Posted on by Marc O. DeGirolami

New Paper on the Distance Between Constitutional Theory and Constitutional Judging

Former Forum guest Kevin Walsh and I have a new paper that examines the relationship of and the separation between constitutional theory and constitutional adjudication. The article is called, Judge Posner, Judge Wilkinson, and Judicial Critique of Constitutional Theory. There is a law and religion connection as well, as part of our discussion concerns cases decided by these judges involving perceived official favoritism of Christianity. Comments are most welcome, and I’ll try to have a bit more about the paper in the coming days and weeks. Here’s the abstract.

Judge Richard Posner’s well-known view is that constitutional theory is useless. And Judge J. Harvie Wilkinson III has lambasted constitutional theory for the way in which its “cosmic” aspirations threaten democratic self-governance. Many other judges hold similar views. And yet both Posner and Wilkinson — in the popular press, in law review articles, and in books — have advocated what appear to be their own theories of how to judge in constitutional cases. Judicial pragmatism for Posner and judicial restraint for Wilkinson seem to be substitutes for originalism, living constitutionalism, political process theory, and so on. But both Posner and Wilkinson also deny that they are offering a theory at all. This is puzzling. How do these judges simultaneously reject constitutional theory yet seemingly replace it with theories of their own?

This Article answers that question — a question that must be answered in order to understand the present-day relationship between constitutional theory and constitutional adjudication. The perspectives of Judge Posner and Judge Wilkinson are particularly valuable because they have not only decided hundreds of constitutional cases but have also written extensively about constitutional theory. Drawing on a close reading of revealing slices of both their extrajudicial writing and their judicial opinions in constitutional cases, this Article makes three contributions. First, it brings to light agreements between Posner and Wilkinson that run far deeper than the heralded differences between them and that stem from their situated understanding of their judicial role. Second, it exposes the limited influence of judicial pragmatism and judicial restraint on these judges’ own constitutional jurisprudence even in those cases where one might expect constitutional theory to exert maximal influence. Third, it explains how judicial pragmatism and judicial restraint are best understood not as constitutional theories but as descriptions of judicial dispositions — character traits that pertain to judicial excellence — that can and should be criticized on their own terms.

Posted on by Mark Movsesian

“We are not against modernity, but we are against westernization”

Earlier this month, Penguin Books India agreed to recall and destroy copies of a book by American scholar Wendy Doniger, The Hindus: An Alternative History. Penguin did so in order to settle a four-year old lawsuit by a Hindu activist group, Shiksha Bashao Andolan, alleging that publication violated Indian law, which forbids insulting the religious beliefs of a class of citizens. In a statement, Penguin maintained that it had an obligation “to respect the laws of the land in which it operates, however intolerant and restrictive those laws may be.” Doniger concurred, stating that Indian law is “the true villain of this piece.”

The main complaint seems to be that Doniger’s book presents a hypersexualized, distorted version of Hinduism. Here’s Shiksha Bashao Andolan’s president, Dinanath Batra, in a Time magazine interview, describing what his group finds objectionable:

Doniger says [in the book] that when Sanskrit scriptures were written, Indian society favored open sexuality. The jacket of her book shows Lord Krishna sitting on the buttocks of nude women. She equates the shivlingam, worshipped all over India by millions, with sex and calls it an erect penis. She calls Gandhiji strange and says he used to sleep with young girls.

What I find most interesting in this controversy is the incomprehension each side has for the other. The activists, with Indian law on their side, think they are striking a blow for cultural and religious freedom. They are standing up to tactless outsiders who mock sacred things. Most Western observers, by contrast, are simultaneously repulsed and amused at the notion that people would find Doniger’s book off-putting and actually try to stop its publication. The activists must be rubes and obscurantists. The condescension comes through very clearly in the questions Time put to Batra, including the last one: “Don’t you worry that your objections might seem outdated in today’s modern world?” Batra’s answer is revealing, too: “We are not against modernity, but we are against westernization.”

