Constitutional Rights?

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    From a halakhic perspective, do you consider the Constitution’s and Declaration of Independence’s assertion that the “rights” it enumerates are inalienable because they exist in natural law and were established by G-d to be acceptable or unacceptable? If unacceptable, how does this affect the way you approach the US constitution?


    It isn’t the Torah view.


    Acceptable. If unacceptable, a sovereign country can make their own definitions. And the people of that country have to live with it. Once It becomes deadly to significant portion of it’s inhabitants, the ruling class has endangered their own rule.

    Reb Eliezer

    Dinei demalchusei dinei.


    I think You are mixing apples and oranges. The two are completely unrelated.

    The way you phrase the question doesn’t make sense “From a halakhic perspective, do you consider the Constitution’s and Declaration of Independence’s assertion that the “rights” it enumerates are inalienable because they exist in natural law and were established by G-d”

    Halachically there is no right to free speech , quite the opposite certain types of speech are explicitly forbidden. Halacha certainly does not support free exercise of religion.

    The US constitution is made by man. We (ie the authors/society) felt that we would be better guaranteeing free speech. So we did, there is no halachic support for free speech (the opposite is true). Furthermore IT is quite possible that one day it will be amended and Free speech will be limited, perhaps by a halachically inclined group (I’m sure some coffeeroom posters would support an “except lashon hara” clause to the right of free speech.

    The idea of “inalienable rights” is a legal fiction. In many western countries there ARE limits on Free speech, hate speech is not protected. Are they violating these “inalienable rights”? Many first amendment purists would say yes they are. Those countries would argue no they are not. Can you prOVE that G-d gave us the right to say whatever we want. OF course not, in fact depending on which Releigion you practice I can prove (or at least argue) the opposite

    I defer to the lawyers on this, But I think even in American law it i’snt really true that there are “inalienable rights” ie rights that can’t be taken away. I think if the constitution is amended they can be. Granted this is intentionally a complicated task. But I believe (correct me If I’m wrong )that theoretically the right to say free speech can be removed under the amendment process.


    I think the OP is mixing apples with ball bearings.

    Reb Eliezer

    Separation of religion and state is maybe the most important law on our books to protect our religion.


    Dear Ubiquiin,

    I am not a lawyer. And I think you are a lot more level headed than myself. But allow me to clear this up a bit.

    Your initial point is so on the mark, That I assumed the OP was only referring to the Declaration of Independence and The Constitution. Not the bill of rights. Those sights are transient and cand never really get the legitimacy of natural law.

    The Declaration of Independence lists ‘life, liberty, and the pursuit of happiness’ as unalienable rights. Those can never be taken away and are only in God’s hands. And His Natural Law supersedes all other law systems.


    Bava Basra discusses a case of butchers who agreed on a cartel – each works on certain days – amd slashed skins of the one who refused. Conclusion is, I believe, that if there is a Talmid Chacham, you should go and ask him to establish just rules al’pi Torah. If there is not such a chacham, a group is entitled to create their own rules and enforce them.

    Given, that there were not many yeshivot at the time, sounds like people naturally agreeing to certain rules is a right thing to do.

    There is also halakhic idea of testing laws with reality: midrabanans have a year to be accepted by people, and might be rescinded if not; Same Bava Basra describing history of Jewish education during 2nd Temple: fathers (not every father could teach), then Kohanim in Yerushalaim (not every father could drive), then regional schools for teenagers (too late, they would not listen, younger ones would not go that far by themsleves), and finally local competing, underpaid teachers for young kids. So, we search until we find what works. So, enjoy US system while it works…



    “‘The Declaration of Independence lists life, liberty, and the pursuit of happiness’ as unalienable rights. Those can never be taken away and are only in God’s hands. ”

    Even those rights, were not actually viewed as inalienable. Slavery was of course practiced for nearly a century after those words were written. Sure philosophers can argue that slaves weren’t included in the “all men” . The same philosophers can argue that doing x , y z isnt included either.

