Why Torah Trumps the US Constitution

Obvious, you say.

Perhaps to us. But these are the words of Justice Antonin Scalia, in a dissent from the Court ruling on the legal need for a judge to recuse himself from a case involving a major donor to his election effort:

A Talmudic maxim instructs with respect to the Scripture: “Turn it over, and turn it over, for all is therein.” The Babylonian Talmud, Tractate Aboth, Ch. V, Mishnah 22 (I. Epstein ed. 1935). Divinely inspired text may contain the answers to all earthly questions, but the Due Process Clause most assuredly does not. The Court today continues its quixotic quest to right all wrongs and repair all imperfections through the Constitution. Alas, the quest cannot succeed—which is why some wrongs and imperfections have been called nonjusticiable. In the best of all possible worlds, should judges sometimes recuse even where the clear commands of our prior due process law do not require it? Undoubtedly. The relevant question, however, is whether we do more good than harm by seeking to correct this imperfection through expansion of our constitutional mandate in a manner ungoverned by any discernable rule. The answer is obvious

[Thanks to Dr. Irving Lebovics, Los Angeles]

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14 Responses

  1. dr. bill says:

    Not clear that the mishna meant that a text of even the Torah is necesarily dispositive in establishing a new ruling. I always assumed it meant that one can look to the Torah to provide insight in every situation. The halakha, however, is determined more by precedent than the creative reading of any source, including the Torah. In our tradition, the omnisignificance of divinely inspired text is also bound by halakha/ precedence.

  2. Ezzie says:

    Not quite what he’s saying; he seems to be focusing more on how adding rules to “fix” perceived problems causes greater problems than it solves. I think we’ve seen similar happenings within Orthodox Judaism.

    Also – divinely “inspired” text!? Tsk tsk. 🙂

  3. Binyomin Eckstein says:

    Maybe it is just me, but whenever I see this type of thing I feel like one who has been told by a stranger that his (the listener’s) mother is a very attractive woman. וואס האסטו שייכות צו מיין מאמע?

  4. yaacov marsh says:

    Justice Scalia also excused himself while addressing an Agudah conference for discussing secular rather than Jewish law by explaining, “I haven’t been keeping up with the Daf Yomi.”

  5. Yosef Blau says:

    It might have been more relevant if Justice Scalia had quoted the Talmud Ketuvot 105 which deals with judges refusing to judge anys case where they have derived any benefit from one of the litigants. Justice Scalia was part of the minority opinion in the supreme court that felt that there was no problem with a judge who received a million dollar support from a defendant in an existing case when he ran for his position and then did not recluse himself from hearing the case.

  6. Raymond Bl says:

    I am not going to even pretend to understand what is specifically being talked about here, but I am writing this out of amazement for Justice Antonin Scalia’s close ties with Judaism. I already knew that Rabbi Adin Steinsaltz had close ties with him, and that he interprets the Constitution in a close pshat level in a manner that is reminiscent of (L’havdil) Rashi’s way of interpreting the Torah. I also knew that he is the finest Supreme Court justice our American nation has had since probably Warren Burger. But what is this about Justice Scalia learning Daf Yomi? Can somebody please go into all the connections he has both to us Jews and our Judaism? This is fascinating to me. It reminds me of how Gertrude Himmelfarb has said that the 18th century British philosopher/parliamentarian Edmund Burke felt an almost instinctive connection with and need to pass on our Jewish traditions.

  7. Bob Miller says:

    The Obama adminstration has also taken “turn it over” to heart in a sense as it upends the Constitution without effective opposition from the courts.

  8. Yehoshua Friedman says:

    The Jews and the Italians in America have rubbed elbows on the same turf in the old neighborhoods in the cities. They have generally gotten along pretty famously. I wonder if the reason is not the influx of Judean captive slaves brought to Italy by the Romans after the Hurban. That is in addition to wayward Anousim who made it to Italy. But the intelligent non-Jew who is drawn to Jewish sources is always striking. Sir Isaac Newton was also a great case as was the jurist Hugo Grotius.

  9. yaacov marsh says:

    To Raymond Bl – Justice Scalia’s Daf Yomi comment was meant as a joke.

  10. too tired says:

    Justice Scalia has 2 frum clerks.

  11. Raymond says:

    Even if Justice Antonin Scalia was making a joke, it is still impressive that he know about Daf Yomi. How many secular Jews would know this phrase?

    I did not know that Isaac Newton had close ties to the Torah. Any elaboration on this from those who know, would be appreciated. I do know that the philosemite Leo Tolstoy learned Hebrew with a Rabbi. I also recall a quote by Founding Father/President John Adams, who said that we Jews are the moral conscience, the great civilizing force of humanity (which is tragically why antisemites hate us so much). And then there is that wonderfully inspiring tribute to our people found in the final paragraph of Mark Twain’s essay, Concerning the Jews, that has made him my favorite of all gentile writers.

  12. Lawrence M. Reisman says:

    To Rabbi Blau:

    It is not entirely accurate to say that Justice Scalia said there “was no problem with a judge who received a million dollar support from a defendant in an existing case when he ran for his position and then did not recluse himself from hearing the case.” What he said was that the constitution does not address this issue, and that it is wrong to use the constitution to correct it.

    He is entitled to his opinion. I just wish that when he decided Bush v. Gore, he had come to the conclusion that there was nothing in the consitution to justify with state election law, which is what governs the selection of presidential electors and always has. However, in that case, he found something in the constitution, joining the ruling that the equal protection clause prohibited recounting only one county in Florida, because it treated that county’s votes differently than those of any other. So much for “judicial restraint” and “strict construction.”

  13. Raymond says:

    When the votes were fully re-counted in Floria in the 2000 Presidential Elections, George Bush won in every single disputed county, and won in the state of Florida overall. Bush bashers will never accept such defeat, though, just as many like-minded liberals concocted all kinds of conspiracy theories to cover up the fact that a lone gunman who happened to be a communist, namely Lee Harvey Oswald, murdered President Kennedy for the latter’s anti-Communist policies. For such people, truth is not their highest priority.

  14. Lawrence M. Reisman says:


    Even if true, it’s totally irrelevant to the issues of “judicial restraint” and “strict construction.” The counting of votes in any election has always been a state function and within the jurisdiction of the state in question. Had the supreme court let the Florida decision stand, the recount would have confirmed your thesis. Instead, the supreme court decided to throw out judicial restraint and strict construction and to find a constitutional right where none existed before. I’m sure Earl Warren would have been proud of what the court did, except for the fact that he would have disagreed with the result. The bottom line is that nobody objects to judicial activism or “legislating from the bench” as long as they agree with the judicial activists or the decision they come to.

    I despair of hearing any justice, left or right, arguing as Hugo Black did about Connecticut’s anti-birth control law that it was “an extremely silly law” even as he voted to uphold it because he saw nothing in the constitution that banned it. (See his dissenting opinion in Griswold v. Connecticut.)

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