Yom Kippur: The Day of Decision

“This is the Day of Decision . . .”

“ . . . in the camps and streets of Europe mother and father and child lay dying, and many looked away. To look away from evil: Is this not the sin of all “good” people?”

“Turn back, turn back from your evil ways; for why should you choose to die, O House of Israel?”

--Sha’arei T’shuvah: The Reform Machzor

 

Our lives are fleeting, like a leaf that rides on the river of time, for a while, and then subsides, while the river flows on. This is one theme of Yom Kippur and the High Holy Days in general, timed as they are in the month of autumn, from the dark of the moon to its waxing. This year the Engineering Geek and I felt this acutely, as our daily household has shrunk to just the two of us, with both children up and out.

This gives us both pause about where we are in our lives, with more years behind us than ahead, but it also confers a certain freedom, and one way that we expressed it was to choose to spend Rosh HaShanah and Yom Kippur differently, cutting ties to the synagogue where the children were raised. We went to the small, eclectic and egalitarian shul in Flagstaff, taking a hotel room in order to experience Yom Kippur free of the distraction of long distance driving. Of course, in the odd way of the Jewish world, where smaller degrees of separation abound and bind across continents, we found connections with the president of the congregation, another member who remembers me as a very pregnant cantorial soloist, and the rabbi herself, with whom I share a mentor, a study partner, and a course of study.  

And for the first time in our ten years of marriage, the EG and I also were free to really spend some time on the Day of Atonement studying the Machzor—the High Holy Day Prayer Book—free of distractions. This was a boon we had not counted upon, and it worked out because the little shul has an organized morning service followed immediately by Yizkor (the Memorial Service), after which there is a long break until Neilah, the evening service just before breaking the fast. Not wanting to put ourselves in places of commerce nor to go back to the hotel, we went instead to Buffalo Park—a huge open space under the San Francisco Peaks—and there we found a lone marble bench facing the mountains, cloud-shadowed beyond a field of yellow daisies, where we prayed the afternoon service for ourselves, stopping to discuss and comment upon it along the way. And as is always true for me, themes that match what is going on in my inner and outer life fairly jumped out of the pages of the Machzor, demanding to be confronted.

Yom Kippur is, as the prayer book says, a day of decision. The image is the Book of Life being open at the Seat of Judgment, as every human being chooses between good and evil, life and death:

You open the book of our days and what is written there proclaims itself, for it bears the signature of every human being. . . This is the Day of Judgment . . .”

But the problem for many Jews is that we have taken a concept of judgment from the dominant culture, one that is foreign to our own world view. This idea is that human beings should eschew judgment altogether, that it is wrong to make a judgment—which I cannot help but point out, is a judgment itself. For because human being have the capacity to make decisions, we must necessarily make judgments between good and evil, between right and wrong, between life and death. Judgment is not an option, and it is also not something to be feared:

Your love is steadfast on Judgment day, and you keep your covenant in judgment . . .

You penetrate mysteries on Judgment Day, and you free your children in judgment . . .

You uphold all who live with integrity on Judgment Day . . .

On Yom Kippur, we take the time to ponder, to burn away the clouds of mystery, and to make judgments about ourselves, determining where we have failed in judgment and where we have gone beyond our own boundaries, in order to restore integrity to our lives.

Beyond our own lives, we must make judgments about our world. We cannot say: Who am I to judge this policy, this action, these people and their behaviors? We Jews know what the sin of silence and the sin of indifference mean.To refuse to judge evil as evil, and evil doers as evil doers is to allow it and to become a part of it. There are no innocent bystanders. And those who claim to desire peace but refuse to confront evil cannot create peace, rather they will bring death and destruction upon themselves and upon those who excuse them, for to excuse the guilty is an injustice waged upon the innocent.

In the praying of the services, in the thoughts that the words in the Machzor inspire, and in our discussion of them, I have made some decisions for myself, or I have set the standards and benchmarks for decisions that I expect to need to make this year. Over the years of my upbringing and education, and on into young adulthood, I had developed the habit of self-censorship in response to a great many things, and over the last 11 years I have made a concerted effort to rid myself of this habit, for it is a dangerous abdication of the mind and heart. I will continue to root this out of my life, and replace such fears and hesitations as I may have with reliance on making judgments that are just and true. This year, more than ever, as our world spirals out of control and our civilization seems bent on suicide, this emphasis on truth and justice as the basis of judgment becomes more important than ever, and that integrity is something I want to restore in small ways as well as large, and in my personal as well as any public life I might have.

There are other conclusions that I have come to in order to fulfill my desire to mend my errors and to  be proud of what I have written in my book of life, and perhaps I will share more of them at another time, but I know that confronting untruth will be my greatest challenge. The Hebrew word for truth is EMET and the Hebrew word for justice is TZEDEK. EMET and TZEDEK will be my words for 5773. These are big words, and knowing my own weaknesses regarding them, I take pause before them. They require great  courage and discernment both, and i tend to err on both. And yet I long to come closer to these marks. I may not have the power to change the world that seems to be hell-bent on destruction, but creating an island of order and sanity within the chaos is a worthy goal.

 

Technorati Tags: Judaism,Times and Seasons,Yom Kippur

No Justice: The Nanny State Becomes the Police State

I recently finished a book by a friend and business associate that discussed his time in jail. He was arrested based on a false accusation and investigation and before the smoke cleared even a little bit, he spent some time in jail. His book was very interesting and it was also revealing. It gives the reader a look into a world that most of us do not know anything about, and one that we all hope to never experience.

One of the most revealing parts of his experience was the attitude of the jailors toward those confined there, and the attitude of the general public toward those who have been arrested. The assumption is one of guilt, even though most of those confined have not yet been charged or gone to trial. The general public has forgotten that in the United States, a person is to be presumed innocent until he is actually convicted of a crime. He does not have to prove his innocence in court, rather the state must prove that the person is guilty using standards of evidence and judgment. But Americans have forgotten about the presumption of innocence and assume that if a person is hassled by the police--even if he is not arrested--that he must have done something to deserve it. In this way, presumably innocent people are deprived of their liberty and dehumanized even though they are often completely innocent of any crime.

This attitude is one of the core components of our rapidly developing police state: a state in which peace officers who have sworn an oath to uphold the Constitution of the United States and the Sovereign State in which they work have, in the time of a generation, morphed into quasi-militarized "law enforcement officers" who ignore the rights of the citizens whose rights they are purportedly hired to protect. And the rights of the accused are not much understood or honored by either the operatives of the police state itself, nor by citizens, who generally do not realize how much danger they are in of being dragged into its tyranny. Lately, even the Constitutional protections that the accused enjoy have been deliberately removed by the courts.

The sheer number of people who have had their liberty removed for weeks or months before ever going to trial is another sure indication that we are rapidly becoming a police state. In the United States now, most of those so confined are accused of "crimes" determined by fiat, "crimes" in which no one's rights were even remotely close to being violated. Many of these are drug law violations, and often a person's rights are removed for long periods of time due to an accusation of possession of a small amount of an "illegal" substance, which now carries sentences that are often greater than those handed out for severe child abuse. In some ways, the possession or use of an "illegal" substance has become a life sentence, creating a permanent underclass, because the penalties have become so severe, and other sanctions meted out by the federal government have become so limiting that the individual cannot overcome them over a lifetime, even if he is a minor child at the time of arrest. More often than not, an individual's probation is indeterminate and full liberty is only restored if and when a social worker determines that the person has been rehabilitated. In such cases, a court is only peripherally involved, and the case is not determined by any rational standards of evidence judged by a jury at all. This indeterminate "sentencing" is a complete violation of any just standard, and plays havoc with the rights of the accused.

All of this stems from the soft tyranny of the Nanny State, and can always be expected to become the hard tyranny of the Police State. It is injustice pure and simple.