    More to my point though, as far as I’m aware the “the pursuit of happiness” is not a Torah ideal.
    Sure we would support the GOVERNMENT’s guarantee of the the pursuit of happiness, but that doesnt make it G-d given.


    Dear Ubiquitin,

    I always understand these rights as more basic than just physical actions or state of being. Life means not just that I cannot be killed without having committed. But that the way I perceive it to be mine is not contingent on you or everyone’s agreement to it being my life. Therefore, Liberty means the expression of my life is only required to fit my definition of Life. (We call this today Purpose. But then they had a much larger concept of Destiny than we do.) Slavery and Suffrage fit neatly into this juggling act, that although the individual can define his Liberty as personal autonomy, he is still bound by whatever rules [Even rules that are not enforced or written anywhere. Like basic manners.] society uses in his situation. So his window of personal autonomy is narrowed. But he can still achieve his own Liberty = Purpose through personal autonomy.

    Avi K

    Addir, it is definitely the Torah view. These are all derived from the tzelem Elokim.

    Ubiquitin, free speech is also not absolute in American law. Neither is freedom of religion. See Reynolds vs. United States 98 U.S. 145 (1878). However, as general statements, they are certainly correct. According to the Avnei Nezer (YD 312, 48) the secular authorities only deal with sins against one’s fellow. So really the discussion is about the limits and how they are enforced. as a practical matter, it is almost impossible for even the Sanhedrin to do punish them, idol worshippers, etc. as the procedural rules are almost impossible to satisfy.

    Always, please quote your source for the one-year rule. Look again at Baba Batra. It says “important person”. Rav Moshe. among others says that he does not have to be a talmid chacham but anybody appointed by the public. Much has been written aboutthis. Go and learn.


    Dear Avi,

    The freedoms of which you speak, are only because they are declared basic rights. Were they to be declared privileges, they would be restrained to certain conditions. Even though it follows it logically follows that they should be the way they are, they still need to be declared as law. This by itself is not comparable to Torah Laws which were declared before they could be followed join a legal system.

    As in “naseh v’nishma”.

    Avi K

    N0mesorah, wrong. The Declaration of Independence declares them to be Gd-given. The Bill of Rights was added because some wanted to strengthen the legal basis.


    Avi K, thanks for the correction Bava Batra 9a, Adam Hashuv indeed. Shita Mekubetzet says Adam Hashuv = Talmkid Chacham + community parnas. So, he seems not interested in the opinions of unlearned merchants and members of kollel, only those who are both learn and are in business. [O, horror ]. Rambam says “Haham Hasuv”, H’M 231:28 uses a similar term “haham hashuv mamono al ha tzibur” …

    R Moshe is mentioning these halakhot in the context of allowing modern labor unions. Not clear to me whether members of the union are same as independent artisans. Maybe in “skilled labor”.

    I see R Auerbach quoted as referring similarly that as in our days talmidei chachamim do not involve themselves in business affairs, then “it is as if there is no adam hashuv”. This is unclear, as according to definitions above adam hashuv is not just talmid chacham but also parnas, so it is literally there are no adam hashuvim, not “as if”.

    This leads to a question – is it a good/bad/pareve thing that we do not have an “adam hashuv” people? Gemorah seems to imply that it is better to have them. so, should people in yeshiva go into business, or should business people learn more to make more hoshuve people?


    Dear Avi,

    The Declaration of Independence is a letter to King George 3 justifying the Colonies right and obligation to break off of The British Empire. It has no legal implications. It has the same weight as this post.

    The Bill of Rights, are ten out of the first twelve proposed amendments to The Constitution Of The United States. The Constitution deals with the separation of powers. All the iOS and outs of government and bureaucracy. In short, that today we call The Swamp. Some paranoid people thought that having a balanced government meant that they would personal autonomy. [Go figure. They had Fake News then also.] To pacify them, John Madison schemed up twelve restrictions of government that the States could ratify. Of which ten were immediately ratified. The paranoid people wanted them in worked into the constitution. Madison merely added them to The Constitution. Thus they became amendments.

