Dershowitz is most urgently concerned to reclaim his cherished Declaration from the Christian Right, whose suggestion that America is a Christian nation inspires him to fiery sermons that consume about a third of his book. But ultimately—and he is not shy about saying so—he would reclaim the Declaration from Thomas Jefferson, himself, and from the revolutionaries of 1776. Words, as you may have read in any one of a million sacred academic texts, and as you will read again on every fourth or fifth page of Dershowitz's non-academic book, have "different meanings" for different people in different times and places. The most famous and distinctive words of the Declaration, according to Dershowitz, have fundamentally different meanings (they bear different ideas and principles) for us in "the twenty-first-century world" than they had for Jefferson and the revolutionaries who proclaimed them 200-some years ago. To explain this miracle of the lost meanings, Dershowitz invokes a hodgepodge of academic articles of faith with which every college freshman has been catechized—under threat of excommunication—for the past forty years. But he turns eventually to the highest authority of his own sect—"legal realism."
Certainly the most distinctive and well-known words of the Declaration are found in its proclamation: "We hold these truths to be self-evident, that all men are created equal, that they are endowed by their creator with certain unalienable rights...." A few score years after 1776, these words still conveyed to Abraham Lincoln the most essential "meaning" of the American Revolution. This "abstract truth, applicable to all men and all times" was America's "philosophical cause." It was the distinctive American expression of natural right and natural law, the recognizably American way of acknowledging a moral truth, accessible to human reason and independent of human enactments, by which Americans and all other lovers of liberty might guide their political choices and destinies.
All "nonsense on stilts," according to Dershowitz (with thanks to Jeremy Bentham). "The American school of legal realism—beginning with Holmes and reaching its zenith in the mid-20th century—changed all of that." Presto-chango: "Rights" and "equality" are purely "human inventions," "legal or moral fictions." "The reality is that natural law simply does not exist." Dershowitz thinks that the gospel according to Holmes has been so successful that, "[w]ith few exceptions" today, everyone believes that "morality" and "even truth are ever-changing." These "evolve with experience," with the "views of the age." He may exaggerate the conversion rate, but he is absolutely right that this is the virtually unquestioned orthodoxy of American law schools today. Dershowitz thus faithfully reads the Declaration as practically every first-year law student, these days, is taught to read the Constitution, as "a text whose meaning may [indeed, must] differ from generation to generation with changing experiences."
Now Alan Dershowitz wants to proselytize for "equality" and "rights"—and for decency, truth, morality, the rule of law, democracy, justice, and government by consent, among other things. On page after page, he writes about these and other desiderata not as mere words, but as if they were full of "meaning"; just as he writes categorically, and as if his words had meaning, about the evils of this world: "[S]lavery is wrong," and so on. He wants others to join him in the faith, and he wants to provide them firm ground from which to wage what he thinks of as a righteous struggle. But since the principles and ideas, the meanings, of Jefferson and Lincoln have miraculously vanished, he must find a new foundation, a new rock on which to build his church of the "higher morality." "[F]or the millions of good and moral people who do not believe in God [or natural law, natural rights, unchanging truth, immutable principles of right or wrong, or human equality]...there must be other sources of morality, law, and rights," etc., than the principles and ideas of the Declaration.
"What, then, is the source of [this] higher morality," asks Dershowitz. He answers: "It is human experience! Trial and error!...[W]e recognize our past mistakes and try to build a better system of morality to avoid repetition of those mistakes!" Experience!, which is to say History!, becomes the new source of meaning, the god of the dispossessed. The exclamation points bear a heavy burden. They are (momentary) expressions of a blind faith that the god of human Experience! will somehow recognize his "mistakes!" in a universe where mistakes!, like truth and morality, are ever-changing. When he is moved by this faith, Dershowitz writes as an optimistic Progressive: Experience! is on the side of Alan Dershowitz and the "higher morality." We can be expected to have a higher morality than the Ten Commandments, for example, because "we have much more human experience on which to base our rules than did those who wrote the Bible." "Morality [God bless Darwin] evolves with experience." But Experience! turns out to be a fickle and mysterious god, and Dershowitz's faith wavers.
Sometimes Dershowitz recognizes and accepts the abject deference to convention required by his new deity. In these moments, he concludes that our meanings must be whatever the consensus of people today allegedly think. "[T]he authority to give [rights] any real meaning lies with people." In other passages he recognizes that, by the "people," he really means the powerful. The Jews in Hitler's Germany, for example, got "rights" solely because Hitler lost World War II. If Hitler had won, these Jews would not, in the eyes of Dershowitz's god, have had any rights that any man was bound to respect. This is how we must understand Dershowitz when he says, sincerely, that "slavery is wrong." He means that the slave power lost the war. Otherwise, his god would have no objection to slavery. Elsewhere, seeing the problem, he asserts his "right" to dissent from the consensus or from the latest majority; it is an assertion that can by his own reasoning have no more "meaning" than the latest consensus or the latest coup. Dershowitz does not let his argument get bogged down in consistency.
Such impasses drive Dershowitz, against some of his strongest passions and prejudices, to a final leap of faith. He grabs onto the "spirit" of the "words and ideas" of the American Revolution as if it were a lone piece of salvific drift wood in an endless ocean of meaningless experience. He is reborn, in effect, a faithful originalist, cleaving not to the original meaning or intent of his sacred text, however, but to its original and enduring spirit. Nowhere does he offer a reason why his disciples should not discard the Revolution's spirit even as he has discarded its ideas. He has no reason to offer. The "Spirit" of '76, in the hands of this evangelical legal realist, cannot help being as evanescent as the "meanings"; it becomes, transformed by his deepest faith, a spirit of the times. When the saints go marching in, Alan Dershowitz will be among the simplest believers in the most naïve, fundamentalist academic faith of his time, which would replace God, reason, nature, human nature, natural right, and abstract truths about right and wrong with the latest Zeitgeist. Until then, he is a ghost dancer in a three-piece suit.