Analysis |

Before Confirming Trump, Electoral College Should Consider Pikuach Nefesh

In Jewish law, saving lives takes precedence over other commandments, sacred as they may be | Analysis

Chemi Shalev
Chemi Shalev
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U.S. president-elect Donald Trump at a rally in Grand Rapids, Michigan, December 9, 2016.
U.S. president-elect Donald Trump at a rally in Grand Rapids, Michigan, December 9, 2016.Credit: Andrew Harnik, AP
Chemi Shalev
Chemi Shalev

Pikuach Nefesh is one of the Jewish religion’s most noble principles, even in the eyes of non-believers. It means that the duty to save a human life overrides even the most sacrosanct Jewish obligations, with the exception of idolatry, murder and incest. You can work, drive or otherwise desecrate the Sabbath, eat on Yom Kippur and even consume non-kosher food if you believe you are doing so in order to save a human life.

The principle is anchored in several places in the bible, but the most widely cited is taken from Leviticus 18: "You shall therefore keep my statutes and my rules; if a person does them, he shall live by them: I am the LORD." God’s intention is that Jews should live by his rules and regulations, not die or let anyone else die because of them.

Of course, rabbis and yeshiva students have been splitting hairs over the principle of Pikuach Nefesh since time immemorial, as they’ve been doing on most other things under the sun. For example, most sages believe stealing is permitted in order to save a life, but Rashi, the number one all-time Bible and Talmud commentator, disagrees. It is permitted to accompany someone to the emergency room on Shabbat because of Pikuach Nefesh, but once there, you can’t go home until Shabbat is over, because there’s no justification for it. Can a Jew desecrate the Sabbath in order to save a non-Jew? In principle no, in practice yes, because you want non-Jews to return the favor. And it is permitted to go to war on Shabbat in order to try to save a community or a nation that one is defending, even if by doing so you are sacrificing your own life in the process.

More pertinently, perhaps, to this article, is that even if there is an uncertainty, even if one is not absolutely 100 percent sure that a clear and present danger to human life exists, Pikuach Nefesh can be invoked. Even if it turns out that the situation was not as life threatening as originally thought, the exemption still holds.

The Electoral College is, in some ways, a mechanism of constitutional Pikuach Nefesh. If its sole purpose was to rubberstamp the election results in the various states, there would be no need for it to function. Certainly, electors should not deviate from their voters’ wishes other than in extraordinary circumstances, such as those spelled out on March 14, 1788 by Alexander Hamilton in the Federalist Papers. Or when a Presidency poses a serious threat to the well-being of America in particular and mankind in general.

Justifying the creation of an “intermediate body of electors,” Hamilton wrote that it would serve “as an effectual security against mischief.” In that category he included a “desire in foreign powers to gain an improper ascendant in our councils. How could they better gratify this, than by raising a creature of their own to the chief magistracy of the Union?”

That certainly sounds like a pertinent concern in 2016, even before the recent revelation that the CIA suspects the Kremlin of intervening in favor of Donald Trump. In an article published in late September under the headline “Tinker, Tailor, Soldier Trump” I noted that Politico Magazine had described Trump in May already as “The Kremlin’s Candidate” while former CIA director Michael Morell wrote in August in the New York Times that the Kremlin had “recruited Trump as an unwitting agent of the Russian Federation.” Nothing the president-elect has done since has refuted the notion that there is more than meets the eye in his fawning attitude towards Putin.

Another concern raised by Hamilton is that the presidency should “never fall to the lot of any man who is not in an eminent degree endowed with the requisite qualifications” including those with “talents for low intrigue, and the little arts of popularity.” There is certainly more than enough signs that this description might fit Trump as well, along with several other choice pejoratives.

There is some doubt, however, whether these considerations would suffice for the invocation of the Jewish principle of Pikuach Nefesh. What has become increasingly clear, however, especially after Trump’s November 8 triumph, is that he could present a clear and present danger to the lives of Americans, including many Jews. Even if one dismisses all the rash statements Trump made before his election as meaningless rhetoric, he has already provided ample reasons for concern in the five weeks that have gone by since. He has, incredibly, deemed himself smart enough to make do without intelligence briefings. He has, for political gain, undercut the credibility of the Central Intelligence Agency. And he has, for no apparent rhyme or reason other than sheer recklessness, sparked a serious crisis with China by poking Beijing it at its sorest point: Taiwan and the One China principle. And while his sycophants are already busy extolling the virtues of a confrontation with China, sane people must ask themselves whether this is a rational way to start out a presidency and whether it is not a foregone conclusion that such unrestrained bluster, and not only towards China, won’t ultimately lead to a violent if not catastrophic clash.

Of course, many Republicans will cry foul. They will say that Barack Obama was no less risky in 2008 than Donald Trump is today. That if the Electoral College refrains from confirming Donald Trump’s election and creating an unprecedented constitutional crisis, America’s very democracy will be at risk. Given the levels of hostility toward Obama, this is not an argument one can win. One hopes, however, that there are enough electors who can still differentiate between a hated political rival who is nonetheless rational and cautious and an unguided missile like Trump, who could lead the world to hell.

Next week the 538 members of the Electoral College will convene in their states to choose the next president. Their votes must reach the Chief Archivist of the U.S., David Ferriero, before Tuesday, December 28. In order to prevent Trump from assuming the presidency, 37 of his 306 delegates must decide to buck party discipline and defect. That is one more than the 36 righteous people called LamedVavnikim, who justify the world’s very existence, according to Jewish mysticism.

This is the necessary number of electors who must come to the conclusion that their function is not to blindly ratify voters’ whims, that their conscience and judgment should also come into play, and that they must be willing to pay the price for their “rebellion”. They will officially be described as “faithless electors,” but believe me, that will be the mildest epithet they will suffer. In fact, they might be the most faithful of all the delegates combined.

Jewish law says that the obligation to carry out Pikuach Nefesh and to save a life by contravening sacred obligations does not fall first on non-Jews, slaves, children or women. Rather, first in line are the crème de la crème of the patriarchal hierarchy of Judaism: the most devout of the wise men, the rabbis and the learned ones. This precedence symbolizes the absolute importance attached to Pikuach Nefesh and the duty to save a life. Delegates to the Electoral College should feel themselves just as exalted, but with a responsibility that this year seems almost too much to bear.

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