Posts Tagged 'SCOTUS'

On Originalism: Mourning Rabbi Halivni z”l

This last week has been a real doozy when it comes to the Supreme Court. Between the landmark decisions in expanding gun rights, eliminating the protection of abortion rights, seeming delusion of the division between church and state, limiting the role of the EPA, and now states’ roles in Federal election reform, I am dizzy. It is challenging to keep up with it all. It feels that the world is changing too fast and not for the better. It is unlikely that we have seen the end of this socially right leaning super majority on the court. What is driving all of these changes? It seems to be part of their conservative political/social agenda, but their claim it is part of their legal philosophy of Originalism. I am not sure they have much credibility, but what does that even mean?

Originalism is a type of judicial interpretation of a constitution (especially the US Constitution) that aims to follow how it would have been understood or was intended to be understood at the time it was written. It is founded on the belief that a text should be interpreted in a way consistent with how it would have been understood or was intended to be understood at the time it was written. They assert that all statements in the Constitution must be interpreted based on the original understanding “at the time it was adopted”. This concept views the Constitution as stable from the time of enactment and that the meaning of its contents can be changed only by the steps set out in Article Five. This notion stands in contrast to the concept of the Living Constitution, which asserts that the Constitution should be interpreted based on the context of current times and political identities, even if such interpretation is different from the original interpretations of the document.

This concern of their judicial interpretation came into focus a couple of days ago with the news of the passing of Rabbi David Weiss Halivni z’l. Born in 1927, Halivni was raised in Sighet, Romania, by his mother and his maternal grandfather, Isaiah Weiss, a prominent rabbinic scholar. Recognized as a talmudic prodigy (ilui), Halivni was ordained before reaching the age of 17. When they were occupied by the Germans, the family was confined to the ghetto of Sighet, and then deported to Auschwitz, Halivni being transferred to forced labor in Silesia. The sole survivor of his family, Halivni was liberated from the concentration camp of Ebensee, in Upper Austria, in May 1945, and came to the U.S. in 1947. Through the coincidence of a relative of Saul Lieberman being employed in the Bronx orphanage where Halivni was, he soon met that scholar, and so was taken under the wing of the leading academician in the field of rabbinic literature. Following undergraduate studies at Brooklyn College, in tandem with residence in the Yeshivat Rav Chaim Berlin, and graduate study at New York University, Halivni pursued a doctorate of Hebrew letters under Lieberman at the Jewish Theological Seminary of America where he joined the faculty as professor of Talmud and Rabbinics.

Through his magnum opus Mekorot u-Mesorot -Sources and Traditions, Halivni developed a source-critical approach to the Talmud, aiming to uncover earlier, variant readings and textual substrates altered in transmission. This methodology and aspects of Halivni’s personality, provided a basis for characters and for a paradigm of critical talmudic study dramatized in the first two novels of Chaim Potok . In the mid-1980s, Halivni left the Seminary for a professorship at Columbia University and also participated in the founding of the Institute of Traditional Judaism. He also became the Mara D’Atra at KOE, a prayer community on Manhattan’s Upper West Side. I had the fortune to learn from him while at Columbia, pray with him at KOE, and later while studying to be a Rabbi at YCT to be the intern at Ramath Orah where he was a congregant.

Many people, who were much closer to him and his work, have written some amazing tributes to him. I am sure that much more will be said about this luminary, but for now I wanted to focus on the subject of his undergraduate course. It was based on his book, Peshat and Derash: Plain and Applied Meaning in Rabbinic Exegesis (1991)

From the days of Plato, the problem of the efficacy and adequacy of the written word as a vehicle of communication has challenged us, yet the mystery of how best to achieve clarity and exactitude of written expression has never been solved. The most repercussive instance of this universal problem has been the exegesis of the law embodied in Hebrew scripture. Peshat & Derash is the first book to trace the Jewish interpretative enterprise from a historical perspective. Applying his vast knowledge of Rabbinic materials to the long history of Jewish exegesis of both Bible and Talmud, Halivni investigated the tension that has often existed between the plain sense of the divine text (peshat) and its creative, Rabbinic interpretations (derash).

The first level is peshat, taking the text at face value, in context . This doesn’t quite mean “literal”, because we of course take into account idioms, metaphors, personification, etc. The peshat is the message that the originalauthor intended to get across to the original audience. This is compared to derash, the way the rabbis of the Mishnah, Midrash and Talmuds – interpreted the text.  In derash we ask why the text is phrased the way that it is. Rabbinical literary techniques plumb the depths of the text to find new meaning, or may bring out lessons that may not have been intended by the original authors. It gets interesting in the discussions by the Rabbis which reveal that, in some cases, they felt that derash was discovering the original meaning of the text, while in other discussions they clearly understood derash as filling-in-the-blanks – creating new meaning. For example Rashi, the famous commentator, often accepted much derash as literally and historically true, aka peshat. But commentators like Rashbam, Abraham Ibn Ezra disagreed with Rashi.

