THE CONSTITUTIONAL SUKKAH

Beyond their physical aspect as charming harvest huts, Sukkot partake of a symbolic character. Thus, in our liturgy each evening of the year we ask God, “וּפְרֹשׂ עָלֵֽינוּ סֻכַּת שְׁלוֹמֶֽךָ — Spread over us your sukkah of peace.” And when the prophet Amos describes the restoration of Davidic rule over the entire Land of Israel he prophesies, “ בַּיּ֣וֹם הַה֔וּא אָקִ֛ים אֶת־סֻכַּ֥ת דָּוִ֖יד הַנֹּפֶ֑לֶת וְגָֽדַרְתִּ֣י אֶת־פִּרְצֵיהֶ֗ן וַֽהֲרִֽסֹתָיו֙ אָקִ֔ים וּבְנִיתִ֖יהָ כִּימֵ֥י עוֹלָֽם — In that day, I will set up again the fallen sukkah of David; I will mend its breaches and set up its ruins anew. I will build it firm as in the days of old” (Amos 9:11).

(Warren Rojas/CQ Roll Call)

For Americans, the Constitution of the United States is, in symbolic language, a kind of sukkah. It affords us the security of government by rule of law, even as it shelters us from tyranny through its guarantees of freedom of conscience, speech, and the right of assembly. One wall of the constitutional sukkah consists of the separation of powers between the branches of government, while another is built from the protection afforded us by the Bill of Rights.

While the ideals represented by the sukkah are powerful and enduring, the actual structure is frail. Within the framework of Jewish law, it is incumbent upon us to build the strongest sukkah that we can. If nothing else, we must refrain from tampering with the walls in such a way that we increase the chances of its collapse.

This is no less true of the Constitution of the United States. “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.” The strength of of this document does not lie within its articles, but resides within “We the People of the United States.” When we choose to selectively ignore its provisions or interpret them in ways contradictory to their plain meaning, we tamper with the constitutional sukkah that protects our way of life.

This is by no means a new problem. In 1798, Congress passed the Sedition Act, which prohibited public opposition to the government. Fines and imprisonment could be used against those who, “write, print, utter, or publish . . . any false, scandalous and malicious writing” against the government. Indeed, more than 20 newspaper editors were arrested of whom a number were imprisoned — including Congressman Matthew Lyon of Vermont, who openly criticized President John Adams’ “unbounded thirst for ridiculous pomp, foolish adulation, and self avarice.”  By way of rejoinder to this encroachment on their representative’s freedom of speech, Lyon’s constituents re-elected him to Congress while he remained in a jail cell!

During the Civil War the Lincoln Administration with the backing of Congress suspended the right of habeas corupus, one of the cornerstones of our judicial system. And during World War I, the Sedition Act of 1918 effectively made it a crime to speak out against the government’s decision to go to war. Socialist Eugene Debs and hundreds of others were sentenced to prison terms of anywhere between 5 and 20 years.

Throughout American history, there have been those who have sought to protect our “way of life” by undermining our constitutional freedoms. They do so always in the name of democracy or under the guise of patriotism: President Andrew Jackson who essentially rendered the Supreme Court impotent by refusing to do its bidding when he did not approve of its decisions; Attorney General Mitchell A. Palmer, who fought hard at the end of World War One to establish a permanent peacetime equivalent of the Sedition Act; and of course, FDR, who deprived thousands of Japanese Americans of their freedom without due process during the Second World War. There are always those who stand ready to cure the disease by killing the patient.

Recently, presidential candidate Ben Carson demonstrated his contempt for the legislative sukkah that shelters us from tyranny. Could he have forgotten Article VI of our Constitution which states, “no religious test shall ever be required as a qualification to any office or public trust under the United States”? Or does he simply not care?

Image result for article vi constitution of the united statesThe American people, in its collective wisdom (or foolishness), will decide what qualities are most important in the next person who moves into the White House. Yet it does seem reasonable that the 45th President of the United States must remain loyal to the Constitution; come Inauguration Day he or she will swear to “preserve, protect and defend the Constitution of the United States” — which includes Article VI prohibiting religious tests as a qualification to office.

