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February 10, 2017 4:14 am

The Constitution, Shabbat and the Purpose of Limitations

avatar by Pini Dunner

Email a copy of "The Constitution, Shabbat and the Purpose of Limitations" to a friend
Donald Trump being sworn in as America's 45th president. Photo: Screenshot.

Donald Trump being sworn in as America’s 45th president. Photo: Screenshot.

Just three weeks into the new administration in Washington, calls to impeach President Donald Trump have already begun. James C. Nelson, a retired Montana Supreme Court judge, and John Bonifaz, president of an organization called “Free Speech For People,” jointly authored an article in this week’s Time claiming that our new president has already violated the little-known “foreign-emoluments clause” of the US Constitution, which, they declare, is grounds for impeachment.

Meanwhile, lawyer and TV legal pundit Elura Nanos has suggested that Trump’s Twitter attack on the judge who ruled against his immigration ban might be the first act of a president who is looking to ignore or defy court rulings. If that turns out to be the case, she argues, this would also be grounds for impeachment.

An online campaign called the “Impeach Trump Now Movement” claims that the new US leader is guilty of “massive corruption of the presidency, far worse than Watergate.” It is well on its way to garnering one million signatures.

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Just to be clear, in order for Trump to be impeached, the Congress would have to find him guilty of bribery, treason or “other high crimes and misdemeanors.” This provision is enshrined in the US Constitution.

The US Constitution is a fascinating document, widely appreciated as the basis of freedom and democracy in the United States. Drafted and ratified in the late 1780s, it has proven to be remarkably durable to evolving circumstances.

The most remarkable aspect of the Constitution is that it guarantees the freedom of the people by limiting the powers of the three branches of government, and making them interdependent. This may be something that we take for granted, but at the time it was a revolutionary feature.

Before 1787, constitutional powers in every country across the world were concentrated in the hands of a monarch or supreme leader. To the extent that “democracy” even existed, the will of the people (as represented by their elected representatives) could always be overruled by a royal decree. Limitation on government power was an utterly modern and untested idea in 1787, and the success of this model was far from a foregone conclusion.

For all the Constitution’s flaws — and its critics have a long list that they are only too eager to share — the fact is that the limitations and restrictions on power mandated by it effectively prevent the abuse of power, and set a standard by which every government official, elected or appointed, is measured and judged. This is what guarantees our freedom.

Yet, intuitively, one might think otherwise.

Libertarians advocate autonomy of the individual and the rejection of government authority — seemingly the ultimate form of freedom. But libertarianism inevitably leads to anarchy and chaos, ultimately endangering the freedoms we all take for granted. Charles Wolfe, a prominent libertarian theorist, noted in a landmark essay published to mark Constitution Day in 1956, that many fellow libertarians believed libertarianism and constitutionalism were in direct conflict with each other. “This is a view which I once held,” he said, “but I now sincerely believe that the apparent clash between libertarianism and the constitution is superficial rather than fundamental.”

Freedom without restrictions is not really freedom at all; it is the worst kind of tyranny that exists.

And I believe that this is the explanation for a curious anomaly emerging out of this week’s Torah portion: Beshalach. Tradition teaches us that there were three Torah commandments handed down by God at Marah, before the revelation at Sinai: the Sabbath, the red heifer and the requirement to set up a judiciary. Elsewhere in the Talmud, we are told that if the nascent Jewish nation had observed their first Sabbath in the wilderness, they would certainly have merited ultimate redemption.

Sadly, this was not to be — because some of the people went out to collect their Manna, and strayed beyond Sabbath-permitted distance limits. The Tosafist rabbis correctly pointed to the fact that this was not actually the first Sabbath; there was an earlier Sabbath that occurred immediately after Marah, before the Manna started to fall. In other words, the very first Sabbath in the wilderness was not desecrated. So why is this first Sabbath not counted?

Rabbi Judah Loew, the famed Maharal of Prague, intriguingly suggested that the Sabbath laws received at Marah only consisted of the positive precepts relating to Sabbath, but none of the prohibitions. Sabbath only really kicked in once the prohibitions were introduced.

The Talmud says something very similar about someone who desecrates every law of Sabbath, but is still aware of Sabbath’s existence. Rather than talking about the requirements to do certain things on the Sabbath, the Talmud focuses on knowledge of the prohibition as proof that this person is aware of the day’s sanctity.

Clearly, all the beauty and sanctity that we associate with Sabbath are only possible because of the limitations that come first. Elevated spiritual heights don’t exist in a vacuum. They require stringently observed restrictions that, in and of themselves, may seem austere and onerous, but ultimately open up and facilitate the spiritual freedom we all yearn for.

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