56 Friday, December 24, 1982

THE DETROIT JEWISH NEWS

`Jews, Judaism and the American Constitution'

Pamphleteering was a
major instrument in the
democratic political and so-
cial processes. In liberta-
rian struggles the pamphlet
has been and remains a
forceful method of creating
a following and of defining
just principles.
The brochure, the pam-
phlet, has a role in defining
religious principles.
American Jewish Arc-
hives, superbly directed by
Dr. Jacob R. Marcus, with
the current co-directional
assistance of Abraham J.
Peck, collects the important
Jewish tracts, relating to all
factors in American Jewish
experience. When the
AJArchives also publish a
brochure, it invites special
interest.
Such a publication is
"Jews, Judaism and the
American Constitution."
It contain two important
essays, "The Confluence
of Torah and Constitu-
tion" by Prof. Milton R.
Konvitz, and "Jews and
Jewry in American Con-
stitutional History" by
Leo Pfeffer, American
Jewish Congress coun-
sel.
Pfeffer's covers a vast
area of Jewish roles in
battles involving separa ,-
tion of church and state,
capital punishment and
many other aspects involv-
ing constitutional problems
in which the AJCongress
and other civic protective
movements are involved.
On the church-state is-•
sue, important cases are
quoted and Pfeffer also
deals with matters relating
to the released time issue.
Unified Jewish efforts in
_ dealing with such litigation
when challenges reached
the courts are reviewed in
the Pfeffer essay. Pfeffer
mentions the successful ef-
forts of the AJCongress in
the suit on behalf of a
Jewish parent for an injunc-
tion against diStribution of
the Gideon Bible in New
Jersey public schools.
* * *

Jewish Law and
the Death Penalty

Because the death pen-
alty is a matter of great
interest and concern at this
time, the attention given
the issue by the Jewish
community is vital. The re-
sort to Jewish traditional
principles on this subject
and the Jewish attitude on
capital punishment, as out-
lined in the Pfeffer essay, is
most significant. Quoting
him: "It was, and still is not
uncommon for the Jewish
briefS to cite, quote and rely
not only on American legal
authorities, but also upon
Talmudic scholarship.
"In a capital punishment
case, Maxwell v. Bishop (398

U.S. 262-1970) the amici
curiae brief submitted to the
Supreme Court jointly by
the Synagogue Council and
the American Jewish Con-
gress is an example of this.
Because of the significance
of this development in
American Jewish history a
rather lengthy quotation
from the brief is merited.
Pages 3-4 of the brief read as
follows (footnotes omitted):
" 'The definition and the
application of the laws of
evidence and criminal pro-
cedure in the Talmud made
conviction in a capital case
practically impossible.
Thus, for example, it is
noted that if an accused
were to be convicted in a
capital case the verdict
could not be unanimous, the
reasoning of the rabbis
being that that if not a
single one of the 23 judges _
constituting the court
(Sanhedrin) could find some
reason for acquittal there
was something fundamen-
tally wrong with the court.
" 'Circumstantial evi-
dence was not sufficient
to sustain a verdict in a
capital case; two eye-
witnesses, subjected to
rigorous cross-
examination by the court,
were required. Morever,
the witnesses had to tes-
tify that they warned the
accused before the crime
that the-act was prohited
and what its penal con-
sequences were. (Talmud,
Sanhedrin, 40b et seq.)
"In view of these pro-
cedural requirements it is
evident that conviction in a
capital case was virtually
impossible. But perhaps
most indicative of the rab-
binic view of capital
punishment is the following
from the Talmud (Makkot,,
Chap. 1, Misna 7):
" 'A sanhedrin which exe-
cutes a criminal once in
seven years is called a
`court of destroyers.' Rabbi
Eliezer ben Azariah states
that this is so even if it exe-
cutes one every 70 years.
Rabbi Tarphon and Rabbi
Akiba stated that if they
had been members of the
sanhedrin no one would
ever have been executed.'
"One Rabbi, Simeon ben
Gamliel, expressed a con-
trary view reflecting the
most common justification
for capital punishment,
namely its deterrent effect.
If the views of Rabbis Tar-
phon and Akiba were to
prevail, he said, 'they would
increase murders in Israel.'
However, later commen-
taries note that Rabbi Si-
meon's was a minority view
and that the others ex-
pressed the normative opin-
ions of the rabbis.
Hilkoth
(Maimonides,
Sanhedrin, xiv v.)"

