Posted on by Marc O. DeGirolami

Drakeman, “What’s the Point of Originalism?”

A very interesting new piece by Don Drakeman here. One of its interesting features is a recent survey of public attitudes about originalism–three of the key questions concerning (1) how many favor original understanding (to encompass original meaning and original intention) as compared with non-originalist methods of interpretation; (2) of those that do not favor original understanding, how many nevertheless believe that original understanding should be a factor that is considered in constitutional interpretation; and (3) how many prefer original intention as compared with original meaning (the questions are put with greater nuance than I am conveying here).

While the survey is interesting, there are three other contributions that the piece makes that I found pretty neat.

First, the titular question. The idea here is that “the point”–or at least one point–of originalism is to persuade the public of the court’s decisions, and more generally of the court’s legitimacy in rendering those decisions. The point is a purely pragmatic one. But it may be the fundamental point.

Second, the historical claim about the writing of majority opinions. We are accustomed to judicial opinions. Indeed, around this time of year, we are fixated on them, as if the opinions themselves had some sort of independent constitutional power. But they don’t. Opinions are not constitutionally mandated. The Constitution speaks in terms of “the judicial power” and judicial “offices.” But there is no constitutional reason that the court could not exercise its power and fulfill its office simply by rendering judgment. And so it did before the Marshall Court. Drakeman notes that opinion-writing for the court is really a Marshall-era innovation–devised in order to give rhetorical efficacy and (further) legitimacy to the court. Majority opinions are vehicles for the court to exercise its power as an institution (opinion writing generally is a different issue).

Third, I appreciated the idea of the distinction between a theory of constitutional interpretation and a theory of constitutional explication. What Drakeman is doing is explaining why originalism does matter as an approach to giving meaning to the Constitution: it keeps the Supreme Court in business. He is not arguing that originalism is the correct intepretive approach or that it ought to matter (or that the public is right to believe that it matters). Put another way, the paper is a positive account of originalism’s value. I think that sort of account of originalism’s worth might be very appealing, or at least very interesting indeed, from a Catholic perspective.

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Al-Arian, “Answering the Call”

Next month, Oxford University Press will publish Answering the Call: Popular Islamic Activism in Sadat’s Egypt by Abdullah Al-Arian (Georgetown University). answering the callThe publisher’s description follows.

When revolutionary hero Gamal Abdel Nasser dismantled and suppressed Egypt’s largest social movement organization during the 1950s, few could have imagined that the Muslim Brotherhood would not only reemerge, but could one day compete for the presidency in the nation’s first ever democratic election. While there is no shortage of analyses of the Muslim Brotherhood’s recent political successes and failures, no study has investigated the organization’s triumphant return from the dustbin of history.

Answering the Call examines the means by which the Muslim Brotherhood was reconstituted during Anwar al-Sadat’s presidency. Through analysis of structural, ideological, and social developments during this period in the history of the Islamic movement, a more accurate picture of the so-called “Islamic resurgence” develops-one that represents the rebirth of an old idea in a new setting.

The Muslim Brotherhood’s success in rebuilding its organization rested in large part on its ability to attract a new generation of Islamic activists that had come to transform Egypt’s colleges and universities into a hub for religious contention against the state. Led by groups such as al-Gama’ah al-Islamiyyah (The Islamic Society), the student movement exhibited a dynamic and vibrant culture of activism that found inspiration in a multitude of intellectual and organizational sources, of which the Muslim Brotherhood was only one.

By the close of the 1970s, however, internal divisions over ideology and strategy led to the rise of factionalism within the student movement. A majority of student leaders opted to expand the scope of their activist mission by joining the Muslim Brotherhood, rejuvenating the struggling organization, and launching a new phase in its history.

Answering the Call is an original study of the history of this dynamic and vibrant period of modern Egyptian history, giving readers a fresh understanding of one of Egypt’s most pivotal eras.

Posted on by Mark Movsesian

History Goes On

At the Liberty Law Blog, my friend John McGinnis has posted a very perceptive criticism of Francis Fukuyama’s recent essay on the 25th anniversary of his famous article, “The End of History.” That extremely influential article, which Fukuyama wrote in the heady days of 1989, argued that liberal democracy owned the future. After the fall of the Berlin Wall, many commentators believed this. All other forms of social ordering had failed and nations across the globe seemed to be falling in line. Cultural differences that once mattered no longer did. From Bangkok to Ankara to Moscow, everyone wanted to be a liberal democrat. And even if they didn’t, the logic of liberal democracy was inescapable and its appeal irresistible.

Not everyone at the time felt this way, of course. The late Samuel Huntington wrote a great book, “The Clash of Civilizations,” that responded to Fukuyama and argued that old cultural patterns would remain relevant. For example, Huntington wrote, profound cultural differences divide Western and Orthodox Christian civilizations, and divide those civilizations from Islamic and Hindu civilizations. For writing this, Huntington was disparaged as a know-nothing by leading academics and commentators–the People Who Knew Better.

Twenty-five years later, Huntington appears to have made the better bet. The world hasn’t turned out as Fukuyama predicted. To his credit, John writes, Fukuyama concedes this. But he still maintains that liberal democracy is the only plausible system for modern society. John responds–correctly, in my view–that Fukuyama is wrong. There is an inherent tension between the two components of liberal democracy: liberalism, which privileges the individual, and democracy, which privileges the community. Different societies resolve the tension differently, depending on historical, geopolitical, and cultural traditions, including religious traditions. Russia and India provide powerful recent examples.

From the belief that everyone in the world should share your values, it’s an easy leap to the conclusion that everyone in the world does. John’s essay is a helpful correction. History goes on.