Sunday, September 02, 2007

Mad Dogs and Englishmen

In Hollywood, Florida, a public school has opened which teaches Judaism. Except that it doesn’t, because that would interfere with the division between church and state. So this school teaches Hebrew, and Bible and other Jewish things in a secular way. Its great advantage is that it is free. If parents wish it then, for a small cost, their child can stay on after school and learn standard limmudei kodesh.

And the private Jewish schools are going nuts about it, on the basis that there is an infringement of the constitutional divide. Not, please note, on the basis that this is competition, although the cynical and not so cynical would be forgiven for feeling that this was the true reason. Of course, such an objection would be prohibited by halacha (as I understand it). As a result, the kids had their religious studies course shut down 3 days after term started by the local school board.

My sister-in-law has written about this in the local paper. She is a conservative Jew and I am not, so I do not rely on the religious opinion expressed in her piece. But I entirely agree with her anyway. That, however, is not the point of this post.

This issue ties into the one that Lurker has addressed below. I am a lawyer by profession, and being British I am also able to sit as a part time Judge. For most of my time I am engaged on my legal practice: for 5 weeks a year or thereabouts I am a Judge sitting on criminal and civil trials at what (in the USA) would be called District Level. So I get to see two sides of the legal process.

It is a peculiarly American thing to get worked up about Judicial power and to insist that it is somehow restrained by the Executive. Israel, deriving its judicial system from the British is far less bothered about it. In countries which lack a written constitution, the thought is that the Courts interpret the law on the basis of precedent and inherent judicial intelligence. In the UK and Israel, judicial bias is an irrelevance because the remedy for Judicial activism is for the legislature simply to legislate to overturn the decision. Consequently, judicial activism tends not to be marked in common-law systems or to be confined to areas where the government’s wish to deprive people of their liberties would not be supported by the vast majority of the populace.

In the US, it appears to me, the concern is greater because the Courts are the ultimate expositors of the law and how they interpret the Constitution is a key issue. If the government don’t like the decision there isn’t much they can do about it. Hence the need for Bush to appoint his cronies to the Supreme Court Bench. I appreciate that in the US this ‘accountability’ to the Executive is viewed with pride. To my ears it sounds like the compromising of the one branch of government which really ought to be politically neutral.

In the UK the school problem would be solved by a judicial review of the school board’s decision. A judge would decide whether the objection to the religious studies course was rational and the action taken was proportionate. If so then, unless it infringed the childrens’ human rights (unlikely) the school board would be permitted to take its own action. That decision would become a precedent for further cases but would not automatically be binding unless the further cases were on exactly the same facts.

The entire case would be conducted on the mundane facts of what particular people decided in a particular county about a particular school. No matter of general principle would be involved. No issue of whether the state should allow religion to intrude into the classroom of a state-run school would disturb the calm waters of a case. In the UK we would not care.

Would the US be better off if that was the case in Hollywood? I think so. The Constitution was framed by those dealing with 17th and 18th century problems. Those problems have evaporated and been replaced by others. The unwieldy task of ensuring that a 300 year old wish-list is fit for its current purpose is expensive and time-consuming. It permits grandstanding and the constant elevation of boringly personal local matters to great statements of principle. Junk it and replace it with something else. Please note, this is not an argument against a written constitution, but simply an argument about granting any secular document divinity.

PS. Any similarities which a reader might detect to arguments about Halacha are purely coincidental. Obviously we should all believe that our founding fathers (whoops – I mean Chazal) were gifted with permanent and faultless foresight and were equally able to address matters current today as they were to address the complexities of Babylonian life 3,000 years ago. Consequently, any attempts to argue that we may now be able to add something to their discussions which would logically require us to say they are wrong are simply the products of our own misguided interpretation of what they said. Glad to have made that clear.

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