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Jewish Roots of the American Constitution
Prof. Paul Eidelberg
Introduction
Although many of the framers of the American Constitution were not devout, their political mentality was shaped in universities whose curriculum was based very much on Jewish ideas. Accordingly, this essay will be divided into two parts. The first part will show how Judaism, in particular the Five Books of Moses, influenced higher education in 17th and 18th century America. The second part will examine the institutions prescribed in the American Constitution and show their roots in Jewish laws and principles.
A. Historical Background[1]
1. No nation has been more profoundly influenced by the "Old Testament" than America. Many of America's early statesmen and educators were schooled in Hebraic civilization. The second president of the United States, John Adams, a Harvard graduate, had this to say of the Jewish people:
- The Jews have done more to civilize men than any other nation…. They are the most glorious Nation that ever inhabited the earth. The Romans and their Empire were but a bauble in comparison to the Jews. They have given religion to three-quarters of the Globe and have influenced the affairs of Mankind more, and more happily than any other Nation, ancient or modern.[2]
2. The curriculum at Harvard, like those of other early American colleges and universities, was designed by learned and liberal men of "Old Testament" persuasion. Harvard president Increase Mather (1685-1701) was an ardent Hebraist (as were his predecessors, Henry Dunster and Charles Chauncey). Mather's writings contain numerous quotations from the Talmud as well as from the works of Saadia Gaon, Rashi, Maimonides and other classic Jewish commentators.
3. Yale University president Ezra Stiles readily discoursed with visiting rabbinical authorities on the Mishna and Talmud. At his first public commencement at Yale (1781), Stiles delivered an oration on Hebrew literature written originally in Hebrew. Hebrew and the study of Hebraic laws and institutions were an integral part of Yale's as well as of Harvard's curriculum.
4. Much the same may be said of King's College (later Columbia University), William and Mary, Rutgers, Princeton, Dartmouth, and Brown University. Hebrew learning was then deemed a basic element of liberal education. Samuel Johnson, first president of King's College (1754-1763), expressed the intellectual attitude of his age when he referred to Hebrew as "essential to a gentleman's education."
5. This attitude was not merely academic. On May 31, 1775, almost on the eve of the American Revolution, Harvard president Samuel Langdon, addressing the Congress of Massachusetts Bay, declared: "Every nation, when able and agreed, has a right to set up over itself any form of government which to it may appear most conducive to its common welfare. The civil polity of Israel is doubtless an excellent general model" (emphasis added).
6. The Higher Law doctrine of the Declaration of Independence is rooted in the Torah, which proclaims "The Laws of Nature and Nature's God," and appeals to the "Supreme Judge" and "Providence." Even though Jefferson, the principal author of the Declaration, was no admirer of the Hebrew Bible, he nonetheless framed the Declaration with a view to galvanizing a bible-reading public in support of the American Revolution.
7. During the colonial and constitution-making period, the Americans, especially the Puritans, adopted and adapted various Hebraic laws for their own governance. The legislation of New Haven, for example, was based on the premise that "the judicial laws of God, as they were delivered by Moses, and as they are a fence to the moral law, being neither … ceremonial, nor ha[ving] any reference to Canaan, shall … generally bind all offenders, till they be branched out into particulars hereafter." Thirty-eight of seventy-nine statutes in the New Haven Code of 1665 derived their authority from the Hebrew Bible. The laws of Massachusetts were based on the same premise.
8. The fifteen Capital Laws of New England included the "Seven Noahide Laws" of the Torah, or what may be termed the seven universal laws of morality. Six prohibit idolatry, blasphemy, murder, robbery, adultery, and eating flesh from a living animal, while the seventh requires the establishment of courts of justice. Such courts are obviously essential to any society based on the primacy of reason or persuasion rather than passion or intimidation.
9. The seven universal laws of morality (together with their particular branches) comprised a "genial orthodoxy." This genial orthodoxy transcends whatever social or economic distinctions exist among men: it holds all men equal before the law. By so doing it places constraints on governors and governors alike and thereby habituated Americans to the rule of law. As a further consequence, this ancient Hebraic orthodoxy dissolved or subordinated many ethnic differences among immigrants in the new world. It moderated the demands of various groups, helped coordinate their diverse interests and talents, and thereby contributed to America's growth and prosperity.
10. Now, without minimizing the influence of such philosophers as Locke and Montesquieu on the framers of the American Constitution, I believe America may rightly be deemed the first and only nation that was explicitly founded on the Seven Noahide Laws of the Torah. Indeed, the legislation of the several states comprising the Federal Union embodied these laws—including the prohibitions against blasphemy and adultery—well into the nineteenth century. It should also be noted that the constitutions of eleven of the original thirteen states made provision for religious education. Some even had religious qualifications for office.
