Scalia would have stewed over a Shabbat staple

If the late Justice Antonin Scalia had been a rabbi two millennia ago, the world may never have heard of a crock pot.

The crock pot, you see, was created because of cholent. Its creator, Irving Naxon, got his inspiration for it from his mother’s description of how cholent was made.

Without cholent, then, there may not have been a crock pot. Judging by how he approached “constitutions,” Scalia would never have allowed cholent — or chamin, as the Sephardic version of the long-time Shabbat afternoon staple is called.

Essentially, cholent is a well-overdone stew, made of potatoes, carrots, beans, barley (or some other grain), stew meat of some kind, and spices. Many Sephardic and Mizrachi families also throw in raw eggs still in their shells; the eggs brown deliciously in the stew and are known as huevos haminados. The stew is cooked from early Friday afternoon until midday Saturday, when it is served hot as the main course for Shabbat lunch.

That would have been a problem for Scalia. The Torah, you see, forbids cooking on Shabbat, and it offers no exception to that rule. The only reason cholent or chamim is acceptable is a halachic ruling that ein bishul achar bishul — there is no cooking after “cooking.” Put another way, once something is cooked to a point that it is reasonably edible to someone, it is considered completely cooked from a legal standpoint. Once “cooked,” the Sages of Blessed Memory ruled, it could not be “re-cooked.” So, if by the time Shabbat begins, the stew is remotely edible, it can remain in the oven at a low temperature, because it is no longer “cooking,” only “staying warm.” Never mind that the stew that is in the pot as Shabbat falls is not even close to the dish that comes out of the oven on Shabbat afternoon; once cooked, always cooked.

Actually, Scalia probably would have prohibited kneidlach on Pesach, too. The Torah prohibits cooking with certain flours on Pesach, but since kneidlach are made with matzah meal, that is okay because of “once cooked”; the matzah meal was made from flour, but it was “cooked” into matzah, which then was turned into a flour-like substance.

Scalia’s judicial philosophy would have found these and so many other halachic variables unacceptable. In fact, he probably would have referred to them as “idiotic,” a word he often used to describe laws that went beyond the intent of the original law.

The Torah, in many respects, is the constitution of the People Israel, the Jewish people. To Scalia, in his own words, the “only good Constitution is a dead Constitution,” not open to subjective re-interpretation.

For the Torah to be a “good constitution,” then, requires that it be “dead,” locked in time and place, with no give for interpretation. If the Torah forbids cooking on Shabbat, no amount of disputation can come up with a definition for cooking that Moses himself would not have understood.

If Scalia had been a rabbi two millennia ago, then, he would have fought any definition of cooking that would have allowed for cholent on Shabbat afternoons. To Moses, Scalia would have argued, cooking was cooking, period.

This also means that if Scalia had been a rabbi two millennia ago, Judaism probably would have disappeared by now, dead under the heavy weight of its own words.

An example of why it is not can be found in a statement made by a sage who lived about 1,800 years ago. “Rav Zutra said that he who covers an oil lamp or uncovers a naphtha lamp [in order to make the lamp burn faster] violates the [Torah commandment] against wanton destruction [bal tashchit, “do not destroy”]. (Babylonian Talmud Tractate Shabbat 67b.)

What Rav Zutra was saying, in the terms of his day, was that to burn fossil fuels with abandon is a direct violation of Torah law.

The Torah, of course, says nothing of the kind. What it does say is, “When in your war against a city…,you must not destroy its trees, wielding the ax against them. You may eat of them, but you must not cut them down….Only trees that you know do not yield food may be destroyed [if they are really needed for the war effort]….” (Deuteronomy 20:19-20.)

What trees may not be destroyed? Those that “you know do not yield food.” If the Torah is a living, breathing “constitution” meant for all times and all places and all circumstances — and Moses himself said it is that absolutely; see Deuteronomy 29:13) — then we need to understand how this law makes any sense in a broader context. This requires understanding the difference between a tree that yields food and a tree that does not. The latter serves little practical purpose; if it is needed for a greater purpose, then it could be cut down. A tree that does yield fruit, on the other hand, already serves a greater purpose. The only justification for cutting it down would be if it directly were to threaten human life in some way.

By extension, according to our Sages, anything that serves a practical purpose may not be wantonly destroyed — even something as small as a mustard seed, according to one responsum. Thus, Rav Zutra can declare it a violation of Torah law to burn fossil fuels with abandon. That is also why a modern rabbi can declare it a violation of Torah law to drive over the speed limit, which also burns fuel excessively.

Without this flexibility of interpretation, which Scalia would never have allowed, we would have been stuck with a “fruit tree” and nothing else. It is precisely because the Torah is not “dead” that we continue as a people guided by its laws.

The same must be said about the US Constitution. It was crafted by people among whom were men who were versed both in “Old Testament” law and in its growth beyond specific time and place.