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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.

“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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‘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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