Opinion

Sanford Pinsker

In their pursuit of lost souls, the Lubavitchers embraced the technology rejected by other essentially separatist religious communities: the Satmar hasidim, the Roman Catholic monasteries, or the Old Order Amish. With telephones, faxes, videotapes, computers, elaborate "Mitzvah Mobiles" (the sound trucks that traversed Manhattan to encourage nonpracticing Jews to join them in obligatory daily prayers), and even a worldwide radio network, the Lubavitchers spread the word. Since the death of the Rebbe on June 12, 1994, however, the Lubavitchers have put this technology to a new use-promoting the words, stories, and even images of the late Rebbe in a way that brings to mind certain parallels with the "dead hasidim" who continued to follow Nachman of Bratzlav after his death in 1810, and that has made it nearly impossible for the Lubavitchers to choose a successor to their rebbe.

Perhaps nothing characterizes day-to-day life among the Lubavitcher hasidim more than enthusiastic optimism. They go about their tasks with an unwavering confidence that the rebbe is a tzaddik (a saint), and that he is simultaneously their guide and protector. Stories about his powers are traded as eagerly as small boys swap baseball cards, all of which is to say that a hasid (literally, a pious one) is principally defined by his all-encompassing discipleship to a rebbe.

The Jewish youngsters who descended in crowds on Crown Heights to hear and see the Rebbe often asked what would happen when he died, for they knew that he was childless and that no successor was being groomed. What they didn't know, however, was how upsetting (to say nothing of inappropriate) such inquiries seemed to the Lubavitchers. To imagine life without the Rebbe was tantamount to heresy. Sometimes an official spokesman would remind the crowd that the span of a Jewish life was traditionally calculated at 120 years, and reassure the students that the Rebbe possessed enormous vigor. And, indeed, his vigor was impossible to discount as he led his hasidim into frenzies of song and dance during the gatherings that were the high point of every student visitation. In the summer of 1994, however, following a series of strokes that left Schneerson largely incapacitated, the Lubavitcher movement had to face the unthinkable head-on.

As Nachman of Bratzlav felt himself slipping into the arms of death, he turned to his anxious disciples and said, "My light will glow till the days of the Messiah." They took his remark to mean that there was no need to find another spiritual leader to replace him, and in the 185 years since his death, the Bratzlaver hasidim have continued rebbe-less. They speak of Nachman in the present tense and reread his thirteen stories from one generation to the next. In the ultra-Orthodox quarter of Jerusalem's Mea Shearim, one can find Rebbe Nachman's intricately carved chair-broken into small pieces, smuggled over the Russian border, and then patiently reassembled-prominently displayed in the chief Bratzlaver synagogue where his stories are read each Sabbath morning.

Nachman's tales provide what is arguably the most intriguing literature produced by a hasidic tradition that has valued the use of story as a way of appealing to the Jewish masses ever since the days of the Baal Shem Tov, hasidim's founding spirit. Nachman, the Baal Shem's grandson, perfected this storytelling-as-preaching into a high art-one recognized as such by Martin Buber and many others. But the very idea of a hasid without a rebbe is odd in the hasidic world where one's devotion to a spiritual leader is the defining difference between ultra- Orthodoxy and "mere" Orthodoxy. A hasid who cannot have an "aloneness" (y'chetus) with his rebbe-where the petitioner seeks council, advice, and most of all, blessings-is an anomaly within the hasidic world. Small wonder, then, that the Bratzlavers are known as the "dead hasidim" and that their very movement seems so paradoxical.

One might rightly argue that the living presence of a rebbe is not required if one has recourse to his continuing instruction, but this is an intellectual argument; hasidic life relies, first and foremost, on the palpable interactions that bind troubled souls to the higher powers incarnate in the rebbe. The Bratzlavers are an apparent hasidic contradiction of hasidic life.

Imagine how the Bratzlavers might have developed had there been camcorders and videotape during the days of Nachman, and you will have some idea of what the future of Lubavitcher hasidism might look like. For if it is true that Chabad (as the movement is widely known) relies on technology to spread its message as well as to keep effective track of its worldwide organization, it is even truer that the words, and image, of the Rebbe have always been at the very center of their elaborate technological web. Generally speaking, hasidim do not much approve of photographs. But it is hard, probably impossible, to find a Lubavitch household that does not have a painting or photograph of the Rebbe on prominent display.

