To paraphrase Dr. McCoy of the original Star Trek series – ‘I’m a rabbi, not a lawyer!’

That thought came to me four years ago when I watched Khir Khan, an Muslim lawyer and father of an American soldier killed in combat, speak at the Democratic National Convention about his love for America, faith in the U.S. Constitution, and disdain for Donald Trump’s Islamophobia and bigotry. Mr. Khan said before the nation:

“Donald Trump, you are asking Americans to trust you with our future. Let me ask you: Have you even read the U.S. Constitution? I will gladly lend you my copy. In this document, look for the words ‘liberty’ and ‘equal protection of law.’”

Mr. Khan then pulled a copy of the Constitution from his breast suit pocket and showed it to the nation.

I confess that I had never read the Constitution. Mr. Khan’s speech inspired me to do so, but I wanted a teacher to guide me because the Constitution is an imperfect document and the complexities of American jurisprudence require experts to interpret it.

A few months ago I learned of a book entitled We the People – A Progressive Reading of the Constitution for the Twenty-First Century” by Erwin Chemerinsky, dean of the UC Berkeley Law School and a noted legal scholar (a disclaimer – Erwin was for a brief period a member of my congregation in Los Angeles until he accepted the position as dean of the law school at Duke University. From there he returned to California to become dean of the UC Riverside law school, and then to UC Berkeley’s law school in 2017. I have followed him mainly through his op-eds in the LA Times and always found what he had to say instructive and clarifying).

I just finished reading Erwin’s clear and concise book and recommend it to anyone interested in gaining a progressive understanding of the Constitution, its amendments, and many key rulings in light of the multiple challenges Americans have faced historically and today given the new reality of a nine-member Supreme Court dominated by six conservative justices.

Erwin lays out his case for a progressive vision of the Constitution by shining a light on the core values articulated in the Constitution’s Preamble with one additional core value as advanced in the 12^th, 13^th, 14^th, and 19^th Amendments outlawing slavery, giving citizenship and the right to vote to former slaves, and granting suffrage for women. Here is the Preamble which I learned by memory in elementary school before reciting the pledge of allegiance:

“We the People of the United States, in Order to form a more perfect Union, establish Justice, ensure 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.”

The Preamble, Professor Chemerinsky notes, is often ignored by conservative legal scholars. But, he affirms, the four values under-girding our American constitutional system are contained in it and ought to be applied to every case coming before the Court: a democratic government, effective governance, justice, and liberty. To these he adds a fifth – equality – based on the above amendments.

Erwin considers the weakness of the “originalism” argument (Justices Scalia and Thomas advocated for it), the differences between liberal and conservative opinion, and how a justice’s political values often affect his/her rulings despite what he/she says in Senate confirmation hearings.

He discusses free speech and corporate funding in elections (i.e. Citizens United), gun ownership and the right to carry weapons of mass destruction, the unfairness of the electoral college giving inordinate power to small states, the sometimes lack of majority rule in national elections, the distortions brought about by partisan gerrymandering by state legislatures, the suppression of the vote and racial discrimination, equal protection, states’ rights, federalism, the separation of powers doctrine, just policing, fair trials, punishment and unfair incarceration based on color, the unconstitutional death penalty as cruel and unusual punishment, unfair sentencing, prison reform, the right to privacy, freedom of choice, due process, separation of church and state, racial discrimination and the constitutional justification for affirmative action, minimum entitlements, and judicial enforcement.

In his conclusion, Erwin counsels against despair even in light of the current make-up of the Supreme Court:

“It is easy to become demoralized when confronted with a very conservative Court that likely will remain that way throughout most of the rest of my life. The temptation is to give up on the idea of using the Constitution for social justice. But such surrender is shortsighted. Arguments that today fall on deaf ears can be the basis for future action. A constitutional right to minimum entitlements is not going to happen in the foreseeable future. But if it will happen at all, it will result from progressives developing and defending and fighting for this vision for the Constitution.”

I recommend this wise and clearly written volume to anyone seeking a progressive understanding of past, current, and future rulings of the Supreme Court.

On the winter solstice most years, the darkest day of the year, I’m reminded of the children’s memorial at Yad Vashem, Israel’s Holocaust Museum in Jerusalem. One enters into the darkened hall of mirrors and hears the names recited of the 1.5 million children murdered by the Nazis. Only a few candle flames are in fact burning, yet the visitor sees thousands of flames reflected endlessly in the mirrors. Each flame represents a single soul of a murdered child flickering perpetually in the ether of memory.  

Winter is my least favorite season of the year because of the long nights, low angle of the sun, and the cold. Yet, as the winter solstice comes and goes, I know that spring soon will arrive, that the days will lengthen, the sun will rise higher in the sky, new growth will sprout with the grasses and trees, and flowers will appear again.

