Using Foundation Documents in the
Study of Jewish Public Affairs
Daniel J. Elazar
The New Jewish Constitutionalism
Constitutionalism has been a preeminent aspect of the Jewish political tradition from earliest times. While the fundamental constitution of the Jewish people, the Torah, is traditionally viewed as God-given, albeit accepted by the Jewish people with their free consent through a series of covenants, this has not prevented the Jews from engaging in a considerable amount of constitutional design and redesign through Jewish people history. The Torah itself seems to have passed through several such stages. In addition, the Bible records several constitutional reform movements of importance, including the establishment of mishpat ha-melukhah (the constitutional law of the kingdom) at the time of the introduction of the office of melekh, the Josianic reform, and the recovenanting under Ezra and Nehemiah.1
The Mishna and Gemara are both massive examples of constitutional redesign which contain within them the accepted principles of constitutional change established by the sages to be applied within what came to be known as the halakhic framework. The transfer of the locus of power in the Jewish world to local communities in the Middle Ages led to a period of great constitutional creativity, led by the major rabbinical posekim of the time who became the architects of a new constitutional law based on the Torah and talmud which enabled the local communities to function as autonomous entities with full powers.
The modern epoch in Jewish life, beginning in the mid-17th century, is conventionally viewed as a time in which this whole constitutional apparatus broke down. This is true enough as far as it goes, but what is often overlooked is the degree to which the Jewish people did not abandon constitutionalism, but tried new experiments in constitutional design, reflecting new conditions of modernity and emancipation. While some of these experiments were very visible and represented grand efforts, others were very local efforts to constitutionalize new or redesigned institutions whose prospect was to accommodate the ideologies promulgated in the larger arenas and to give them a constitutional framework through which organized Jewish life could function. This process intensified after World War I and again after World War II as the locii of Jewish life completed their movement from older centers which had been organized under traditional constitutions to the New World and the new State of Israel which necessitated new expressions of Jewish constitutionalism.2
It is our contention that modern and contemporary Jewish institutions and communities have developed important constitutional documents which reflect the way in which they now function. More than that, out of all this experimentation there has emerged a major constitutional movement in Jewish life, one reflected in new efforts at constitutional design to confront new situations. We further contend that this thrust will, within the next few generations, emerge as a common constitution or at the very least a common set of constitutional principles, for a postmodern Jewish people.
The Jewish Textual Tradition and Jewish Political Studies
Jewish tradition is preeminently a textual one, rooted in a series of written documents beginning with the Bible and continuing through the Talmud, the works of medieval biblical and talmudic commentators, decisors of Jewish law, (posekim) and exponents of Jewish thoughts. An engagement with that tradition and the Judaism which flows from it to this day is preeminently engagement with those texts. This is true of all persuasions, albeit at different levels significantly, those segments of Judaism that initially sought to abandon or reduce the role of texts in Judaism, such as some of the nineteenth century reformers, have almost inevitably found their way back to this textual basis out of necessity.
This textual tradition has served adherents to Judaism and the Jewish people as a whole very well, providing them with a constant and relatively definitive set of benchmarks around which all can rally regardless of their differences in understanding and interpretation of those texts, differences which, especially since the opening of the modern epoch, have been very real and even extreme. Indeed, one might say that the textual tradition has held Judaism together in the face of strong fissiparous tendencies; hence the study, teaching, and learning of texts has always occupied a central place in the promotion and dissemination of Judaism and Jewish civilization.
The modern and contemporary study of Jewry has introduced serious historical and social scientific dimensions for the first time. Both represent breakaways from traditional Jewish studies because they do not rest upon a set of received texts. Historians of the Jews have partially overcome this to gain the approbation of their colleagues in Jewish studies by their reliance on written documents for the study of Jewish history, as in the case of any other history, which gives them at least a partial bridge to a text-based world. Social science, on the other hand, has been to date so far removed from reliance on texts or documents in its methodology that it has had difficulty in gaining recognition in Jewish studies circles because of its so totally different methodology.
