Developments at home and abroad are forcing Americans to think anew about the meaning of liberty and the proper nature and function of government.  What is important to us, and what must we do to keep it?  How do we change the things that manifestly aren’t working, and are in fact doing us daily harm?

Liberty 101 is a series devoted to discussing these topics.  And the subject for today is what I call the principle of establishment.  Very simply, the principle of establishment recognizes that liberty and the protection of natural rights don’t just happen.  They are not the end-point of unguided trends in human life.  They cannot be claimed as entitlements, on the basis that someone else must then bestir himself to “provide” them to us.  They are elements in a moral, sociopolitical code, which we must actively establish, and which we must arrange, through our own efforts, to protect.

The only reason America started out with our unique Constitution and polity is that we established them.  We took what had been, and deliberately established something new.  To get to the point of having options in that regard, we had to fight a war.  It was by no means “settled” political theory, in anyone’s philosophy, that we had any “right” to do this – i.e., a right that should have bound Great Britain to accede to our wishes.

In the Declaration of Independence, the signers appealed to natural rights – life, liberty, and the pursuit of happiness – as the citizen’s moral basis for challenging and limiting government.  But the Declaration is not a statement that these God-given rights confer a “right” to “dissolve the political bonds which have connected” one people with another.  Dissolving our political bonds with Britain was a necessary but essentially mechanical step in the process of establishment.  The Declaration makes it clear that doing that is a choice, one for which the signers and the Continental Congress proposed to take responsibility.

Our Founders had spent at least a decade appealing to king and parliament.  In this process, they suggested that their rights should be binding on the governmental decisions emanating from London.  It didn’t work.

After that, the Founders decided; committed; fought; won; and then established.  The God-given rights enumerated in the Declaration were to be the guiding premise for establishing a new order in the former colonies.

The significance of the establishment principle cannot be overstated.  It is necessary to the installation and preservation of liberty.  If we lose sight of its necessity, we will lose the prospect of liberty.  Liberty is not what our fellows on this earth have the natural urge to accord us.  It is certainly not what government of any kind naturally respects.  It is antithetical to all schemes for collective salvation, whether we are to be saved from sin, inequality, or climate change.  Liberty interferes terribly with ideological messianism, just as it does with the unfettered collection of revenues for complacent governments.

Liberty always – always – has to be deliberately established and hedged about with protections.  It never just emerges, through a process of defensive horse-trading, from anyone’s current arrangements.  Defending liberty is hard enough; establishing it requires being prepared to say “No” at least as much as “Yes,” and even being prepared to kill, where necessary, as much as to die.  It is something we must want badly to win, in the only way that can be effective:  that is, over the objections of the enemy who wants to deny it to us.

The urge to deny liberty to others comes in many forms.  All three of the great monotheistic religions have gone, to differing degrees, through periods in which denial of liberty to others of their faith was a key feature of temporal administration.  (To differing degrees, all three have also identified doctrinal reasons to change course or shift emphasis on this.  Judaism and Christianity, in particular, provided the core of the West’s moral thinking about God-given rights and man’s rights against the state.)

The monotheistic faiths are by no means unique in this regard; the pagan religions of the ancient empires, in the Americas as well as the Eastern hemisphere, were used robustly as a means of subjugating populations.

Up until the last two centuries, governments were almost universally engaged in subjugating their people.  There has been no such pattern as that of government defending the people against the encroachments of religion; governments are invariably, and by nature, the worst offenders.  Indeed, it was precisely through using the powers of government to enforce religious orthodoxies that denial of liberties became institutionalized in, for example,  the Christianity of the Middle Ages and early Renaissance.

We fool ourselves badly, meanwhile, if we think modern collectivist ideologies represent a change from that pattern.  Rather, they are simply the continuation of it: imperial statism and religious authoritarianism in post-Enlightenment clothing.  Jacobinism, Marxism, Fascism, Nazism, Stalinism, Maoism, progressivism, radical “environmentalism”: all have had their essential features in common with the dark spirit of ancient imperialism, the perverted, politicized Christianity of religious wars and Inquisitions, and the radical Islamism of today.  In dismissing or even promoting the loss of life and liberty as a virtual sacrament, moreover, the modern collectivist –isms complete the circle of ancient human-sacrifice religions.