Torah and the
U.S. Constitution

It is the Konvitz essay on
the "Confluence of Torah
and the U.S. Constitution"
that there is fascination in
an exciting record of Jewish
civil and religious liber-
tarianism.
Prof. Konvitz commences
with an emphasis on the
importance of the Oral Law
as related to the written:
"When we speak or think
of Torah, usually the refer-
ence is to Sefer Torah, the
scroll comprising the first
five books of the Bible; that
is, we refer to a written
document. But for millenia
there has been in normative
Judaism the firm belief that

legendary, is a most in-
spirational lesson in the
Konvitz thesis. He illus-
trates his point about the
oral Torah relating to the
written with the follow-
ing:
"The Talmud relates that
when Moses ascended
heaven, where he was to be
taught the Torah, he saw
God placing small crowns
on top of the letters in the
Torah. He asked why the
crowns were necessary, and
he was told that one day a
great scholar named Akiba
will live, and he will be a
great, creative legal genius
who will derive mounds and
mounds of laws from each
crown.

LEO PFEFFER

MILTON KONVITZ

(Introduction to the Philos-
ophy of Law, 1922, P.1).
"Thus the Talmudic
legend says: The Torah is
stable; it was all revealed at
Sinai; yet it must not stand
still. Just as there was a
place for Moses, so, too, was
there a place for Akiba —
and for Hillel and Sham-
mai, for Maimonides, for
Saadye Gaon, and for Rashi.
"Emergence of law is
possible because man
has been given intelli-
gence to meet the chal-
lenges of life, not
mechanically, instinc-
tively, like the ant or the
bee, but creatively,
through the work of his
rational powers.
"Akiba was great because
he had a great mind, given
to him as a gift by his
Creator. Judgments and de-
cisions must be reached,
then, by the use of logic,
knowledge, inquiry, intelli-
gence.
"By the powers of his
mind, Akiba, as it were,
transcended the confines of
his classroom and reached
Moses at Sinai and heard
what the judgment should
be, and thus Akiba's deci-
sion was 'a law transmitted
to Moses at Sinai.' Thus was
the law stable and yet had
_ not stood still."
* * *