Jewish political studies, relatively new as a separately articulated discipline in either Jewish studies or political science, as been developed in the last thirty years by scholars around the world, most particularly by groups at the Jerusalem Center for Public Affairs and Bar-Ilan University. Like political science in general, it is in something of a bridging position between social sciences, history, and the humanities in this respect, encompassing as it does the study or exploration of political philosophy, political institutions, and political behavior. As such, from the first it was able to build links with both the contemporary social scientific study of Jewish life and traditional Jewish studies and was accepted by the latter somewhat more willingly than was the former. The result was the representation of the field under its own name at the World Congresses for Jewish Studies in Jerusalem since 1969, the Association for Jewish Studies in Boston since its founding that same year, the organization of specialized conferences, institutes and workshops in the field in various parts of the world, and both oral and written presentations in a wide variety of forums including extensive publication over the past thirty years beginning with defining articles by this writer that appeared in Judaism and the American Jewish Yearbook in the 1960s.3
However, it, too, suffered from a lack of clear connection with the Jewish textual tradition. It was only in 1976 and subsequently, stimulated by response to the bicentennial of independence of the United States and the general reconsideration of the basic texts of American democracy that students of Jewish political studies found a way to connect their subject to a textual discipline. They found that it was possible and useful to do so through the constitutional documents of modern and contemporary Jewish communities, polities, and institution. These constitutional documents, beginning with the constitutions of Jewish communities and their institutions that appeared in medieval times but most particularly since the modernizaiton of the idea and practice of constitutionalism from the beginning of the modern epoch in the seventeenth century, constitute a coherent body of material which, while not exactly sacred in character, speak to the norms, realities, and needs of Jewish political, communal, and congregational life in a serious way.
The discovering of the utility of these constitutional documents came to a group of us when we initiated an exploration to see if the small Jewish communities in the eighteenth century United states had been influenced by American revolutionary and constitutional thoughts and had begun to produce documents for their own communities that reflected such influence. We did indeed find a few documents that showed the direct influence of the American experience on colonial Jewish institutions, congregational constitutions that were written in the style of the early state constitutions and the federal Constitution of 1787, even a congregational bill of rights for the constitutional revision developed in those times for Congregation Shearith Israel in New York, the first Jewish congregation in the United States founded in 1654, and embodied in its third constitutional revision at the time of the writing of the U.S. constitution. More important than that, we found that when reading these constitutional documents as a group rather than simply one by one, patterns of development emerged that gave us a textual tradition, a text-based way as a lens through which to study modern Jewish institutions.4
Studying Modern and Contemporary Documents
The initial exploration expanded to examine two central questions: To what degree did the American experience influence Jews who settled in or were subsequently born in the United states as they built their institutions, and to what extent were older elements of the Jewish political tradition (which had been identified through other research) preserved in those new institutions and reflected in their constitutional documents.
In light of the foregoing contention, in 1987, the Jerusalem Center for Public Affairs initiated a project to study the constitutions of contemporary Jewish communities, institutions, and organizations, beginning with the constitutions of American Jewry which, taken together, represent perhaps the largest concentration of these new forms of Jewish constitutional expression at the cutting edge of the effort. The first stage of this project was undertaken by the Jerusalem Center's Center for Jewish Community Studies and the Center for the Study of the American Jewish Experience of HUC-JIR as part of the commemoration of the bicentennial of the United States Constitution of 1987.
Our central question was what was Jewish about the constitutions and other foundation documents developed by American Jewry in the New World and what was a product of the American experience. That is to say, what did the Jews who settled in the New World bring with them from the Jewish political tradition and pass on to their descendants and what did they and their descendants acquire, adopt, or absorb from the American experience. By looking at many constitutions and foundation documents on a comparative basis, including longitudinal comparisons of changing documents in the same institutions, we found that patterns began to emerge. We discovered constitutional documents from the early eighteenth century onward, providing us with a constitutional tradition or traditions stretching over some 270 years.
We examined synagogue constitutions, constitutions of Jewish community federations, and other local and countrywide Jewish organizations as appropriate, looking for patterns of development from colonial times to the present. We discovered the material available is quite rich indeed, and produced significant results in understanding such processes as the democratization of Jewish life, the changing basic norms of Jewish affiliation and public behavior, the development of new institutions suitable to the demands of modern republicanism, and the like. We believe that it is important to examine these documents even thought they are not necessarily treated with any special reverence within the organizations they serve or are even much noticed except when constitutional issues arise, because we are convinced that they do at the very least reflect Jewish constitutional expectations, the changes which have occurred in theses expectation as a result of modernization, and the degrees of continuity which has survived change.