And that, as they say, is merely the tip of the iceberg. Virtually every official pronouncement the Rebbe uttered has been meticulously preserved-sometimes on videotape or audiocassette. The many sermons (sometimes lasting for as long as four hours) that he delivered on the Sabbath, when recording and even writing are not permitted, were captured by the remarkable efforts of a member of the Rebbe's court, Yoel Kahn, who painstakingly memorized every sentence, every paragraph, and then later reproduced a full text for the Rebbe's approval. Skeptics may have their doubts about the accuracy of such an enterprise, but as the hasidim like to put it, if there is such a thing as a photographic memory, why not an audiographic one? Besides, what matters is that these archives-accurate or not-will become an enduring legacy and an abiding presence.

Just recently, Rabbi Yehuda Krinsky, the Rebbe's longtime aide, spokesman, and executor of his will, announced the discovery of three handwritten notebooks from the Rebbe's early years in Warsaw, Paris, and Nice-random thoughts covering everything from issues in Jewish literature and customs to mathematics and medicine. They are, in Krinsky's words, "a treasure of incalculable value," for they will help to fill in the lineaments of the Rebbe's complicated portrait.

Of even wider significance may be the publication of Toward a Meaningful Life: The Wisdom of the Rebbe, Menachem Mendel Schneerson by a mainstream publisher (Morrow) who plans aggressive marketing of the Rebbe's thoughts to three very different audiences: the Lubavitcher community (numbered conservatively at two hundred thousand), the wider Jewish community, and a growing American readership hungry for inspiration.

In short, if the thirteen stories of Nachman have been sufficient to hold his legacy intact for nearly two centuries, there is every reason to believe that an analogous situation will apply to the Lubavitcher hasidim as their now badly shaken movement enters the twenty-first century. One sign of the shape such a future might take could be seen in the gathering of Lubavitcher hasidim on the occasion of the first anniversary of their rebbe's death. Many steadfastly refused to use the traditional word, yahrzeit, for such a remembrance, preferring to call June 12, 1994, "the event"; nor would they, like the dead hasidim of a bygone age, talk about Rebbe Schneerson in the past tense. For them, he remains a living presence, one whose pronouncements will be as palpable and awe-inspiring in the future as they were in the past.

In the headquarters of the Lubavitcher movement at 770 Eastern Parkway, the small room that once served as the Rebbe's office has been preserved, less as a relic (although outsiders will surely see it as precisely that) than as a living vessel for his legacy. Here, one can see the intricately carved, velvet-coverd chair on which he sat as well as other intimate reminders of his earthly presence. During the anniversary mourning period, prominent Lubavitcher families were allowed to spend a few precious moments in a simulated "aloneness" with their spiritual leader. In such an atmosphere of profound grief, mixed as it must be with confusion, doubt, and an insistence that the Rebbe has, or will somehow, cheat death, there is no talk about a successor. Who, after all, could bind together such a large, far-flung movement, much less presume to replace the Rebbe in the hearts and souls of his hasidim?

Nonetheless, thorny matters persist, and none more unsettling than whether or not Menachem Mendel Schneerson is the Messiah. Even the Rebbe's calculated interference with Israeli elections (he sent over planeloads of hasidim who hold dual-citizenship with instructions to vote for candidates from the religious right) was not as distressing to mainstream Jews as were the banners and postcards, chants and dancing devoted to the proposition, "Long live our master, teacher, and rebbe, King Messiah, forever and ever."

Mainstream Judaism continues to believe in a generalized Messianic spirit, but also remembers a string of false messiahs (Sabbetai Zevi, who converted to Islam in 1666 rather than be executed, is perhaps the most notable example) and the catastrophes they occasioned. For many non-hasidic Jews, the fervor that swirled around the Rebbe during his last days was embarrassing-not only because it seemed so excessive, but also because it struck them as much more Christological than authentically Jewish. Many conservatively inclined Lubavitchers (including Rabbi Krinsky, the movement's chief administrator) did what they could to dampen the ecstasy that a handful of fervent Messianists tried to unleash.

