Flames and Warrants
"Basically it's what musicians would call a fake book." (from NY Times, June 16, 2006)It was reported in the New York Times today that German Goldenshteyn had a heart attack while fishing on Hempstead Lake on Long Island and died. For someone as besotted as I am by the oral tradition, it was most significant to read that, when he arrived in the United States in 1994, "he literally carried the . . . tradition with him in the form of handwritten notebooks filled with hundreds of klezmer tunes, many previously undocumented." [emphasis added]
It was from such notebooks that the earliest rabbis created the Talmud. Without the informal jottings for strictly personal use, there would have been no record of the teachings that became the foundation of Rabbinic Judaism. Goldenshteyn's life, his memory, formed the blessing that reminds us that what we hold onto during our lifetimes by writing them down, preserve memories that take on a life of their own.
As his friend Michael Albert said in the Times, "Basically, it's what musicians would call a fake book." For Goldenshteyn, "The primary purpose wasn't to preserve Jewish or Moldavian culture, but mainly so that the band would have more repertoire." The Talmud is, in this sense, a fake book, too.
The phrase "Justice Scalia surveyed changes in the legal landscape" should be as startling as the notion of Shammai ruling leniently. Nevertheless, Judge Scalia only strayed from his customary originalist perspective to be able to rule stringently in relation to the exclusionary rule. He is like the rabbi who ruled against the argument of a heavenly voice when it contradicted the majority but accepted it as proof when it confirmed his opinion.
Where others might see unreasonable search as a strong constitutional principle, this judge dismisses it as no more than "the right not to be intruded upon in one's nightclothes." (One would think an originalist would realize that the founding fathers, whose sleeping shirts concealed all, protecting one completely from immodest exposure, must have had something broader in mind.)
The police, in this case, had a warrant but failed to knock before entering. Hillel would have conceded Justice Scalia's point that the exclusionary rule is a heavy hammer to wield on a technicality but would have persisted in wielding it to protect the dignity and privacy of the accused. Scalia argued that the exclusionary rule was implemented to discourage constitutional violations at a time when law enforcers were not trained to respect newly articulated civil rights but that times are different and these discouragements are no longer needed.
I tremble at the prospect of how he will rule when presented with cases in which the government neither knocked nor had a warrant. Will the former originalist dismiss warrants as a transitional tool no longer needed in an age when Commanders-in-Chief are Deciders who no longer require a constitution to guide them?