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Justice Scalia and the making of the Mishkan

Last Shabbat, America lost one of its most important legal minds with the passing of Supreme Court Justice Antonin Scalia. The New York Times wrote that Justice Scalia’s transformative legal theories, vivid writing, and outsize personality made him a leader of a conservative intellectual renaissance in his three decades on the Supreme Court.

In 2011 Judge Richard A. Posner wrote in The New Republic  that “Scalia is the most influential justice of the last quarter-century.” Justice Scalia was a champion of originalism, the theory of constitutional interpretation that seeks to apply the understanding of those who drafted and ratified the Constitution. Nathan Lewin, a renowned constitutional lawyer and close friend of Scalia wrote that during the time when there was no Jewish justice on the Supreme Court, Antonin “Nino” Scalia told me, “I considered myself the Jewish justice.”

It occurred to me, as I have been reviewing the parashot dealing with the building of the Mishkan (Tabernacle) that to a certain degree Justice Scalia’s approach to the Constitution is similar to a Jewish idea that is expressed in these parashot.

Last week, we read parashat Terumah, which begins a series of five parashot that deal with the construction of the Mishkan (Tabernacle) in the desert. Throughout these chapters, there is a refrain that recurs time and again stating that all of the components of the Tabernacle were made "as G-d commanded Moshe." This expression appears no less than 18 times! Why does the Torah go out of its way interspersing this statement so often in the narration, rather than merely mentioning it one time at the end of the construction?

Rav Baruch Mordechai Ezrachi head of the Ateret Yisrael Yeshiva in Jerusalem, offers an explanation (in his Sefer Birkat Mordechai): There is a lot to be said for people who do a Mitzvah exactly as they are told — no more and no less. The nature of people is that they do not like to do exactly as they are told. People like to feel a degree of independence. They like to feel that they can at least bring some degree of personal creativity to whatever job they are doing. The natural inclination is to think "True, the Almighty told us to do it 'this way', but wouldn't it be nicer if we did it just a little bit better."

Many people have an inclination to say: "I want to show my own individuality. Maybe we can do it a little different." Doing a mitzvah in a "no more, no less" fashion testifies that the person is not doing it for his own sake, but simply as a servant following the orders of his Master.

This is akin to the Talmudic idea that "greater is one who is commanded and does than one who is not commanded and does." [Bava Kama 38a] This is somewhat counter-intuitive. We might have thought that a "volunteer" gets extra credit and is to be rewarded more than a person who is merely fulfilling an obligation. However, it is a higher spiritual level when a person does something not because they want to, not because they enjoy doing so, not because they feel it is a form of self-expression, but because – G-d told them to. That is a higher spiritual level.

People do not like to take orders. To be an employee and have to do it always the way the boss says is difficult. However, in Judaism, we are all employees. There is one Boss. He says something and that is the way it is. This is why the Torah repeats 18 times: "As G-d commanded Moshe."

Scalia used to explain when one studied Shakespeare, it wasn’t the Bard who was on trial — it was the students. And that is how Scalia himself viewed the relationship of judges to the authors of the Constitution. He felt a burden to study their words to divine what they had originally intended and then to act accordingly.

Nevertheless, there is an important difference between the Constitutional originalism of Scalia and the Jewish commitment to Torah. Scalia famously declared that the Constitution is a "dead" document. By contrast, we call the Torah an "etz chaim" or a living tree. We must acknowledge that the development of halachah from the written and oral law required a large amount of rabbinic creativity to solve new problems based on Torah principles. This creativity is ongoing to this very day. In that way, our tradition of halachik evolution is much more flexible than Scalia's project to bind the Consitution to the original intentions of men who lived hundreds of years ago.