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‘These Ideas Haunt You’: At Conference, Scholars Link Lawyering With Jewishness

Jack Balkin, Richard Primus, Randy Barnett, and Eugene Kontorovich talk about how Judaism influences their work

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(Photoillustration Tablet Magazine; original photos Wikimedia Commons)
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Most academic conferences don’t feature scholars reading their bar mitzvah speeches, playfully referring to each other with rabbinic titles, or reminiscing about the influence of their childhood Passover Seders on their intellectual output. But the “Judaism and Constitutional Law” conference, which took place last week at DePaul University in Chicago, was not a typical academic affair.

The all-day event invited elite law professors from across America to talk about how Judaism had influenced their understanding and practice of the law. Participants tackled questions like: What does a rabbi’s sermon share in common with constitutional argument? How might libertarianism and its emphasis on personal freedom draw upon the Jewish historical experience? And how have efforts to combat anti-Semitism influenced constitutional theory?

The conference was the brainchild of DePaul law professors Roberta Kwall and Steven Resnicoff, who founded the university’s Center for Jewish Law and Judaic Studies and who specialize in the intersection of Jewish and secular law. Their own Jewish stories are unusual: Kwall grew up Conservative and had dreams of becoming a cantor—but chose to pursue a career in law in part because the Jewish Theological Seminary did not yet admit women. Resnicoff was raised in a largely nonobservant home, but discovered Orthodoxy while a student at Yale Law School and went on to receive rabbinic ordination from Rabbi Moshe Feinstein, the preeminent American Orthodox authority of the 20th century.

Beyond the substance of each talk, the conference offered a platform for the celebrated legal scholars Kwall and Resnicoff brought together to open up about details of their own spiritual lives that otherwise would never have found expression at the lectern. For one day, being a “Jewish lawyer” was not a punchline but a prompt for personal reflection. I took advantage of this unique context to learn more about the Jewish thinkers who have shaped American legal discourse—liberals and conservatives, Orthodox and atheist, and much in between.

***

One of the liberal lions of the legal academy, Jack Balkin has educated scores of lawyers in the halls of Yale Law School, many of whom were in attendance at the conference. (One of them, Harvard Law professor Noah Feldman, referred to him as mori v’rabi, rabbinic jargon for “my master and teacher.”) He runs one of the most popular liberal legal blogs, the eponymous Balkinization, has published over a hundred articles, and written or edited nearly a dozen books. Balkin also grew up Orthodox, though not particularly observant, and attributes everything from his literary style to his theory of constitutional interpretation to his “very substantial Jewish education.”

In 2010, when Balkin blogged the 10 books that have most influenced him, two of those he listed were traditional Jewish texts: the Passover Haggadah and the rabbinic moral tract Pirkei Avot, or Ethics of the Fathers. At the conference, he explained these choices. “My family would recite the Passover Haggadah cover-to-cover every year,” he said. It was a substantial and deeply traditional undertaking. “This was not the kind of Passover that now has become customary in liberal households where you stop and you say how sorry you are for the Egyptians and you relate it to something that’s going on in the current climate.” As a result, he said, the Haggadah was burned into his memory. “It has everything in it,” he noted.

In particular, as Balkin began writing professionally, he turned to the Haggadah’s Hallel for guidance. “The structure of Hebrew poetry, the parallelism, the allusions—all of this is just sort of burned into the way I would actually go about writing later on, and many of the allusions work themselves into my scholarship,” he said. Sometimes, the reference is explicit: In 1987, Balkin opened one of his earliest articles in the Yale Law Journal with a quote from the Hallel.

Other Jewish texts insinuated themselves into his thinking in a similar fashion. “When I was a teenager there was literally nothing to do on Saturday at the synagogue but read,” he recalled. “What did they have available? Well, they had commentaries on the Torah. They had Pirkei Avot. They had the Siddur.” And so Balkin read each of them over and over again, and they shaped not just his conception of Jewish thought, but his notion of how texts should be read—leading him to develop a theory of constitutional interpretation with many parallels to rabbinic literature.

“Without actually deliberately trying to do it, these particular texts and themes became part of my work,” he said. “These ideas just sort of haunt you.”

***

Richard Primus, a professor at the University of Michigan, has been called a “Little Supreme”—a potential liberal high-court justice-in-waiting. A former Rhodes Scholar—a distinction he shares with his long-time intellectual companion Noah Feldman—Primus’ undergraduate thesis at Harvard dealt with the conflict between Zionist and anti-Zionist thought. At Oxford, he attended the Simchat Torah celebration where his friend Cory Booker, now the Democratic junior senator from New Jersey, was first introduced to Judaism. Primus went on to Yale and then became a clerk for Justice Ruth Bader Ginsburg.

At the conference, Primus discussed “Constitutional Homiletics”—or how both rabbis and constitutional scholars use legal arguments to reconcile traditional texts with a community’s contemporary values. “A winning constitutional argument,” he wrote in the paper’s abstract, “like a winning d’var torah, is one that makes the text and the tradition line up with the audience’s normative values, rather than forcing the audience to experience tension between those sources of authority.”

Primus’ own familiarity with divrei torah and Jewish texts was evident throughout his remarks, which were peppered with Hebrew and Aramaic terms commonly employed in the beit midrash. When we talked after his panel, he attributed this grounding to his family’s eclectic Jewish commitments as much as to the textual grounding of his modern Orthodox education. His father had attended rabbinical school at the Jewish Theological Seminary but left before ordination to pursue an academic career, eventually becoming a professor of theology at the University of Notre Dame. “He was, I like to say, the Jewish studies faculty of the country’s leading Catholic university,” Primus said with a smile.

In Indiana, the family practiced a rich Judaism without labels. “My family were members of every synagogue in South Bend—Orthodox, Conservative, Reform, Reconstructionist—so I grew up without a denominational identity,” he said. Another significant Jewish influence came from his mother’s father, a Holocaust survivor who—unlike many—refused to avoid the subject with his grandson. “He was the most optimistic person I ever knew,” Primus said. “And he talked about the Holocaust all the time.”

Primus also spent significant time in Israel, where he lived for a year after high school, often finding himself in the home of his mother’s Israeli cousins in Tel Aviv, who were all religious Zionists. “Many of the divrei torah that taught me the form of a d’var torah were said at their table,” he said.

Unlike many speakers at the conference opened with personal anecdotes, Primus dived right into his legal presentation on the parallels between divrei torah and constitutional argument. But anyone who knows where he’s coming from, he told me, “understands why my paper is in fact autobiographical, just not on the surface.”

***

Randy Barnett, a professor of legal theory at Georgetown and director of its Center for the Constitution, is known for many things, but being Jewish is not one of them. He has been called a “rock star” in the libertarian world, and in 2012, the New York Times dubbed him the “godfather” of the constitutional challenge to President Obama’s health care reform. But few are aware that Barnett traces much of his political and constitutional outlook to his Jewish background.

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‘These Ideas Haunt You’: At Conference, Scholars Link Lawyering With Jewishness

Jack Balkin, Richard Primus, Randy Barnett, and Eugene Kontorovich talk about how Judaism influences their work