11. Strange as it may seem, the Seven Noahide Laws were recently and explicitly incorporated in Public Law 102-14, which established March 26, 1991 as "Education Day"! What presumably saves this Congressional joint resolution from violating the First Amendment is its silence about the Hebraic origin of the Noahide code. Here I must digress for a moment and say a word about the First Amendment.
12. The First Amendment states that, "Congress shall make no law respecting the establishment of religion …" This clause is now misunderstood. It was intended not to prevent Congress from enacting laws supportive of religion, but to prohibit Congress from establishing a state or national religion. In his "Farewell Address," George Washington declared:
- Of all the dispositions and habits which lead to political prosperity, Religion and morality are indispensable supports…. Whatever may be conceded to the influence of refined education on minds of peculiar structure, reason and experience both forbid us to expect that National morality can prevail in the exclusion of religious principle.
Incidentally, the theme of Washington's Farewell Address is national unity. National unity, he believed, requires national morality, a precondition of which is religion. Religion and morality counter man's natural inclination to self-indulgence and his tendency to be preoccupied with the immediate gratification of his own desires. Religion and morality foster self-restraint and consideration of others. Far more than secular humanism, religion inspires men with reverence, with deference to wisdom, with concern for posterity. But these ideas are Jewish ideas, rooted in the Seven Noahide Laws.
B. The Institutions Prescribed by the American Constitution
1. The House of Representatives represents 435 districts of the United States, where the people of each district elect one person to represent their views and interests. The idea of district elections is implicit in the Torah. "Select for yourselves men who are wise, understanding, and known to your tribes and I will appoint them as your leaders" (Deut. 1:13). The word "election" obviously comes from the word "elect," and the "elect" means men of high intellectual and moral character.
- a. Exodus 18:19 states: "… seek out from among all the people men with leadership ability, God-fearing men–men of truth who hate injustice." Similar qualifications are prescribed in the original constitutions Maryland, Massachusetts, New Hampshire, and Rhode Island. This is what the word "election" means. It is not a democratic but an aristocratic term!
b. So, each tribe must select the best men to be their representatives. Rabbi Samson Raphael Hirsch comments that "each tribe (shevet) is to choose out of its own midst men whose character can only be known by their lives [hence whose character] is known only to those who have associated with them." This is the biblical source of residential requirements for Representatives and Senators in the United States. Also, what is here called a shevet was called a district after the Second Temple.[3]
c. Moreover, the idea of district elections conforms to the Jewish law of "agency" (Kiddushin 59a). This law synthesizes the "delegate" and "trustee" concept of representation prevalent in the non-Jewish democratic world. Whereas the delegate concept binds a representative to the instructions of his constituents, the trustee concept allows him to judge whether adherence to these instructions, when additional knowledge or new circumstances intervene, will harm his constituents' immediate and/or long-term interests.
d. Finally, it is a principle of Jewish law that "No legislation should be imposed on the public unless the majority can conform to it" (Avoda Zara 36a). This obviously requires legislators to consider or consult the opinions of their constituents. Hence representative democracy can be readily assimilated to Judaism simply by adding that representatives must be "men who are wise, and understanding." This would make for a "high-toned" or aristocratic democracy, or a universal aristocracy. (Bear in mind that Israel is supposed to be a "Nation of Kohanim," meaning a nation of noblemen.)
2. The Senate. The Senate represents the 50 states of the Federal Union; it therefore represents the Federal principle. But the idea of federalism goes back to the Torah and the twelve tribes. Each tribe had its own distinct identity, its own governor and its own judicial system.
3. The Presidency. Unlike Israel, which has a Plural Executive or Cabinet consisting of a prime minister and other ministers representing different political parties in the Knesset, the United States has a Unitary Executive, namely, the President. Of course the President has a Cabinet, but its members cannot hold any other office and they are wholly responsible to the President, not to any political party.
- a. Now it so happens that a Unitary Executive is a Torah principle! Thus, when Moses told Joshua to consult the elders when he was about to lead the Jews across the Jordan, God countermanded Moses: there can only be one leader in a generation. And if you look at tractate Sanhedrin 8a, you will see that Jewish law opposes collective leadership. Nor is this all.
b. Just as a President of the United States must be a native-born American and not a naturalized citizen, so a king of Israel must be born of a Jewish mother and not a ger or convert..
4. The Supreme Court. Just as the American Supreme Court is the final interpreter of the American Constitution, so the Great Sanhedrin is the final interpreter of the Jewish Constitution, the Torah.
So we see that the original American Constitution was very much rooted in Torah Judaism.
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[1] This section of this essay is based on Abraham Katsh, The Biblical Heritage of American Democracy (New York: KTAV, 1977).
[2] Cited in Pathways to the Torah (Jerusalem: Aish HaTorah Publications, 1988), p. A6.2.
[3] For a detailed analysis of Israel's political system, see Paul Eidelberg, Jewish Statesmanship: Lest Israel Fall (Ariel Center for Policy Research 2000; University Press of America, 2002).
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