Richard Weisberg discusses the theme of his forthcoming book Fatal Flexibility (OUP, 2014) by analyzing the approach of the US Supreme Court to four of the Amendments to the Constitution, the First, Second, Eleventh and Fourteenth. All the cases are of first impression, i.e. were written virtually on a "clean interpretive slate" and all demonstrate a tendency to deviate from the Amendment's text and intention in the interest of a "flexible" approach, either stated or covert, that the Court found more persuasive than the more traditional ones available to it. The analysis indicates the error of linking "strict construction" to backward looking conservatism, and "open or loose construction" to more liberal outcomes. On the contrary, the five cases discussed (Schenck and Everson in the First Amendment arena; Hans v Louisiana on the 11th Amendment; Plessy v Ferguson on the XIVth; and the quite recent DC v Heller regarding guns and the Second Amendment) took liberties with "strictness" and chose what became "fatal" – although highly creative – interpretations that then needed restorative work over time to re-instate the more correct readings. The analysis moves on to a more generalized critique of subjective legal readings (variously described as "naturalistic," "living," or "spiritual") and of flexibility as a troubling trait not only in law but also in Biblical hermeneutics.
Richard H. Weisberg is Floersheimer Professor of Constitutional Law at the Benjamin N. Cardozo Law School of Yeshiva University. He holds a JD from Columbia Law School (Law Review) and a Ph.D (French and Comparative Literature) from Cornell University. He is a pioneer in the worldwide "Law and Literature" movement, and a newly released book from Suhrkamp – Rechtsgeschichten: Über Gerechtigkeit in der Literatur – translates from two of his works in that area. Professor Weisberg has taught that subject at many undergraduate institutions and law schools in the US, and in France, Denmark, Germany and China, where he is an Honorary Professor of Law at Wuhan University. He has also written Vichy Law And The Holocaust In France (NYU Press, 1996) and is litigating in American Federal Court on behalf of Holocaust victims or their heirs. His next book, Fatal Flexibility is scheduled for publication in early 2014 (OUP).
Introduction Bernhard Schlink (Humboldt-Universität zu Berlin)