Dahlia Lithwick, Sefaria Torah Talks
A very angry editor once said to me, thinking it was a critique, “Sometimes, Dahlia, you write about the Constitution like a Jewish Day School girl talking about Torah," and my response was, “Thank you.”
This one-on-one Torah study with Dahlia Lithwick is a part of our Torah Talks project. In this session, she shares her insights on a Midrash that imagines God coercing the Jews to accept the Torah. She reflects on what this text teaches us about rights versus obligations under the law, and the opportunities that emerge when we make decisions without complete information.
This sheet includes memorable quotes from our study session with Dahlia Lithwick. We encourage you to add these quotes to your own Sefaria sheets by clicking them and selecting “Add to Sheet” in the resource panel (instructions here)!
Dahlia Lithwick is a Senior Fellow of the Kogod Research Center at the Shalom Hartman Institute of North America. She is also a senior editor at Slate, where she has written her "Supreme Court Dispatches" and "Jurisprudence" columns since 1999. Her work has also appeared in the New York Times, Harper’s, The New Yorker, The Washington Post, The New Republic and Commentary, among other places. She is host of “Amicus,” Slate’s award-winning biweekly podcast about the law and the Supreme Court.
״וַיִּתְיַצְּבוּ בְּתַחְתִּית הָהָר״, אָמַר רַב אַבְדִּימִי בַּר חָמָא בַּר חַסָּא: מְלַמֵּד שֶׁכָּפָה הַקָּדוֹשׁ בָּרוּךְ הוּא עֲלֵיהֶם אֶת הָהָר כְּגִיגִית, וְאָמַר לָהֶם: אִם אַתֶּם מְקַבְּלִים הַתּוֹרָה מוּטָב, וְאִם לָאו — שָׁם תְּהֵא קְבוּרַתְכֶם. אָמַר רַב אַחָא בַּר יַעֲקֹב: מִכָּאן מוֹדָעָא רַבָּה לְאוֹרָיְיתָא. אָמַר רָבָא: אַף עַל פִּי כֵן הֲדוּר קַבְּלוּהָ בִּימֵי אֲחַשְׁוֵרוֹשׁ, דִּכְתִיב: ״קִיְּמוּ וְקִבְּלוּ הַיְּהוּדִים״ — קִיְּימוּ מַה שֶּׁקִּיבְּלוּ כְּבָר.
The Torah says, “And Moses brought forth the people out of the camp to meet God; and they took their places at the foot of the mountain.” (Exodus 19:17). Rabbi Avdimi bar Ḥama bar Ḥasa said: the Jewish people actually stood beneath the mountain, and the verse teaches that the Holy One, Blessed be He, overturned the mountain above the Jews like a tub, and said to them: If you accept the Torah, excellent, and if not, there will be your burial. Rav Aḥa bar Ya’akov said: From here there is a substantial caveat to the obligation to fulfill the Torah. The Jewish people can claim that they were coerced into accepting the Torah, and it is therefore not binding. Rava said: Even so, they again accepted it willingly in the time of Ahasuerus, as it is written: “The Jews undertook and irrevocably obligated themselves, and upon their seed, and upon all such as joined themselves unto them” (Esther 9:27), and he taught: The Jews undertook that which they had already irrevocably obligated themselves in through coercion at Sinai.
Dahlia Lithwick, Sefaria Torah Talks
To what end would the rabbis tell a story in which the end result weakens [...] free choice? The free choice feels like it's been extorted or coerced or blackmailed. So, why would you tell a story in which Bnei Yisrael (the Children of Israel) make the right choice for the wrong reason, when particularly on Shavuot, you want them to be making the right choice for the right reasons?
Dahlia Lithwick, Sefaria Torah Talks
This is completely in opposite, and probably even inappropriate for Shavuot, but I'm thinking of a prenup...where unerringly one party has sixteen lawyers and all the money, and another party has one lawyer and gets to see it the agreement five minutes before... and the ways in which afterwards, when you go into court and you can test the prenup, the argument is always [that] you can't have this disparity in power and one party thinking, "oh, I'm just signing this because I love this person and I want to get married," and the other party, who has full knowledge and staffed up twenty attorneys who created this agreement...She didn't enter it into it freely. This was just too much of a disparity not just in power, but also in information.
Dahlia Lithwick, Sefaria Torah Talks
Why would the rabbis be telling the story when God knows past and future -- all things -- and the Children of Israel have such limited information? Plus the thunder and the lightning, plus the mountain hanging over them. It's just another valence for how totally imbalanced the relationship is. No power, also no information.
Dahlia Lithwick, Sefaria Torah Talks
Talking about this in COVID...I've been so thinking recently about all the anxieties about the distance between people and God that we are feeling right now...and I'm just reading this [text] almost as though I wonder if that Oz-like version of all-powerful God is subverted by having the coercion too...That there's a way in which telling this story in which Bnei Yisrael didn't really have a free choice is almost a way of letting God off the hook of showing a certain vulnerability from the powerful party in this relationship. There's an escape hatch.
Dahlia Lithwick, Sefaria Torah Talks
If both parties to every marriage had a fully realized prenup with full information, like, "I'm going to leave my socks next to the bed and I'm going to forget that you're trying to sleep and I'm going to go downstairs and drum with the boys at 11:30 at night" -- if we had full and complete information and total disclosure from both parties, we would never enter into any agreement...If we had complete balance and also complete information we wouldn't have the aspirational idea of why we would enter into this relationship in the first place, which, despite all of that, we're going to do it because that's what love is and commitment is...Even absent the bowl hanging over our heads, do we want full information? I don't know, maybe not. What we want is the confidence and the certainty and the aspiration that even without full information, this thing is going to work.
Dahlia Lithwick, Sefaria Torah Talks
It's such a nice counterpoint to the tradition that every generation away from the revelation is a little more degraded. It's a little bit more occluded. We didn't see it and we're farther and farther away...This [text] runs counter to that idea because it says even though we didn't have the magic of the revelation -- there's no thunder, there's no lightning, there's like no tub upside our heads scaring us -- what we're actually redoubling, in making this legal commitment is more profound. That as you move away from the magic and the fear, you're actually entering -- re-entering -- every generation into the contract absent the coercion, absent the the imbalance with more information.
Dahlia Lithwick, Sefaria Torah Talks
We've moved away from this contract that we didn't understand, and we were terrified and we were just slaves and we didn't even know what freedom was -- and then we're trying to make a free choice. And we've moved away from that. Instead of saying the relationship or even the revelation itself is degrading over time, [now we are saying] it's being bolstered by a stronger and stronger, binding legal non-fear-based commitment.
Dahlia Lithwick, Sefaria Torah Talks
It's trust-based now as opposed to fear-based, and, it puts a huge burden on every generation...If this construction as a legal construct is correct, then we really have to be thinking about whether we are rebinding ourselves to this deal. It's not a passive activity.
Dahlia Lithwick, Sefaria Torah Talks
At Sinai...they were functionally children. They didn't know freedom. They didn't have a real sense of choice and what I pull through is understanding the limitations of the choices that came before and how constrained they were, and looking at that next to what it is to really have choice now, and to have to enter into it with full information and as sort of sophisticated moral agents in the world. It feels like the answer is [that] choice isn't everything, but also our choice is huge now, whereas their choice was very small...Choice isn't everything. It's huge, but the choices we make now in 2021 are vast compared to the choice that bound us at Sinai, and that balance between choices is everything.