- In the Torah portion Yitro (Exodus 18). Moses judges the people and settles their disputes. He does this for days on end. His father-in-law Jethro is stunned; even for a man like Moses, this is a mission impossible. “Thou wilt surely wear away, both thou, and this people that is with thee; for the thing is too heavy for thee; thou art not able to perform it thyself alone.” He advises Moses to delegate powers and establish a hierarchy of magistrates and bring to him only the most difficult cases to adjudicate. Moses would continue to teach the people the word of God and his laws and show them “the way wherein they must walk, and the work that they must do.”
The Torah does not fear to tell us that we learned the rules of law and power from the nations of the world. It is not here that we find the universal message of being a “treasure from among all peoples” (Exodus 19:5) and a “kingdom of priests, and a holy nation” (Ibid, 19:6), but in the content of the law: The Ten Commandments given in the Torah portion and their delineation into many laws in the next Torah portion of Mishpatim (laws).
If the Knesset were to legislate the Ten Commandments (Exodus 20), would they pass the bar of the Supreme Court?
2. Because the Supreme Court does not limit the right of standing [the right to bring a case before the court] it hears all petitions, even those of migrants from other countries. As a rule, the court is willing to hear all petitions all the time; even during a military operation or a war, government decisions are not the final word, but must receive the approval of the courts.
Moreover, the revelation on Mount Sinai was the receipt of a constitution where those present were the constituent assembly of the people born from the womb of the Egyptian Empire. Despite the fact that it is legislation that grants the court the authority to hear and rule (Basic Law: The Judiciary) it would debate whether the commandments were in line with “foundational principles” (a code name for the worldview of the judges). They would do this through “subjective interpretation”: Can every commandment be interpreted in a way that is in line with the values of the Supreme Court – and thus be left untouched; or dismissed (or amended), if it does not suit the court’s fundamental values.
Why should you not “covet your neighbor’s house… or anything that belongs to your neighbor” (Exodus 20:17). After all, any reasonable person covet what others have. “Remember the sabbath day to keep it holy.” That’s in violation of Basic Law: Freedom of Occupation. “Honor thy father and thy mother” (Ibid 20:12) What about Human Dignity and Liberty? And surely the court would amend that to “Honor Parent 1 and Parent 2.” “Thou shalt not murder” – that will be changed to the King James version, “Thou shalt not kill.” In other words, a prohibition on killing in any circumstance – that would get us brownie points with justices around the world. And so on.
3. In order to supervise legislation, the court will use tools developed right here in Israel, Blue and White tools, that are a light unto the nations: proportionality, the scale of reasonability, and others. That will enable it to read the commandments in a way that is detached from their original intention. The judges will not have to adhere to the letter of the law even on laws that are crystal clear in their intent; instead, they will employ these tools based on their values to examine the legality of the Ten Commandments. The process would not be subject to appeal and would not hear testimonies or review evidence, because the Supreme Court is the court of first and final instance.
It is not at all improbable that the court will challenge the very authority of the people to declare a constitution without the involvement of the judiciary, in other words without consulting the judges (“I find it unfortunate that the Justice Minister did not ask me before…” said former president of the supreme court Aharon Barak) Even if the court has taken for itself the right to dismiss laws without having been given the authority to do so by the sovereign, we thought that at least it would not debate the rules of the game because its authority derives from those very same rules. We were wrong. Our court has decided that everything is justiciable, even the rules of the game, in other words the Basic Laws that the Supreme Court sees as the foundation of a constitution.
4. In no other Western democracy is there a court with infinite powers. On second thoughts, challenging the Ten Commandments is tantamount to challenging the law giver himself and putting the court in his place. Contrary to the principles of the secular revolution that places man at the center, we have reached a situation where it is the judges who stand at the center. Nota Bene: not justice or the law, but the judge and his worldview – “Thou hast made him but little lower than the angels” (Psalms 8:6).
The people will be embittered by the plunder of their liberty and will protest against the impositions of the judges’ personal worldview. It will work to restrict their purview to the legal field and remove their authority over matters of politics and values. But then members of the elites who benefited from this judicial imperialism – as long as it worked in their favor – will move against them. They will declare the end of history and state that the desire to involve the will of the people – who are the sovereign – in matters of gravitas – diplomacy, the military, the economy, religion and state – is a blow to democracy and a judicial coup.
The people will cry out: “You are judges, you are required to rule according to the laws that we voted for; that is what we appointed you to do!” Wrong. They are judges in the biblical sense: They do not just settle disputes; they are political and military leaders as in the book of Judges. Thus, the Supreme Court has slowly but surely become the de facto government. The people are no longer its source of authority; it derives its authority from itself. Without us noticing, the court has stricken off the third commandment: “Thou shall not make to thyself any idol…” (Exodus 20:4). We are warned not only against worshiping any idol, but also against making ourselves into an idol: You shall not bow down before yourself! Otherwise, you will fall to the sin of hybris, the sin of pride that puts the self above the people in whose name you are there, or worse yet, you will believe that your self and the will of the people are one and the same, even if the people have said and voted differently.
5.There are publicly elected officials who once asked those same questions, but have made a volte face and now support the plundering of the people’s liberty and deny their statements in the past in support of judicial reform. There are intellectuals who are fully aware of the depth of constitutional distortion, but in view of the fire and brimstone rained down against those who support what they themselves preached for years, they now publish articles calling for dialogue and compromises and for “the crazies to climb down from the roof.” They are interviewed in the media as “responsible adults.” Few of them dare speak of the betrayal of their fellow intellectuals and the court of history will judge them for failing at the most critical moment in this war of ideas to stand up and defend the people and its sovereignty.
These wise men forgot the lesson taught to us by King David faced with the contempt shown to him by King Saul’s daughter, Michal for dancing (“with all his might”) with the people when the ark was taken up to Jerusalem. Michal said: “How did the king of Israel get him honor today, who uncovered himself today in the eyes of the handmaids of his servants, as one of the vain fellows shamelessly uncovereth himself!” (Samuel II 6:20). King David responded with clarity that foresaw the future: I danced before the Lord who chose me above your father to lead the People of Israel. He added a sentence that seems as if it was being said directly to us today: “And I will be yet more vile than thus, and will be base in mine own sight; and with the handmaids whom thou hast spoken of, with them will I get me honor.” Honor does not come from the legitimacy given by the old elites, but from the courage to stand up for the simple people, to serve as their voice, and to restore their right to influence events in this good land. With them will I get my honor!
{Reposted from IsraelHayom}