    They are obviously not God given rights, because then why would the States have to ratify them? And what about the first proposed amendment which is still not ratified? Read through the Bill of Rights. It is hard to even call some of them rights. Definitely not self evident or God given.


    Dear Always,

    You have a reasonable way of making yourself unreasonable.


    Reb Eliezer

    There is NO law that separates religion and state in the USA.
    The First Amendment to the Constitution reads:
    “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof….”

    This means Congress may not pass a law establishing an official religion of the USA.. We have no ‘Church of the USA’ while there is a ‘Church of England’ and the English Monarch it titular head of the Church.
    Government meetings, sessions of Congress are free to open with prayers. In 1962 The Supreme Court ruled that there could be no school prayer. The members of Congress are adults (although they may not act that way, while young schoolchildren are impressionable and subject to indoctrination, and peer and teacher pressure.

    The second clause says that Congress may not interfere with the practice of religion. This is what allows minorities such as Jews to observe and practice our religion in the USA.

    Personally, I believe the second clause is far more important than the first. I could care less if there was an official Church of the USA id inhabitants could not be required to belong or adhere to the religion and no tax dollars spent on its buildings and operations….as long as Congress could not interfere with the practice of other religion.

    The term Separation of Church and State is not in the Constitution, but was used by Thomas Jefferson to explain the operation of the two clauses of the First Amendment referring to religion.


    The Declaration of Independence and the US Constitution are two very different Documents written at different times by not necessarily the same people for different purposes.

    The Declaration says, we have had enough of being governed by the King of England and we thirteen colonies declare our Independence for the following reasons. The stirring terms such as: “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, …” are used to gather support for the action among the populace.

    Having won the Revolutionary War, the former Colonies, now 13 States have to organize a system of Government for the new country: The Constitution is that system of Government.
    The Preamble lays out why it is needed:
    “We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, 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.”
    It has no reason to talk of ideals such as ‘unalienable rights’ as we were no longer English colonies in revolt, we were now the People of The United States.
    Like many new systems, it needed tweaking, thus the Bill of Rights..Amendments 1-10 were added soon after adoption of the Constitution and the establishment of our three branch government.

    One should NEVER attempt to combine the purpose of two radically different documents

    Avi K

    Always, they should at least have advisors who understand business. I heard that some poskim say that the Antitrust Authority is considered an adam chashuv fo this. It would seem that there would at least be an issue of dina dmalchuta.


    Avi, interesting idea, but I understand the issue that we want Torah understanding of the issue if possible. If not, then use democracy as a second best option.

    Then, in our time, we don’t have a situation when an Adam Hashuv is not available – they are all a call or an email away. I don’t think it matters whether a talmid chacham is an economic expert himself or he asks an expert, as long as he has intellectual capability to deal with the issue. Every expert consults others, books, etc. The point is that the final decision is based on Torah framework and not on the economists.

    Here are a couple of examples where outcome may differ:
    paying teachers. Current policies in US favor heavy regulation of schools, tenure and union protection for teachers. Halacha seems to favor unlimited competition, exempting teachers (as well as peddlers of perfume) from standard medieval guild protection – to make education more affordable for poor people. In other professions, we balance interests of buyers and sellers, but in education, interests of buyers are much higher. That’s the Jewish value and economists may or may not agree.

    another one – COVID rule relaxing. Politicians care about economy and about reelection. A Torah authority might be more careful.

    We can also have different solution depending on different behaviors. Famous one that Roman inspector did not like – Jews pay half of damage by an animal, while non-Jews – full, because we presume that Jew was watching the animal and damage was unintentional.

    Thus, for example, during COVID in a community where kids can learn at home with parents, they can be told to stay home. In a community, where kids will be roaming streets and facebook, kids might need to come to school despite the risk.


    > please quote your source for the one-year rule’

    So far, I am not able to recall or find where the one year idea comes from. I think Gemora says something like “next year” .. or my memory is mis-firing.