If there is little doubt that the future of Chabad lies in cyberspace, it is less clear about which rebbe will be called up on the Internet. Some continue to insist that he is, then and now, nothing less than the Messiah, while others hope that the movement will eventually return to its roots in hasidic tradition and teaching. This much is clear: Rabbi Schneerson never claimed to be the Messiah. In fact, when Lubavitchers in Israel first published pamphlets announcing the claim, he ordered the entire batch destroyed. But the notion continued to resurface, and when one of the Rebbe's strokes left him without the ability to speak, the Messianic die was effectively cast. Every nod of his head, every glance of his eye, was interpreted as another sign that the longed-for Messianic age was just around the corner.

The question that visitors to Crown Heights posed, the question of what will happen after the Rebbe's death, has not yet been answered. And the ongoing debate may yet splinter the Lubavitch world. But it is more likely that hasidim will keep faith with their fallen leader, poring over his writing and watching his transfixing face beaming back at them from their VCRs.

Clarke D. Forsythe

The prohibition on D&X, or partial-birth, abortions was originally debated and approved by the House Judiciary Committee last July. First publicized by an Ohio abortionist at a meeting of the trade association of abortionists, the D&X (dilation and extraction) method involves removing the unborn child feet first from the womb, cutting into the back of the head with surgical scissors, extracting the brain tissue, crushing the skull, and then extracting the rest of the dead child's body. Two Ohio abortionists have performed hundreds of these, usually after twenty weeks of pregnancy. Capitalizing on the political gains made in the House in the November 1994 elections, proponents of the ban seek to overthrow the abortion legacy of Bill Clinton, to educate Americans about the cruelty of the abortion culture, and to remind them that thousands of late-term abortions are committed by abortionists every year.

Despite the bill's sponsorship by the pro-life movement's leading statesman of the past twenty years, House Judiciary Committee Chairman Henry Hyde (R-Ill.), some pro-life leaders have condemned the partial- birth abortion ban-and the pro-life organizations supporting it-because the bill allegedly contains a "health" exception, permitting a D&X abortion to protect the health of the mother. All abortions take the life of an unborn child, of course, but the purity of pro-life principle in those who condemn the bill does not guarantee success in banning all abortions-and may, in fact, help extend the reign of the abortion terror.

Moreover, the pro-life objectors may be misreading the House bill, for, in fact, it contains no "health" exception, but rather a much more narrow "affirmative defense" by which the abortionist may attempt to prove-only in the context of a criminal prosecution-that he used the D&X method to "save the life of the mother." Subsection (e) of the bill states:

It is an affirmative defense to a prosecution [of the abortionist] or a civil action under this section, which must be proved by a preponderance of the evidence, that the partial-birth abortion was performed by a physician who reasonably believed-(1) the partial-birth abortion was necessary to save the life of the mother; and (2) no other procedure would suffice for that purpose.

No pro-life leader wants to be just regulating abortion ten years from now. In the Anglo-American tradition, the common law treated each unborn child as a person at the earliest point in gestation when it could be determined to be alive, and the law protected the unborn as far as contemporary medical knowledge allowed. We want to restore that American tradition of protecting the unborn to the greatest extent possible in law and medicine. We want to prohibit the abortion trade.

But, reluctantly and realistically, we must admit that there are serious constitutional and political obstacles to passing any limitations on D&X abortions (or any other kind of abortion) without some kind of "health" or "life of the mother" qualification. There is, in particular, a ceiling of Supreme Court decisions that prevents full protection. The object must be not to ignore such obstacles but to ultimately overcome them.

Currently, abortion is allowed at any time of pregnancy, for any reason, by the Supreme Court's decisions in Roe v. Wade, Doe v. Bolton, and Planned Parenthood v. Casey. In addition, the Supreme Court has required that laws restricting abortion contain exceptions for "health." That definition of "health" is far broader than the "life of the mother defense" in the House bill. The Supreme Court, in the 1992 Casey decision, held that a "health" exception was constitutionally mandatory. If the "life of the mother" provision is not included, the bill may be immediately invalidated by a federal court-its beneficial effect thereby lost, with pro-life legislators at the state and federal level inhibited from passing future legislation.

In addition, in the 1979 Colautti and the 1986 Thornburgh decisions, the Court held that a statute could not weigh the child's life against the mother's health. The state and federal governments are required to allow an abortionist's "concerns" about the mother's health-including psychological health-to trump the unborn life. Thus, arguably, a ban on a type of abortion is invalid if the mother's "health" would be preserved by using that type of abortion.

