Here's a great tip:
Enter your email address and we'll send you our weekly magazine by email with fresh, exciting and thoughtful content that will enrich your inbox and your life, week after week. And it's free.
Oh, and don't forget to like our facebook page too!
Contact Us

Justice Challenges Privacy Rights at Talmudic Conference

Justice Challenges Privacy Rights at Talmudic Conference

Attendees of the Institute of American and Talmudic Law’s Midwinter Conference found the remarks of Supreme Court Justice Antonin Scalia, left,on privacy rights to be insightful and entertaining. (Photo: Yosef Lewis)
Attendees of the Institute of American and Talmudic Law’s Midwinter Conference found the remarks of Supreme Court Justice Antonin Scalia, left,on privacy rights to be insightful and entertaining. (Photo: Yosef Lewis)

Speaking at a Jewish law conference in New York City, Supreme Court Justice Antonin Scalia offered a window into his strict constructionist view of the U.S. Constitution, particularly as it applied to privacy rights.

The American right to privacy is a complex and obscure right that the Judiciary should tread lightly when analyzing, Scalia suggested in a much-anticipated Wednesday speech at the Midwinter Conference of the Institute of American and Talmudic Law, a Chabad-Lubavitch organization that hosts continuing legal education courses. The justice system, he declared, is meant only to define the rights specifically declared in the Constitution and, if need be, to decide whether the legislature overreached in its interpretation of America’s foundational document of governance.

“The vast majority of your rights are not constitutional,” he asserted. “Most of them can be taken away.

“Once upon a time, people would have thought it outrageous to have someone pass his hands over your body, and to have to take your shoes off in order to get on an airplane,” he continued. “As it turned out, that freedom was not below the constitutional minimum. Congress could eliminate it.”

Before getting into the core of his remarks, the Reagan appointee generally regarded as one of the most conservative members of the Supreme Court’s bench joked about his addressing the gathering; the justice is not Jewish.

“I presume I am here to represent the American law perspective of this panel, as my recent Daf Yomi attendance has been lackluster,” he said, referring to daily study-cycle of the Talmud.

Supreme Court Justice Antonin Scalia, left, and Future of Privacy Forum director Jules Polonetsky participate in a forum on privacy rights. (Photo: Yosef Lewis)
Supreme Court Justice Antonin Scalia, left, and Future of Privacy Forum director Jules Polonetsky participate in a forum on privacy rights. (Photo: Yosef Lewis)

Rights and Responsibilities

Rabbi Shlomo Yaffe, who serves as dean of the institute – a division of Chabad of Midtown Manhattan – offered the Jewish take on privacy rights, which puts an onus on the holder of information to be responsible in its dissemination.

“Western law is concerned with the rights of individuals, [whereas] Jewish law is more concerned with a person’s character,” he explained. “Torah law is concerned that you behave in the right way. Western law is here to protect you, lest your rights be violated.

“In terms of society,” he continued, “I think there is a relationship between Jewish and Constitutional law as they both are concerned with creating the best and most just society. Jewish Law is only more aggressive in demanding that people rise to the heights of their potential.”

The panel that Scalia and Yaffe participated in read like a Who’s Who of prominent American lawyers. Joining the pair were Rabbi Michael Broyde, an Emory University law professor who sits on the Beth Din of America, the nation’s largest Jewish religious court, Jules Polonetsky, director of the Future of Privacy Forum, and Nathan Lewin, an attorney specializing in Constitutional law.

In his remarks, Broyde looked at the American and Jewish legal traditions as two vastly different systems in the realm of privacy protections. Scalia, however, asserted that the two systems had much in common from the notion of responsibility, if not in the conception of rights.

Lewin, whose long friendship with Scalia goes back to their days as law students at Harvard University and members of the Harvard Law Review, engaged in friendly banter with the justice. In one exchange, Lewin mentioned that the justice ruled against him in one of Scalia’s first cases as a judge on the U.S. Court of Appeals for the District of Columbia.

“There I thought I had a friend on the court,” said Lewin. But “in his written opinion, he not only rejected my arguments, he even wrote an argument that would have been more persuasive.”

For his part, Scalia pointed out that in another of Lewin’s cases, he ruled in favor of his friend’s client. That case, Goldman v. Weinberger, involved an Air Force clinical psychologist who as a religiously observant Jew insisted on wearing his skullcap while in uniform.

Vikki Zeigler, a high-profile divorce attorney who served as a co-moderator at the conference, characterized the privacy debate as thought-provoking.

“I think Justice Scalia has very strong beliefs and a very strong vantage point, and you have to respect that,” she said.

On a more personal note, she added: “From my perspective, I have been involved with the institute for the past two years, [and] they host distinguished speakers and always have very cerebral topics.”

Defense attorney Barry Slotnick, a faculty member at the institute, summed up the understanding one could walk away with from the conference.

“You either walk away scratching your head after hearing all the different views on privacy, or you say to yourself, ‘Wow, I never understood that the right of privacy is not written into the Constitution,’ ” he said. “We all walk away with lots of questions. Questions are good, they make us search for answers.”

© Copyright, all rights reserved. If you enjoyed this article, we encourage you to distribute it further, provided that you comply with's copyright policy.
Join the Discussion
Sort By:
1000 characters remaining
Stephen Weinstein Camarillo, CA via February 6, 2009

The phrase "the right of privacy is not written into the Constitution" is intended to mean that the explicit protection in the Constitution does not extend beyond matters of search or seizure. For example, the U.S. Supreme Court has ruled that the Constitutional right to privacy also protects birth control use and abortion. Privacy in these matters is not written into the Constitution. Reply

Robert Rubin Lincoln, MA February 2, 2009

Technically the constitution does not forbid all searches and seizures, just unreasonable ones, which then allows for judicial interpretations. The right to privacy if not written word for word, should be logically inferable due to the concept of the constitution and the declaration of independence when written. Reply

Josh East Bay, Calif. via February 1, 2009

The right to privacy IS written into the Constitution. The 4th amendment forbids unreasonable searches & seizures... Reply

Anonymous new hartford, ct.,usa January 31, 2009

wonderful read, wonderful participants and contributors and wonderful institute and lastly wonderful constitution and most wonderful torah! Reply

Yaacov Deane Philadelphia, PA January 30, 2009

Thomas Paine also clarifies the original intent in Agrarian Justice, The Rights of Man and The Age of Reason. Although a clear distinction is made between Biblical law and non-Biblical law, all societal, secular rights originate only from the individual rights granted by the Creator to the first man. James Madison writes extensively that the intent of the Continental Congress in limiting the written codification of rights was not to limit the extent of our rights. Rather it was intended so that the broadest possible conception of individual rights was guaranteed. As the Declaration of Independence states most eloquently, those rights are inalienable specifically because they are endowed to every human being by the Creator! Reply

Yaacov Deane Philadelphia, PA January 30, 2009

It would serve Justice Scalia well to review the writings of the founding fathers for their original intent about the origin of our rights. Benjamin Franklin and Thomas Jefferson point to Locke's Two Treatises on Government and Enlightenment authors such as Tyndale, Pufendorf and Grotius. Reply

Related Topics
Connect with us
Find A Chabad Center Near You
Chabad-Lubavitch Directory