The Unwritten Constitution: Why Roe Matters

 

I was at my wife's grandmother's place in New York when I saw a news flash on my phone that Roe vs. Wade had been overturned. Even as I had been expecting this result ever since the opinion leak, this still came as a shock to me. Throughout my life, Roe was one of those facts about American political life. Yes, Republicans dreamed of getting rid of Roe, but there was no way it could actually happen. As someone who has moved around a fair bit along the choice vs. life spectrum over the course of my lifetime, I have long found the passions aroused by abortion to be mysterious. Consider the no longer hypothetical situation we are in now with the end of Roe, what has actually changed about abortion law in America now that the Supreme Court has overturned Roe? In truth, almost nothing. Here in California, abortion is as legal as it ever was. For those women living in states that are now banning abortion, what has changed for them is that they might have to spend a few hours on a Greyhound bus. Getting rid of Roe is not going to stop anyone from having an abortion so why did liberals and conservatives spend nearly fifty years fighting over Roe?

The key to understanding the importance of Roe lies in thinking of it in terms of an "unwritten constitution." No one ever interprets a text without a set of assumptions that serve as interpretive lenses for how to read the text. Conservatives are certainly correct in pointing out that, unlike the right to guns which the Court just protected, the Constitution never says anything about a right to abortion. That being said, this does not necessarily mean that it should be easier to buy a gun than to get an abortion. It all depends on what sort of unwritten constitution you believe in. If one does not approach the Second Amendment with the assumption that gun ownership is essential to citizenship in a free society then the right to bear arms becomes nothing more than a quaint text that should not be allowed to get in the way of public safety. From there it is easy to say that the Second Amendment only refers to members of militias carrying Eighteenth-century-style muskets. 

On the flip side, if you assume that the purpose of the Constitution is to allow people to pursue their own happiness in defiance of established sexual mores, then it does not matter if the Constitution never actually says this, this is what the Constitution really is. (Note that the Constitution says nothing about a right to pursue happiness. That is in the Declaration of Independence.) 

As strange as it may sound, it is the unwritten constitution that carries the greater authority. You can argue with a written text and attempt to limit it in all sorts of creative ways. The unwritten constitution is meant to be so thoroughly embedded in the thinking of society that it should be impossible for members to think in any other way. In fact, what is not written can serve as bait to draw out the heretic into revealing that they do not share the fundamental assumptions of the rest of society. For example, do you believe that the First Amendment establishes a "Separation Between Church and State?" If you said yes, you are factually incorrect. The Constitution says no such thing. As with the pursuit of happiness, that was Thomas Jefferson, who was not even part of the Constitutional Convention. If you are of a liberal disposition, this fact should not matter. On the contrary, the conservative who points this out has simply demonstrated that fail to appreciate the "soul" of the Constitution, i.e., they do not accept the unwritten liberal constitution. 

The battle over Roe was never really about abortion but the unwritten sexual revolution constitution that, following in the footsteps of Griswold, it furthered. In essence, the Court was saying that it was an essential right for young women pursuing college and a career to be able to have pre-marital sex without having to worry that, if something were to go wrong, they might have to choose between marrying the father or becoming single mothers. If you are committed to building a society where there is no stigma attached to women pursuing careers and having pre-marital sex then it is going to be necessary to remove the stigma attached to abortion by not just making it legal but enshrining it as a constitutional right in a similar sense as being able to stand outside the White House waving signs.  

When I last visited DC, I made a point of taking my son to see the wide variety of people protesting. It did not matter that I personally disagreed with many of these people. I accept that all of them, even the "smelly weirdos," were doing something positive. It is essential for me that we live in a country where it should be thought of as perfectly normal and uncontroversial to stand outside the White House and say bad things about the president. Note that if you were to tell me that none of this is in the Constitution, which only says that people can assemble to seek redress but not to insult politicians, you would be correct but you would also be demonstrating that there is a larger "soul" to the Constitution that you do not comprehend. 

