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Justice and the Loyalty Oath: A Socratic Issue











By Professor Paul Eidelberg
July 5, 2009

The American Declaration of Independence embodies a doctrine of revolution. The Declaration teaches us that the people of any country are not obliged to obey the laws of the State if these laws violate the “Laws of Nature and of Nature’s God.” But who is to judge whether the laws of the State violate the “Higher Law”? This question involves another: “Where is the supreme authority in a State that recognizes a ‘Higher Law’”? That crucial question was addressed by the Italian rabbi, theologian, and philosopher Eliyahu Benamozegh (1823-1900) in his magnum opus Israel and Humanity.

Rabbi Benamozegh asks: “Where is supreme authority to be found in Israel?” To answer this question, he ponders the Law-Giving at Sinai Revelation. He writes:

In order to grasp the central idea of Israelite doctrine on this crucial matter quickly and accurately, let us proceed by a process of elimination and determine first of all what that doctrine categorically rejects…. Does supreme authority reside in a man invested with supreme power? The very idea of a Revelation which embraces all of life, public as well as pri­vate, precludes any such possibility. A Revelation so total cannot speak through any single entity whatever, whether priest or monarch. … Neither the king nor the priest can possess unlimited authority, for each moves in a well-defined sphere and his function is circumscribed by impassable limits.

Nor is supreme authority vested in a privileged class, an oligarchy or an aristocracy. The provisions of the Law, the history and concep­tion of Revelation itself, prove, if proof be needed, that there can be no such class. Neither is it to be located in the totality of Israelites, at least not in the sense of an absolute power residing in the people as a whole, which would legitimize all that the people might decree. As for the authorized interpreters of the Revelation, however, the people convey their sovereignty in this matter to those whose place in the hierarchy renders them qualified, according to established rule. This role of the community is the only one which is logically possible in a state faithful to a Revelation.

“If then, according to Judaism, supreme authority adheres neither to the high priest, nor to the king, nor to an elite, nor even to the entire people as a collectivity, where is it to be found? In God alone; which is to say, using modern categories, in absolute reason and justice. God is the only legislator, and the people His only interpreter on earth. Such is the Jewish ideal.”

The same conclusion may be deduced from the American Declaration of Independence. Suffice to consider two of its principles. Its First Principle inheres in these words: “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.” These rights are “unalienable” because man is created in the image of God, which means that man alone possesses free will and the capacity to distinguish good from evil. In other words: It is from God, and not from any Government or body of men, that we derive our rights to Life, Liberty, and the pursuit of Happiness. Imago dei is what makes those rights “unalienable” and establishes them as basic ends of legitimate Government.

Therefore—and this is the Second Principle: “Whenever any Form of Government becomes destructive of those ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.” The people, therefore, are sovereign under God, which means, in the final analysis, that the People are His interpreters!

However, since the phrase “any Form of Government” obviously includes Democracy, it follows that the People or their Representatives are theologically prohibited from establishing a Government or enacting laws that violate “the Laws of Nature and of Nature’s God,” or that violate “absolute reason and justice.” We see here that the Declaration of Independence is basically consistent with Jewish law and provides no justification for the establishment of a secular democratic state!

Having said this, let us put to rest certain errors. The “Creator” referred to in the First Principle must be construed as a theistic, not a deistic God, otherwise—and regardless of their personal convictions—it would have made no sense for the 56 signers of Declaration to appeal to “the Supreme Judge of the world,” or to express their “firm reliance on the protection of Divine Providence.” Moreover, and of paramount significance in interpreting the meaning of the Declaration, its language should be construed in terms of the understanding of its audience, which was overwhelmingly Christian, consisting, therefore, of theists, not deists.

Now consider the phrase “Laws of Nature and of Nature’s God.” The term “Nature” is foreign to the Torah. Moreover, the notion of “Laws of Nature” suggests autonomous or self-sustaining and eternal laws, something impossible in a created universe. And since Greek philosophy never conceived of creation ex nihilo, let us put to rest the Stoic basis of the Declaration. The truth is that the Declaration is an eclectic but nonetheless magnificent document into which Jefferson injected Greco-Christian nuances, which Christian nuances, however, are rooted in the Torah, the source of monotheism. Evidence of this will be found in the law lectures of James Wilson of whom a brief statement is necessary.

Wilson, who taught law at the University of Pennsylvania, was widely deemed the most learned man of his generation. Wilson was not only a signer of the Declaration of Independence. His contribution to the deliberations of the Federal Constitutional Convention of 1787 was second only to that of James Madison. Moreover, like Rabbi Benamozegh, he regarded God’s will, as interpreted by the people acting through their representatives, as the supreme authority.

This means that the concept of “popular sovereignty” must be understood within the context of a monotheistic culture, and it is only within such a culture that can one rightly understand the American Declaration of Independence.

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One more thought. The Declaration, as Abraham Lincoln understood, embodies the political philosophy—more accurately the “political theology”—of the American Constitution. Here is what John Adams, another signatory of the Declaration, said of the Constitution: “Our Constitution was made only for a moral and religious people. It is wholly inadequate to the government of any other.” That religious morality is crystallized in the Declaration of Independence on which America stands and which is now being subverted.

2009 Paul Eidelberg - All Rights Reserved

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Internationally known political scientist, author and lecturer, Eidelberg is the founder and president of The Foundation for Constitutional Democracy with offices in Jerusalem.

Prof. Eidelberg served in the United States Air Force where he held the rank of first lieutenant. He received his doctoral degree at the University of Chicago. He designed the electronic equipment for the first brain scanner at the Argonne Cancer Research Hospital.

Before immigrating to Israel in 1976, Prof. Eidelberg wrote a trilogy on America’s founding fathers: The Philosophy of the American Constitution, On the Silence of the Declaration of Independence, and a Discourse on Statesmanship.

In 1976 he joined the faculty of Bar-Ilan University in Israel. He has written several books on the Arab-Israel conflict and on Judaism. Demophrenia: Israel and the Malaise of Democracy analyses the mentality of Israel’s ruling elites. Jewish Statesmanship: Lest Israel Fall, which has been translated into Hebrew and Russian, reveals the flaws inherent in Israel’s system of governance and how they may be remedied. A Jewish Philosophy of History investigates the world-historical events leading to the rebirth of Israel in 1948.

His latest publication, The Myth of Israeli Democracy, provides an abbreviated version of a Constitution which shows how to make Israel a genuine democracy based on a Jewish conception of freedom and equality.

Eidelberg is on the Advisory Council of the Ariel Center for Policy Research, which has published many of his policy papers. In addition to writing more than 1,000 articles for newspapers and scholarly journals in the U.S. and Israel, he has a weekly program on Israel National Radio.

Prof. Eidelberg has been lecturing throughout Israel and the United States. He conducts seminars on constitutions, diverse parliamentary electoral systems, Jewish law, and related topics at the Jerusalem center of the Foundation for Constitutional Democracy.

Web site: Foundation for Constitutional Democracy













This means that the concept of “popular sovereignty” must be understood within the context of a monotheistic culture, and it is only within such a culture that can one rightly understand the American Declaration of Independence.