Papyrus Barriers: Egypt and the Importance of Constitutionalism

Egypt will get a new constitution this monthegyptian-referendum-300x182, just in time for the new year. The turmoil of the last several months culminated with a recent vote by the Egyptian people to adopt a new national charter. This is one of those moments where reflection and choice (the Hamiltonian suggestion for which this blog is named) is of paramount importance in forming a government. The referendum passed with about two-thirds of Egyptians voting in favor of the new charter. Turnout was low, however, as many sceptics and opponents of the proposed constitution refused to vote.

Opposition to anything constitutional strikes Americans as odd, but the Egyptians are right on this one.

Most nations in the world today have written constitutions, but not all nations have constitutional governments. A written constitution can be used to enshrine power and privilege for a select few at the expense of others. As the old joke goes, ‘Article One of the constitution notes that the Ruler has all the power. Article Two declares that in the event of a dispute, see Article One.’ It’s a silly line, but it makes an important point: a written constitution is merely a procedural instrument, and it can be used for good or bad ends. A written constitution isn’t an automatic guarantee of liberty, as most Americans assume. Some of the world’s most blatant human rights violators (China and Iran) have written constitutions, used largely to bolster the political power of the ruling regime.

What separates a good constitution from a bad one is a people’s belief in constitutionalism. Constitutionalism is a belief in limited government and the rule of law for the good of the people. It’s a cultural belief as much as legalistic one. You don’t necessarily have to have a written constitution to believe in constitutionalism. England, for example, has a long history of constitutionalism but has no official constitutional document. If you ask to see the English Constitution on your next trip over, they’ll probably just shrug and suggest an alternative tourist destination like the British Museum or Madame Tussaud’s. The English belief in limited government is the product of a long historical and legal evolution. The English (from whom we get much of our own legal heritage) consider themselves the beneficiaries of a strong constitutional system that protects their rights and liberties. It’s a tradition so strong that it’s not necessary to write it down in a single document because most everyone agrees on the basics.

In the United States, we have a strong belief in both constitutionalism and written constitutions. I guess you could say we are “doubly constitutional” when it comes to our view on government. This is a tradition that goes as far back as the Mayflower Pilgrims, who started this unique American tradition of writing basic tenets of government on paper so there was no disagreement among those who were party to the compact. Within a few decades of the famous Mayflower Compact, later colonies drafted codes of law and charters that basically served as written constitutions. In May of 1776, all thirteen colonies drafted written constitutions to prepare for the eventuality of statehood which came in the following months. A dozen years later, the national constitution was drafted in Philadelphia.

Critics charge that the new constitution in Egypt gives too much power to the military and Islamic forces. They are right to be concerned. In American, written constitutions work largely because we believe in them. We hold them sacred. The problem facing Egypt, and the Middle East, is that they have very little cultural attachment to constitutionalism. It’s one of the reasons that dictators find it so easy to come to power in this part of the globe. The concepts of limited government, and the rule of law, aren’t deeply ingrained in Middle Eastern culture to the same extent as in the West. As a result, the new constitution in Egypt really reflects an attempt to blend Middle Eastern cultural values with Western-style constitutionalism. Egypt realizes it needs this written constitution to remain legitimate in the eyes of the world, but how much deference it will pay to constitutionalism remains to be seen.

There is a lesson here for us in all this turmoil as well. The Founders of our country realized that written constitutions were effective only if the people believed in them. James Madison wrote in Federalist #48 that constitutions provide only “parchment barriers” to those really bent on tyranny and oppression. In other words, written constitutions aren’t really worth the paper they are drafted on in terms of protecting the rights of the people. The real value of a written constitution comes from a political culture that upholds constitutionalism – limited government and the rule of law – as the basic principle of government.

In our own country, the culture of constitutionalism that has made our written constitution so effective for so long is now at risk. Cultural, political, and legal challenges now contend that our constitution is largely irrelevant – just a piece of paper written by old, dead, white guys who were looking out for their pocketbooks. Such arguments are not really attacks on the written constitution itself, as much as they are attempts to undermine constitutionalism, the very thing that gives the document legitimacy and protects our rights from the men in government.

If successful constitutional government is a cultural trait, then we must do everything we can do promote and protect it for future generations. If we do not, we may see our children or grandchildren take to the streets as the brave young men and women of Egypt have done, hoping through reflection and choice – rather than accident or force – to preserve the blessings of liberty for themselves and their posterity.

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