Being able to publicly say bad things about elected officials (as opposed to strongly implying that you would not be particularly bothered if they were murdered) is part of my unwritten constitution. The idea that the secular state must be backed by a broadly religious society with strong families and a conservative sexual morality is also part of my unwritten constitution. By contrast, the sexual revolution is not part of my unwritten constitution.        

An easy way to see the role of the sexual revolution constitution in Griswold and then Roe is to consider what should be an obvious question. If people have the right to make decisions with their own bodies and in consultation with their own doctors, why is there no constitutional right for drug use or to sell their organs? To accuse people on the left of hypocrisy is, in a sense, to miss the point. There is no deep narrative entrenched within the mainstream left where drug use and organ selling become essential to who people are and to take their place as citizens. By contrast, birth control and abortion have this larger narrative that is more important than any technical legal arguments, which only serve to justify the sexual revolution constitution after the fact. 

Similarly, one can point to the claim of protecting women's rights. The Constitution does not offer special protection for women. The sexual revolution constitution, by contrast, does. In the narrative of the sexual revolution, women are a group oppressed by traditional sexual mores. In order for the Constitution to remain legitimate, it must be read in terms of the sexual revolution. Anyone who argues that the Constitution has no category of women's rights may be factually correct but they have also demonstrated that they are not embedded within the assumptions of the sexual revolution. 

It should be noted that it is possible to want abortion to be legal to a large degree without wanting it to be a constitutional right. I would consider myself to be within this camp. There are lots of things that I want to be legal but not to be expressed directly as constitutional rights. For example, I want adultery to be legal and oppose any attempt by the government to punish infidelity. Similarly, I want marijuana and even heroin to be legal. That being said, I do not wish for them to be declared constitutional rights. To do so would be to accept an unwritten constitution where extra-marital sex and drug use are accepted as positive actions in the same sense as peaceful protesting. 

I am fine with the Supreme Court saying that the federal government has no authority over what people do with their bodies as long as they are not causing physical harm to others. The right of people to pursue their own good in their own way as long as they are not causing physical harm to others is part of my unwritten constitution. This will lead to the de facto legalization of adultery and drug use. Once this has been accomplished, we can discuss whether this constitutional right to bodily autonomy includes abortion or whether fetuses, in some sense, count as living beings with a right to not be murdered.      

Certainly, in the short run, I do not expect the number of abortions nationally to drop. The importance of the Dobbs decision is that it takes away the moral high ground from the left. They no longer have the grounds to claim that abortion is a constitutional right. That being said, I do not expect leftists to back down and soften their rhetoric. On the contrary, we should expect an all-out attack on conservatives for daring to not accept the constitution of the sexual revolution and upon the legitimacy of the Supreme Court for acknowledging that there can be another framework for reading constitutional law. With the overturning of Roe, the stakes have been raised over the sexual revolution constitution. Either we must accept that a group of Gileadists has conspired to take over the Supreme Court and destroy the Constitution in order to enslave women into marriage and motherhood or that the Supreme Court was taken over in the mid-20th century by leftists who rewrote the Constitution in order to enshrine the sexual revolution and that this unwritten constitution has now been rejected. Either way, I expect that there will be little room to make the practical good-faith compromises that might create a workable legal framework for abortion

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Haredi Education and the Heroic Teacher

 

Abie Rotenberg's song, "Ninth Man" tells the story of a class of troublemaking kids who turn themselves around because their rebbe steps in as a replacement in their baseball game after the catcher breaks his leg. (One hopes that this was after the ambulance or the boy's parents were able to take the kid to the hospital.) Recognizing that they owe the rebbe a favor, the kids start paying attention in class and find that the material is actually interesting. It strikes me that this song is remarkably useful as an introduction to Haredi pedagogy. The yeshiva system relies on charismatic teachers, who are passionate about the Talmud in the hope that kids develop a close personal relationship with the rebbe and become interested in the Talmud as well. 