just as there is the written
"Moses was astounded
Torah Legends and
Torah, so, too, there is the that this would be possible,
Rabbinic
Discourse
oral Torah (Torah she bal- that any man could be so
Another legend in the
peh); that just as there was creative, so he asked God if
at Sinai the revelation of he could not have a pre- Konvitz essay adds an in-
vision of Akiba. 'Show me spirational thrill for the
the oral Torah.
reader in the traditional
"Indeed, Samson Raphael Akiba,' he said.
Hirsch contended that the
"God complied, and Moses lessons related here. Prof.
revelation of the oral Torah was placed in Akiba's Konvitz writes:
"Another legend in the
preceded in time the giving yeshiva, where he sat down
of the written Torah to in the 18th row of students. Talmud gives expression to
Moses, for, he argued, the Moses did not understand this paradoxical process.
written Torah would be in- what was said, he could not The Talmud relates that
comprehensible without a follow the line of argument, one day there was a dispute
knowledge of the oral teach- and he grew weak in spirit between Rabbi Eliezer and
ing. For example, the writ- from a sense of inferiority his colleagues. He tried by
every argument to win
ten Torah states:
and frustration.
them
over to his side but
Six days you shall labor,
"But when the class
success. Then he
and do all your work; but the reached a conclusion and without
said
to
them
that if he is
seventh day is a sabbath to acknowledged the legal
the Lord your God; in it you decision, they turned to right, a certain miracle
shall not do any work, . . Akiba and asked him would occur. The miracle
occurred. But the sages
(Deuteronomy 5:13-14).
how did he know that this were not convinced.
"But when does the Sab- was the law.
"He resorted to two other
bath 'day' begin and when
" 'Master, how do you miracles, but still the sages
does it end: is it from sunrise know this?" they asked. He
to sunrise, or from sunrise said to them, "It is a law were not convinced. Then
to sunset, or from sunset to transmitted to Moses at Eliezer said that if he was
sunset? The text does not Sinai." When Moses heard right, heaven itself will
' prove it, and then a hea-
say.
this explanation, he felt at venly voice cried out that
"And what is 'work'? The ease again. (Menahot 29b).
the law always is as Rabbi
text does not say. Just as
"This charming legend Eliezer states it to be. At
you' must know the English
language before you can points up the proposition this point Rabbi Joshua rose
to his feet and cried out that
read a book in English, so that there is a creative prin-
you must know the oral ciple at work in Halakha, in the decision of the law does
Torah before you can under- the development of Jewish not rest in heaven.
"The Talmud then
law; that although the
stand the written Torah.
asks,
what did Rabbi
whole
Torah,
both
oral
and
"This, as I have said, has
Joshua
mean by this?
written,
was
revealed
to
been the belief in normative
Moses, paradoxically Rabbi And the Talmud pro-
Judaism."
The explanatory that Akiba's judgments and de- ceeds to give the answer
follows, the defining, of cisions had in them a new- in the words of Rabbi
his thesis with the illus- ness that would have sur- Jeremiah: 'That the
trative culled from the prised Moses himself had he Torah had already been
been present in Rabbi Aid- given at Mount Sinai; we
ba's classroom, yet they therefore pay no atten-
were of such a quality that tion to a voice out of
Moses would have accepted heaven, because Thou
them as integral parts of the hast long since written in
the Torah at Mount Sinai
Torah that he knew.
"The legend attempts to (Exodus 23:2) that one
express the paradox of the must be bound by the
legal process, which is, in vote of the majority.'
"Had the Talmud ended
the words of Roscoe Pound,
that the law must be stable, the story at this pdint, the
but it must not stand still. story would have been

amazing enough, but there
is an addendum which in-
tensifies the astonishing
wonderfulness of the
legend. The Talmud pro-
ceeded to add that Rabbi
Nathan met Elijah the pro-
phet, who, it was believed,
had never died, and Rabbi
Nathan asked him: 'What
did the Holy One, blessed be
He, do in that hour?' Elijah
answered: 'He laughed, say-
ing, 'My sons have defeated
me, My sons have defeated
me.'
"The point of this ex-
travagant legend is, of
course, that the power of the
law rests not on miracles,
not on supernatural events,
but on the intelligence, on
the God-given powers of the
mind."
Prof. Konvitz emphasizes
in his definitive essay that
"there is a common pool of
ideas that are shared, in
varying degrees, by the
Torah and American Con-
stitutional Law." He de-
clares that "of these ideas
perhaps the basic and most
significant is that of the
Covenant. It is one of the
most pervasive ideas of the
Bible, and one that has cut
deeply into American polit-
ical thought and institu-
tions."
Defining Covenant,
Prof. Konvitz points out
that "in the Bible the
word for Covenant is Be-
rit, which is probably, de-
rived from the word
meaning binding ... "
The following
supplementary definition in
Konvitz adds weight to an
immense thesis so well out-
lined:
"A second, and even more
important consequence of
the idea of covenant was its
obvious relevance to politi-
cal life. Just as the church is
created by covenanters, so,
too, the political order
comes into existence as the
voluntary creation of cove-
nanting members of society.
"Thus in 1620, the Pil-
grims aboard their sailing
vessel on their way to
Plymouth, entered into a
covenant, known as the
Mayflower Compact, in
which they stated:
We whose names are un-
derwritten . . . Do by these
Presents, solemnly and
mutually in the Presence of
God and one another, cove-
nant and combine ourselves
together into a civil Body
Politick .. .
"It is an extraordinary
statement, without prece-
dent in history; but it was
the most natural thing for
the Pilgrims to do, for it was
a direct and unavoidable
consequence of their invin-
cible belief in their cove-
nant theology. For how else
can human beings limit
their own freedom of action
but by freely entering into a
covenant among them-
selves?"

-

* * *
Bible Lessons
and the Puritans

Then there is the rela-
tively impressive conclu-
sion in the Konvitz thesis
(Continued on Page 6)