Category Archives: Law

Are They His Adornments?: On Guns and Masculinity

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This is a piece that I published a few years ago in Sh’ma: A Journal of Jewish Responsibility in an issue on gun control. In light of the recent shootings I thought it might be of interest.

When I went to Israel in the mid-1970s to study in yeshivah for a year (which became two years, then five years, then aliyah and a life-long commitment, then twelve years), there was a moment ritualized in the surety of its repetition with every new cadre of American students.

As I was studying at a hesder yeshivah, all of my Israeli contemporaries were either serving or on the brink of serving in the Israeli army. As a result of this, our Israeli colleagues in the bet midrash and with whom we shared dorm rooms and lunch tables were — when on security detail — armed. This was quite a change from the urban and suburban lives that my American colleagues and I had led prior to our time at yeshivah. The reaction to this situation is fascinating in hindsight. The overwhelming response was awe. Here’s the ritualized moment: At some time during the year, almost every one of the Americans would borrow one of the Israeli students’ weapons (usually an M16 submachine gun), unloaded, and be photographed holding the gun. There were ancillary moments to this central ritual such as acquiring IDF shirts or hats or T-shirts. However, all were secondary to the moment of posing with the weapon. Continue reading →

Obamacare, SCOTUS and the monetization of our morals

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Justice Roberts surprised everybody yesterday by joining and writing the opinion for the majority in this week’s Supreme Court decision to uphold most of the Affordable Care Act (ACA). I want to suggest that his decision is to be appreciated by the progressive community not only for upholding the act but also for shifting the legal conversation.

The decision was a major step forward toward creating a more perfect union, toward helping to forge a society in which we all share obligations toward those who cannot fend for themselves, toward a vision of a just society which honors each and every person as being created in the tzelem elohim/the image of God. This experiment in democracy—in which we have given our trust and loyalty, and by way of which we have pledged to each other our lives, our fortunes and our sacred honor—has taken a major stride forward in affording tens of millions of people the ability to have health insurance and thereby health care. At bottom, upholding the constitutionality of the ACA saved lives. People who otherwise might have died, will not die because they will have access to doctors, medicines and life saving treatments.

However, the Roberts decision in my opinion also set the legal conversation about civil and human rights on a firmer moral ground. Roberts sided with the conservative wing of the court to say that the ACA was not constitutional under the commerce clause. The commerce clause, is the clause in “the Constitution [which] authorizes Congress to ‘regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.’ (Article I, sec. 8, cl. 3)” Further, and more importantly “[o]ur precedents read that to mean that Congress may regulate ‘the channels of interstate com­merce,’ ‘persons or things in interstate commerce,’ and ‘those activities that substantially affect interstate com­merce.’” (quoting from Justice Roberts’ opinion p. 4) Roberts upheld the ACA based on Congress’s power to “lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States.” (U. S. Const., Art. I, sect. 8, cl. 1) Roberts interprets this straightforwardly that: “Put simply, Congress may tax and spend.” (Roberts’ opinion p. 5) Continue reading →

On Violence, the Law and Justice (pt. 1)

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A meditation on a sugya (talmudic discussion) that I am currently teaching and thinking about.

Babylonian Talmud Baba Bathra 34b
There was a certain boat that two [people] were fighting over.
This one says: “It is mine.” And this one says: “It is mine.”
One of them came to the court.
He said: “Seize it until I bring witnesses that it is mine.”
Do we seize it or not?
Rav Huna says: “We seize.”
Rav Yehudah says: “We do not seize.”
He went.
He did not find witnesses.
He said: “Release it. The one who is stronger will prevail.”
Do we release it or not?
Rav Yehudah says: “We do not release.”
Rav Papa says: “We release.”
The law is that we do not seize. If we do seize we do not release.

What is it about these two men that engages the curiosity? They, both of them, lay claim to the same boat or barge—or, later, piece of land—and neither can draw down the gods of the law through the sacred ritual of evidence to prove his side. The boat lays between them in a nether space, neither here nor there—bodies of water not being owned by one or the other. The turn to the court is of last resort, it seems. “Intervene” is the cry of the one, certain in his ability to scare up a witness, a scrap of paper that will tilt the scales, a proof incontestable which will move the boat to his possession. Ownership, the ability to bond with inanimate objects in a manner signaling “mine own”—”part of me.” And are they? And how are they? Land especially it seems floats through the dark arts of transferal of ownership without transformation, for how would it? Its bond with its owner more sorcery than sophistry. At the last, it is violence, is it not, that bounds one’s property as part of one’s self. Continue reading →