The first stage of the project resulted in the publication of A Double Bond: The Constitutional Documents of American Jewry by Professors Daniel J. Elazar, Jonathan Sarna, and Rela M. Geffen. It consisted of five analytic articles plus a selection of the constitutional documents collected. In addition, we established an archive of the constitutional documents of American Jewry with copies deposited at the American Jewish Archives in Cincinnati, the Center for Jewish Community Studies and Gratz College in Philadelphia, and the Jerusalem Center for Public Affairs in Jerusalem.
The success of the first project demonstrated that despite the relatively prosaic character of any single one of the constitutional documents collected, taken together and examined over time and space much can be learned from the documents in question about the accommodation of American Jews to the American environment while at the same time seeking to preserve significant aspects of Jewish tradition.
As a result of the first project, we have determined to expand our effort to examine the constitutional documents of other Jewish communities in the modern and post modern worlds and to apply the same methodology to study the constitutional and foundation documents of Jewry in early modern and premodern times.
The second stage of this project involves the collection and study of the documents of late medieval, modern, and contemporary British, German and Italian Jewries, 19th and 20th century documents of those Jewish communities and the Jewish communities of Australia, Canada, France, Israel, New Zealand, and South Africa; the constitutional documents showing the revival of organized Jewish life in the former Soviet Union, and the other communities in Eastern Europe before and after World War II, and the constitutional documents of Latin American Jewish communities.5
We are using the methodology originally developed by Professor Elazar and his colleagues at the Center for the Study of Federalism in their studies of American constitutional design, federal and state.6 These methods will be used in conjunction with models developed by Professors Elazar and Stuart A. Cohen in their study of constitutionalism in Jewish political history.7 We adapted them to the American scene for the first stage and are doing the same for subsequent ones.
Specifically, we would like to achieve two things with this research: One, explore the process of integration of Jews into their countries of residence to better understand how they assimilate to the political patterns of those countries and the extent to which they preserve patterns emanating from the Jewish political tradition. Second and perhaps more important in the long term, we would like to build a textual basis for the social scientific study of modern and contemporary Jewish communities that will link the political and social sciences to the older and normative Jewish textual tradition. We have already demonstrated that both of these tasks can be accomplished through this research now are trying to accomplish them on a broader basis.
Our intention is to basically replicate the U.S. study in as many other countries as possible with the added opportunity in European countries to study the full process of modernization of Jewish communities, particularly in the cases of Italy and Germany where constitutional documents of this nature can be found dating back to the High Middle Ages and continuing down to the latest revision of the constitution of the Italian Jewish community in 1989.8 These documents are available in various archives in their original countries in the National Library in Israel, and, thanks to the efforts of the long-time Judaica librarian of the Widener Library at Harvard University, Charles Berlin, copies of substantial numbers of them have been acquired by the Harvard Judaica collection and archived there.
Individual scholars or scholarly teams will undertake different segments of this project. For example, because we were able to secure separate Canadian funding, such a team is already at work in Canada based at the York University Centre for Jewish Studies in Toronto under the direction of Michael Brown and at Concordia University in Montreal under Ira Robinson. The latter is concentrating on the constitutional documents of Quebec Jewry, while the former is exploring the Jewries of Ontario and the other Canadian provinces. An archive of Canadian Jewish constitutional documents has been established at York University. Alan Mittleman is working on the German Jewish constitutional documents in Germany and the Harvard collection. Steven Levine, a New Zealand political scientist, working on the New Zealand Jewish constitutional documents. Rela Geffen has gathered a broad sample of British constitutional documents. I am working on the Israeli documents.
Conversely, we have identified the members of a potential team to study Italian Jewry, scholars of different periods in Italian Jewish history from the late Middle Ages to the present who would be prepared to work on this project were there funding available. As a sufficient number of "cases" are completed, we plan to begin a comparative analysis to develop findings at a higher level of generalization and analysis and to catalog the available texts that can be studied by those seeking to learn about modern and contemporary Jewish life form within the textual tradition.
