Posted on by Marc O. DeGirolami

Corey on Oakeshott and the Rationalism of the Early American State

Elizabeth Corey has a very interesting review of a book by Gene Callahan about the extent to which the ideas of the British political theorist, Michael Oakeshott, are consistent with some of the founding ideas and principles of the American nation–particularly those championed in the Declaration of Independence but also in the US Constitution. Corey describes the book–Oakeshott on Rome and America–as working its way through this question by positing that it is true that, for example, the Constitution displays the sort of rationalism in politics that Oakeshott criticized–averring principles and political arrangements that were to bind future generations. Nevertheless, there are both internal and external limits on the rationalism of the Constitution. The internal limits are structural, providing for a government of limited powers and securing ample space for the sorts of civil association that Oakeshott defended. Here’s the conclusion of Corey’s review, which explains the external limits:

Does our American Founding, despite its aim of limiting and checking the power of those who govern, exhibit an essentially Rationalistic tendency? In other words, are the self-evident principles and universal rights it proclaims really nothing more than a distillation of the inherited English political experience, parading as eternal truths? And even if they were considered eternal truths in 1776 or 1787, are they really so today? Callahan observes that if the political culture does not support such rights and limits, or if presidents, politicians and judges are intent on, to put it gently, reinterpreting them, then there is nothing at all to stop them from doing so.

Callahan observes that a written constitution will inevitably “be read in a way that conforms to the prevailing understanding of how government ought to operate and what powers it ought to possess.” This is not simply because living constitutionalists and progressives of all stripes have managed to gain majorities in important cases. It is because, argues Callahan following Oakeshott, no written constitution can do what it purports to do in terms of providing pointed and substantive barriers to political action, especially when majorities support such action. For such reasons even Originalism is unsupportable. The notion of grounding or stabilizing the meaning of the Constitution by recourse to “original intent” is, he observes, “not just a pipe dream today, but always was such.” In short, the political culture supports the Constitution; not the other way around. We need only look at the contemporary debate about marriage to see that this is true, whether we like it or not.

One final thought. Perhaps, it might be argued, Oakeshott is right in his arguments about political culture. Politics goes on as it will in a democracy so long as a majority is happy with the outcomes. Yet given the current debates over religious liberty, one wonders where we would find ourselves without the “protection,” or at least the threat, of the first Amendment against government overreach. It is one thing to find the provisions of the Constitution and Bill of Rights not totally adequate for the job; it is another thing to be without them altogether. All parties in the debates over enumerated rights at least acknowledge that the Bill of Rights must be taken into account.

Posted on by Marc O. DeGirolami · 1 Comment

Realism and Idealism: On Law’s Limits

Last week, I attended a very interesting conference about which I’ve written here before concerning the “politics” of religious freedom, and the question of what, if anything, might come “after” religious freedom. The conference was particularly instructive for me because most of the participants were not  law professors. They were primarily religious studies scholars, anthropologists, historians of religion, and doctoral students in these disciplines. The presence of doctoral students at various stages in their studies was especially welcome from my point of view, as it gave me an admittedly narrow sense of what some new voices in these fields are investigating and what is of interest to them. Any legal academic who thinks about religious freedom–and, more broadly, the relationship of government and law (domestic and international) to religious communities and traditions around the world–would profit from greater exposure to the concerns and debates of those disciplines that study particular religious phenomena. I am grateful to Winni Sullivan, Beth Shakman Hurd, Saba Mahmood, and Peter Danchin for inviting me.

The interdisciplinary quality of the conference provided a nice view of the convergences and divergences in these scholarly worlds. I did come away from the conference believing that there were more divergences than I had at first perceived. Here are some scattered impressions of the differences in aim, method, and perspective between legal scholars and the scholars at the conference. I also have a little reflection at the end of the post on some recent comments by Benjamin Berger, a fellow member of the law professor tribe whom I was delighted to meet at the conference and who offered some thoughtful and penetrating remarks.

  1. First, a point of sheepishly self-referential comparison: generally when I attend legal academic conferences about law and religion, I find myself arguing for restraint on the part of the liberal state, for the limits of law, and for the importance of highly contextual analysis that does not flatten out conflict in ways that fundamentally misunderstand it. That is because, in the main (and, of course, with many important exceptions), law professors (in my area) subscribe to a fairly muscular liberal political theory of the state. I am therefore cast in the role of cautionary skeptic. By contrast, the scholarly community at the conference was highly critical of the liberal state–critical of it from a distinctive political perspective, to be sure, but critical of it nonetheless. It is probably a contrarian character weakness that had me very much feeling like the liberal state needed a friend. I couldn’t quite muster up the energy to be that friend but I do know more than a few law professors who would have eagerly taken up the mantle.
  2. I was also struck by how prevalent critical methodology seemed to be.  Read more
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Anderson, “An Introduction to Pentacostalism: Global Charismatic Christianity”

Next month, Cambridge University Press will publish a new edition of  An Introduction to Pentacostalism: Global Charismatic Christianity by Allan Heaton Anderson (University of Birmingham). The publisher’s description follows.

Pentecostalism has become the fastest growing Christian movement, particularly outside Europe, and Allan Heaton Anderson is one of the foremost scholars of this phenomenon. His innovative interpretation of Pentecostalism focuses on the serious contribution made by both western and Majority World participants in its development. In this second edition of his leading introductory course book, Anderson presents an updated global history of the movement, which addresses significant events and changes in recent years, and surveys important theoretical issues such as gender and society, as well as politics and economics. The book also offers a comprehensive explanation of the significance of Charismatic Christianity throughout the world, plus its effect upon the globalisation of religion and its transformation in the present century. This new edition will be an important resource for those studying Pentecostalism, Charismatic Christianity, theology and sociology of religion.