    For the general idea of going back on regulations that are not acceoted: Avodah Zorah 36 discusses a possibility of cancelling the law that majority of people did not accept. An example of an empirical approach – they investigated and found it that the law was not accepted. And then cancelled it. In our times, they might have just denounced all non-acceptors as Modernistas …

    Avi K

    1. Torah is democratic. The people must not approve of the form of government, as I previously posted, but of all of the leaders (Berachot 55a). They can even remove a king from office(Yerushalmi, Horiot 3,3).
    2. The interesting thing about that gemara is that Yossi ben Yoezer didn’t want to repeal more decrees because he did not want to be called Yosef Sharya (Yosef the Lenient). Some things never change.


    >> Torah is democratic.

    this seems to be the preference as we see from Shmuel’s discussion with people who wanted a king, and his decision to appoint a weak shy kid looking for his donkey… to be more precise, Berachot 55a and other places seem to recommend an appointment system, akin to a limited republic, where a leader is appointed with agreement of the public. Also constitutional limitations imposed by Torah (Sefer Torah for a king), that was not always fully working (Agrippa weeping when reading that he is eligible to be a King, and people approving him). Overall, seems Torah allows for people to come up with our own solutions for leadership that may change with times as long as it makes us a better People. Cf. Shlomo and Rehovaam – they had the same position, and Rehovaam insisted in the same taxes (against recommendation of his father’s advisors!) and opposite results. So, it is not just about optimal tax rates, but about leadership


    >> The Bill of Rights was added because some wanted to strengthen the legal basis.

    I understand that there was an interesting machloket between American avot: if you have a general statement that anything not in constitution is reserved to states and people, this is enough to protect personal liberties. Furthermore, if you list specific rights, then you are implicitly allowing for additional restrictions. The “paranoid” insisted that we should protect them anyway. I think modern experience of ever-expanding state powers justifies the paranoid (“if you are paranoid, does not mean that there is no one after you”).

    >> Amendments 1-10 were added soon after adoption of the Constitution

    There would not be enough states to sign constitution without bill of rights, so they should be considered part of the main body.

    Ctlawyer >> There is NO law that separates religion and state in the USA.

    to be precise, First Amt originally meant Congress. Your state had a state religion and it was perfectly constitutional. Paying state taxes to a specific church was ok, even in states where other religions were allowed.

    n0> You have a reasonable way of making yourself unreasonable.

    if you agree with my method but disagree with my conclusions, you should revisit your conclusions.


    The closest Hebrew word to “rights” is “zechuyos”. A zechus isn’t a right but a privilege. Everything we can do, we do because we have the zechus to do so. And that zechus can be taken away.


    Please don’t give up your day job, you’ll not make it in my profession
    “>> Amendments 1-10 were added soon after adoption of the Constitution

    There would not be enough states to sign constitution without bill of rights, so they should be considered part of the main body.”
    The Constitution went into effect on June 21, 1788 when New Hampshire became the 9th of the 13 States to ratify it (until then the US operated under the Articles of Confederation<wonder where the South took their name?>),
    There were actually 12 original Amendments passed by the First Congress sent for ratification to the States. Only #s 3-12 were ratified as of December 15th, 1791 and became known as the Bill of Rights and numbered as Amendments 1-10.

    The Constitution was ratified by the States and took effect 3 years before the Bill of Rights. Your assertion is incorrect.
    ” if you have a general statement that anything not in constitution is reserved to states and people, this is enough to protect personal liberties.”

    No such statement exists, The correct statement is that ‘all powers not assigned to the Federal Government is reserved to the States.’ This is where we get the concept of States Rights, Nothing is reserved to the people. The Preamble puts it bluntly: We the People in order to….” The people have ceded their power to a representative form of government and retain rights only through the ballot box that can elect representatives.
    Over the years, the Federal Government has usurped powers by claiming things fall under their jurisdiction by using things such as the Interstate Commerce Clause, etc. The SCOTUS has been complicit in this power grab.
    As for your remark about the First Amendment originally meaning Congress, this has been expanded to all levels of Government as all levels accept and operate with Federal funds comingled with state and local funds.
    Here in CT, all houses of worship had to be chartered by the State until the late 1800s. Our family belonged to three shuls in New Haven (yes out of town it is common to belong to multiple shuls in town, especially business owners do this to this day) all of whom were chartered by the State of Connecticut.
    Towns and villages got their names from the Congregational Church Parish (Puritans) whose pastor or Parish Council acted as local government and levied local taxes for the Constable, jail and school. This ended about 1840. The town I live in is made up of three of those Parishes and they are used as the names of the three main neighborhoods in town.