Our first book, A Double Bond, is being used in seminars at several colleges and universities in the Untied States where students confront the Jewish and American responses of American Jews to the issues that face them in their communities and institutions by studying the texts that reflect them within the context of more conventional historic and social scientific materials. Similar seminars have been conducted in Israel where students have explored individual texts since no full research project has been mounted there. We assume that the materials will be useful for study and teaching in other countries as well.
What Have We Learned to Date?
Our generalized findings from this project to date fall into six categories:
1. There is an overall pattern of shifting from more Jewish to more modern and/or host country patterns without the total abandonment of the Jewish political tradition. This takes several forms.
In the Old World context, we find that in medieval and early modern times prior to Jewish emancipation, whenever that occurred in a particular country, Jewish communities and organizations were governed by askamot or takkanot drawn up on the basis of talmudically-defined patterns embodied, on one hand, in halakhah and, on the other, in "lessons" derived from the Bible and filtered through the halakhic process. Not that these premodern constitutional documents did not show the influence of the larger non-Jewish environments in which they were developed, but the overwhelming thrust was and remained derived from the Jewish political and halakhic traditions.
Upon emancipation, Jewish communities and associations in the Old World were required by their host countries to adopt constitutions and other foundation documents as required by the state generally of what were now defined as religious bodies. While there was some room for maneuver so that the Jews could retain Jewish elements, in fact the framework and at least some part of the body of those constitutional documents had to conform to general state requirements. In those countries where there were no state requirements or merely general requirements of incorporation, the Jewish communities and their organizations were not necessarily forced into a procrustean bed except in the most minimal sense, and they were free to devise constitutional documents of their own choosing. In most of these cases, the Jews' desire to conform to local norms meant that they freely adopted the patterns of the society around them. Finally, in Israel the secularism, especially of Israel's socialist halutzim, led to the adoption of modern constitutional norms even where there were no external pressures to do so.
To give examples of each case, in the first, one can look at the Italian constitutional documents which, until the eighteenth century, were entirely derived from a talmudic basis and then had to shift in one movement to a modern statist basis required by the authorities in the various Italian states even prior to the emergence of modern Italy. In the second case, the Jewish congregations and communities in the United States were not required to do more than meet the minimal laws of incorporation in the various American states. Nevertheless, at the same time they had no indigenous premodern precedents to influence them. Hence, while they brought with them such precedents from their countries of origin, they rapidly abandoned them to embrace whatever constitutional styles were current in the American colonies and later the United States at the time.
In the third case, the original constitutions of the Jewish neighborhoods in Jerusalem and Jaffa and the moshavot of the late nineteenth century were either continuations of traditional documents or embodied some modernized modification of those documents. By the Second Aliya and particularly after World War I, a new Zionist tradition of basic laws and foundation documents divorcing or substantially separating "religion" and "state" became the norm, culminating, to date, in the foundation documents and Basic Laws of the State of Israel which reflect both the separation of the two and the ambivalence about it.
In all three sets of cases, however, we can trace how certain concepts, customs, and terminology derived from historic Jewish political practice (for example, scheduling elections to communal office during Hol Hamoed Sukkot or Hol Hamoed Pesach; the use of traditional Hebrew terms to designate constitutional offices, institutions, or activities) were taken over into the modern documents, extensively at first, then undergoing translation into the local vernacular, and finally, in many, cases being eliminated in favor of local, non-Jewish custom with few survivals.
2. Nevertheless, certain basics persisted through the transition and into the modern and contemporary periods. For example, the consensual basis of the constitutional documents continued unabated, however it was defined in particular times and places, as witness the frequent use of terms such as brit and askamot or their vernacular equivalent in these documents.
Another example is the division of authority and powers among what Stuart Cohen and I have elsewhere described as the three ketarim or three domains of torah, malkhut, and kehunah.9 In general, the dispersion of functional authority and powers and the at least formal existence of checks and balances remained common throughout these documents.
3. Major adaptations took place in all cases, whether required by the external authorities or simply absorbed from the external society.
