Thanks for your link to my blog post.
I'm disappointed to hear that Dershowitz might've gotten to my concept before I did as he & I have so little in common politically or ideologically that it embarrasses me to share anything with him.
There are numerous issues I have with your post.
First, the terms strict constructionist & original intent are used almost interchangeably not only by the public, but by journalists & constitutional scholars themselves (at times). Second, the fine pts. of distinction between them have almost no interest for me nor do they for the majority of Americans. It's all pretty much angels dancing on the head of a pin. How many? Does it matter?
Just as an example, you say that conservative judges distinguish between the original meaning of the text and the Framers intent (whatever that means). You'll have to forgive me but the distinction seems deeply arcane.
I do not believe that the rabbis in the Talmud story "ignored" God's "intent." I believe they prob. took that into acct. in their deliberations & decided against Him nevertheless. After all, doesn't God make pretty crystal clear that his original intent sides with R. Eliezer??
Your comment about the amendment power providing a way for the Constitution to adapt to changing times is fine as far as it goes, but it doesn't go very far. We all know that it's next to impossible to amend this document. THere have been 26 or so in over 225+ yrs & if you lv. out the ones (the first ten?) adopted en masse at the beginning you have an even bleaker perspective on the possiblity of constitutional innovation deriving from amendments.
As an example, almost all of us now agree that slavery was a bad thing. But did the Supreme COurt ban it? Was an amendment passed to do so? No. YOu even had good 'ol Roger Taney declaring that even if he wanted to outlaw slavery he just couldn't find it anywhere in the text of the Constitution & therefore Dred Scott was sentenced to a lifetime of slavery. Taney's decision is a perfect illustration of the impoverishment of textualism or whatever you want to call it.
I also think your characterization of halacha lacks nuance. Yes, there are no amendments or democratic votes within halacha. However, when rabbis decide upon a bold halachic initiative that will overturn centuries of halachic precedent they do so very carefully & deliberatively, using many of the same considerations a judge would use in the same situation.
For example, I'm certain that Rabbeynu Tam, before he banned polygamy took scores of considerations into acct.: how many Jews would his ruling effect? how would the decision be received by them? the moral and societal costs of polygamy. Halachic precedent, Biblical injunctions for or against, etc. But in the end, he decided the law HAD to change. His ruling found almost no precedent within Jewish law & yet he went forward because it was needed & because it was just.
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I wonder what you disagree with Dershowitz on.
I agree with your point on originalism. Most Americans don't understand the fine points of constitutional interpretation. I was being pedantic, but to me it's a relevant distinction.
I disagree with your take on the original intent of G-d. G-d never exhibited his intent, only his conclusion. The Rabbis could have disagreed with his application of his intent but agreed to be bound by that intent. It's like looking for Madison's understanding of Freedom of Speech, but disagreeing with how to apply it.
I think you're way off on the Amendment issue. Of course the Constitution is hard to amend. But it has been amended when the bulk of the American people decided that an amendment was important. It can be done.
Dred Scott hurts your claim. Taney's basic claim was that the government cannot free slaves because it constitutes a violation of the right to own property. No such right exists obviously, but Taney, working as a superlegislator, decided to imply it. The Court did the exact same thing in Roe, only with different results.
My point about Halacha was not to compare and contrast but to show that judges need to be more flexible when their decisions are the sole means of change. In our legal system, there are other more democratic ways to change the law so judges should be more reserved.
I think Dershowitz is a Class A ego & loves to hear himself talk (or I should say 'blather'). Besides, he thinks he's a genius. All these qualities irk me. In addition, his politics are inconsistent & regarding Israel downright reactionary (though both of you may find many things in common on that score).
I have read constitutional appraisals of Taney's decision which say that he claimed he could not outlaw slavery because he found nothing in the Constitution on which to base such an outcome. I'm not talking about his entire argument only that part.
Regarding constitutional amendments...saying "the bulk of the American people" have the power of pass amendments is misleading. 2/3 of both houses of Congress plus 2/3 of all the state legislatures are what gets an amendment passed. That's why it's only happened 18 times, if you exclude the first ten which were passed as a package right at the outset. Excuse my memory of junior high American history if any of the numbers above are wrong. At least they're in the ballpark.
Dershowitz's opinions on Israel and terrorism are the things I agree with. I don't quite see them being reactionary though. He has a pretty mainstream position (Israel has a right to exist, the Palestinians have a right to state, both sides need to compromise, etc.).
It's true that Taney did not strike down slavery because he felt the Constitution did not outlaw it. That was hardly the major focus of his opinion, but let's assume it was. And therefore? If the Constitution did not prohibit it, and much of the country was fine with it, on what grounds should Taney have found slavery unconstitutional? Do you really feel judges should be imposing their singular moral opinions on society or deciding moral questions for society?
Amendments are supposed to be hard. But most Americans support a right to privacy. If Griswold was overruled two things might happen: Either a constitutional amendment would be passed, or none of the states would pass laws infringing on the basic right (i.e., outlawing birth control). If some state did, it would lose a lot of people. The fact that the Constitution is hard to amend does not support the conclusion that judges should amend it through their opinions. It was made hard to amend intentionally.
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