In essence, what we have in the song is the heroic model of teaching. The rebbe proves to be a likable person, who cares about the kids and teaching Talmud. In the end, the students come to like him and therefore become interested in what he teaches. While waiting for that to happen, though, the rebbe spends months simply lecturing even though the kids are not learning anything. This itself is part of the education. The rebbe is making the point that he cares about engaging with the Talmud so much that it is worthwhile to do so even if no one is paying attention to him and he might as well be talking to the walls of the classroom. 

There is no attempt by the administration to regulate what the rebbe does in the classroom. The principal simply puts the rebbe in the classroom and then goes out of town. In the yeshiva system, there is no set curriculum of specific things that students are supposed to have mastered by a certain time. An extension of this is the lack of organized testing. If there is no agreed-upon list of things that students should know and a timetable for when they should learn it, there is little point to test students to figure out if they are on task. Any testing that takes place is going to be largely symbolic, serving the need of putting a grade on a report card rather than any pedagogical goals. 

The point of a yeshiva education is not really about mastering material. The goal is to put kids in a room with a charismatic individual, who, if given enough time, might get the kids to want to be like him. Think of it this way. A student who graduates from a yeshiva without being able to read any Hebrew but comes away admiring the rabbis and wanting to be religious is a success story. The student who leaves yeshiva having mastered a decent amount of Talmud, which he then uses to enroll at JTS is a failure. 

It is important to stress for those who have not gone through the boys’ track of the Haredi yeshiva system, how utterly Talmud-centered it is. If you are a teenage boy who is not prepared to study Talmud for several hours a day, regardless of whatever genuine talents you possess, you are royally fracked. Whatever talented individual rebbeim are out there who understand that not everyone is going to fit the model, at an institutional level, yeshivas are not equipped to handle kids for whom a Talmud-centered education would not be appropriate. In a strange way, Haredi girls have an advantage here. Girls are not supposed to be studying Talmud in the first place so girls, at least as teenagers, have more flexibility as to how they can fit into the system. There is no we are going to continue to try stuffing you into our Talmud-shaped hole and if we fail to remake you in our image, it is your fault.  

Considering, my own not particularly positive experience with the yeshiva system, it is strange to recognize the extent to which my instinctual style of teaching history is essentially a secularized version of the rebbe model. The students do not need me to memorize names and dates. They can get those from their textbook or the internet. Furthermore, I recognize that these bits of information are, in of themselves, going to be of little value to the students as they go out into the world. The important thing that my students should experience is the fact that I am truly passionate about history. History is not simply something that I talk about for a class period but what I live and breathe. Catch me out of class and I am really the same history-centered person you see in class. Beyond telling me to stop talking, I do not have an off switch; even then my internal monologue will continue. 

Since my teaching is really an extension of the running conversation in my head, I am prepared to teach even when students are not paying attention. There are some things that are so important that they should be said even if no one is going to listen. One thinks of the Calvinist minister who preaches not because he believes that he will convince anyone, God has already decided before creation who is going to believe and be saved anyway, but to make sure that those listening will not be able to claim that they never heard the message. They were told the truth and decided not to pay attention.

This can be quite disturbing for many students but there is also a certain charm to it. My inclination is to teach what I genuinely find interesting and what I think is important to understand rather than check things off a curriculum. Admittedly, this leads to my getting sidetracked. It is my conviction that my tangents, particularly if initiated by students, are usually the most important part of any lesson. The fact that I find myself talking about something even though I did not plan on it and it is not part of the curriculum suggests that it really gets to the soul of what I am trying to convey to students. 

If I find something interesting, there is a chance that I will be able to convince someone else that this is interesting as well. At the very least, students are going to be forced to face the question of what it is with this history that has me so enthralled. 

Note that what I describe here is my inclination when left to my own devices. This is not necessarily how I actually teach nor what I think makes for genuinely good teaching.