4. The modernization process was universal in the sense that no Jewish communities or organizations remained outside of the modernization impetus. Even the haredi institutions have had to adopt modern constitutions to have their institutions recognized in the environments in which they found themselves, although of course they were more likely to maintain as many traditional Jewish concepts as possible in their modernized documents. Perhaps the major exception to this was in the hassidic world where the new constitutional traditions adopted, while presented in traditional form, were radical breaks with tradition in their combining of the three ketarim in the person of the rebbe yet not in the spirit of modernism either.
5. Almost all the constitutional documents include some material on topics specifically relevant to the community or organization involved. In eighteenth and early nineteenth century American synagogue constitutions for congregations in New Orleans and Charleston, for example, it is not uncommon to find provisions for either granting or withholding membership to prostitutes and former prostitutes. More recently, American congregations, especially Reform congregations, have had to deal with the consequences of intermarriage including the presence of significant numbers of non-Jewish congregational members and the problem of the Judaization of their children. All of these find expression in recent synagogue constitutions which try to define the rights, obligations, and opportunities for non-Jewish members and children who are not halakhically Jewish.
6. Throughout all of these documents one finds certain basic constitutional principles expressed, inferred, or implied. Among them are Jewish unity and mutual responsibility, the necessity for consent, the division and allocation of authority and powers among the ketarim and other functional authorities. A more extensive list of these constitutional principles has been drawn up by Rela M. Geffen as part of this project.
The Constitutional Documents as a Learning Device
Considering how conventional wisdom views these documents as essentially dry, technical, and uninteresting, it has surprised even the members of the research team at how useful they are in pedagogical settings. Comparative study of these documents is like holding up a mirror of the Jewish condition or, perhaps even more accurately, holding up a series of photographs taken over the lifetimes of communities, recording the similarities and changes in each as reflected in those documents. As such they have enormous fascination to the people who encounter them. Obviously, the more piquant elements have a certain additional attraction, but the basic principles and practices are very attractive as well. Moreover, it is possible to learn much about the Jewish political tradition and its various adaptations at different times and places through the study of these documents. This learning can go on at an academic level or a more popular one, with equally useful results.
1. Simon Federbush, Mishpat Ha Melukhah (Jerusalem: Mosad Harav Kook, 5712-1952).
2. Daniel J. Elazar and Stuart A. Cohen, The Jewish Polity: Jewish Political Organization From Biblical Times to the Present (Indiana University Press) 1985.
3. Daniel J. Elazar. "A Constitutional View of Jewish History," in Judaism (Summer 1961); "The Pursuit of Community: Selections from the Literature of Jewish Public Affairs, 1965-66," in American Jewish Year Book, (Vol. 68, 1967) and "The Rediscovered Polity: Selections from the Literature of Jewish Public Affairs, 1967-68," in American Jewish Year Book, Vol. 70 (1969).
4. Daniel J. Elazar, Jonathan Sarna, and Rela M. Geffen, editors and contributors A Double Bond: The Constitutional Documents of American Jewry (JCPA and University Press of America) 1992.
5. Constitutional Documents of Modern and Contemporary Jewish Communities, Jewish Political Studies Review, Vol. 8, No. 3/4 (Fall) 1996.
6. Daniel J. Elazar, ed. and contributor, and Stephen L. Schechter, ed. State Constitutional Design in Federal Systems, Publius: The Journal of Federalism, Vol. 12, No. 1 (Winter) 1982 .
7. Daniel J. Elazar and Stuart A. Cohen, The Jewish Polity: Jewish Political Organization From Biblical Times to the Present (Indiana University Press) 1985 and Daniel J. Elazar, "Constitutional View Revisited."
8. Y. A. Lattes, "The New Status of the Italian Jewish Community," Jerusalem Letter, No. 103 (1988) and "The Organizational framework of the Jewish Communities in Italy," Jewish Political Studies Review, Vol 5, No. 3/4 (1993) and "The Constitutional Documents of the Italian Jewish Community," Jewish Political Studies Review, Vol. 8, No. 3/4 (1996).
9. Daniel J. Elazar and Stuart A. Cohen, The Jewish Polity: Jewish Political Organization From Biblical Times to the Present (Indiana University Press) 1985 and Stuart A. Cohen, The Three Crowns: Structures of Communal Discourse in Early Rabbinic Society (Cambridge University Press) 1990.