Tradition, Democracy of Those Who’re Dead

Democracy of those who’re dead,

tradition, leads us from the grave

with the thoughts that have been said

to a world more old than brave,

for aided by democracy

of ghosts which to the past can bind us,

and horrors of hypocrisy,

tradition stands undead behind us.

Though he was hardly a supporter of semitic Jews or rules of their theocracy.

I think that G.K. Chesterton might have defined halakhah as dead democracy,

although it’s also a democracy for Jews who, very much alive,

at similar opinions to those of their dear departed  predecessors arrive.

G. K. Chesterton defined tradition as ‘the democracy of the dead.’

An article by Adam Liptak in the NYT on 2/26/26, “A Conservative Judge’s Critique of the Supreme Court’s Reliance on Tradition,” NYT, 2/26/24 not only reminded me of my poem but suggested to me that  since the closing of the talmud the process of making halakic decisions has been based more on traditionalism, w a word that describes G. K. Chesterton’s “democracy of the dead,”  than on originalism. The article states:

Judges who are committed to originalism, which seeks to interpret the Constitution based on what it meant when it was adopted, often say they are guided by “text, history and tradition.” The phrase rolls nicely off the tongue.

But one of those things is not like the others, a conservative federal appeals court judge said this month in a lively talk at Harvard Law School that critiqued recent trends at the Supreme Court.

“Traditionalism gives off an originalist ‘vibe’ without having any legitimate claim to the originalist mantle,” said the judge, Kevin C. Newsom, who was appointed to the U.S. Court of Appeals for the 11th Circuit in 2017 by President Donald J. Trump. “It seems old and dusty — and thus objective and reliable. And maybe it is indeed all those things. But let’s be clear: It’s not originalism.”…..

A prime example of looking to tradition is the Supreme Court’s 2014 decision in National Labor Relations Board v. Noel Canning, which endorsed some recess appointments by presidents based on practices long after the ratification of the Constitution. Justice Stephen G. Breyer, writing for the majority, said the court should “hesitate to upset the compromises and working arrangements that the elected branches of government themselves have reached.”

In a book to be published next month, Justice Breyer, who retired in 2022 and is decidedly not an originalist, defended his approach. “Longstanding practice matters,” he wrote in the book, whose title sets out his position: “Reading the Constitution: Why I Chose Pragmatism, Not Textualism.”

“The public’s methods for managing their affairs will need to change with the circumstances,” Justice Breyer wrote. “The judge’s job is not to read literally those constitutional provisions written 250 years ago without regard to such changes.”

After reading this article with great interest it occurred to me that  since the closing of the talmud the process of making halachic decisions has been based more on traditionalism, G. K. Chesterton’s “democracy of the dead,”  than on originalism.

The Babylonian Talmud, which contains the original opinions of dead rabbis on whom most of the halakhah is based, states in Yevamot 97a-98a :

“And is it possible for a person to live in two worlds simultaneously? Rather, David said before the Holy One, Blessed be He: Master of the Universe, let it be Your will that they will say a matter of halakha in my name in this world when I have passed on to another world. As Rabbi Yoḥanan said in the name of Rabbi Shimon ben Yoḥai: With regard to any Torah scholar in whose name a matter of halakha is said in this world, his lips mouth the words in the grave, as though he is talking. Rabbi Yitzḥak ben Ze’eira said, and some say this was stated by Shimon the Nazirite: What is the verse from which it is derived? “And the roof of your mouth is like the best wine that glides down smoothly for my beloved, moving gently the lips of those who are asleep” (Song of Songs 7:10).

I should add that after composing this poem, in a Torah and Motion lecture on 2/29/24, I heard the suggestion by Rabbi Aviad Tabory that biblical stories about the successful retrieval of captives in Genesis 14, 35, Numbers 21 and  1 Samuel 30 concerning Lot, Dinah, the captives in Hormah and Ziklag in Genesis 14, 35, Numbers 21 and 1 Samuel 30, might be as useful in helping us to solve the dilemma created by the current captivity  of hostages as discussions about this problem in texts of the Babylonian Talmud. He pointed out that Rabbi Yaakov Kamenetsky and Rabbi Yaakov Medan had both applied such an approach in their discussions of rules that might have to be followed in order to rescue captives in a manner that is halakhically correct.