In response to Carson’s troubling remarks about Muslims and the presidency, the Anti Defamation League described his views as “deeply troubling,” “deeply offensive,” “un-American and contrary to the Constitution.” Jonathan Greenblatt, the ADL’s National Director, went on to say, “As the campaign season advances, we urge all presidential candidates to avoid innuendo and stereotyping of all sorts, including against people based on their faith, particularly American Muslims and, instead, to confront all forms of prejudice and bigotry. Remarks suggesting that all Muslims follow extremist interpretations of Islam have no basis in fact and fuel bigotry. Whether directed against Jews, Muslims or others, such baseless comments breed hate and have no place in a presidential campaign or in public discourse.”

The Islamic concept of Sharia is exactly analagous to the Jewish view of Halakhah. As systems of religious law both are all encompassing, and include civil and criminal law, governance, personal conduct, as well as religious observance. We certainly have seen Muslim countries in which Sharia is the law of the land run roughshod over the rights of women and minorities. Iran and Saudi Arabia are but two examples where Islamic law is used to sanction repression.

Yet there are numerous Muslim majority countries in which Sharia plays no role in the administration of law or the composition of their constitutions: Turkey, Mali, Suriname, Guyana, Togo, Gabon, the Ivory Coast, Chad, and Tajikistan, to name a few. Of course, there are those in the Muslim world who would like to impose Sharia law on every country with a Muslim majority; there are others who perhaps would like to see the entire world be Islamic. Yet we know of those within the Jewish community who deny Israel’s right to exist because it is a secular democracy rather than a state based exclusively on Halakhah. Given the chance they would make the violation of Shabbat in Israel a punishable crime, which if we were to reintroduce the statutes of the Torah, would require death by stoning. Adultery is also a capital crime under Torah law, while the married daughter of a kohen caught in the commission of adultery is to be burnt — according to a rabbinic understanding molten lead is poured down her throat so that she is burnt from the inside out.

That there are some Jews who in their ultra-Orthodox rigidity would like to see Israel shed its democracy and become a theocracy as rigid and conservative as those within the Muslim world which we abhor, this does not for a moment mean that the majority of Jews favor the imposition of Halakhah as a legal norm for Israeli society, let alone the United States.

There are many Muslims whom I know who view Sharia as I view Halakhah, as a system of religious laws to be practiced within one’s home and place of worship. They are binding only in the sense of personally assumed obligation. In other words, though I know Jewish law commands us to observe Shabbat and I take that obligation seriously for myself, I make no pronouncements about the decisions of my neighbors and congregants who observe Shabbat (or not) as they see fit.

We cannot afford the winds of bigotry to blow down the walls of our Constitutional Sukkah. The ADL with its uncompromising stand against prejudice, whether directed against Jews, Israel, or other groups is a good bellweather of what constitutes bigotry. There are many Muslims for whom I would not vote. There are many Christians for whom I would not vote. There are also plenty of Jews who, if they ran for President, would not receive my vote. Yet at days end, it should never be a candidate’s religion that determines his or her worthiness.

More than a half century ago, around the time of the festival of Sukkot, the integrity of another presidential candidate was questioned because of his religious faith. This is how John F. Kennedy responded to his critics, who feared that as a Catholic, his allegiance would automatically be to Rome first and the Constitution only second:

I believe in an America . . . where no public official either requests or accepts instructions on public policy from the Pope, the National Council of Churches or any other ecclesiastical source; where no religious body seeks to impose its will directly or indirectly upon the general populace or the public acts of its officials; and where religious liberty is so indivisible that an act against one church is treated as an act against all.

For while this year it may be a Catholic against whom the finger of suspicion is pointed, in other years it has been, and may someday be again, a Jew or a Quaker or a Unitarian or a Baptist. It was Virginia’s harassment of Baptist preachers, for example, that helped lead to Jefferson’s statute of religious freedom. Today I may be the victim, but tomorrow it may be you until the whole fabric of our harmonious society is ripped at a time of great national peril.

I believe in an America where religious intolerance will someday end; where all men and all churches are treated as equal; where every man has the same right to attend or not attend the church of his choice; where there is no Catholic vote, no anti-Catholic vote, no bloc voting of any kind; and where Catholics, Protestants and Jews, at both the lay and pastoral level, will refrain from those attitudes of disdain and division which have so often marred their works in the past, and promote instead the American ideal of brotherhood.

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President Kennedy with religious leaders, June, 1963

This is the answer to the demagogues who sin against the angels of America’s better nature. Let us welcome “We, the People” as Ushpizin to the shelter of our constitutional sukkah. As for those who would pervert the Constitution for the sake of polling, by their own rhetoric they bar themselves from entry.

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