Saturday, March 09, 2024

Rabbi Akiva and the Crowns: A Parable of Constitutional Fidelity


I've just uploaded a draft of my latest article, Rabbi Akiva and the Crowns: A Parable of Constitutional Fidelity, to SSRN. It is part of a B.U. Law Review Symposium on my new book, Memory and Authority: The Uses of History in Constitutional Interpretation and Jonathan Gienapp's forthcoming book, Against Originalism: A Historical Critique.

Here is the abstract.

Historian Jonathan Gienapp argues that the Founding generation held very different views about constitutions, law, rights, and judicial review than lawyers do today. His target is conservative originalism, but his arguments are important for originalists and non-originalists alike. How is faithful interpretation of the Constitution possible if we inhabit a very different world from the generation that produced it?

This essay answers that question by retelling a famous story in the Gemara about Moses and the Talmudic sage Rabbi Akiva, who lived a thousand years later. The story explains how the rabbis who compiled the Talmud in the sixth century C.E. dealt with the problem of interpreting religious texts that had been written hundreds of years earlier in a very different world. The rabbis argued that faithful interpretation of the law must recognize the distance between past and present and accept the need for creative adaptation in the face of transformations, upheavals, and ruptures. The same lessons hold true for constitutional interpretation today.

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