Justice requires that each person is treated as equal under the law. Further, the law itself is unjust if the legislation is intended to limit the freedom of an individual for purposes other than the protection of the rights of all individuals.

The very assumptions of the Nanny State--that there are some people wiser and better than the individual, who therefore should be enabled to control the choices and actions of individuals for their own good--are antithetical to the very concepts of liberty that the United States was founded upon, and fly in the face of the Constitution written to create a government whose sole purpose is to protect those rights. It is up to each competent adult to determine what his or her own good is, and the bar to declaring incompetence should necessarily be very high. No matter how much a person who is different in some way might disturb us, and no matter what we think of his or her decisions, we ought to be very wary of removing liberty for light or transient reasons.

The very concept of a "justice system", which is a product of the Nanny State, is a contradiction in terms. There can be no "system", no collective method of determining innocence or guilt, no "system" of mandatory sentencing, or of required rehabilitation standards that is just. The purpose of justice is not to cure social ills or to rehabilitate individuals. It is to make a judgment about the responsibility of an individual for an action that violates the rights of another, and to exact a penalty upon that action in accordance with the severity of the violation.

Justice must be individual or it is not justice at all. Justice must always refer to the law, which must be applied equally to all, or it is not justice at all. Justice requires that the law be knowable and uncomplicated, and that a person must be able to know ahead of time whether a contemplated action is a violation of the law. Justice requires that the individual merits of the case be considered, and that the evidence be weighed by a jury of peers of the accused; that is those who live in the same community, know its standards, and its weaknesses.

We are seeing a great deal of evidence that the Nanny State that has been established in order to impose the ideas of some of us upon us all, applying a soft tyranny of rules and regulations, is rapidly becoming a police state. Those conservatives who were content to remove the rights of those who ingest socially unapproved substances are now dismayed to watch storm troopers from federal agencies raiding Amish dairy farms to stop us all from ingesting unpasteurized milk or locally produced chickens. Those liberals who have been content to remove the property rights of individuals who disagree with them about diversity, are now dismayed to watch police officers cum storm troopers wrestle individuals to the ground and arrest them for the crime of standing on their own property and observing the actions of the police themselves.

Most of us stand idly by now while our friends and neighbors are presumed guilty for fear of contradicting the monster that we have created,and thereby being subject to the meat grinder of the "justice system". Many of us implicitly favor mob rule over the rule of law, calling for the blood of the innocent when a jury rules that the state has not made its case, because the news media has already tried and convicted the defendant in the court of public opinion. We presume to make judgments based on little evidence, and to condemn people because of the emotional impact of the crime itself, rather than on evidence of guilt or innocence of the accused.

Thus we have come to the place where, as a friend posted to my Facebook Wall:

"When they took the 4th Amendment, I was quiet because I didn't deal drugs. When they took the 6th Amendment, I was quiet because I was innocent. When they took the 2nd Amendment, I was quiet because I didn't own a gun. Now they have taken the 1st Amendment, and I can only be quiet." - Lyle Myhr

If we treasure our freedom, we need to know our rights, and their basis in the principles of Liberty. We need to understand that the protection afforded to the accused protects us all, and to to remove the rights of accused imperils all of our rights. We need to remember that a little bit of liberty is like being a little bit pregnant--either we act on our rights or we don't have them. And most importantly, we need to understand that justice is a more exacting standard than is goodness, and being "good" in the face of injustice will always turn us to evil.

Justice in Abottabad

Last night, as I was sitting in bed, catching up on Facebook, I saw a post by the CIT stating that Osama bin Laden had been killed by American forces. At the same time, almost to the second, a friend had IM'd, saying: It looks like the bogeyman is dead." And so he was. Almost ten years since he had become a household name, and many more since he had begun his war with the United States and others, and he had been killed by Navy SEALS, his DNA taken, and his body buried at sea.

I felt a moment of solemn satisfaction of my sense of Justice. I wanted to stand up and sing The Star Spangled Banner, which is what the crowd in Times Square did at almost the same time. I went to sleep after a long day doing various tasks to get the house ready for sale--it's a long, drawn out business--and getting the loss of our friend's new dog registered with the Pet Alert. I did not spend any more time on the internet. And I am glad I did not. I did not want to see the moment of justice politicized and criticized, nor hear any theories about why the government was lying to us about this, too.

So today I put up my flag, and then drove down to Los Lunas to look for Tri. (No luck, but three sightings were reported through the Alerts, so we know where she is hanging around).

It was not until I was driving back up here that I heard the politicization. And later, checking on the web, I saw that the crazy train has once again pulled away from the station, this time with a series of theories on the Libertarian Enterprise alleging that bin Laden has been dead since 2001, and the death was just announced now in order to save Obama's presidency in 2012. I was not perturbed. I do not believe that this one incident will save the O-incompetent from being a one-term president. Only the Republicans can do that by once again choosing a candidate who hardly differs from the Big O himself, himself.

I was not perturbed, but neither do I have either the gumption or the patience to construct fancy arguments to counter either ideologues or loonies. However, there was one protest that kept cropping up that I do want to address, and that is that POTUS and our government are somehow murderers of Osama bin Laden. No, I am quite convinced that bin Laden was ultimately his own worst enemy, and after years of escalating attacks in on the West, he had finally met his match, and even if it took nearly 10 years, vengance is a drink best served cold.

Osama bin Laden declared war on the United States particularly, and upon the West in general. He took up the sword, and he used it against both military targets and civilians in Yemen, in Africa, and within the borders of the United States. He made deliberate, well publicized threats to kill many thousands of innocent people through the organization of terror he created, Al Quaida.

Osama bin Laden was killed by US Navy SEAL Team 6 on 1 May 2011, decades after he began his open war on the West and everything that is not Muslim and not extreme. He was killed, but not murdered. Murder is the unlawful killing of one human being by others, and the victim is innocent within the circumstances of the crime. Self-defense is the killing of one human being by others in order to stop him from committing assault that results in morbidity and death, or the destruction of property resulting in injury or death of innocents. In the case of killing for self defense, the one killed is not innocent, but has initiated force against innocents.

As Americans living under what is left of the Constitution, we have ceded self-defense against foreign invaders--whether they are a nation state or a band of brigands--to the federal government. This is one of the few actions of the federal government that is entirely lawful and Constitutional. Because bin Laden declared war against the United States by his threats, and followed it up with action, he is not a criminal, he is an enemy. We do not capture enemies and bring them to trial, we make war against them. War is not a rule-abiding exercise, and those who make war as Osama bin Laden did, know that. By taking up the sword against the United States, by attacking us on our own soil, he could expect nothing less than total destruction. And so he got it.

This is justice. To cut a man like Osama bin Laden any slack is to discount the rights of the innocent people who were working at the embassies in Africa and at the World Trade Center, and the innocents killed within the Islamic (so-called) House of Peace. It also discounts the fact that Osama deliberately provoked and attacked US military targets,including the USS Cole and the Pentagon. To ignore or excuse such behavior for any reason is to commit an injustice against those whose lives and property were destroyed by a deliberate act of war. It is not within the purview of the federal government and its executive to do that. In order to "provide for the common defense", the President of the United States must act. In this case, Obama acted properly and must be commended.

Of all of the sayings in the "other" Testament, there is one that unequivocally true. It is: The one who takes up the sword will die by the sword. Osama bin Laden took up the sword of Islam against innocents and against military targets. He made war on the United States. Responding to that is not murder, it is justice. Osama died at the hands of those whose Constitutional duty is to defend the people of the United States and their property.

Although I think that to madly celebrate the death of this evil man is unseemly, I do think that the sense of relief that people feel, and the pride that they exhibit at having finally gotten justice--shown in such acts as the singing of the Star Spangled Banner in Times Square Sunday evening--is entirely appropriate. There is pride in doing justice, because it is the moral response to acts such as Osama bin Laden's murderous terror. He chose his behavior, and in so doing, chose the consequences of it. The innocent people falling from the sky to their deaths on September 11 did not so choose.