Though the immense tragedy caused by the coronavirus here and around the world is different in kind and extent from the death and destruction during the Holocaust, I think this year also of all who lost their lives and loved ones this past year.

The Hungarian Jewish poet Hannah Senesh left pre-statehood Palestine, parachuted into Yugoslavia on March 14, 1944, and crossed the Hungarian border to save Jewish children in her native land. She was immediately arrested by Hungarian gendarmes, and because she was carrying a British radio transmitter, was interrogated, tortured, tried, and executed by firing squad at the young age of 23 years on November 7, 1944. Among other famous poems set to music in Israel, Hannah wrote these words as an epitaph for the victims:

“There are stars whose radiance is visible on Earth though they have long been extinct. There are people whose brilliance continues to light the world though they are no longer among the living. These lights are particularly bright when the night is dark. They light the way for humankind.”

It is an understatement to say that American democracy was challenged by the sitting United States President aided and abetted by a sycophantic Republican Congress and 74 million Republican voters who followed a president lockstep despite his autocratic cravings and blatant disrespect for core democratic institutions and norms.

The following reflections about autocracy, oligarchy, democracy, journalism, the media, an informed public, and public morality are instructive as we look back upon what we Americans experienced during these past four years and in our 2020 election. Great damage was done to our democracy and it likely will take time for the nation to heal from the chaos and abuse.

“There is a story, often told, that upon exiting the Constitutional Convention Benjamin Franklin was approached by a group of citizens asking what sort of government the delegates had created. His answer was: ‘A republic, if you can keep it.’ The brevity of that response should not cause us to under-value its essential meaning: democratic republics are not merely founded upon the consent of the people, they are also absolutely dependent upon the active and informed involvement of the people for their continued good health.” -Dr. Richard Beeman, professor of history and dean of the College of Arts and Sciences, University of Pennsylvania

“It is acknowledged, namely, that there are in the world three forms of government, autocracy, oligarchy, and democracy: autocracies and oligarchies are administered according to the tempers of their lords, but democratic states according to established laws.” – Aeschines (389-314 BCE), Greek statesman and orator

“Journalism is one of the devices whereby industrial autocracy keeps its control over political democracy; it is the day-by-day, between-elections propaganda, whereby the minds of the people are kept in a state of acquiescence, so that when the crisis of an election comes, they go to the polls and cast their ballots for either one of the two candidates of their exploiters.” – Upton Sinclair (1878-1968), writer

“I know a whole generation has been raised on the notion of multiculturalism; that all civilizations are just different. No! Not always. Sometimes things are better! Rule of law is better than autocracy and theocracy; equality of the sexes, better; protection of minorities, better; free speech, better; free elections, better; …Don’t get so tolerant that you tolerate intolerance.” -Bill Maher, satirist, commentator, television host

As so many Americans watch with horror and dismay the blatant anti-democratic moves by Trump, 17 state Attorneys General, 100 Republican members of Congress, and right-wing talk show hosts, the words of the Russian Nobel Laureate and human rights activist Aleksandr Solzhenitsyn (1918-2008) are chilling:

“Let us not forget that violence does not live alone and is not capable of living alone: it is necessarily interwoven with falsehood. Between them lies the most intimate, the deepest of natural bonds. Violence finds its only refuge in falsehood, falsehood its only support in violence. Any man who has once acclaimed violence as his method must inexorably choose falsehood as his principle.”

Once Trump loses his appeal to the Supreme Court (and I pray that he will), is violence in our streets inevitable? That’s the next threat our democracy will be forced to confront.

Federalist Paper No. 51 (by James Madison or Alexander Hamilton) anticipated Trump’s effort at subversion of our republic with these words:

“If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself. A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions.”

These are dangerous times indeed!

Note: Since writing this blog another 26 Republican congressional representatives have shamelessly joined the law suit and the Supreme Court dismissed it unanimously as without basis. Now we’ll have to wait and see what Trump and his most violent-prone sycophants do.

In the days following the 2020 election, I was reminded of a meeting a number of years ago of the Central Conference of American Rabbis in Jerusalem. Yossi Klein Halevi (senior fellow at the Shalom Hartman Institute in Jerusalem) spoke to 200 Reform rabbis from around the world and characterized two broad psychological, emotional, moral, and political orientations of Jews based on the Purim and Exodus narratives. He acknowledged that most of us embrace and reflect both attitudes to a lesser and greater degree, but from time to time emphasize one over the other depending upon circumstances.

In my blog at the Times of Israel, I discuss why I believe that the Purim-Pesach continuum helps to explain why American Jews voted overwhelmingly for Joe Biden, and why Israeli Jews overwhelmingly preferred Donald Trump “from the standpoint of Israel’s interests.”

See https://blogs.timesofisrael.com/purim-jews-pesach-jews-and-the-2020-election/