By Yonoson Rosenblum | MAY 31, 2022
A fundamental commonality between the United States and the Jewish People
David Goldman and others have pointed to a fundamental commonality between the United Stations and the Jewish People: Both nations are founded on a covenant, not on blood and soil.
The Jewish covenant was forged at Sinai, an event that we will celebrate a few days from now on Shavuos. Just as our ancestors entered into a covenant with Hashem based on their acceptance of mitzvos, so too any person who commits to the observance of mitzvos in the same fashion is eligible to become a full-fledged member of the Jewish People today.
Similarly, citizenship in America never depended exclusively on one's ancestry or longtime presence. America is, after all, a land of immigrants, composed of people from all corners of the earth. The one fundamental requirement for becoming a citizen is an oath of loyalty to the United States and to the Constitution.
Americans have traditionally been bound by their constitutional faith and belief in the wisdom of the Founders. They studied in school the Founders' vision of divided and limited government, and read the best arguments in favor of the arrangement entered into in the Federalist Papers.
Of late, however, the parallel between the Jewish devotion to Torah and American's constitutional faith has been waning fast. During the Watergate hearings my first year in law school, Senator Sam Ervin would frequently pull a well-worn copy of the Constitution and read from it.
Even then his reverence for the Constitution was a bit quaint. I never managed to read the entire document in law school — and I wanted to teach constitutional law. And I would be surprised if even a handful of classmates did. But few would have dismissed the Constitution, as did one current Yale law student recently, as a "document drafted by wealthy white men," or argue that the Founders "did not codify rights for anyone other than themselves," as if there were no Bill of Rights.
Another current YLS student described classmates who are members of the Federalist Society — in which Yale Law graduates Justices Samuel Alito and Bret Kavanaugh have been active — as conspirators in a "Christo-fascist political takeover," and wondered "why are they still coming to our parties [and] laughing in the library... with precious few social consequences and without being subjected to unrelenting daily confrontation?" Another proclaimed, "Democratic institutions will not save us. Now is not the time for 'reform.' "
At least one of these law students enthusiastic about burning the place down will be interning for a prominent federal judge this summer. Apparently, it did not occur to these future advocates that there might be value in debating the "originalist" understanding of constitutional interpretation against other approaches, or in reasoned debate at all. Long forgotten is John Stuart Mills's trenchant comment, "He who knows but one side of an argument knows not even that."
The call for ostracizing conservative students is of a piece with the recent actions of 120 Yale Law students to prevent a Christian lawyer from presenting her position at a Federalist Society event. Since the woman in question has prevailed nine times in the Supreme Court, one might have thought that those eager to advance another legal opinion would have seized the opportunity to hear and challenge arguments that they are likely to confront one day as lawyers. But no.
No wonder that a prominent law professor told Bari Weiss after the leak of Justice Alito's draft opinion overruling Roe v. Wade, an unprecedented breach of confidentiality, "To me, the leak is not surprising, because many of the people we've been graduation from schools like Yale are the kind of people who would do such a thing." Like the anarchist Stavrogin in Dostoyevsky's The Possessed, "They think that everything is violence. And so everything is permitted."
Even if Yale were not annually rated the country's top law school, this mental cast would be cause for concern. That ranking only makes the type of graduates it is producing a matter of greater concern. As Andrew Sullivan puts it, "We all live on campus today." Students don't grow up and become more nuanced; they don't discover new value in long-existent institutions or patterns of behavior, or find something to be said for reasoned debate. Rather they dictate the future.
AND WHERE DOES THAT LEAVE THE U.S., once bound together by that constitutional faith set forth in historian Louis Hartz's The Liberal Tradition in America, which allowed America to avoid the bitter class and ideological divisions of Europe?
Psychologist Jonathan Haidt, in an April piece in the Atlantic, "Why the Past 10 Year of American Life Have Been Uniquely Stupid," finds the collapse of the Tower of Babel to be the best metaphor for that ten-year period. "We are disoriented, unable to speak the same language or recognize the same truth. We are cut off from one another and from the past."
The problem is not just the factionalism of which James Madison warned in Federalist No. 10, without any mediating institutions to keep things from coming to an instantaneous boil. Rather it is the "fragmentation of everything. It's about all that had seemed solid, the scattering of people who had been a community... not only between red and blue, but within the left and within the right, as well as within universities, companies, professional associations, museums, and even families." (We will discuss in coming weeks some of Haidt's suggestions for reversing that fragmentation through procedural reforms of the tech platforms that fan it.)
When trust has been lost, as in the publicizing of a draft opinion of the Supreme Court, whether in private or public affairs, it is almost impossible to restore fully.
IF, HOWEVER, the American covenant is fracturing, it seems to me that something quite the opposite is occurring within that community (or communities) that still order their lives around Torah.
I am now back in America for the first time in nearly three years. And while I am unqualified to comment on all the various ways in which Covid affected communal life based on my two-week visit, one thing appears clear to me: Thousands of Jews took advantage of Covid to increase both the quantity and quality of their Torah learning. (And I should add that apart from one brief foray into Boro Park for some long-delayed suit shopping, I was not in what would be described as yeshivish communities.)
Everywhere I went, all the talking was in learning — of the proliferation of daf yomi shiurim being offered by Jews from various walks of life, of the means being developed to foster mastery and retention of material learned, or of new nighttime kollelim for balabatim, many of them with regular tests.
In Teaneck this morning, I could say for perhaps the first time with confidence (not just faith) that the baal tefillah said every word of the long Tachanun. On this trip, I watched a lawyer in one of the country's cutting-edge firms learning Teshuvos Rabi Akiva Eiger until the wee hours of the morning with his chavrusa. Another friend — a Harvard-trained doctor but without a day of formal yeshivah learning — has been taking off an hour or more every afternoon to daven in a yeshivah near his hospital and to learn with bochurim for years. With another chavrusa, he has been learning Aruch Hashulchan for well over a decade. He has now resigned his prestigious position in large part to devote more time to learning.
When great roshei yeshivah come from Eretz Yisrael, hundreds flock to hear their Torah. And many balabatim receive the shiurim of leading roshei yeshivah and learn them with chavrusas.
While I am depressed by the loss of the American covenant, and view the effects of its passing as unsettling for Jews, it is a source of inspiration that it is the bris olam (eternal covenant) of Torah that remains strong after more than three millennia, while the former is barely holding on after less than 250 years.