I am not joyful about this, and I do not celebrate; rather, this moment has caused me to be happy that their deaths have finally been accorded the justice that they deserve.

When Conservatives Fail to Defend Individual Rights

"Man's rights may not be left at the unilateral decision, the arbitrary
choice, the irrationality, the whim of another man."
-- Ayn Rand, "The Nature of Government", in

Capitalism: The Unknown Ideal

There is a certain segment of the US population that wants to have its cake and eat it, too.
No, I am not talking about progressives, and no, I am not talking about economics. I am talking about Conservatives, and I am talking about their ceaseless mission to make us all Christian, even if that means limiting our liberty.

I have not been paying much attention to politics lately--just a bit of my time here or there--because we are closing on the ranch we are investing in, and that is of greater value to me than fruitless arguing over which criminals ought to replace the current criminals in Washington City.

However, I am not so tied up with contracts, settlement statements, and amendments that I failed to notice that a California Federal Appeals Court struck down Proposition 8--a California referendum that banned civil marriage for gay and lesbian couples.

Though I had ignored this decision on Facebook and in blogs, it was discussed briefly at the Bernalillo County Libertarian Party social hour the other night, and I saw news items about it as well. Today though, I received two different links on my Facebook Wall, both of which surprised me in their absolute religious certainty and fundamental ignorance of the concept of rights. One, by the fiery Danny Gonzales is so typically over the top, that it practically begged a response. I did not give him one, because it would have been "pearls before swine", to quote the wrong testament.

Much of the commentary by the defense of marriage people focuses on the fact that the California Proposition 8 was approved by a majority of voters.

Yes, a majority of Californians did vote to deprive a certain class of people of their unalienable right to contract. And so what? The operative word here is "vote". A right is not granted by any state, constitution or court. It cannot be voted into place or voted away. A right is inherent in the nature of the individual, and must therefore apply to any individual in any situation. If only certain individuals can exercise a particular action freely, that action becomes a privilege--it is no longer being treated as a right. The American philosophy on rights, derived from the English Enlightenment, was clearly stated by Jefferson at the inception of the United States, the only nation in the world that was established on the foundation of the natural rights of man. In the Declaration of Independence, Jefferson wrote:

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, that among these are life, liberty and the pursuit of happiness.

Although the United States Constitution does not mention these rights in its body, it was written to create a government that was limited in scope to the protection of them, and the anti-Federalists also insisted upon adding the Bill of Rights, the first ten Amendments, in order to make sure that the federal government did not overstep its bounds and begin to violate the life, liberty and property of individual Americans.

For this reason, the federal government cannot establish any law, procedure or regulation that deprives any individual of his rights for any reason. Like all states that entered the Union after the ratification of the Constitution and as a condition of entry, California had to agree to uphold the Bill of Rights for its citizens, and in fact the California State Constitution has a rather elaborate Declaration of Rights, which is Article I of its Constitution, in which the state promises to uphold the equal protection clause from the 14th Amendment of the United States Constitution. Therefore, no state can establish a law that violates the rights of any individual citizen.

In all states of the Union, the rights of every person must be upheld, and are unalienable. That is they cannot be violated by a majority, and neither can any individual willingly give up those rights. And the Bill of Rights, in Amendments 9 & 10, makes it clear that the rights of the individual are unenummerated, whereas the duties of the government are limited.

These are the reasons that the judgment rendered by the US Court of Appeals with respect to the California Proposition 8 is correct. Californians cannot vote away the rights of any individual to life, liberty and property (which includes the right to contract) as a matter of civil law.

The conservatives will and do argue that gays contracting a marriage is a violation of their religious law. That may very well be, but certain Californians may not impose their religious law upon others, any more than any other American may do so. The Bill of Rights is quite clear that government "shall make no law respecting the establishment of religion nor prohibiting the free exercise thereof." Californians whose religions forbid gay marriages are certainly within their rights to morally condemn it, and their churches cannot be forced to conduct such marriage ceremonies, but neither can they interfere with the contractual rights of others who disagree and wish to establish such a relationship civilly or within another church.

For a state to forbid a certain individuals as a class to a contract that is sanctioned for others is discrimination, and establishes that contract as a privilege for some, and violates the liberty of everyone else. It cannot stand. There are two solutions: that the state sanctions that contract for all, or that the state does not sanction the contract for anyone.

Historically, the interference of the state into marriage began following the emancipation of slaves, and the requirement that couples seek the permission of the state to contract a marriage was established in order to prevent interracial marriages. Prior to that, marriage was the province of religion, and especially in the south, many poor people established common-law marriages without benefit of clergy. Although there were social costs to this kind of arrangement, there were no tax costs or benefits applied to marriage.

Free people should not accept the requirement to ask permission of the state to marry, any more than we should expect the state to interfere in any portion of our lives. Liberty means the ability to live our own lives and pursue our own happiness without interference from anybody, so long as we do not violate the life, liberty or property rights of another person.

As I said above, there are two possible solutions to this problem: that the state treat all contracts of marriage or partnership equally, or that the state stays out of marriage entirely. In order to protect everyone's liberty, I believe that the second proposition is far better. Hand marriage over to the religious congregations or to secular marriage establishments, each of which could establish it's own rules as to who may or may not marry together in that particular establishment. Some religions and/or secular establishments would require membership for a marriage to take place under its auspices, some would not. Some would refuse to marry people based on lifestyle, and others based on sexual orientation. Some would require pre-marital counseling, and others would require compatibility tests. All such establishments would be free to make their own rules; and all individuals who did not like their rules would be free to find or create an establishment that would accept them. Everyone would have an equal right to contract in the eyes of the law.

Conservatives who claim to support liberty, but at the same time insist on depriving others of their liberty for religious reasons are either confused about what liberty is, or they believe that they can have liberty while depriving others of its blessings. In religious terms, holiness cannot be achieved by force; an individual must choose it or it is meaningless.

It is time to recognize that the United States is not a Christian nation, that there is a difference between the fact that Christianity is the religion of a majority of Americans, and the establishment of the religion Christianity as the state-approved religion that is incumbent on all citizens to follow. The United States has no established religion and all Americans are free to practice their own religion, or none at all, without government sanction or preferment. But free exercise of one's religion can in no way be interpeted as using force against another person. One does not exercise a right by violating it.

Therefore, I believe the latest ruling from California is a good one. Not because it is popular. Not because a majority of people want it to be that way. But because it upholds the right of every individual to equal justice under the law.

In speaking of conservatives, Ayn Rand said this:

". . .if one wishes to gauge the relationship of freedom to the goals of today’s intellectuals, one may gauge it by the fact that the concept of individual rights is evaded, distorted, perverted and seldom discussed, most conspicuously seldom by the so-called “conservatives." --Ayn Rand, "Man's Rights", in Capitalism: The Unknown Ideal.

Conservatives want to have their liberty and eat it, too. They tend to promote their own right to economic freedom but wish to deprive others of personal liberty even in such intimate parts of their lives as whom they love and wish to marry. This is hypocrisy of the tallest order. It is neither holy nor good. Everyone must be free to choose or no one is, and in such a state of slavery, no one's actions can be moral.

Richness of Experience?

Well, well, well.

We are to have a new SCOTUS Justice, Sonia Sotomayor from The United States Court of Appeals, District 2.

In many ways, she appears to be a very good pick.

She has many years on the bench, and prior to that, she was a prosecutor.

She has a good academic record, and although she is not known for legal brilliance, she is the child of immigrants and has the rise from the bottom story that is inspiring to all.

