point here.) We'll give them full sovereignty over themselves, and it's just that on our own behalves, we reserve the right to retaliate appropriately based on their actions. For example, the people of Gaza have every right to elect Hamas, but in return, we are allowed to bomb them in response to the rockets they send. We have no right to deny the Arabs sovereignty over themselves because, as Samuel Adams put it so well in "The Rights of the Colonists"

If men, through fear, fraud, or mistake, should in terms renounce or give up any essential natural right, the eternal law of reason and the grand end of society would absolutely vacate such renunciation. The right to freedom being the gift of God Almighty, it is not in the power of man to alienate this gift and voluntarily become a slave.

If men cannot voluntarily renounce their own freedom, then all the more so foreigners cannot take their freedom away against their wills. But of course, with freedom comes responsibility, and Israel has every right to retaliate.

By contrast, the left-wing believes that the Arabs do not understand their own words coming out of their own mouths. Every time the Arabs voice antisemitism or terrorism, the left puts words in their mouths and says they didn't really mean it. And as Rabin showed, the left seeks to undermine Arab sovereignty by engaging in social and political engineering, trying to control what the Arabs will have against their own wills. Bringing Arafat out of exile is one exile, but today, strengthening Abbas is another example.

The right would say, "Abbas does not need strengthening! Let the Arabs strengthen whoever they want to be strengthened." The right would say that Israel has no right to be involved in a foreign people's private issues, but the left would say that we are allowed to muddle others' private concerns. This is the same justification for welfare and wealth-redistribution: the left believes that one can arrogate to himself power over others for the sake of exercising paternalistic lordship, but the right responds "Nemo potest dare quod non habet," lit. "No man can give that which he does not have," meaning you cannot create authority for yourself ex nihilo; power can only be transferred from one holder to another.