Civil Liberties and the 'Imaginative Sustenance' of Jewish Culture

Abstract

This short essay is included in a symposium issue entitled "People of the Book: Judaism's Influence on American Legal Scholarship." It is a meditation on how my background as a Reform Jew growing up in New York City influenced my work as a constitutional lawyer and my scholarship in the fields of criminal procedure and federal jurisdiction. As Irving Howe observed: "The imaginative sustenance that Yiddish culture and the immigrant experience could give to American Jewish writers rarely depended on their awareness or acknowledgement of its presence. Often it took the form of hidden links of attitude and value." In this essay, I will focus on three of those links of attitude and value. First is the value of dispute and dialectic as a bedrock principle in both the religious and legal realms. Second is an entrenched skepticism about power and a heightened awareness of power imbalances. Third is a respect for settled ritual and process, and how it comes into tension with the substantive goal of justice.

Keywords: religion and law, constitutional theory, Jewish law, criminal procedure, federal courts, ritual, pluralism, pragmatism