As a citizen, viewing this process from afar, my hope is always for a Supreme Court Justice who reveres the Constitution of the United States, and understands that she (or he) is not a maker of laws, but an arbiter of the Rule of Law, interpreting to us how our legislation relates to the Constitution. And I wish for someone humble as well as smart, someone who recognizes that justice is blind, and is no respecter of persons.

This last is why this Sotomayor quote is troubling:

"I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life . . ."

(Sonia Sotomayor, at the 2001 Judge Mario B. Olmos Law and Cultural Diversity Lecture, University of California, Berkeley. Quoted in The New York Times, May 14, 2009).

Judge Sotomayor said this in the context of a remark attributed to Sandra Day O'Connor that "a wise old man and a wise old woman will reach the same conclusions when judging cases."

In my reading of her speech (the whole of which can be found here), I understand that Sotomayor is talking about the idea that women and certain minorities bring their experience to their work, and in this case the work is judging.

But this is true of every individual. All of us who have lived life for a while have rich experience and the potential for wisdom. Those old white men Sotomayor disparages also have the richness of their experiences, as do the five Catholics, two Jews, and one Protestant that Sotomayor will serve with on SCOTUS.

I am NOT concerned that diverse judges will bring their life experience to their work as arbiters of the Constitution. I AM concerned that they should remember that Lady Justice is blind; she is no respector of persons, and that each person's case deserves equal respect under the law.

I am NOT concerned that our SCOTUS justices are individuals from diverse rich backgrounds. I AM concerned that we may have a justice who believes that her background is richer and more "diverse*" than that of the others. Her statement makes me think that she believes that some backgrounds are more equal than others. And if that is her understanding, then how can Sotomayor possibly judge all cases equally under the Supreme Law of the Land, as her oath will require her to do?

*This is a poor, but common use of the word 'diverse.' Diversity means a range of differences, and so any one thing by itself cannot be 'diverse.' That this word is used this way by the progressives suggests an agenda whereby some people are indeed 'more equal' than others.

Certainly, Sotomayor has earned the right to be proud of her life's course and her accomplishments, attained through the surmounting of barriers that others on the Court may not have experienced. But those others may well have surmounted barriers of their own; some barriers of which she may know nothing, and some of which she may share with them.

Each individual has a unique background and set of life-circumstances, unique capabilities and limitations. Our very individuality makes it impossible to fairly judge who has done better or worse, who has had more difficulty or more ease in the attainments of life that can be observed. And this is why, in our Western culture, we have the concept of the Rule of Law: that the law should apply equally to the homeborn and the stranger; that you shall not favor the poor over the rich in judgment. Because we cannot see into the lives and the hearts of individuals, this is the only way to render justice--we make everyone equally accountable under the law.

I am not sure that Judge Sotomayor is willing and able to do that, given her remark that her personal life experiences make her better suited to make judgements than the life experience of others. As time goes on, I hope that we will learn more about her decisions from the bench, thus gaining a richer context for what she has said. In the meantime, we have reason to be concerned.

Maggid: Justice Delayed and Justice Denied . . .

Last night we celebrated the First Seder at our house.
We were eleven people strong.
We were, as Exodus recounts it, "with our young and with our old," with fellow Jews and with "the strangers that dwell amongst us."

Once again, we lit the festival candles and recited the kiddush--the sanctification of the day:
" . . . For you have given to us with love festivals for rejoicing, seasons of celebration, this festival of Matzot, zeman kheruteinu--season of our freedom--in memory of our going out from Egypt . . ."

Once again, we dipped our parsley, broke the middle matzah, and spilled out ten drops for the plagues upon Egypt. Once again, we participated in the Maggid, the Telling of when we came forth from Egypt.

And once again, as I opened the Baskin Haggadah, certain words and certain phrases fairly leapt off the page and into my consciousness; words that I had read time and again, but this year I heard them in the context of the time and the season. Different words and phrases do this each year, and each year it as if I am hearing the Haggadah for the first time.

This year it happened when we came to these words:
"Our rabbis taught: When the Egyptian armies were drowning in the sea, the Heavenly Hosts broke out in songs of jubilation. [The Eternal] silenced them and said: 'My creatures are perishing and you sing praises?'

"Though we descend from those redeemed from brutal Egypt,
and have ourselves rejoiced to see oppressors overcome,
yet our triumph is diminished by the slaughter of the foe,
as the wine within the cup of joy is lessened
when we pour ten drops for the plagues upon Egypt.

"Our rabbis taught: 'The sword comes into the world because of justice delayed and justice denied' . . . To remember upheaval that follows oppression we pour ten drops for the plagues upon Egypt . . ."
(Central Conference of American Rabbis [1994]. A Passover Haggadah [a.k.a.the Baskin Haggadah], Revised Edition. Drawings by Leonard Baskin. New York. pp. 48-49)

The Hebrew letters of these words turned to flame, dancing off the page towards my eyes as we read them. Earlier in the day the Boychick and I had heard the story of the Lone Survivor, Marcus Luttrell, and his dog, Dasy. We had learned that this Navy Seal, who had survived a terrible battle and had been captured and tortured by the Tailiban, had received a therapy dog as part of his rehabilitiation. This dog has meant the world to him as he experiences the dark night of the soul that is the inevitable consequence of his brutal encounter with the nexus between life and death. This dog not only meant friendship and unconditional love to Marcus, she also represented the living presence of the souls of his team; each letter of Dasy's name represented the name of one of his lost companions. But late one night last week, four men came to the ranch where Marcus now lives with his mother, and they shot his dog dead. They didn't know Marcus. These psychopaths had been killing dogs in the county just for fun. Marcus ended up holding three of the four men at gunpoint, but he didn't shoot, making him a hero once again. He turned the men over to the Texas Rangers after a high-speed chase across four counties.

This is a haunting story, made more heartbreaking still by Marcus' cri de coeur that in Dasy's death, his friends are lost "all over again." Just before the Seder, I came into my room to find the Boychick and the Chem Geek Princess sitting in front of Shayna's crate, as the Boychick related the story to his sister in his cryptic, halting fashion. So when the words of the Haggadah became fire at this place in the Telling, I stopped and asked the Boychick to tell this story, too, at the Seder.

This story belonged in the Seder this year and at this place in the story because given the means and the motive for revenge, Marcus Luttrell did not exact it upon his enemies. But he needs justice.

He said:
" . . . is there any justice? What has happened to us? Who are these guys? It's like I have been trained my whole life to live honorably and to go out and to get the bad guys, and the bad guys have always been some place else. And now the bad guys come to my house and they shoot my dog, and I have to stop because I'm no longer the guy that can exact justice on the bad guys." (Quoted by Glenn Beck on April 7, 2009 on The Glenn Beck Radio Show).

He said:
"I follow a different set of rules now. I . . . just can't get into that kind of stuff any more. And it's not something worth going to prison over . . . I did what I did (e.g.in Afganistan: EHL) because I love, I love my country . . . You know, the reason I'm out there busting my ass across seas and the rest of that in the military is so that when I come home and someone decides to murder my dog, justice gets done! I mean that's kind of the point, I think. I'm pretty sure it is . . . fightin' for freedom and all that, that's kind of the idea. Now it's out of my hands, you know, they took it away from me, and then the judicial system's takes care of it . . . but not really. One of 'em's not in jail because . . . like I said before, like I said before . . . if there was a human being out there and four guys stepped out and murdered him, they'd all be in prison. She was like a daughter to me! This guy, this idiot says: 'I wasn't a part, I was just there.' Well, ah, you know, you were all laughing. I didn't see you try to get out of the car . . . so, you're lyin'. He's lyin'. I looked at him, you know, I know when people are lyin' to me . . ." (From The Glenn Beck Show, April 8, 2009. My transcription).

The point that goes with the Seder is this: Justice delayed and justice denied will bring the sword. According to the Telling this is what happened in Egypt, and the innocent suffered right along with the guilty.