On a more local and pragmatic level, we are all familiar with the “creeping statism” endemic in government of any kind.  Give government a charter to manage something for us, and its portfolio will do nothing but grow.  There is no such thing as a naturally quiescent state of liberty.  Someone always has an idea, not just for a better mousetrap, but for a scheme to require us to purchase and use it.

Unless he is actively stopped, by convention and expectation, underlaid with shared values but also with implied force, at least one of our neighbors is always one sign of weakness away from telling us what size we can make our house, whether we can hold Bible studies there, and how much of our income we have to spend on medical services.  This, and not an Eden of self-effacing tolerance, is the reality of human life.  Liberty requires establishment and protection, because in every generation, there is a thriving industry in grievances, social prophylaxis, and knowing better than others do how they should live.

If you want liberty, you can’t wait for others to recognize your right to it.  You must establish it and protect it.  This is actually true of all good things in our common life on this earth.  None of them just happen.  They require establishment and protection.  Establishment and protection are accomplished in different ways; in today’s consciously-stabilized geopolitical environment, they occur almost entirely within existing borders, as when colonies became new nations after World War II, or autocratic regimes were changed after the fall of the Soviet Union.

But America is the chief and most singular example in our modern era (indeed, in all history) of the establishment principle.  Only one other nation shares the principle of radical establishment that ours represents, and that is Israel.  Both nations were established for unique, historic purposes, in the teeth of opposition, with a specific moral and political commitment as the premise of their self-proclaimed charters.  Both invoked the God Jehovah in their establishing premise; both intended to found a unique project in which there would be irreducible liberties, and priorities that would overrule, in perpetuity, the importunings and temptations of a given generation.

Both nations took it as a given that the ordinary course of human affairs wasn’t good enough: that paying tribute and living at the sufferance of “empires” was a sure path to servitude, extortion, and death.  It is a point for another day that the nation-state is the only viable entity for acting on this proposition; suffice it to say here that establishing liberty and a principle of nationhood require holding and living independently on territory.  Someone will always object to that.  Someone will always object to the establishment of liberty, which always and everywhere means that the territory in question cannot be held for slavery and tribute.

The question is not whether liberty will ever cease to be obnoxious to mankind’s oldest patterns and urges.  It won’t.  The question is what choices we will make, knowing that liberty must be established and protected, and that that will inevitably be considered offensive by noisy and determined enemies.  He who insists on establishing liberty will always encounter opposition.  But there is no other way to have it.

Listen to these stories. Behind them lies an extraordinary insight into the nature of Jewish ethics:

Story 1. Rabbi Abba used to bind money in his scarf, sling it on his back, and place it at the disposal of the poor (Ketubot 67b).

Story 2. Mar Ukba had a poor man in his neighborhood into whose door socket he used to throw four coins every day. Once the poor man thought, “I will go and see who does me this kindness.” That day Mar Ukba stayed late at the house of study and his wife was coming home with him. As soon as the poor man saw them moving the door (to leave the coins) he ran out after them, but they fled from him and hid. Why did they do this? Because it was taught: One should throw himself into a fiery furnace rather than publicly put his neighbor to shame (Ketubot 67b).

Story 3. When Rabbi Jonah saw a man of good family who had lost his money and was ashamed to accept charity, he would go and say to him, “I have heard that an inheritance has come your way in a city across the sea. So here is an article of some value. Sell it and use the proceeds. When you are more affluent, you will repay me.” As soon as the man took it, Rabbi Jonah would say, “It’s yours is a gift” (Vayikra Rabbah 34:1).

These stories all have to do with the mitzvah of tzedakah whose source is in this week’s parshah:

“If anyone is poor among your fellow Israelites in any of the towns of the land the Lord your God is giving you, do not be hardhearted or tightfisted toward them. Rather, be openhanded and freely lend them whatever they need…Give generously to them and do so without a grudging heart; then because of this the Lord your God will bless you in all your work and in everything you put your hand to. There will always be poor people in the land. Therefore I command you to be openhanded toward your fellow Israelites who are poor and needy in your land” (Deuteronomy 15:7-8, 10-11).