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The Rights of Chazerphiles, Chazerexuals and the Chazerphobes Who Might Still Love Them

It should come as no surprise to my readers that I have never eaten chazor (pig). It is not just that I happen to have never tried pork. A major aspect of my identity as a Jew is my active refusal to eat pork. Since I lack positive cultural associations for pig and it is symbolic of so much of the "other" for me, you might even say that I am mildly "chazerphopic." Obviously, most of the world does not share my chazerphobia. In fact, there are many "chazerphiles," people for whom the active eating of pork is a critical part of their identity in much the same way that a critical part of my identity is not eating pork. Think of all those Americans for whom the holidays would be incomplete without their Christmas ham. Presumably, there are even ideological chazerphiles who consciously eat pork as a means of rejecting the God of the Hebrew Bible. Such people may view chazerphobes like myself as a threat to the building of a godless society and resent the idea that I "force" my chazerphobic lifestyle upon my children, depriving them not only of the delicious taste of pork but also of the freedom to not worry about whether some "old man in the sky" cares about what they eat.   

As a classical liberal, I acknowledge that both chazerphobes like myself and the chazerphiles who make up the majority of society have rights. I cannot use direct physical force to stop anyone, Jewish or otherwise, from enjoying pork to their heart's content. As a practical matter, I believe that the State of Israel should eliminate all restrictions on the selling and consumption of pigs. At the same time, we should be able to agree that I have the right to keep a kosher home free of pigs. Things get a little more complicated as we deal with cases in the middle and reasonable people of goodwill are going to disagree over where precisely to draw the lines between protecting the rights of chazerphiles and chazerphobes. Among other things, this will depend upon whether we assume that pork eating is simply something that some people like to do or whether some people might actually be "chazerexuals" and eating pork is inherent to their very being? If the latter, then my chazerphobia might be deemed an act of hate against these chazerexuals that threatens their very lives. My chazerphobia should be given only the barest tolerance as some moral failing that I can indulge in the privacy of my home. I should have the decency to be embarrassed by my intolerant mindset and should make no attempt to expose my children or anyone else's to such a backward belief.  

I am raising my two boys in a non-pig-consuming home. When they become adults and move out of my house, they are free to make their own choices, including becoming hardcore chazerphiles. What if they come out of the closet to me as chazerexuals and demand that I respect them for who they are by taking them to McDonald's, even going so far as to threaten to harm themselves, God forbid, if I fail to comply? If we do not believe that chazerexuals actually exist (as opposed to people who simply really like eating pork), then I can dismiss them as being insane and I am under no obligation to indulge the delusions of crazy people. I am not endangering their physical health by not enabling their pork consumption. If, God forbid, they end up harming themselves then it would not be my fault. It is the fault of the mental illness and of any teachers or social media influencers who gave them the idea that they might be chazerexuals with the right to expect that other people will adapt themselves to suit their choice of identity.       

For the past year, I have been teaching in the Los Angeles school system. Do I have the right to tell Jewish students that it is a sin to eat pork? Do I have the right to wear a yarmulka, which might make a Jewish student feel guilty and inhibit their pork consumption? Be careful or I might ask whether a chazerphile teacher has the right to read students books that portray pork eating in a positive light or actively help Jewish students get over their inhibitions about eating pork? 

What if my school wishes to hold a chazer-pride month with a wide variety of activities designed to teach people that it is ok to eat whatever kind of ethically slaughtered meat they like. In truth, I would really wish to cooperate. My chazerphobia is really quite mild. It is not as if I have any truly intellectual objections to eating pig. As a Maimonidean, if I were to create my own religion, I would include some taboos on meat but the meat I would ban would simply be one that the ethnic group I was trying to teach about God was already inclined not to eat. As such, I would have no problem declaring pigs to be "kosher" and banning some other animal. 

