Jane Eisner wrote an editorial in The Forward on Sunday entitled, “Spare Me your Thoughts and Prayers. The US Has Betrayed Its Jews.” Her thesis is that by abiding by a “perverted, outdated, self-serving view” of the constitution, the government has failed in its “oblig[ation] to ensure that citizens have the freedom to live lives of dignity, equality and security.”
Specifically she blames the Second Amendment right to bear arms which she claims “was not meant to turn America into a killing field,” and the freedom of speech clause of the First Amendment which she opines, “was not meant to allow a few powerful, private corporations to ignore their civic responsibilities to prevent incitement and promote social harmony.”
Ms Eisner dismissively allows that “scholars” have noted that the Constitution was drafted to define rights as “negative rights.” She bemoans the lack of emphasis on “positive rights,” that would make it the duty of the “government to ensure that citizens have the freedom to live lives of dignity, equality and security.”
Perhaps Ms Eisner has failed to read the Constitution which sets forth the various powers of the federal government and then in its amendments makes clear its intent that the government interfere with its citizens to the least extent possible. The Ninth and Tenth Amendments specifically grant nonenumerated rights and powers to the States or the people. Importantly, even the 14th Amendment which has expanded certain rights of citizens is phrased in the negative. “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens… ; nor …deprive any person of life, liberty, or property, without due process of law; nor deny to any person … the equal protection of the laws.”
Nowhere is there a positive obligation placed on the government to ensure that its citizens “live lives of dignity, equality and security.” Instead the constitution prescribes equality under the law and protection from government interference. Understanding this makes axiomatic the right to own a gun or to allow speech that Ms Eisner does not like.
Yet, Eisner claims the federal government has totally failed in its “central” job to “protect its people.” From what constitutional or other law does Eisner derive this “central job?” Would a government attempt to prevent attacks on what Eisner calls “vulnerable minorities (her list - Jews, African Americans or Muslims or gays and lesbians or random children in a school.) by eliminating guns and free speech deprive all of us of liberties?
The United States has existed for 240 years with our constitution and its particular blend of rights and obligations. Ms Eisner apparently seeks to add additional restrictions in order to ensure the safety of the Jews. This is a dangerous route. The framers (of the Constitution and its Amendments) were wise enough to understand that positive obligations placed on the government must be balanced by the burdens they place on individual freedom. If we were to enact some version of Eisner’s ‘dignity and security’ we would be inviting the government to control more aspects of our lives.
Neither private citizens nor corporations are obliged to let everyone speak nor to police other’s speech. And fortunately, there is no exception to free speech that requires media to “prevent incitement and promote social harmony” even if one could somehow determine precisely what speech that would prohibit. Ms Eisner has it exactly wrong, free speech is most meaningful in allowing political criticism which indeed may not promote social harmony. See.
While some may plan nefarious deeds on Facebook, information can and is published in other ways. The shooter in Poway, John Ernest, posted his manifesto on pastebin. It is also possible that by allowing the type of speech that Ms Eisner does not like, anger may be defused. Christopher Poole, creator of 4chan, said he was often thanked for providing an outlet to vent frustrations.
Ms Eisner charges that “America has failed its Jews.” Her solution is to change the constitution and limit freedom in ways that are foreign both to the intent and to the various interpretations of the constitution. Nor is it at all clear that suppressing speech and prohibiting guns (especially given the number of guns already owned) would end terrorist shootings.
Yosef Berger, the rabbi of King David’s Tomb on Mount Zion, said that “[the shooting] is clearly Hashem telling the Jews to come home, to return to Jerusalem because “the sanctity of Israel can protect the Jews.” Perhaps Rabbi Berger could explain why God does not protect the Jews wherever they are.