Egypt Should Adopt the U.S. Constitution As Its Model

Our system is not perfect, but it provides a good example to follow.


right to revolt

Last week the Egyptians overthrew their government, again. Or, last week the Egyptian military overthrew the government, again. The U.S. government is resisting calls to identify it as a coup because that would jeopardize Washington's (largely military) aid to Egypt. That aid, to the tune of about $30 billion since 1978, helped fund the military that backed/was the government of Anwar Sadat and then Hosni Mubarak, before deposing Mubarak and then his successor, the democratically-elected Mohammed Morsi.

Egypt's first free elections came a couple of months after the 2011 Tahrir revolution, a March referendum on constitutional amendments that set the timetable for parliamentary and eventually presidential elections. The referendum's opponents worried that campaigns would be won by established political powers, such as the Muslim Brotherhood or the former ruling party, who would then ensure the survival of a strong presidency under their control. Fourteen million people voted in favor of the referendum—77 percent of voters, albeit with a turnout of just 41 percent.

Egypt's high court dissolved the parliament's Islamist-dominated constituent assembly, which was working on a new constitution, in April 2012. But the different parties—and the military—came to an agreement as to how to empanel a new constituent assembly a few months later, ahead of Morsi's own election.

Morsi was voted in in two rounds of ballots, defeating a Mubarak-era prime minister by less than a million votes. Eventually, the constituent assembly produced a 236-article constitution that covered everything from government farmland to revenue sharing to "consumer rights." The article on "freedom of the press" guarantees it, with exceptions for "the requirements of national security" and "the private lives of citizens." (The government's explicit role in the economy wasn't new to the 2012 constitution. Similar sentiments were expressed in the 1971 constitution, which was in effect until Mubarak resigned.)

In theory, a constitution governs the relationship between the state and the people. Constitutions can be stocked with positive rights, in which the government promises to provide something, or negative rights, in which the government refrains from interfering. The Egyptian constitution somehow managed to turn even the rights of the press into a statement of obligation, requiring the media to "contribute to shaping and directing [public opinion] in accordance with the basic principles of the State and society."

When she was in Egypt last year, Justice Ruth Bader Ginsberg told Egyptians that while the U.S. Constitution contained "grand general ideas," she wouldn't look to it in drafting a constitution today because of its exclusion of so many groups at the beginning. Instead, she called South Africa's constitution a "really great piece of work" to learn from. Yet while the South African government boasts that its constitution "enjoys high acclaim internationally," the African National Congress's emerging de facto one-party rule is an obstacle to the country becoming a stable democracy. When the ANC ousted Thabo Mbeki as the party's president, effectively vetoing his attempt to seek a third term, the ANC itself had to become a check on power; a more robust opposition is necessary.

Here, despite Justice Ginsberg's dismissal, the U.S. Constitution could offer a model for Egyptians. Its system of checks and balances has lasted more than 200 years. Yes, it failed to fully apply the principle of legal equality; it was a flawed document from a flawed time that was improved as its society evolved. Yet the fundamental mechanics of America's federal government have been the same through more than two centuries of relative political stability. (The great exception to that stability, of course, is the Civil War. But we came out of that conflict with more improvements to the Constitution: The Thirteenth, Fourteenth, and Fifteenth Amendments were the most important additions to the document outside the original Bill of Rights.)

Many of our constitutional rights are now under assault—the First Amendment, the Second Amendment, the Fourth Amendment, even the Third Amendment. Yet the rights enshrined in those articles are still there to put up a fight about. And despite the ruling party's constant protests about an "obstructionist" Congress, the legislature's ability to thwart an often unpopular presidential agenda is actually a constitutional feature in action.

And it might be what Egypt needs. Rather than seeking to draft a constitution that outlines what government ought to do for (and to) people, Egyptians need a constitution that limits the power of government. The Muslim Brotherhood was targeted by the Egyptian state throughout the rule of Nasser, Sadat, and Mubarak; it in turn was overthrown largely on the perception that it was imposing an Islamist agenda on the Egyptian State. Though modern Egyptian constitutions have declared Islam as the religion of the nation and the latest one called on it as a source of law, Egyptians may find a constitution that protects the state from the mosque and the mosque from the state works better. Such a separation could both protect the Muslim Brotherhood from government persecution and also prevent it from trampling on the rights of women and non-Muslims.

Drafting a constitution and establishing democratic institutions is no easy task. The coup itself came in the context of a popular revolt, a right implied in the Second Amendment of the U.S. Constitution and mentioned explicitly in a number of state constitutions. The anti-Morsi protests that preceded the president's overthrow were backed by petitions with more than 22 million signatures, far more than the number of votes received by either Morsi or the 2012 constitution.

Insofar as the government's core function is the protection of rights (from itself), the military arguably performed that role in deposing the president. What came after, however, illustrates the importance of also bringing the military within a constitutional regime of checks and balances. The armed forces' all-too-familiar crackdown on the Muslim Brotherhood, which included the killing yesterday of 51 pro-Morsi supporters, is just the kind of display of excessive and unaccountable power that sparked Egypt's contemporary revolutionary fervor in the first place. And the crackdown follows a decades-long pattern of repression that put the Muslim Brothers in a strong position to curry public favor and take political advantage of a democratic moment. 

Mercifully, Egypt's experiment with democracy has not yet ended with a return to one-man, or one-party, rule. As Egyptians move to restart the process of drafting a constitution, they could look to America's and consider whether they might be able to secure a republic capable of protecting them from the excesses of either democratic or undemocratic institutions.