Here is a man who has suffered unspeakable things so that "justice will get done." He showed great personal restraint in the face of a great injustice that was done to him and his dog. He had the bad guys in his sights, but he didn't shoot. He called the Texas Rangers, he told them that they needed to catch these guys because he was afraid that otherwise he would kill them. And now he is afraid that one of them will get off with just a slap on the wrist; he does not trust that justice will be done.

It is important that justice be done. Justice must prevail in this case and in every case where great harm is done to one person by others.
If justice is not accomplished, then the innocent suffer at the hands of guilty.
Khamas (senseless violence) becomes rampant on the earth. And with the Rule of Law subverted, those who are wronged will take up the sword.

Our rabbis said: "The sword comes into the world because of justice delayed and justice denied."

And upheaval and suffering will inevitably follow.

Our rabbis taught: "The Holy One, Blessed be G-d, is urgent about justice, because the world depends upon justice "

And so the world does. Civilization depends upon Justice and the Rule of Law.
Without these, we slide into mob rule, vigilantism, and barbarism.

As we poured ten drops for the plagues upon Egypt, we poured one more, for the evil, senseless killing of Dasy, and the torment it brought her man. And we pray for Marcus Luttrell: Peace be upon him! Be strong for good! Be strong for what is right! And may we all be strengthened to do justice. Hazak. Hazak. V'nithazek!

Show Us the Law!

"Nothing distinguishes more clearly conditions in a free

country from those in a country under arbitrary

government, than the observance in the former of

the great principle known as the Rule of Law.

-FA Hayek, The Road to Serfdom

According to recent polling, only 17% of Americans stand on the principle of the Rule of Law.
We can say this, because only 17% of Americans understand that however exercised they may feel about the AIG Bonuses, the money does indeed belong to those who earned it; their right to it has been guaranteed by contract, a contract that was agreed to prior to the insolvancy of the Financial Products division; this contract was upheld by Congress when it took it upon itself to bail the division out rather than let it enter Chapter 11 Bankruptcy.

The Rule of Law is not the same as rule by legislation, nor by legislators. The Rule of Law is a principle that stands above the particular laws written in a country, and it opposes the rule of men, in which the law is made to be a respecter of persons. The Rule of Law requires that the rules, known to all beforehand, must be applied equally to all; justice is blind to the status of the person being judged.

On the other hand, the rule of men implies abitrary application of laws and regulations that can be applied differently in response to the circumstances and/or the status of the person being judged. Thus, it is impossible to know beforehand what the rules are and how they will be applied. In a land with arbitrary government, officials, judges and politicians use their position to apply the law in such a way as to favor those they like and destroy those that they do not like. This is what is happening as the Attorneys General of Connecticut and New York mount the bully pulpit against those AIG executives who have decided to keep their contractually agreed upon bonuses rather than returning the money to government. The AGs are doing so in order to make political hay by inciting mob anger against the executives in order to draw attention away from their own venal ambitions. The AGs are using fear and intimidation in the court of public opinion rather than applying the law in a court of law. They intend to "name and shame" people who keep the money.

And in the course of countless interviews during which these men, who are sworn to uphold the law, are feted and congratulated for "sticking it to the rich", not one journalist has asked the AGs what law these bonus keepers have broken.

That is why it is so good to see one man finally ask the question, and to observe Connecticut AG Blumethal's deer-in-the-headlights response:

GLENN: Now, the one thing I was going through the interviews with you and nobody's asked this question and I'm just dying to know and I know you'll have the answer. What law did the AIG executives break when they took those bonuses that were mandated by a legal contract?
BLUMENTHAL: The AIG executives did not themselves break a contract.
GLENN: So then why were you going after them?
BLUMENTHAL: Well, we're not going after them.
GLENN: You were.
BLUMENTHAL: Going after the bonuses.
GLENN: It's their bonuses.
BLUMENTHAL: We were going after the . . .
GLENN: No, their bonuses.
GLENN: They are their bonuses. They earned that money. What right, what law did they break that gave you the ability in Connecticut to go after those bonuses?
BLUMENTHAL: Well, let's take it one step at a time. The money they received came from us, the taxpayers.
GLENN: Oh, I know how this works. I'm asking you, sir. You're the attorney general. I'm asking you for the law that they broke that gave you the ability. Are you not the defender of the law in Connecticut?
BLUMENTHAL: The law that they broke
GLENN: Yes.
BLUMENTHAL: is the law that requires that they serve the public interests, that bonuses that they
GLENN: What law is that? Wait, wait, what law is that, sir? You're the chief law enforcement officer. What law say that again? I don't recognize that law. It sounds like a good policy. It sounds like a good rule of thumb but I'm not sure I recognize that law. Could you give that to me again?
BLUMENTHAL: Well, you know, again these funds belong to us, the taxpayer.
GLENN: No, no, sir, look, you know what you've done? You know what you've done? You have you are an insult to George Washington, sir. George Washington made it very clear that we are a respecter of laws, not of men. For your own political gain you have decided to go after these people at AIG because it is a popular thing. And while I may agree with you that it is obscene, I would like to know, sir, not what's right as a rule of thumb, not what makes us feel good. You, sir, are to protect people and to stand for the law in Connecticut. So again I ask you, sir, what law gave you the right to go after them, what law did they break? . . .
--Fox News (March 30, 2009). Transcript of the The Glenn Beck Show. Retrieved March 31, 2009 from http://www.glennbeck.com/content/articles/article/198/23425/.




This man, like many of our public officials at all level, does not apply principles to his job.
Rather he is influenced by the direction of the winds of public opinion; twisting this way and that, doing what is politically expedient.

A similar pragmatic approach can be seen in most of the discourse of our day; the question is never: "by what right?" "by what law?" "by what truth?"; rather people ask: "by what opinion?" "by what popular majority?" "by what spin?"

If as Hayek said, nothing differentiates between liberty and tyranny so much as does the Rule of Law, then we are in the sad state of watching our liberty slip away at the hands of men such as Blumenthal, who encourages mob rule ("It's outrageous!") in order to further his own political ambitions.

By what right, Mr. Blumenthal? Show us the law!

The Moral Implications of Redistribution and Righteousness

In a comment to my blog entry Going Galt? an anonymous interlocuter suggests that because I am opposed to the Obama adminstration's plans for the federal government to redistribute private wealth (personal and corporate) from those who produced and earned it to those who have not, I am "standing idly by while (my) neighbor bleeds." He was quoting loosely from Yayikra 19:16, and he wrote:

"And yet "Do not stand idly by while your neighbor bleeds." Leviticus 19."

This commandment is in the part of the Book of Leviticus known as the Holiness Code in which the commandments all harken back to the statement:

"And Adonai spoke to Moshe, saying: Speak to the whole Congregation of Israel and say to them: You shall be holy* for I, Adonai your G-d, am holy." (VaYikra 19:1-2)

Hebrew digression 1: The word for holy in Hebrew, kadosh, is from the root (kaf-dalet-shin) קדש , which has the meaning of separate. So the meaning of holiness from the Hebrew is to make oneself separate from or other than the ordinary. The verse could be translated as: You shall be separate (other) because I, Adonai your G-d, am separate (other)."

The Holiness Code is therefore a series of commandments intended to instruct the People Israel on how to live a covenental life; a life that is other than or separate from the way that the other nations live. It is the way in which Israel sets itself apart as a covenental people. Here is the entire verse (in blue) in context:

"You shall not steal; you shall not deal deceitfully or falsely with one another. You shall not swear falsely by my name, profaning the name of your G-d, I am Adonai.

"You shall not defraud your neighbor; you shall not commit robbery. The wages of the day-laborer shall not remain with you until morning.

"You shall not curse the deaf, nor put a stumbling block in front of the blind; You shall be in awe of G-d, I am Adonai.