I am inclined to believe that all people would do well to follow the ways of their ancestors. As such, it makes sense that non-Jewish Mexicans should maintain their ancestral customs and stick pork into everything. I would wish to support them in this endeavor. 

As part of the school community, I would want to take part in chazer-pride in any way I could. I would be willing to wear a shirt with the chazor-pride logo and march with the other teachers in the chazor-pride parade. It even seems reasonable, assuming my rabbi would permit it, to make a contest that if my students read x number of pages I would agree to personally roast a pig on a spit with an apple in its mouth. 

For me to cooperate with chazerphiles like this, though, I have to honestly believe that they support my chazerphobia and are not conspiring to undermine the keeping of kosher. In this, it is important to keep in mind the halakhic concept of "shas ha-shmad." One is allowed to violate most commandments if someone threatens to kill you but in a time where there is an organized plan to destroy Judaism, you need to be willing to die even over petty things like shoelaces. For example, normally you are allowed to eat pork to save your life. That being said, during the Antiochian persecutions of the second-century b.c.e., the Seleucid authorities tried to get as many Jews as they could to eat pork as part of their plan to destroy Judaism. Pork-eating Jews were being proclaimed as having rejected the God of Israel. The casual Jew on the street, upon seeing pious Jews agreeing to eat pork, would conclude that it was ok to simply throw away all of Judaism. As such, it became necessary for there to be truly committed Jews willing to pay the ultimate price to demonstrate that they still followed the God of Israel. If there were some Jews willing to die for kosher then the majority of Jews might still be willing to try to keep kosher even if it was just in their homes.

If the chazerphiles in charge of my school made no attempt to pressure me in participating in chazer-pride and made it clear that I would face no consequences for openly opposing chazer-pride, I would be inclined to be as cooperative as my rabbinic authorities would allow me. What if the school would declare that chazerexuals existed and needed to be supported to the extent that anyone who refused to celebrate chazer-pride by not putting on the chazer-pride logo was guilty of hating chazerexuals? What if I suspected that the chazerphile administrators, in their desire to build a "community for all" and not offer a home to "hatred" of any sort, would retaliate if I refused to wear the chazer-pride logo? If the chazer-pride logo is something so important as to threaten my job over, it must be because the chazerphiles actually have an ideological agenda such as a wish to undermine the keeping of kosher. If observant Jews like me can be bullied into wearing the chazer-pride logo then the less religious will come to the conclusion that it is ok to eat the chazer-pride roasted pig on a spit. 

Under such circumstances, I would feel compelled to actively oppose chazer-pride even if it cost me my job. I may not believe that chazerexuals really exist, but those who claim to be deserve empathy even though they should not be encouraged in their delusions. I love and respect chazorphiles and do not wish to stop them from enjoying pork. That being said, I am a Jew and, as a Jew, I am proudly chazerphobic. I oppose Jews eating pork for no rational reason at all. I simply believe that Jews eating pork would not be consistent with the will of the creator and prime mover of the universe. 

 

Racism and the Fundamental Attribution Error

I recently started listening to Eliezer Yudkowsky’s fanfiction series Harry Potter and the Methods of Rationality on Audible. There is an episode where Harry explains the fundamental attribution error. Living in our own heads, we are inclined to recognize the role that circumstances play in our behavior. I got angry and shouted not because I am a bad person who hates other people but because I just received some really distressing news. If did something good, it is likely because I did not find it so difficult to do so I felt it was my responsibility to offer a hand. When it comes to other people, though, we are less inclined to acknowledge such complexity. Other people act the way that they do because it is fundamentally who they are. Either they are wicked satanic sinners who act out of a conscious hatred of the good or they are heroic saints deserving of veneration. The practical implication of this mistake is that, if you believe that people act according to their fixed nature, then what people do is who they are. A person who does bad things is a bad person. 

