The Rise of American Conservatism in Israel

Abstract

Abstract: The American fascination with the link between interpretive methodology and political ideology rarely reaches beyond its borders. This Article offers a comparative case study, which converses with the American example—Israel. A twofold argument is offered to facilitate this conversation. First, the Article identifies a shift in the ideological climate of the Supreme Court of Israel, manifested in the rise of a new interpretive method. For the first time, the interpretive theory prevailing in Israel, Purposive Interpretation, faces a viable competitor. The Article unpacks the challenges posed by the new theory, termed Purposive Originalism, in methodology as well as underlying understanding of democratic principles. While Purposive Interpretation is conceptually and historically tied to American liberal theories, Purposive Originalism deeply resonates American conservatism, espousing variations on its three basic tenets: originalism, bright-line rules, and deference. Second, the Article contends 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 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 an Israeli recreation of the dynamics that emerged in the U.S. in the 1980s, 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