Jack Balkin (Yale Law School) has posted “Rabbi Akiva and the Crowns: A Parable of Constitutional Fidelity.” 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.
The full article is available here, at SSRN.
— Karen Tani