"You shall do no unrighteousness in judgement; you shall not favor the poor nor show deference to the great; you shall judge your people in righteousness. You shall not accuse your people falsely; you shall not stand by the blood of your neighbor, I am Adonai.

"You shall not hate your brother in your heart; you shall surely rebuke your neighbor and not bear sin because of him." (VaYikra 19:11 - 17).

Verse 16a has also been translated as "you shall not go about as a talebearer among your people" and "you shall not deal with your people basely." The Hebrew verb is related to the misuse of speech.

Verse 16b has also been translated as: "Do not profit by the blood of your neighbor" and "Do not conspire against your neighbor."

Verses 11-16 deal specifically with the holiness inherent in the dealings among neighbors in the court of law. The theme of these verses is that all such dealings should be imbued with justice*, which is also translated as "righteousness." The position of the part of the verse in question (You shall not stand by the blood of your neighbor), just after the commandment against falsely accusing one's neighbor, suggests that this verse means that it is a very bad thing to make false statements against one's neighbor in court because such false statements might lead to the conviction of the innocent neighbor thus causing him suffering; or to the acquittal of the guilty, causing the victim of the crime to bleed. This is a crime against justice.

*Hebrew digression 2: The Hebrew word tzedekah, which has the root tzaddi-dalet-kuf
צדק , can be translated as either "justice" or "righteousness". The sense of the root is the concept of being straight, right or fair.

In the wider context of the verse, it is clear that to favor the poor in a court of law because they are poor is a violation of justice, as is favoring those who are great simply because of their status. To act justly means to treat everyone as equal before the law, taking no regard to their actual inequality in fact.

Other verses in this discourse on the holiness of judgement in a court of law state that it violates the holiness of dealings among neighbors to steal from them or rob them. The location of these verses in the discourse suggest that it is unholy for the court to take the goods of one of the litigants by force (this is the meaning of stealing) and give it to another unjustly. That means it is unrighteous to impose fines or otherwise transfer wealth from one to another, unless it is a tort payment--that is the payment by one neighbor to another as recompense for injury--imposed by the court in order to make the relationships between neighbors right.

Given the context and the meaning of the verse, then, I would actually be "standing idly by while (my) neighbor bleeds" if I do not speak out against the injustice of the Obama administration's attempts to allow judges in US courts to change the mortgage contracts of certain people, just because they are "poor" i.e. "unable to pay their mortgages." Such an action, in which certain taxpayers and their descendents would thus be forced to pay for the mortgages of certain citizens because of their status is certainly unrighteous.

The unholiness of this action goes beyond the dealings among neighbors in court in that it violates not only the rights of the current generation of taxpayers, but also incurs debt upon future generations without their knowledge or consent. This becomes the ultimate unholiness in Jewish values, for it is slavery.

The problem with the assertion of my commenter is not only that he took the verse out of context (to the point of only quoting half of it), but further, he assumed a false dichotomy: either the federal government takes the wealth of certain citizens (namely, taxpayers) by force to pay off the houses of other citizens OR those who cannot pay their mortgages will continue to suffer (bleed).

Missing in this false dichotomy is another solution: that the "bleeding" neighbor can declare bankruptcy and start over; and that when bankrupt, he can go to family, to friends, and to neighbors, asking for help making that new beginning.

Another meaning of the word tzedakah in Jewish life, is the holiness of being neighborly by helping those in need. Tzedakah is a moral choice made by individuals, alone or in free association with others. If a person is not free to choose an action, then the action has no moral meaning. It is incumbent upon Jews by virtue of their the Covenant of Holiness to engage themselves in acts of tzedakah. Nevertheless, each Jew must be responsible for choosing those actions and how they are made.

According to the Rambam (Maimonides) there are eight levels of this kind of giving, and the most honorable is to make it unneccesary for a person to become dependent on others. This is the opposite of the socialist agenda that would make us all dependent upon the government for our health, wealth and happiness. The purpose of the socialist agenda is to put the power to decide in the hands of an oligarchy and to destroy individual liberty. The purpose of tzedakah done at the most honorable level is to build up the power of individuals to decide for themselves and thus for them to become menschen--moral human beings.

Noakh: Here Comes the Flood

This past week, as autumn has been deepening in the Sandias, I have been living with Noakh, and the primeval mythos of origins from the Akkadian and ancient Hebrew.

It is an odd juxtoposition.
Such stories might be understood better in the burgeoning life of springtime.
But the Torah has a logic of its own. So we study the Hebrew myths of chaos, creation, the bursting of boundaries, and re-creation all in the weeks following Sukkot, as the earth travels towards the cold sleep of winter in the northern hemisphere.

Last Saturday evening, the Women's Torah Study Group had a late afternoon study session, followed by Havdalah. And since we begin the next week's parashah on Shabbat afternoon, we began the new year of study with Parashat Noakh. And then this week, along with work, news of the election, and neuroscience, I was preparing to leyn (chant) Noach for the Parallel Minyan today. And so I set the gathering stormclouds of political change and national crisis to the tune of the ancient Deluge that beset the Two-Rivers sometime in the long ago.

Parashat Noakh is interesting, following as it does on Parashat B'reshit, which contains two different creation stories and some geneologies. In B'reshit, the first creation myth tells us that creation was essentially about bringing order from chaos through establishing boundaries:

"Once when G-d was about to create the heavens and the earth, the earth was a chaos, unformed, and over the face of the tehom (the great deep) there was darkness . . ." (B'reshit 1:2)

(Note the translation: B'reshit does not mean "in the beginning," a phrase that uses the definite article; rather, the Hebrew word is indefinite, signalling that this is a myth--a story told for the purpose of making meaning, not a factual report).

The first creation story in B'reshit is the younger of the two stories; it is written in classical Hebrew and it is carefully crafted to convey a precise meaning. The use of certain Akkadian words such as tehom, the root of the name of Tiamat, the primeval goddess of the Enumah Elish (the Mesopotamian creation myth) is intended to draw the hearer's attention to the similarities and differences between the two stories. For in B'reshit, the primary act of creation is done by the separation of the forces of nature, bringing order out of chaos. And in B'reshit, the capstone of each act of creation is the acknowledgement that it is good. Human beings are not the accidental product of a war between the gods as in the Enumah Elish, doomed to suffer purposeless and chaotic existence; for in B'reshit, when the human beings are made, they are the capstone of creation, and are pronounced very good. And when human beings, endowed with free-will, choose to leave the garden/womb and become moral beings, they become productive partners with the Eternal, making their living by the creative work of their hands.

From this story we learn two things:
One, that material existence is not only good, but very good. Thus, Judaism rejects Platonism.
And secondly, that bringing order out of chaos by separation and boundaries is very good.
The root of the Hebrew word for holy--kadosh-- means separate, set aside.

Judaism does not interpret the eating of the pommegranite as a fall into sin; the story is interpreted as the human first choice to know the difference between good and evil, with the attendant consequence of the recognition of human mortality. The serpent--nakhash--is the ancient Mesopotamian symbol of wisdom. This interprative difference between B'reshit and the more well-known Christian understanding of Genesis, means that Judaism has no concept of original sin. Rather, in Jewish understanding, humans are moral creatures, and in the exercise of free-will must make choices. And in Torah and in the Midrash, we see that G-d (who is not portrayed as omniscient and omnipotent) is consistently surprised by the consequences of creating human beings--who are set apart from all other animals--by this need to choose, to reach, to strive.

And this is the point of the Hebrew version of the story of the Deluge. The ancient mythos of the middle east has many flood stories, probably due to some dim memory of a great deluge--perhaps at the end of the last ice age. In the Gilgamesh Epic, the flood story is about the fruitless search for immortality, in which the hero learns that he is missing his life by making the search. But in the Hebrew myth, the story seems to be about chaos breaking out due to the transgression of boundaries by humans and by G-d. The story is confused because of the redactor's weaving of numerous older versions of the story so that multiple meanings can be discerned. However, the thread is there.

