Scalia on changing the law

Rabbis sometimes think alike. Maybe it’s our training and education. But just a few days before I read Rabbi Shammai Engelmayer’s thoughtful essay on a Jewish response to the late Supreme Court Justice’s legal philosophy (“Scalia would have stewed over a Shabbat staple,” February 26), I made the exact same argument in a conversation with my daughter, claiming that Justice Antonin Scalia’s approach to law was alien to Jewish tradition, since Jewish law has continually developed since its first formulation, in the Torah.

But then I thought some more about the issue and have come to the conclusion that my initial response may have been hasty and incorrect.

Systems of law often base themselves on a founding legal document. Both the Torah and the American constitution are founding legal documents. (Interestingly, the State of Israel is has no analogous founding legal document.) These documents provide the authority for law, and they supply a yardstick against which to measure (or even formulate) subsequent legislation.

Yes, cholent may seem to violate the Torah’s prohibition of cooking on Shabbat. But the Jewish legal tradition that got us to that point is very different from the American jurisprudence. Where does the comparison between American and Jewish law break down?

In Jewish law, unlike in American law, there is no separation of powers. Please permit me to back up a bit and explain.

Back in grade school, we all learned about the three branches of American government: the executive, the legislative, and the judicial. Each branch has its own roles, and each balances the power of the other two.

Not so in Jewish law. In the halakhic system, rabbis have and continue to formulate, write, disseminate, challenge, and change Jewish law. Rabbis are both judges (dayanim) and halakhic authorities (posekim) who issue rulings. A rabbi is the final voice of legal authority in his or her community (mara d’atra, literally, “the local teacher”), and may join others to augment their authority, as in the case of the Committee on Jewish Law and Standards of the American Conservative rabbinate, and the parallel Va’ad HaHalakhah in Israel.

Perhaps one can claim that Jewish communities, and in a broader sense, k’lal Yisrael, the Jewish people as a whole, balance rabbinic authority. After all, the Talmud famously posits in many places, “puk hazi mai amakh devar,” that is, that common, popular practice often defines just what the law is.

But that’s all. For millennia, there has been no formal, authoritative Jewish congress legislating laws. No Jewish chief executive. No supreme Jewish court. Just individual rabbis, working to keep Jewish law relevant and real. Working in concert with their communities, using the rich tradition rooted in the Torah that we call “Torah she-b’al peh,” the oral Torah.

Rabbi Engelmayer claims that Justice Scalia’s approach, if applied to the Torah, would render it “dead under the heavy weight of its own words.” But the Torah text is, in fact, quite fixed. Although Jewish law, like American law, acknowledges the possibility of amendment to the basic legal document, this radical step is a sort of last resort, seldom used.

If Justice Scalia were alive today, I imagine that he might react to reading Rabbi Engelmayer’s words by responding, “Of course law develops! But American law is not like Jewish law. Judicial activism is the job of the congress and the executive branches. Of course, you rabbis are different; you must be activists in the law — you’re all your system of Jewish law has! I’m an American jurist, and my job is different from yours: We’re a moderating force on the other two branches. We’re there to preserve the Constitution — that’s our job, not the job of the Congress or the President.”

And I think Justice Scalia might have enjoyed eating a good cholent.

Rabbi Gary Karlin

Camp and BCHSJS

We are delighted that Jeremy Fingerman’s op ed (“Connecting with the mobile generation,” February 26) put the spotlight on the crucial importance of connecting with Jewish teens to help ensure Jewish continuity. Research has shown that the adolescent years are the most critical for developing a Jewish identity for a lifetime. We also were happy to read that Jewish camps focusing on this are thriving, and that enrollment continues to grow.

But whereas summer camp is a viable solution for Jewish teen engagement for at most two months a year, the Jewish community of Northern New Jersey is fortunate to have a nine-month, weekly resource for providing a meaningful Jewish education and social experience to supplement teens’ secular high school lives — the Bergen County High School of Jewish Studies.

