By David Wecht
In 1915, Louis Brandeis declared that “to be better Americans, we must be better Jews. And to be better Jews, we must become Zionists.” Brandeis spoke as a secular Jew. He spoke at a time when anti-Semitism was common. He spoke as a proud American, and he spoke to debunk the myth of dual loyalty.
The following year, Brandeis was appointed to serve on the U.S. Supreme Court, the first Jew ever to serve in that position. He would become one of our greatest jurists, authoring opinions that still guide our law today.
More than 100 years after Brandeis’ elevation to our highest court, how far have we American Jews come?
Three Jews serve on the Supreme Court. Jews serve in both houses of Congress and as lower federal judges. Jews serve as governors, legislators or jurists in many states. Jews have run credible campaigns for president and vice president. Jews serve in the highest ranks of business, entertainment, academia and the learned professions. Jews have achieved remarkable success.
And yet, something seems amiss.
Last year, anti-Semitic incidents in the United States were up by 57 percent. (I must leave aside for now the outrageous wave of recent attacks on Jews in Europe, a phenomenon that also requires our attention.) Right here, in this country, Jews are assaulted on the street, as happened twice in just one recent week in Brooklyn, N.Y. On both the left and the right, enemies of the Jews express their hatred more and more openly.
On college campuses, Jewish students are berated and harassed. Under the thin veneer of “boycott, divestment and sanctions,” “Students for Justice in Palestine” or other labels, anti-Semites make the university a fearful environment for students who wish to express themselves openly and proudly as Jews. As an example, many universities witness an annual abomination known as “Israel Apartheid Week,” in which the Jewish state andits supporters are demonized and threatened. These campuses are where leaders are being trained. Think about that.
In the meantime, too many American Jews go blithely on their way.
“It is not I who is intimidated on campus. It is not I who is assaulted on the street. It is not I who is heckled as I enter an event for a Jewish group. It is not I who is targeted by anti-Semites on social media. It is not I who feels unsafe walking to and from shul.”
“I have a comfortable life. Why speak up? Why say anything? Why bring attention to myself? Why stir the pot?”
Most groups are proud to celebrate their heritage. They understand that their celebration is a celebration of what the United States of America is all about, a celebration of what it means to be an American. Christopher Columbus Day. St. Patrick’s Day. Black History Month. How many Jews celebrate their heritage?
How many Jews do you know who assimilate and drop out of the picture? How many Jews do you know who suppress or ignore their heritage? How many Jews do you know who fail utterly to educate their children in Judaism, in Jewish history, in Zionism, in ahavat yisrael — the love of Israel and of the Jewish people?
Philosopher Emil Fackenheim wrote that, after Auschwitz, there is another commandment: “Jews are forbidden to give Hitler posthumous victories.”
Too many Jews give Hitler such victories every day.
It needs to stop. But how?
Jewish education. Jewish self-respect. Jewish pride. Jewish insistence on the defense of Jewish rights and interests.
This brings me to justice and the rule of law. As Justice Brandeis observed long ago, the principles upon which our constitution is based — including the idea that we are a government of laws, not a government of men and women — can be traced all the way back to our Bible.
Avraham Avinu. Moshe Rabbenu. David Hamelech. Each of these people learned that law and justice circumscribe the might of even the most powerful leaders.
Law is, or can be, our protector. There was no rule of law in Nazi Germany. There was the rule of Hitler. Nazi judges swore allegiance to the fuhrer. There was no rule of law in the Soviet Union. There was the rule of the Communist Party and its Politburo. There is no rule of law in Iran. There is the rule of the ayatollahs.
Jews cannot long survive, let alone flourish, in regimes such as these. As a minority throughout the diaspora, Jews know that the protection and vindication of their rights depend on order as well as opportunity, on rules as well as freedom, on tolerance as well as nationalism.
How can the law help to shape and protect our destiny as Jews?
First, as James Madison recognized, our system of laws embraces a constitutional regime of ordered liberty in which the minority is protected from the periodic whims and oppressions of the majority. This constitutional principle of minority protection serves, one hopes, to ensure that depredations akin to those that helped to drive our ancestors toward these shores — the pogroms, the confinement to the pale of settlement, the restrictions on livelihood — never recur here.
Second, in this country, we do not settle disputes by force or by who shouts the loudest. We settle our disputes according to the rule of law. As Jeremy Bentham observed: “Every law is an infraction of liberty.” Unfettered liberty would allow every person to do as he or she pleases, rules be damned. Jewish history confirms that disorder and chaos are not conditions conducive to Jewish survival, much less Jewish success.
Third, a system predicated on the rule of law is one that allows human opportunity to flourish. Principles enshrined in our Constitution mean that the kinds of discrimination endured by blacks, Jews and others in this country in the past are, one hopes, indeed a thing of the past. A system such as ours, based upon the rule of law, exists to unshackle opportunity and to make it equal for all, rather than to hamper it or load the dice for or against any person or group.
The rule of law does not guarantee our success. It does not guarantee our happiness. It does not guarantee that we will not encounter prejudice. Rather, the rule of law in this country does something that has not been common in the history of the Jewish diaspora: It places our destiny squarely in our own hands.
And what will that destiny be? It is up to you. You have the freedom to choose. I hope you will make the most of that freedom and that choice.
Too many Diaspora Jews, past and present, have not.
They have allowed that choice to lead them to end their Jewish journey, and that of their children and descendants. They have assimilated. They have been ashamed to be Jews. They have abandoned their duty to educate their children in our heritage, our religion, our language, our holy land. They have abandoned their synagogues. They have ignored our holidays and celebrations. They have ignored anti-Semitism.
They have failed to stand up for their Jewish brothers and sisters here and abroad. They have failed to defend and support the State of Israel, or even to attempt to understand it. They have declined the wondrous opportunity — only dreamed about for two thousand years by our ancestors — to visit and experience the marvel that is eretz yisrael. They have avoided the need to get involved in public life so as to make Jewish voices and needs heard and respected by elected officials. They have failed to learn from the mistakes of the past. In so doing, they have neglected the Jewish future.
We live in a nation governed by the rule of law, affording unprecedented opportunity for every person to pursue his or her dreams. I have a hope not only for you, but also for all of those among our Jewish brothers and sisters that you can reach, and that you can influence or encourage. My hope is that we will strive always to ensure that our children and those who will follow them will enjoy a future that is not only free but Jewish as well.
David Wecht is a justice of the Supreme Court of Pennsylvania. He adapted this article from a lecture he delivered at Gratz College on April 24.