It occurred to me that racism can be seen as an extreme version of this fundamental attribution error. Not only is Aleksis, in all of his complexity, going to be reduced to a liar, instead of someone who might shade the truth depending on the circumstances but now we are going to say that Latvians, an entity that is millions of times more complicated, are liars. It should be noted that the claim that Latvians are liars is an indisputable truth. It may also be true that Jews, Hungarians, and transgender Manhattanites are liars as well, along with the entire human race. Let us not get sidetracked here; I am talking about Latvians.  

What is really interesting is that it is not just racists that make this fundamental attribution. To be an anti-racist also requires making the fundamental attribution error. In reading someone like Ibram X. Kendi, one cannot escape the Manichean logic of either you are a racist or an anti-racist. This follows the larger critical tradition as we have seen with Paulo Freire. There is no sense that people say or do things based on particular circumstances. 

It is not practical to truly escape racist or otherwise prejudiced thinking. Everyone has a narrative about why the world is not a better place. This usually implies some sort of villain. Since the problems of this world clearly go beyond the lifespan of any individual person, it is inevitable that people will place some group or institution as their villain such as Latvian Hungarian Jews. If you are Richard Weaver, the big bad is William of Occam and 13th-century nominalism along with minor bads such as 20th-century jazz. One can hope that, with the help of a classical liberal education, a person can come to construct ever more intelligent narratives with factually more plausible groups of villains and gain a degree of skepticism even over their own narratives. That being said, just as every person shades the truth from time to time, everyone will make reductive statements about other groups that are less than charitable and demonstrate a lack of awareness or empathy for that group's historical circumstances. 

To make things even more difficult, any attempt to make a pro-tolerance statement about a particular group means that you are not making statements about other groups and, as such those groups are of lesser importance. For example, to put up a "Black Lives Matter" sign in your yard is not just to say that black lives matter but to say that, in some sense, black lives matter more than Uighur lives. To be clear, it may be ultimately defensible to argue that black lives may be more relevant to your situation as an American and therefore you have constructed a narrative in which blacks are the victims even as you lack a similar narrative to wrap your head around Uighur history. That being said, this is hardly an innocent claim. 

The anti-racist needs to take all of these very real human foibles and label people as either racists or anti-racists. It is the same temptation as racism to wish to simplify the world into either good or bad people. Clearly, people are not one thing or another. As with every other virtue and vice, people exist along a spectrum and do better or worse depending on the particular circumstance. 

Obviously, the anti-racist cannot denounce say the Trump voter as racist without making themselves vulnerable to the charge of hypocrisy. In the case of Kendi, he holds up Angela Davis as a model anti-racist. This is a person who defended jailing Jewish Soviet dissidents. In a sane world, Kendi could be forgiven for being a non-Jew who never internalized the history of Jewish suffering into his psyche. If we are to play by Kendi's rules, both Kendi and Davis must be rejected as anti-Semites. 

The traditional leftist solution to this problem is to engage in special pleading. Firstly, only certain kinds of blanket statements regarding racial groups really count as racism. It is not racist to declare white gun owners responsible for a Hispanic teenager going on a shooting spree because white people are responsible for most of the evil in this world as all true anti-racists know. Second, the anti-racist redeems himself through leftist politics.   

My purpose is not to say that, since everyone is a racist to some degree, it is ok to be racist. The fact that everyone lies and that society requires the grease of some judicious "manipulating of the truth" does not make lying ok. Whether we always know precisely where to draw the line, we can still recognize, at least in theory, a difference between the person who makes the honest attempt to be truthful and the person who no longer holds that they have a moral responsibility to society to tell the truth. Similarly, even if the wheels of society need to be greased with some prejudice, there is a difference between a person who imperfectly tries to still expand their circle of moral responsibility and the person who does not believe that they have moral obligations to members of the "wrong" groups. Can I tell you, in every case, who belongs in what category? I have no wish to fall into the fundamental attribution error any more than I have to. People exist along a spectrum. I will stand up for my imperfect sense of what is right and I will leave it to everyone else to judge their own hearts.