The reasonably observant Jew in America is faced with a dilemma: obey the teachings of the Torah and the halachah derived from it or the United States Constitution and the statutes derived from it. Most of the time they’re not in conflict, but what should be our primary guide?
There was a time when Jews in the Diaspora were not considered to be citizens of any country and they were “guests” wherever they lived. Their communities were isolated, and they followed their own laws and the rabbis were the local dispensers of laws and legal decisions. The rabbinic courts made more universal decisions based on the early control of the Sanhedrin. Then, starting in the late 18th century the Emancipation occurred, and Jews began to be accepted in one country after another as citizens of nation states. As citizens we were granted rights equal to other citizens. With the new rights came the obligation to put local national law ahead of Jewish law. This may not have been a major problem most of the time, but sometimes there was conflict and the national laws had to win out. If Jews wanted to close their stores on Saturday and open on Sunday where the local law was the reverse, the local law prevailed.
For the most part this conflict is minor, and it is worth looking into the parallel origins of the laws to see why this is so.
We are all familiar with the apocryphal tale of the gentile who expressed interest in following Judaism and said he might well do so if a rabbi would teach him the whole Torah while he (the gentile) stood on one foot. After Shammai turned him down with disdain, Hillel made his famous statement:
“What is hateful to you, do not do to your neighbor. That is the whole Torah. The rest is commentary on this. Go study this.”
How might a student conduct this study? One could read all of Genesis and Exodus and would find almost every aspect of human behavior at its best and worst. You might read parashahs Yitro (Ten Commandments) and Mishpatim (the Social Laws or Covenant Code) and get the gist of the Jewish legal direction. If you kept studying you might want to read the Tenach, which leads you to the second half of the story of the Jewish people (which comprises nine books, including the Five Books of the Torah and the concluding Books of Joshua, Judges, Samuel and Kings), and then the Prophets and the Writings to cover the basis of Jewish thought. After that you might get to the more voluminous Mishna (the oral law), which would logically lead you to the Talmud, which is the rabbinic commentary on the Mishna. The Talmud is an enormously voluminous document that examines the law in great detail, and despite being written over a period of four centuries (200-600 CE), is in the present tense, which invites further discussion and commentary.
When presenting this progression in person, I show the Torah as being a thin volume, the Tenach as a more substantial single volume and the Mishna as being a rather massive single volume. The Talmud cannot be shown as a single volume of any size and consists of 63 tractates, or books, each substantial in size. From the Talmud has been derived the 613 laws of halachah, which for centuries were the controlling basis of Jewish life. It took over a millennium to develop this law and has served the people of Israel very well.
Let’s look at the American equivalent process:
What would Alexander Hamilton or James Madison have answered if asked to present the documents controlling American society, on one foot or not? They undoubtedly would have suggested reading the Declaration of Independence, but their equivalent to the short, pithy statement of Hillel would have been the preamble to the Constitution:
“We the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America.”
That’s the whole story. The rest is commentary on this. Go study it.
What should you study?
You get a good feel for the direction of the document by reading a few sentences at the beginning of the key articles:
Article 1: “All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.”
Article 2: “The executive Power shall be vested in a President of the United States of America.” This article has a lot of detail on how the executive is elected and includes (almost as an afterthought at the end of Section 3 of the article in the middle of some trivia), “…he shall take Care that the Laws be faithfully executed….” Never has so much power been granted with so few words.
Article 3: “The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish.”
Article 4: “Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State.”
The rest of the Constitution expands on the powers of the three branches of government and details the selection and service terms of the members of government. There is a real feeling generated that it was important that they create a balance of powers and the rights of the states should not be diminished by this Constitution. (Amendment 10: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”)
If you want a more thorough discussion (an “oral law”, so to speak) you would want to study the Federalist Papers. This was the compilation of a series of explanatory essays published in the newspapers by an anonymous trio of founders (mostly Alexander Hamilton and James Madison, with a few by John Jay) who were trying to convince the various state legislators to ratify this radical constitutional document. To get more detailed than that, you would have to go to the body of statutes produced by the Congress, confirmed by and enforced by the president and his officers, and untouched by the courts. This study might be complicated by the fact that the federal “halachah” runs in parallel to the laws of the various states as the Constitution instructs.
So, there you have the two systems we live under: one by choice as Jews and one by obligation by choosing to remain citizens of the United States. One has been 2,000 years in the making and practice: Torah and Tenach, Mishna, Talmud and Halachah. The other less than 250 years in the making and practice: Declaration of Independence, Constitution, Federalist Papers and Statutes. Both are living systems and are subject to amendment and interpretation, although they are both kind of stuck right now.
How many of us take the time to look at these vital documents as we go through our days? Many observant Jews read through the Torah each year as they sit through Shabbos services, but they certainly are not studying it except by listening to the weekly d’var Torah. Tenach? Mishna? Talmud? Not a chance! Would we gain from spending even a little time with them? I’d like to think so, but advocating such a use of our valuable 21st-century time would likely fall on deaf ears.
What about the American documents? How many of us have ever read the whole Declaration or Constitution (even Congress doesn’t read the laws they pass)? It actually would only take a few minutes to read the Declaration of Independence, but who’s going to do that? And the Constitution? You’d be hard pressed to find anyone who has read it through. There was a news story in January of 2011 regarding the opening of the 112th Congress, where the Constitution was read in its entirety in the House of Representatives for the first time in history. Various members read a few lines as volunteers and it took all of 90 minutes to do it. It’s ludicrous to think that every American citizen couldn’t find 90 minutes in their lifetime or once a decade to read the document that is so important to their lives. Can you imagine the uproar it would create if some superintendent of schools suggested that every elementary school and high school student had to attend a compulsory class once in their 12-year stay at school that included reading (and perhaps even discussing) the Declaration and Constitution? Even the salute to the flag is becoming a dinosaur.
How would it feel to have some idea of what that “pundit” on the TV is talking about when he loudly proclaims that something is “unconstitutional”? How would it feel when we go to Shabbos services if we had actually read the parashah in advance before the speaker talks about it during the d’var Torah? Don’t we all have some spare time we can squirrel away to do this? Maybe every once in a while, each of us should stand up, lift one foot off the ground and read a piece of Torah or Tenach or Constitution or Federalist Paper. It couldn’t hurt.
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