    Avi K

    Yserbius, that is the word in Modern Hebrew. However, in Mishnaic Hebrew the closest word is רשות. Sometimes it means “permission” although it can also mean “option”.

    CTL, you are twice wrong. First of all, it should be “are reserved” as “powers” is plural. Secondly, the Tenth Amendment says ““The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people”. Tsk, tsk. You are correct, though, about the distortion of the Interstate Commerce Clause. The Civil Rights Act of 1964, for example, is blatantly unconstitutional as applied to local businesses. The Fair Housing Act and the Federal minimum wage are also examples. After the “switch in time that saved nine” (although that involved a state law) SCOTUS indeed was complicit but there was a turnaround with Lopez vs. United States 514 U.S. 549 (1995).


    CTLawyer, thanks for confirming that I chose profession wisely! I definitely admit that my knowledge is limited to recent learning w/ high-school kids, where learning for the (online) test is often a higher priority than in-depth analysis, still

    10th Amendment includes people:
    The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

    from wiki:
    James Wilson of Pennsylvania, later argued that the act of enumerating the rights of the people would have been dangerous, because it would imply that rights not explicitly mentioned did not exist;[11] Hamilton echoed this point in Federalist No. 84

    I am amending my statrement on Bill of Rights: several states ratified Constitution under condition of introducing Bill of Rights:
    Massachusetts convention was angry and contentious .. impasse was resolved only when revolutionary heroes and leading Anti-Federalists Samuel Adams and John Hancock agreed to ratification on the condition that the convention also propose amendments ..Following Massachusetts’ lead, the Federalist minorities in both Virginia and New York were able to obtain ratification in convention by linking ratification to recommended amendments

    I think we agree that Federal government got more power and States more restrictions over time. It is hard to draw a line. I think we all would be less comfortable if stated were still having their respective churches. Or maybe not – Jews would have all moved together to Delaware or New Hampshire and could have established our own Jewish state. But overall this centralization and unification reduces benefit from unique American feature – multiple states that have common culture, freedom of movement, and independent state powers. This creates competition between state powers and solves a lot of problems that plagues humanity from Shmuel and Roman periods on how to limit the state powers. The country will not be paralyzed for years about Presidential elections if the President would not be in charge of taxes, oil exploration, etc. Let each state do their own thing and let people move where they like.


    Dear Always,

    The main point is that the Bill of Rights is not natural law. It is contrived law. It is man made to pacify the concerns of people. And they are definitely not self evident.

    The other point is, that our individual rights are largely contingent on where we go to enforce them. Our discussion of personal freedoms emanating from the Constitution cripple them to whatever the Constitution would make them into. Once our elected leaders turn toward limiting our rights, the force of The Constitution will be right there along side them.


    >> Once our elected leaders turn toward limiting our rights, the force of The Constitution will be right there along side them.

    While we just quoted here such creeping cases of federal law applying to states, etc, you still need to acknowledge that US Constitution prevented a lot of abuses. Laws do matter. For example, German Weimar republic was constructed without much thought and collapsed legally very quickly. Also, notice that among countries that used to be colonies, the British ones (including USA) are doing much better than Spanish and others, presumably something to do with the British legal system.


    CTLawyer: Did your family ever belong to the Orchard Street Shul (Congregation Beth Israel)? My grandfather lived around the corner from the shul and davened there.


    Dear Always,

    Just imagine how much better off we would be if The Constitution would have stayed away from personal autonomy from the beginning.

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