If exceptions are not explicitly incorporated into a criminal law, the state or federal law risks invalidation as unconstitutional. Although it is doubtful as a medical fact that a D&X abortion would ever be required to preserve the mother's "health" or "save her life," if a D&X abortion might be required in a particular instance to preserve the mother's health, it is authorized by federal constitutional law.

After Webster and Casey this health exception is arguably not constitutionally required for late-term abortions, but no one knows and there are no guarantees. We may see Planned Parenthood or the National Abortion Federation challenge the House bill, if it survives the Senate and a Clinton veto. The pro-life movement may benefit from additional publicity given to partial-birth abortions through such litigation and the Supreme Court confronting these horrific abortions. But that speculation about the future does nothing to avoid the constitutional and political obstacles that the sponsors faced at the time the bill was drafted in the House Judiciary Committee.

Pro-life Americans may be upset about the injustice of a broad health exception-allowing abortion on demand throughout pregnancy-but righteous indignation without political prudence and legal understanding are the ingredients of political futility. If acceding to what is already authorized by the unjust federal law is morally impermissible, it means that the pro-life movement is prevented from accomplishing any lessening of the evil impact of the unjust federal law of abortion on demand.

The partial-birth abortion ban is not a moral compromise. It does not concede the legitimacy of any abortion. It merely recognizes current legal and political obstacles and acts within them.

Pope John Paul II stated clearly the moral principle on which this approach is based in his recent encyclical, Evangelium Vitae. He begins with a stern injunction: "In the case of an intrinsically unjust law, such as a law permitting abortion or euthanasia, it is therefore never licit to obey it, or to take part in a propaganda campaign in favor of such a law, or vote for it." In the next paragraph, however, the pontiff make clear what does not fall within that prohibition:

A particular problem of conscience can arise in cases where a legislative vote would be decisive for the passage of a more restrictive law, aimed at limiting the number of authorized abortions, in place of a more permissive law already passed or ready to be voted on. . . . In a case like the one just mentioned, when it is not possible to overturn or completely abrogate a pro-abortion law, an elected official, whose absolute personal opposition to procured abortion was well known, could licitly support proposals aimed at limiting the harm done by such a law and at lessening its negative consequences at the level of general opinion and public morality. This does not in fact represent an illicit cooperation with an unjust law, but rather a legitimate and proper attempt to limit its evil aspects.

It is important to apply these principles to the situation of current American law on abortion. Roe v. Wade is unjust; it is also the law of the land. Legislators cannot overturn that law. They can, however, "support proposals aimed at limiting the harm done by" that law, thereby "lessening its negative consequences at the level of general opinion and public morality."

In the case of the partial-birth abortion ban, no pro-life supporter believes that the unborn child is any less alive at eight weeks than twenty weeks gestation. But this legislation does limit our federal abortion law, without admitting the legitimacy of any abortion. It also educates the public that late-term abortions are particularly cruel and brutal.

In addition to these benefits, fighting for regulatory legislation until the day that we can once again prohibit the abortion trade carries other advantages. It reduces the number of abortions. It helps organize the pro-life movement's grass roots. It builds stronger and better pro-life legislators who can be future leaders. It distinguishes our friends from our adversaries and puts both in the spotlight.

When the limits on what is politically and constitutionally possible are disregarded, the passionate moral condemnation of "all or nothing" pro-life allies unnecessarily threatens the unity of the pro-life movement, reduces the pro-life movement to a carping sideshow, and strips it of any influence in American politics or culture.

With no political ability to achieve "all," the movement is left with the alternative of doing nothing but shout from the sidelines-leaving it without the political resources to make the kind of progress that the attack on partial-birth abortion represents.

Peter L. Berger

The men in the reinstituted Alabama chain gangs wear leg irons, chained eight feet apart in groups of four. The arrangement, of course, only permits them to move slowly and awkwardly. Their work, under the eyes of guards with shotguns, is to pick up litter along highways or, in time- honored fashion, to break rock piles. The convicts thus employed are from medium-security prisons. Presumably inmates of higher- security prisons are not trusted to be outside even in chains. But this means that the chained prisoners are not your real heavy-duty criminals, like murderers or rapists. The only crime named in a recent story on chain gangs in the Boston Globe was receiving stolen property. An earlier story featured an interview with a man convicted of possession of an illegal drug. In any case, in these medium-security prisons the inmates are not permitted television or telephones, may not exercise with weights, and are allowed coffee on Sundays only. The work on the rock piles leads to frequent injuries. According to inmates, these are commonly ignored. According to the authorities, they are often feigned.

