David N. Myers, professor at UCLA together with Nomi M. Stolzenberg of the USC Law School are writing a book on Kiryas Joel. A precis or excerpt came out this week and it looks good. It is interesting how many readers did not understand the excerpt compelling them to retell it in simpler language to dispel assumptions of advocacy or critique. Their major point, and it is quite correct, is “that Kiryas Joel represents a decidedly American strain of communitarianism, marked by difference and segregation, we were describing an ironic and surprising feature of American legal and political history.” In the old country, hamlets or more proverbially shtetls were generally half non-Jewish and dependent on the provincial prince and the peasants. But here in the US, reflecting American freedom of religion and isolated compounds they have created the all-Jewish town. The irony is that their ability for isolation from non-Jews reflects American values and how America legally protects the Amish.
A number of readers’ comments suggest to us that a key point in our recent post, “Theocracy in America?” may have been misunderstood. When we wrote that Kiryas Joel represents a decidedly American strain of communitarianism, marked by difference and segregation, we were describing an ironic and surprising feature of American legal and political history. We were not prescribing or condoning the kind of blurring of religious and political lines of authority that we notice in Kiryas Joel. Nor were we making the opposite normative claim, namely, that the establishment of the Village is necessarily in violation of the fundamental principles of liberty and equality that guide American law.
Our aim is not to take sides in the bitter dispute between the establishment faction and the dissidents in Kiryas Joel. Rather, it is to see the community as part of a broader legal-political phenomenon, of a piece with the same system that has permitted significant levels of racial and economic segregation to take rise in American society. This is what makes Kiryas Joel such an interesting case: it shines a spotlight on features of America, and the constitutional values “for which America stands,” that many Americans consciously disavow. That there is an establishment faction in the Village associated with Rabbi Aron Teitelbaum that exercises heavy-handed control over political, legal and religious affairs is not in dispute. That there are a variety of dissident groups who seek to challenge that control and gain a measure of autonomy over their own religious affairs is not in dispute either. What is less clear, counter-intuitive as it may be, is that a religiously homogenous municipality that answers to a guiding religious authority is illegal under the American Constitution.
It is important to recall that Kiryas Joel came about when a group of individuals purchased property in Orange County, N.Y. According to New York State law, “a territory of 500 or more inhabitants may incorporate” as a village if it so chooses. There is no litmus test about political belief or religious practice involved in this state regulation, simply the requirement of five hundred people. The rapid shift from a group of private citizens to a Hasidic public square in Kiryas Joel was thus executed in full compliance with the law. This is one of the reasons for our intentionally ironic claim that Kiryas Joel, a community of Satmar Hasidic Jews, is “as American as apple pie.”
It is the latter question that engaged us in our initial post. What we maintained then and reiterate now is that the claim that Kiryas Joel is a theocracy and thus in violation of American law is more complicated than meets the eye. The very features of the community that are deemed by its critics to be disturbing (its self-segregation and its illiberal culture) and the mechanisms whereby the community has secured those features (primarily through the acquisition of private property and the exercise of private property rights) are not as abnormal as we might think. Ironically enough, they may well be typical in the long course of American history. We offer this assessment neither in praise nor in condemnation, but in the name of historical and legal elucidation.
To be sure, the term “theocracy” is a loaded one in contemporary political discourse, largely because it is most commonly used to conjure up the fear of a radical, nuclear-tipped Islamic polity. The courts, certainly, have not given any fixed meaning to the term, and it remains unclear just what a “theocracy” is, let alone when, if ever, theocratic government is proscribed. What is clear is that American constitutional law does not necessarily condemn the establishment of governments by, for and of a particular (illiberal, religious) sub-community. American courts have repeatedly approved the formation of private self-governing enclaves by religiously homogeneous communities. Kiryas Joel thus falls into a long American tradition of robust support for religious sub-communities, a tradition that enables private communities to form and then, once formed, to translate their private power into political power. Judicial respect for the autonomy of religious sub-communities has been expressed in a number of important decisions, most notably, the case of Wisconsin v. Yoder (1972), in which the Supreme Court affirmed the right of the Amish to protect their insular, communitarian and pervasively religious way of life by not sending their children to school.
Read the Rest Here.
The Book of Doctrines and Opinions: 