The Rise of American Conservatism in Israel
8 Penn State Journal of Law and International Affairs (2020) (Forthcoming)
63 Pages Posted: 4 Oct 2019
Date Written: September 20, 2019
In the United States, the link between interpretive methodology and political ideology has generated a massive yet largely idiosyncratic body of scholarship. This Article offers a comparative case study, which converses with the American example – Israel. A twofold argument is offered to facilitate this conversation. First, a current shift in the ideological climate of the Supreme Court of Israel is identified, manifested in the rise of a new interpretive method. Never before has a comprehensive alternative been offered to the interpretive theory prevailing in Israel, Purposive Interpretation, which is conceptually and historically tied to American liberal theories. The Article unpacks the challenges posed by the new theory, termed Purposive Originalism, in methodology as well as underlying understanding of democratic principles. While elevating the role of legislative history, an interpretive device associated with liberal judges in the U.S., Purposive Originalism nonetheless deeply resonates American conservatism, espousing variations on originalism, bright-line rules and deference. Second, it is contended that this development should be understood as part of a broader ideological reorientation of the political right-wing in Israel, toward American conservatism. Increasingly drawing on the philosophies, policies and strategies of its American counterpart, the Israeli Right has adopted the compound of social traditionalism, neo-liberal economic policy and hawkish national security stance, as well as discontent with the administrative state, synthesized under the headline of conservatism. An interpretive methodology that strives for the same values enshrined in this political project fulfills a vital role in its success. Such a convergence of judicial and political reinterpretations of conservatism marks the current historical moment in Israel a recreation of the dynamics that emerged in 1980s U.S., with an all-encompassing conservative backlash against legal liberalism. The Israeli case thus reveals how American conservatism can be, and is indeed, incorporated into different cultural and constitutional settings.
Keywords: Comparative Law, Law & Politics, Constitutional Interpretation, Statutory Interpretation, American Conservatism, Originalism, Textualism, Legal Liberalism, U.S.-Israel Relations, Aharon Barak, Noam Sohlberg, Israeli Judiciary, Supreme Court of Israel
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