A group of men, most of them black, chained to each other like animals, being marched along dusty country roads to perform meaningless but painful labor: here is an inspiring vignette for the direction taken by the American criminal justice system. It is part and parcel of much broader policies endorsed by politicians of both parties in the name of "getting tough on crime," and fits well with the accelerating use of the death penalty, the "three-strikes-and-you're-out" legislation, the new ability of law-enforcement agencies to seize the property of individuals suspected of having ties with organized crime, and most recently (if the Clinton Administration has its way) new powers of these agencies to spy on the citizenry in fighting terrorism. The United States is the only Western democracy employing capital punishment (increasingly in a routine fashion). The United States has the arguably even greater distinction of having the second-largest number of people imprisoned, around one million. China has more in absolute numbers, but as a proportion of the total population, America is number one.

The prison population has been growing rapidly, in large part because of the utterly futile "war against drugs." It is difficult to estimate the exact numbers here, since they consist not only of people imprisoned for possessing and selling drugs, but of people who committed other crimes to support their drug habits. The "three-strikes" policy has further accelerated the growth of the prison population.

In many institutions, especially in state systems, the overcrowding has meant for some time now that the inmates-or rather, the most vicious inmates-are effectively in charge. Many American prisons are infernos of violence and corruption over which the authorities have little or no control. A young man sentenced to one of these prisons faces the likely prospect of being raped and a reasonable prospect of becoming infected with AIDS. This too is an inspiring vignette of American criminal justice: a sentence of death for a crime like possession of cocaine or a third assault with a dangerous weapon (which in Massachusetts includes kicking somebody with a "shod foot"). On "higher" levels of the prison system, America has now created maximum-security facilities in which inmates are almost completely isolated from human contact, constantly monitored electronically, and shackled during even the briefest trip outside their cells.

Criminal justice in America has for a long time been harsh as compared to its counterparts in Western Europe. Prison sentences have been much longer. Prison conditions have been more unpleasant (except for the Federal system). And the judicial process has been more arbitrary and more weighted against defendants unable to afford an expensive lawyer. There have also been the peculiarly American institutions of the grand jury (usually nothing more than an instrument of the prosecution) and of plea-bargaining (which again puts the greatest pressure on those who cannot afford a good defense). The current changes, however, constitute a large step toward what can only be called barbarism.

These changes are legitimated by two arguments: that, despite their severity, they are necessary to stem the rise in crime; and that they simply correct some of the damage done by soft-hearted liberals who coddled criminals at the expense of the victims of crime.

Both arguments have some merit. The United States does indeed have very high crime rates, probably the highest (accounting for differences in reporting and classification) among advanced industrial democracies. Criminologists are not in agreement as to the reasons for this. The size and cultural characteristics of the American underclass is almost certainly a major reason, as is the American propensity to engage in criminal prosecution of vices that are more tolerated elsewhere (notably, of course, the use of drugs).

The question, however, is whether savagery in the penal process is likely to change this situation. Very probably it will not. A criminally inclined culture is deterred less by the threat of savage reprisals than the likelihood of being caught and convicted-and this likelihood depends on efficient police and courts.

Liberals do indeed bear a good deal of responsibility for undermining the efficiency of both. They have put unnecessary restraints on the police (for example, on the use of force), have been instrumental in making convictions more difficult because of legal technicalities (notably in the matter of admissible evidence), and have generally propagated an ideology of victimization that has encouraged criminals to disclaim personal responsibility because of this or that hurt in their past. The question is whether, to correct the ideological stupidities of mushy social workers, one must now embrace the philosophy of hangmen.

Ronald Jones, the Alabama Commissioner of State Prisons, said to the Globe reporter, "Tell those liberals that the party ended for them last November election." At least as far as crime is concerned, liberals (with President Clinton in the lead) have evidently concluded that this election adds urgency to the need of demonstrating that they are at least as tough as their conservative opponents. When it comes to fostering the barbarities of criminal justice in the United States today, there is little to choose between Republicans and Democrats (though, perhaps, a sizable constituency of the latter party might want to include "sexual harassment" in the list of capital offenses).

Conservatives should ask themselves whether they want their cause to be linked to the vision of an America in which chain gangs, soundproof isolation cells, and death houses are accepted as routine parts of the social scenery.