All of this is to say that it is clear that one cannot understand Torah properly and adequately if one lacks the requisite tools to decode, read, and interpret the text. Halivni’s efforts were to provide those tools. Halivni also addressed the theological implications of the deviation of derash from peshat and explores the differences between the ideological extremes. The religious right denies that Judaism has a history. The religious left claims that history is all that Judaism has.

Halivni’s comprehensive and critical narration of the history and repercussions of Rabbinic exegesis is of interest to students of scriptural traditions, hermeneutics, and legal texts. Of all week’s the absence of his nuanced and deeply grounded approach to legal text is palpable. Halivni had a profound and important response to Originalism.

Much ink has been spilled in the attempt to define the peshat and derash of the Constitution. It could happen that in a given debate, everyone could agree that one of the proposed interpretations is a peshat one, while the other interpretation is a derash one, and yet disagree with one another as to which one is which! In fact, a well-known aphorism contends that “My interpretation represents the peshat, while yours represents derash.” One can clearly be an Originalist and maintain an orthodoxy to the nature of the law without having to conform the institutional chauvinism, bigotry, racism, or homophobia that was the original meaning of the Constitution.

My fear with SCOTUS is that they do not listen to the words of Rabbi Tzaddok. He taught:

Do not act as a counselor-at-law (when serving as a judge). Do not make the Torah a crown to magnify yourself with, or a spade with which to dig.

Avot 4:5

The judges have become tools of the political profess as compared to scholars who use tools, like those Rabbi Halivni z”l tried to teach, to make sense of the law and justice in the land.

Maybe Rav David Weiss Halivini’s memory be for a blessing.

A Shabbat Thought For Camp Post Roe v Wade

Note to Camp Director: I offer you this message which you might adopt/adapt/share with you staff this Shabbat.

Shabbat Shalom. Welcome back to camp. I pause at this moment of our coming together in this place we love with the people we love at a time we love to give space to what some of us might be feeling at this moment. 

For so many of us, camp is special because when we come here we get to explore our best selves. Here we try on new elements of who each of us might be or are becoming. Camp is not just a location, time of the year, or even a group of people. Camp is an educational philosophy. Camp is a way of thinking about how we might self actualize and, in the process, help our campers do the same. Camp is a home away from home. Camp is a bubble away from all of that stuff out there. For many of us camp is the Shabbat of our year. 

I pause at this moment to recognize that many of us feel at risk. We find ourselves amidst the storm of COVID, political upheaval in Israel, rising racism and anti-Semitism, gun violence, war in Ukraine, and shifting of who makes laws about our bodies at home. Today, June 24th, the US Supreme Court overruled the landmark 1973 Roe v. Wade case. To many of us this ruling seems like a trespass of people’s personal and religious rights to have agency over their own bodies. This may feel scary. While this may or might not directly impact you or people you love, this ruling represents a challenge to our sacred Jewish obligation to prioritize the life and health of the pregnant person. What could our camp’s role be in supporting our community members who may feel existentially threatened? What role does our community play in helping people regain personal agency and their capacity to self-actualize?

I find some comfort in the words from the chorus to Yom Shabbaton – The Sabbath Day, a song traditionally sung on Shabbat. Written by Rabbi Yehuda Halevi (1075–1141), this poem describes the complete rest and peace of Shabbat. As we sing:

Yonah matz’ah vo manoach v’sham yanuchu y’giei choach.

The dove does find her rest, and there rest those whose strength is spent.

The dove that rested on the Shabbat day is instantly identifiable as Noah’s dove. Sent from the ark to check if the flood had receded, the tired dove found rest on the dry land (Genesis 8:12). Hidden amidst the chaos of a world that is destructive and painful, Shabbat is a small island poking out from the vast and threatening sea. While the world stands shattered and torn, this small perch for the dove is the first glimmer of hope for all of us. 

But it is hard to have hope, when we are feeling grief and loss. One quote that speaks to this feeling comes from Martin Prechtel’s The Smell of Rain on Dust: Grief and Praise. He writes:

Grief expressed out loud for someone we have lost, or a country or home we have lost, is in itself the greatest praise we could ever give them. Grief is praise, because it is the natural way love honors what it misses.

Before we run ahead to meet the demands of the day — and we will —  let’s reflect on this praise for what we may miss. We might miss ideas and ideals of our country’s “more perfect union”. We might be missing the feeling of autonomy and agency. We also might be missing the feeling we have of self-actualization. For many of us this is something that we discovered here at camp. In this moment of grief I want to take a moment to praise, honor, and love our camp community as a home.