What we have here is a unique and still remarkable program for the elimination of poverty.

The first extraordinary fact about the laws of tzedakah as articulated in the Oral Tradition is the concept itself. Tzedakah does not mean “charity.” We see this immediately in the form of a law inconceivable in any other moral system: “Someone who does not wish to give tzedakah or to give less than is appropriate may be compelled to do so by a Jewish court of law” (Maimonides, Laws of Gifts to the Poor, 7:10). Charity is always voluntary. Tzedakah is compulsory. Therefore tzedakah does not mean charity. The nearest English equivalent is social justice.

The second is the principle evident in the three stories above. Poverty in Judaism is conceived not merely in material terms: the poor lack the means of sustenance. It is also conceived in psychological terms. Poverty humiliates. It robs people of dignity. It makes them dependent on others – thus depriving them of independence which the Torah sees as essential to self-respect.

This deep psychological insight is eloquently expressed in the third paragraph of the Grace after Meals: “Please, O Lord our God, do not make us dependent on the gifts or loans of other people, but only on Your full, open, holy and generous hand so that we may suffer neither shame nor humiliation for ever and all time.”

As a result, Jewish law focuses not only on how much we must give but also on the manner in which we do so. Ideally the donor should not know to whom he or she is giving (story 1), nor the recipient know from whom he or she is receiving (story 2). The third story exemplifies another principle: “If a poor person does not want to accept tzedakah, we should practice a form of [benign] deception and give it to him under the guise of a loan” (Maimonides, Laws of Gifts to the Poor 7:9).

Maimonides sums up the general principle thus: “Whoever gives charity to the poor with bad grace and averted eyes has lost all the merit of his action even though he gives him a thousand gold pieces. He should give with good grace and with joy and should sympathize with him in his plight, as it is said, ‘Have I not wept for those in trouble? Has not my soul grieved for the poor?’ [Job 30:25]” (Laws of Gifts to the Poor 10:4).

This is the logic behind two laws that are otherwise inexplicable. The first is “Even a poor person who is dependent on tzedakah is obliged to give tzedakah” (Laws of Gifts to the Poor 7:5). The law seems absurd. Why should we give money to the poor so that they may give to the poor? It makes sense only on this assumption – that giving is essential to human dignity and tzedakah is the obligation to ensure that everyone has that dignity.

The second is the famous ruling of Maimonides that “the highest degree of charity, exceeded by none, is when a person assists a poor Jew by providing him with a gift or a loan or by accepting him into a business partnership or by helping him find employment – in a word, by putting him in a situation where he can dispense with other people’s aid” (Laws of Gifts to the Poor 10:7).

Giving someone a job or making him your partner would not normally be considered charity at all. It costs you nothing. But this further serves to show that tzedakah does not mean charity. It means giving people the means to live a dignified life, and any form of employment is more dignified, within the Jewish value system, than dependence.

We have in this ruling of Maimonides in the 12th century the principle that Muhammad Yunus rediscovered in our time, and for which he was awarded the Nobel Prize: the idea of micro-loans enabling poor people to start small businesses. It is a very powerful idea.

In contradistinction to many other religious systems, Judaism refused to romanticize poverty or anaesthetize its pain. Faith is not what Karl Marx called “the opium of the people.” The rabbis refused to see poverty as a blessed state, an affliction to be born with acceptance and grace. Instead, the rabbis called it “a kind of death” and “worse than 50 plagues.” They said, “Nothing is harder to bear than poverty, because he who is crushed by poverty is like one to whom all the troubles of the world cling and upon whom all the curses of Deuteronomy have descended. If all other troubles were placed on one side and poverty on the other, poverty would outweigh them all.”

Maimonides went to the heart of the matter when he said (The Guide for the Perplexed 3:27), “The well-being of the soul can only be obtained after that of the body has been secured.” Poverty is not a noble state. You cannot reach spiritual heights if you have no food to eat or a roof for your head, if you lack access to medical attention or are beset by financial worries.

I know of no saner approach to poverty, welfare, and social justice than that of Judaism. Unsurpassed in its time, it remains the benchmark of a decent society to this day.