| Staying the Course |

Staying the Course: Chapter 4 

Prepared for print by Zivia Reischer

I argued that the greatest threat to Israel is its lack of a constitution



had a pretty tough time with the Civil Rights course.

First of all, we were required to read Supreme Court opinions. I had no experience with such material, and to put it bluntly, I couldn’t make heads or tails out of it.

Secondly, I found the contrast between a Torah-observant society and the American legal system very jarring.

Take the freedom of speech. Your knee-jerk reaction is that of course free speech is a good thing; as Jews with a history of bloody persecution, all freedom sounds good.

But in 1971, the New York Times had the “freedom” to publish information that compromised national security during the Vietnam War (New York Times Company v. United States, also known as the Pentagon Papers Case). In 1969 the Ku Klux Klan had the “freedom” to call for “revengeance” against Jews (Brandenburg v. Ohio). And an individual has the freedom to actually burn the country’s flag (Texas v. Johnson, 1989).

All this in the name of free speech. The Founding Fathers protected the freedom of thought and speech to protect the citizens from tyranny, and because they knew that no Constitution could account for all future situations. But their human limitations led to situations, as Justice Kennedy wrote in his opinion on the flag-burning case, where “Sometimes we must make decisions we do not like. We make them because they are right… the law and the Constitution… compel the result.”

But the Torah, not being written by limited humans, accounts for every situation that will ever occur. A Torah society doesn’t have to worry about freedoms that can be stretched to protect even actions against its own interests.

One class examined the Constitutional right to privacy. The professor explained that the government uses this “right” to legalize abortion and other actions the Torah deems reprehensible. “There are three ways Supreme Court justices attempted to derive this ‘right’ from the Constitution,” the professor explained. He listed one as the IX Amendment, which states if a right isn’t specifically protected in the Constitution, it might still be protected. Others point to the XIV Amendment, the Due Process Clause. The last justification comes from the concept of penumbras, and the professor assigned us reading on the topic for homework.

Honestly, I had no idea what penumbras were, and I didn’t bother trying to find out. Those Supreme Court opinions were anyway impossible. I just read the assignment like I was supposed to, and came to class.

The professor walked into class the next day and picked up where he left off. “So, let’s talk about penumbras,” he said. “Who can define penumbras?” He looked around.

No volunteers.

Turns out I wasn’t the only one who, uh, did my homework in a rush. We were all forced to admit that we had read the entire opinion without any idea of what the most important word meant.

The professor was not amused.

Penumbras means shadows. It’s used to describe implied rights provided in the US Constitution. The argument claims that the Constitution protects the right to privacy. That’s why people cannot be forced to house soldiers (III Amendment), and why they cannot be searched without a warrant (IV Amendment). The “penumbras,” or implied rights, of all of this is everything else that should be up to the private discretion of individuals. Some Supreme Court justices claim that includes the right to choose abortion and other abominations.

All I could think was, it takes serious lomdus to try to squeeze newfangled social ideas into a document written over two centuries ago.

That was really my major takeaway from the course. It was cool and interesting to dissect the Constitution, but the more closely you look, the more holes you find. Unlike the Torah, which can be applied unchanged to any situation, the Constitution was written by the FoundingFfathers who could never have envisioned what the world would look like today. It’s impossible for such a document to stay relevant and applicable forever (or even for a few hundred years), but the government needs to at least make a show of staying faithful to it – hence the lomdus.

So, between the dangerous freedom of speech and the outrageous extensions of the right to privacy, would we be better off without a Constitution at all?

I don’t think so. In one paper, I argued that the greatest threat to Israel is its lack of a constitution. This leaves all decisions undetermined and subject to political plays. The freedoms allowed in the Constitution protect us from tyranny. Churchill once said that “democracy is the worst form of government, except for all those other ones that have been tried.”

Until Mashiach comes, it seems the best we can hope for.

(Originally featured in Mishpacha, Issue 811)

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