BCHSJS is northern New Jersey’s only community Sunday school for Jewish teens in grades 8-12, drawing from 22 different congregations (Conservative, Reform, Reconstructionist, and Orthodox) as well as from non-affiliated Jewish homes. Designed as a bridge between the bar/bat mitzvah experience and college, we offer college seminar-styled elective courses, social events and weekend retreats, opportunities to earn community service credits, and advocacy training to help prepare our teens for the challenges they may face as Jews on American college campuses and in their adult lives.

As important as the strength of our program and faculty is the appeal of the BCHSJS community. Teens who can count the number of Jews in their high schools on one hand enjoy the special camaraderie that comes with strength in numbers, and make friendships that often sustain them well into adulthood. BCHSJS also is a safe and supportive space where our teens can figure out and take control of what being Jewish means to them. We’ve seen how having time each week for this self determination and ownership of their Jewish identity will serve them — and the greater Jewish community — in the long term.

Don’t take our word; visit bchsjs.org and hear directly from some of our students. Or come visit us. We would love to share the BCHSJS community with all of you.

The BCHSJS Board of Directors
Elayne Kalina, President/Martha Cohen, Vice-President/Shari Haber, Vice-President/Marcia Kagedan, Secretary/Rabbi Dr. David Fine, Treasurer/Mel Solomon, Immediate Past President Sy Blechman/Manny Genn/Rabbi Dr. Wallace Greene/Susan Penn/Steven Prystowsky/Alexandra Sobelman/Connie Stack


Don’t make fun

I am very disappointed in Rabbi Engelmayer making fun of the late Justice Antonin Scalia. Each justice deserves respect (even if you don’t agree with an opinion they wrote) and for a Rabbi to be so cavalier (and crass) at the time of a death of any human being makes me personally sad and embarrassed on behalf of our “tribe.” Each life is sacred; Justice Scalia was a human being deserving of our tradition of comforting the mourners. Lets hope other members of our tribe act righteously regardless of what political leanings they have.

Deborah E Hammond, MD

Scalia would be Orthodox

Rabbi Shammai Engelmayer is a stimulating talented teacher of Jewish history and of the glorious merits of the religion. I look forward to reading his op eds.

In his last one he depicted Judge Scalia as a stiff-necked constitutional interpreter who had become the adversary of those who would bend the Constitution for the suffering population and those who believe the society would be greatly improved if judges freely interpreted the Constitution. Rabbi Engelmayer promoted the idea that unless original documents are modified and adapted to a modern changing world, they will cease to have authority. He extrapolated the idea that if Judge Scalia was a rabbi and had been influential in composing the Talmud we no longer would have a Jewish religion.

Judge Scalia introduced an interpretation methodology on the Supreme Court called “originalism,” which has become a well-recognized rational method of judging the meaning of the constitutional testaments of the original composers and is now respected even by liberal judges. I believe Rabbi Engelmayer does not understand that Judge Scalia’s motivation is the long-term preservation of the Constitution. Justice Scalia was Catholic and he personally favored the church services in Latin. Judge Scalia was not insensitive to the need for adapting the statutes of federal law. He preferred to make changes through the constitutional method of amendment or by the state legislatures, where the state has the responsibility for their citizens’ social lives. Judge Scalia was against a progressive view that would get reform quickly by way of having the law interpreted by a group of unelected judges. It appears that Rabbi Engelmayer’s examples in his op ed of change through adaptive interpretation of the Torah involves the thoughtful dialogue by talmudic rabbis. That follows Judge Scalia’s way to accomplish the goal of continuing respect for the original testament.

There has been a battle throughout history between those who insist on change immediately and those who think long term. My view, and I am sure Rabbi Engelmayer’s as well, is to maintain the long-term integrity of originating documents is necessary so that their beneficial authority is not compromised over time.

I had the opportunity to speak with Judge Scalia informally for a brief time, to get his view on what the law would be when machines are humanlike and capable of suffering. While the conversation was brief, I remember his depth of interest. While the subject could not be fully explored I was able to recognize his understanding of the balances in human existence, punctuated with empathy. I believe that if Judge Scalia was a Jew he would be Orthodox, in order to preserve the Torah’s authority forever, but he would understand those with a different persuasion.

Many would disagree, but as a rabbi is often heard to say about a difference of opinion — they are both right.

Sidney Kaplan
Fort Lee

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