At the beginning of the story, it is said that the Eternal (Elohim) sees that human choices have made the earth full of corruption and Khamas. Khamas, often translated as 'violence,' can also mean the full range of human evil. No boundaries--no law--has been set on human choices, and so chaos breaks forth due to human choices. But further, the Eternal has not set boundaries on the Eternal. Thus the chaos that breaks forth is deadly to all life. It cannot be punishment for sin, since no law has been set forth, and since such punishment would be confined to human beings. It is rather, the transgression of the primordial boundaries set forth to bring order out of chaos:

". . . on that day all the springs of the tehom--the great deep--broke out, and the firmament opened. Rain fell upon the earth . . ." (B'reshit 7:11)

Note the use of the word tehom here; chaos, in the form of the primeval waters of the great deep, breaks forth ferociously, just as in the Enumah Elish, in the war between the gods.
And at the end of the flood, when the boundaries on chaos are remade, and when Noach makes an altar in some inchoate thankfulness for his return to life, the Eternal understands the divine mistake. Boundaries are set upon human behavior and law is made:

"Be fruitful and multiply and spread out upon the earth. And let the awe and dread of you be upon the land animals . . . moreover, for your own bloodguilt I will require your lives: The one who sheds human blood/ that one's blood shall be shed by another/ for human beings were made in the image of G-d (e.g. willfull and creative, and with an understanding of their own mortality)." (B'reshit 9:1-6)

And boundaries are also set on the Eternal:

". . .never again will I destroy all the living beings as I have just done.
As long as the world exists/ planting and harvesting/ cold and heat/ summer and winter/ day and night/ will never end." (B'reshit 8: 21-22)

The covenant is sealed with the sign of the rainbow, meant to remind both human and G-d about the boundaries set:

"Here is the sign of the covenant that I am establishing between me and you all that breath upon the earth . . . I have hung up my bow in the clouds . . . and when I see it, I will remember the everlasting covenant between G-d and all that breathes upon the earth." (B'reshit 8:13, 16).

We humans are concerned with chaos and with order. Creativity is the process of setting and breaking boundaries, only to remake them; it is the process of bringing holiness--separations--into the world for the purpose of making life good. Human beings have an understanding of chaos and the ticking of time towards our own mortality. In order to live by the work of our hands, we create the Rule of Law, that even the Eternal may not transgress. All of our science, all of our technology, and our very lives rest upon this fragile bridge: the understanding that the universe is a lawful place, that choices have consequences, and that we cannot wish away their reality.

And that when we refuse to see the difference between good and evil, when we try to wish away the reality of consequences, we loose chaos--the Deluge--again upon our worlds.

I have been thinking of all these things this week, as the politicians in this time of election, beguile us with promises that they have the power to set aside reality and its consequences.

"When the night shows, the signals grow on radios,

All the strange things, they come and go as early warnings,

Stranded starfish have no place to hide, still waiting for the swollen Easter Tide,

There's no point in direction, you cannot even choose a side.
Lord, here comes the flood . . . " (Peter Gabriel).

And human hope? It comes not from a politician who has begun to believe his own press.

Hope comes from the memory of past struggles and the establishment of boundaries. We remember that the price of our liberty is that we be mindful of what is true and real.

And that we understand that our task in life is to bring order out of chaos by our mindful choices.

And then, may we remember the rainbow . . .

Blessed are You, Eternal . . . who remembers/is bound by the covenant with all that lives . . .

A Practical Matter: Power and Control at Machon

Last week, I wrote about my thinking on Jewish prayer. That post was a response to ideas that came from a Christian writer through another blogger, as well as a difficulty N. has been having in Machon--his secondary religious education program. When I wrote, I said that I did not know yet what I was going to do about N.'s concerns.

Concerns. Note the plural ending there.

There has been more going on at Machon than the experience N. had during T'fillah last Wednesday night. I have discussed the concern we had last spring, as well as problems that occured this fall in other posts here on Ragamuffin Studies. And those problems combined with some incidents that happened in early January, are what is driving my thinking about the goodness-of-fit between N.'s unique needs, my educational philosophy, and the Machon program. Once again. Oy.

Our rabbis taught in Pirke Avot: "Turn it and turn it again, for everything is within it." They were talking about wrestling with Torah, but it seems that N. and I --and even Bruce and the Chemistry Geek Princess--are having a similar experience with our discussions about wrestling with Machon. So although I am feeling rather grumpy about it, since I have once again made an appointment to go see the rabbi about this, I can say that this mizukis does have the benefit of making us struggle with what our Jewish practice means to us, consider what we want N.'s Jewish education to accomplish, and clarify our values concerning our affiliation with a particular religious institution.

And there is another piece to this puzzle, one that comes out of something N. witnessed in January at Machon, an incident that illustrates issues of control that pertain to a wider discussion about the purpose and practice of education in general.

Last month, N. witnessed part of an incident in which a staff member at Machon engaged in a power struggle with another child at Machon. This staff member is the same one who insists that the students keep their eyes on the prayerbook in T'fillah and follow the Hebrew words with their fingers.

An aside: This is not necessarily a bad technique to improve Hebrew reading skills for some students. And it is true that in the Jewish practice of prayer, a tight focus on the Hebrew words is emphasized. My objection to this practice is two-fold: where it is done, and to whom it is done. First, that this kind of drill is better reserved for Hebrew school proper, and not for the practice of public prayer. Second, that the technique be applied kindly and creatively, and only with students who's learning will be benefited by it. Some students either do not need it because they already can track the service well, or they will not benefit from it because it is not the best match for how they learn. One size does not fit all.

Back to the incident. The gory details do not matter to us here. (N. gave me a blow-by-blow account, so the incident clearly made an impression on him). The precipitating event does matter. The power struggle started because the student asked this particular staff member for permission to go to the bathroom. And the staff member refused the request.

Think about that. Kids in school are relatively powerless. They must follow the instructions and directions of adult who may or may not care about them. They must accept humbly numerous evaluations of their work, their disposition, their very selves from adults who may or may not appreciate their individuality. And their personal power over their bodily functions is limited by adults for institutional reasons. They may not be allowed to eat when they are hungry, get a drink when they are thirsty, and they must notify an adult if they need to leave the room in order to use the bathroom. Their lack of privacy extends also to the emotional realm, in that feelings such as happiness, joy, rambunctiousness, hurt, anger, and sadness, are all judged as appropriate or not by adults.

Much of this powerlessness and lack of privacy is necessary for the sake of safety and accountability in an institutional setting. But in my years in the classroom, I have witnessed many teachers who took their power over children to an extreme that I judged to be harmful to the child's dignity. Such adult behavior puzzled me and still does. Not every word that comes out of a teacher's mouth is a pearl of wisdom. And even if each word was, a child in need of the bathroom, a drink, or a good cry, is unlikely to hear those pearls anyway. And sometimes, believe it or not, a kid really needs a break from the teacher. And that's okay.

I have taught children of all ages, and I quickly learned to set policies in the classroom to minimize my control over a child's need to use the bathroom, get a drink, or even to go cry in private. I did this by establishing a permanent pass to leave the room. I had two such passes, made of wood, and nicely painted. They were on my demo bench where I taught high school science, and these same passes hung by the door of my Gifted Pull-Out classroom. At the beginning of the year, I explained to the kids that although I understood their desire for dignity and privacy, I also had the obligation to know who was out of the room. And I also had the need not to be verbally interrupted in the middle of a thought. It was distracting. Therefore, a child in need of leaving the room ought to quietly get up, get the pass, and go. Of course, if s/he did not return in a reasonable amount of time, I would probably come looking or send someone else to see if s/he was still breathing. Emergencies like needing to be sick were exceptions, I told them, and if they bolted without a pass, I would certainly follow up right away to ensure their safety and inform the nurse.