In seeing how many people feel unsafe right now, I find hope right here right now with you. In our coming together to make Shabbat at our camp we can find respite from the storm out there. Together we need to make camp for ourselves, each other, and our campers. From that perch, our community will start to rebuild our broken world. In this way, Shabbat will provide us Shalom– peace. Welcome back home. Shabbat Shalom.

Note to Camp Director: Thank you for everything that you do for our community. If we can be helpful  in anyway do not hesitate to be in touch avi@jewishcamp.org Also please share any resources that you might have so we can share it with the field. We are curating content for camps here.

If you or your staff need immediate mental health supports beyond your community’s capacity, for any reason, here are some resources to share:

  • Text “HOME” to 741-741 for the Crisis Text Line
  • Text “START” to 678-678 for The Trevor Project LGBTQ support center
  • Call the National Suicide Prevention Lifeline at 1-800-273-TALK (8255) for free, confidential 24/7 support

Besieged: Choice, SCOTUS, and Jerusalem

Recently I have been reading about the Supreme Courts decision to let the Texas law SB8 stand and their pending decision on the Dobbs v. Jackson Women’s Health case in Mississippi. On the second the Center for Reproductive Rights wrote, “For many, the barriers will simply be too high, and they will be forced to endure the substantial risks of continued pregnancy and childbirth.” The implications for women’s health are scary to me. I stand by any religion’s claim that this it is wrong to end a potential life. The Torah takes life and potential life very seriously, even if not the same as each other. And because this is a religious matter I do not believe that the state has a role here. This issue is only compounded by class and access to resources. Only wealthier people have the funds to get out of Texas or Mississippi to terminate those unwanted pregnancies. This newest push to limit women’s access to health care seems like an assault of women’s agency and choice over their own bodies.

It is painful to see laws, mostly written by men, about women’s bodies, lack empathy or understanding of the personal, religious, or public health issues of women. How is a women who believes it is her religious right to make decisions about her own body supposed to interpret this moment? Why is the state in the business of making rules for other people’s bodies? It might seem as the though the womb is being besieged.

Amazon.com: Don't Tread On Me Uterus Graphic T-shirt : Clothing, Shoes &  Jewelry

Regarding the Supreme Courts most recent decision to let the Texas law stand Marc Hearron, senior counsel for the Center for Reproductive Rights is quoted to have said:

While SB8 is about abortion, this private enforcement scheme implicates every other constitutional right, If a state can prohibit the exercise of any constitutional right that’s disfavored in that state and get around federal court review by allowing private citizens to sue someone for exercising that constitutional right, then it’s hard to say where this scheme ends. Today’s decision is a marker that says every constitutional right is now at risk.

Texas Tribune 12/10/21

Be it that you agree with Roe v. Wade or not, pushing against this long standing precedent opens a Pandora’s box. This has the potential of allowing the states the discretion to see different people differently under the law. Will we strive to treat everyone fairly, equitably, or justly?

I was thinking about all of this today as Asarah B’Tevet, the 10th of Tevet. This fast day commemorates when Nebuchadnezzar, the Babylonian king, began the siege of Jerusalem (588 BCE). 18 months later, on the 17th of Tammuz his troops broke through the city walls. The siege ended with the destruction of the Temple three weeks later, on the 9th of Av (Tisha B’Av), the end of the first Kingdoms and the exile of the Jewish people to Babylon. The Tenth of Tevet is thus considered to be the beginning of the end of the Jewish world as it was known during the First Temple period.

As we know from sources such as Eicha (the Book of Lamentations), this siege was brutal, depriving the residents of Jerusalem of basic necessities and forcing them into horrific situations. Asara B’Tevet is significant because it marks the onset of a period of tremendous suffering for the Jewish people.  Jerusalem was the center of our people. In diaspora our yearning for Jerusalem became a bedrock of Jewish identity. I was not just a direction to pray it became our national orientation. It came to represent our national agency and autonomy.

siege of jerusalem | The Deadliest Blogger: Military History Page

Today on Asara B’Tevet and seeing where the court is headed it is hard not feeling besieged. Is this the beginning of the end?

As the story goes, in 1787 as the delegates to the Constitutional Convention are just leaving Independence Hall, a crowd had gathered on the steps there in Philadelphia. They had just decided on the general structure for the new United States. The crowd was eager to hear the news. An anxious women, wearing a shawl, approached Benjamin Franklin and asked him, “well, Doctor, what do we have, a republic or a monarchy?” Franklin replied sagely, “a republic, if you can keep it.”

It is moments like this, when we feel besieged, that we have to ask, will we keep it?


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