Once again, we see the conflict between the values of WEIRD cultures–Western, Educated, Industrialized, Rich, and Democratic–and those of more traditional societies. WEIRD cultures stress individual expression and fulfillment; traditional cultures value authority, community, and sacredness. To someone from a WEIRD perspective, it’s impossible to believe that serious people could be morally outraged by Doniger’s book, or think destroying the book a proper response. By contrast, people embedded in a traditional Hindu culture find Doniger’s interpretation disgraceful and foreign–an insult that should not be borne.

Of course, cultures aren’t uniform. Some Indians have WEIRD values; some Westerners are traditionalists. Some well-known Indian writers objected to Batra’s lawsuit; here in the US, the Hindu American Foundation issued a statement basically endorsing Penguin’s decision. But, on the whole, the WEIRD/Traditionalist divide is a useful way to understand our world. It explains many current controversies, like blasphemy prosecutions in Pakistan, proposals to ban circumcision in Scandinavia, anti-homosexuality laws in Africa, and the dispute over Doniger’s book.

As I’ve written before, it seems to me that three possibilities exist. First, WEIRD values will come to dominate worldwide. WEIRD culture has many benefits, and America projects it around the world relentlessly, through movies, advertising, the Internet, and so on. Second, Western culture will become less WEIRD. This could happen, too, especially if large numbers of people from traditional societies immigrate to the West. Third, and most likely, WEIRD and non-WEIRD cultures will continue to face off against one another for the foreseeable future, with inevitable clashes and occasional compromises. Buckle your seat belts.

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Al-Azmeh, “The Emergence of Islam in Late Antiquity”

Next month, Cambridge University Press will publish The Emergence of Islam in Late Antiquity: Allah and his People by Aziz Al-Azmeh (Central European University, Budapest). The publisher’s description follows.The Emergence of Islam in Late Antiquity

Based on epigraphic and other material evidence as well as more traditional literary sources and critical review of the extensive relevant scholarship, this book presents a comprehensive and innovative reconstruction of the rise of Islam as a religion and imperial polity. It reassesses the development of the imperial monotheism of the New Rome, and considers the history of the Arabs as an integral part of Late Antiquity, including Arab ethnogenesis and the emergence of what was to become Muslim monotheism, comparable with the emergence of other monotheisms from polytheistic systems. Topics discussed include the emergence and development of the Muhammadan polity and its new cultic deity and associated ritual, the constitution of the Muslim canon, and the development of early Islam as an imperial religion. Intended principally for scholars of Late Antiquity, Islamic studies and the history of religions, the book opens up many novel directions for future research.

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Hinojosa, “Latino Mennonites”

Next month, Johns Hopkins University Press will publish Latino Mennonites: Civil Rights, Faith & Evangelical Culture by Felipe Hinojosa (Texas A&M University). The publisher’s description follows.book cover

Felipe Hinojosa’s parents first encountered Mennonite families as migrant workers in the tomato fields of northwestern Ohio. What started as mutual admiration quickly evolved into a relationship that strengthened over the years and eventually led to his parents founding a Mennonite Church in South Texas. Throughout his upbringing as a Mexican American evangélico, Hinojosa was faced with questions not only about his own religion but also about broader issues of Latino evangelicalism, identity, and civil rights politics.

Latino Mennonites offers the first historical analysis of the changing relationship between religion and ethnicity among Latino Mennonites. Drawing heavily on primary sources in Spanish, such as newspapers and oral history interviews, Hinojosa traces the rise of the Latino presence within the Mennonite Church from the origins of Mennonite missions in Latino communities in Chicago, South Texas, Puerto Rico, and New York City, to the conflicted relationship between the Mennonite Church and the California farmworker movements, and finally to the rise of Latino evangelical politics. He also analyzes how the politics of the Chicano, Puerto Rican, and black freedom struggles of the 1960s and 1970s civil rights movements captured the imagination of Mennonite leaders who belonged to a church known more for rural and peaceful agrarian life than for social protest.

Whether in terms of religious faith and identity, race, immigrant rights, or sexuality, the politics of belonging has historically presented both challenges and possibilities for Latino evangelicals in the religious landscapes of twentieth-century America. In Latino Mennonites, Hinojosa has interwoven church history with social history to explore dimensions of identity in Latino Mennonite communities and to create a new way of thinking about the history of American evangelicalism.