It was amazing how well this worked, too. (Of course with the younger elemetary kids, I also had regular bathroom breaks, because the little ones can get so absorbed in the classroom activities that they forget until...oops). I think that the kids appreciated my understanding of their need for some dignity and privacy, and they responded to my respect of their situation by respecting my need to account for them.

Back to the incident N. witnessed at Machon. I might have chalked it up to a mistake on the part of the staff member, except for other evidence of an extreme need for control over others. Evidence that comes from the way in which the T'filllah experience has been handled, the use of a disrespectful tone towards parents when policies are questioned, and attempts to control adults in other situations.

I cannot even guess at what drives this kind of behavior. I can say that it is unlikely to provoke a desirable response. And it certainly did not in this case. The details of the fireworks that ensued, including use of various inappropriate words by the angry student, were known throughout the school. (Another lesson I learned very quickly as a teacher: the kids know everything. Always). Of course, this did nothing to provoke respect by the other students towards this staff member. And, although I am not excusing the response of the student (there are better ways to get your point across), ultimately the responsibility for an incident lies with the person in power. Another lesson I learned early on in my teaching career: never, never engage a power struggle with a student. Nobody wins. But the teacher will be the bigger loser.

On the more personal level, this incident, as well as the other issues of control, have resulted in problems for N. He has become afraid. His generalized anxiety about everything--a common comorbidity of AS--has found a target. He is now anxious about Machon in general, and about T'fillah in particular, when this person is present. On Friday night, we went to Shabbat services, and when this staff member entered the chapel, N. departed. He sat out services in the lounge. This indicates that for him, the fear is not about Machon, but about T'fillah. Or about T'fillah with this person.

So at Seudat Sh'lishit (supper on Saturday evening), we had a discussion. Bruce told him that he understood why N. left services, and explained that we thought if best to let him do so on Friday night. And then I talked about the need to take control of the fear, and focus on the keva (appointed ritual) and kavanah (aim of the heart) of T'fillah in order to carry him beyond his anxiety about this person. After all, he cannot control the presence or actions of another person, he can only control his own. And then we gave him permission to politely tell anyone his limits.

If, for example, during T'fillah, an adult insists on a certain practice--and he is not being disruptive (very important)--he should nod politely and when the adult moves on, go back to praying his own way. Later, after the service is over, he should then respectfully but firmly tell that adult that he has his own way of praying, and that he would like to be left alone to do it. And that should be the end of it. We hope.

If an adult asks him for a hug--another control issue with--you guessed it!--the same person, he should say: "I'm not a touchy, feely person. But I'll be glad to shake your hand." And that should be the end of it. We hope.

Naturally, we practiced these situations, and helped him form a statement that would be seen as polite but firm. In this way, we hope to return to N. some sense of control over his situation and alleviate the anxiety.

This, then, is what we are going to do about it. And this will be the content of my conversation with the rabbi. We've determined that we cannot change the overall situation in Machon, but we hope to change the situation for N. in order to alleviate his anxiety so that he can pray.

I hope this is truly the last time I have to go to the rabbi about Machon. The whole situation feeds my own anxieties. Parents with children who are behaviorally different will understand what I mean. When your kid responds differently than others your parenting is always on trial. And the judgments never go in your favor.
But it's the child's needs that matter.

"A person's a person, no matter how small!"

A Civics Lesson: 'Innocent Until Proven Guilty' is a Bedrock Principle of Justice

I got an interesting comment on my post about the flag brouhaha at the University of New Mexico. Although I had to delete and repost it because I do not want certain words on my blog, the commentor had also an interesting take on our justice system. I originally started to discuss this in my reply to his comment, but soon realized that my take on it really deserves a full post.

On October 3, 2007, the anonymous commentor said in part:

"In a legal system where "guilty" means "what they can prove you did", Peter Lynch might get off with just a slap on the wrist."

This statement indicates a fundamental misunderstanding of the origins of the 'innocent until proven guilty' concept that underlies our system of trying cases in court.

The idea that a person is innocent until proven guilty is a bedrock concept that insures justice in our courts. The justice we are talking about is justice in trial for the accused in criminal cases where the state brings the accusations to court on behalf of the citizens. Our founders based this on the English common law that is based on the Magna Carta. That document is based on local practices in England that predate the reign of King John.

Why is this considered justice? Because the state, with all its powers, is bringing a case against an individual. The state has numerous advantages in such a situation. In order to ensure a fair trial, as is constitutionally guarranteed to the accused, it is necessary to force the state to prove the accusations before a candid citizenry. Therefore the state must follow these rules: the accused must be informed of the exact charges against him/her. The accused must be formally charged and tried in timely manner, and the accused must be provided a fair trial with legal representation. There are also rules of evidence that must be used or the case can be dismissed. The accused also has the right to appeal a verdict all the way up to the United States Supreme Court if necessary. Under current law, those appeals are automatic in cases in which a guilty verdict could mean that the accused is deprived of life.

There are many countries in which these legal protections do not apply. Under Napoleanic law for example, the onus is on the accused to prove innocence. I am glad that I do not live in such a nation. It would be too easy for public opinion or state prejudices to railroad the innocent, depriving a person of life, liberty and property unjustly.

It is true that under our system, the state is not always able to prove a case against someone who is, in truth, guilty. That is the price we pay for the protection of our liberties.
It is also true that there are times when overzealous prosecutors manage to railroad an innocent person using public perception and the power of the state against them, despite their sworn duty to uphold the constitution. The answer to this is not to jettison our constitutional protections. Rather, we should bring hold such people accountable and work to bring our local systems closer to the ideals we espouse.


The farmers who "fired the shot heard 'round the world' in Lexington and Concord had a fundamental mistrust of the powers of government. They had seen those powers abused by the British Crown and they had been hurt by the Intolerable Acts and other abuses perpetrated on them. Their interest at first was to protect their "rights as Englishmen." When the United States Constitution was ratified by the states, the framers were in a quandary. The Articles of Confederation were weak and were creating chaos. At the same time, most citizens were very wary of giving powers to a national government; powers that could be turned against the citizens. So when the constitution was ratified, the first ten ammendments were immediately ratified also. The whole package guaranteed certain rights to the citizens and limited the power of the state. Part of that package is the protection enjoyed by the accused in criminal cases.

Another statement by the anonymous commentor that deserves a response:

"Forget his actions, judge his motivations (since everyone seems to be throwing judgment left and right).. But only he knows what really motivated him to do what he did - and the way he chose to do it."

Yes, you are right. The controversy as it plays out in the press is about Lynch's motivations. Some people argue that his motivation was frustrated patriotism and they believe that this should be taken into account by the legal system. Others argue that he was motivated by hatred and that this should be taken into account by the legal system. The whole controversy about the alleged My Space comments is about motivations and not about action. The My Space comments are mean, nasty and socially unacceptable. People have various opinions about them. And that is their right.

But we ought to remember that people have the right to express their opinions freely--even unpopular ones. Even mean, nasty and socially unacceptable ones. Even politically incorrect ones. Even opinions that La Raza does not approve.

In the legal system, however, motivations should play only a small role in the matter. That is because we cannot prove them. What should matter is actions. This is why Peter Lynch has been charged with the crime of destruction of property. The level of punishment for this crime is also written in the law, and has many factors that must be analyzed. Is it a felony or not? Is it a first offense? How serious is the action? Who was hurt? Whose rights were violated and to what extent? These are the matters which should concern the courts. The job of the criminal court system is not to mirror the vagaries of public approbation. It is to provide a place in which reason and proof are used to uphold the laws of the state and nation.

Every citizen has the right to be considered innocent until proven guilty. In the United States, the burden of proof is upon the state.