‘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
“A typical reaction I get from academics, those who have known me for a very long time, is that they didn’t know that I was Jewish,” Barnett told the conference. In fact, he almost didn’t get invited to the event, because the organizers didn’t know either, until a non-Jewish academic clued them in. Part of the confusion no doubt stems from Barnett’s last name, which was changed from “Kanefsky” at some point after his grandfather emigrated from Russia in the 19th century.
But another reason many mistake Barnett’s background is his center-right libertarian philosophy, which is largely at odds with the prevailing liberal outlook of most American Jews. “The stances that I take both politically and constitutionally,” Barnett said, “they don’t really associate with the Jewish position.” These include his advocacy for states’ rights over a stronger federal government, and for causes like gun rights. Yet for the Chicago native and former prosecutor, these positions are a natural outgrowth of his Jewish upbringing.
Barnett’s father, a strongly identified Jewish atheist, took the lesson of the Holocaust to be that individual rights needed to be protected against the tyranny of the majority, which could easily turn against despised groups like the Jews. For him and his son, the liberties guaranteed by the Constitution made the United States a “promised land” for Jews, who were protected by its curtailment of state power. And as one of four Jews in his high school—“where anti-Semitism was common and not all that well concealed,” he said—Barnett learned early to distrust the wisdom of the crowd. (At the time, he was even “highly skeptical” of Zionism, popular among his Jewish peers, which he thought was “a really bad idea to get all the Jews in one place where they could be more easily exterminated.”)
Today, Barnett sees his libertarian advocacy—with its emphasis on “locking in” constitutional rights—as an effort to “preserve the form of government that made the U.S. a haven for me and for my family,” especially “as the world is now shrinking for Jews” with the rise of global anti-Semitism. What we have in America, he cautioned the conference attendees, “is not to be taken for granted.”
Eugene Kontorovich, a professor of law at Northwestern University, is something of an oddity. He is a Russian Jewish immigrant—part of a community known for being both very Jewishly identified and very secular—and he is also an Orthodox Jew. I asked him how this happened. “It was illegal in the Soviet Union,” he explained. “But if the Soviet Union didn’t allow something, it’s probably a good thing—free markets! Religion!”
But Kontorovich was skeptical of non-Orthodox denominations, which seemed to him like modern inventions. “It’s like someone who was in a jail for 80 years,” he said. “He comes out and goes to see his family and they tell him, ‘Guess what? Jews don’t do Shabbat anymore!’ Now, I may never even have done Shabbat, but that’s crazy! It’s like some dystopian sci-fi movie.” The choice became between Orthodoxy and secularism, and he opted for the former.
Zionism also comprises a large part of Kontorovich’s religious outlook. When not teaching at Northwestern, he lives in Israel, where he works at a think tank and serves as the Lady Davis visiting professor at Hebrew University. As a scholar, he studies the creation of states and the shifting of national borders, but for him the establishment of the Jewish state and return of millions of Jews to its land is an event of spiritual significance, as well as intellectual interest. “Nothing like it has happened in the history of mankind,” he said. “A people has not returned to their borders after 200 years, let alone after 500 or 1,000 or 2,000. You can have miracles in history too—that is to say, that aren’t physically miraculous but defy all historical processes.” But “there’s a book that said it would happen,” he continued, “so when this starts happening, I think it’s a good reason to start taking the other things that the same text says with at least some seriousness.”
At the conference, Kontorovich closed with an amusing anecdote. “When we came to the United States, for a long time my family was holding in a very unusual place,” he told the audience. “We were observing the entirely optional Fast of the Firstborn, the day before Passover, before we were having a Passover Seder.” Likewise, the family fasted on Yom Kippur long before it began celebrating Rosh Hashanah. How did this happen? Kontorovich’s father had walked into a synagogue before Passover and asked what he ought to be observing. He was informed that there was an optional fast that day, to be followed by a festive meal at night. But being an old-world Russian, he presumed that the fast was authentic while the meal was a characteristically exuberant American innovation. And so for years, the Kontorovich family observed fast days and not holidays.
The moral of the story? “It’s amazing how quickly things can break down and get completely turned around,” Kontorovich said, “and it’s a testament to how well we’ve done in our 2,000 years of exile that it hasn’t been much worse.”
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