Lorianne Updike Toler
On March 19, 77.2% of Egyptians approved constitutional amendments to the 1971 Egypt Constitution, submitted to the people by the Supreme Council of the Armed Forces (SCAF). These contained a transitional agenda for a new constitution. The approved agenda, now under way, dictated that parliamentary elections would be held in September, that the parliament would then appoint a 100-member committee to draft a new constitution, after that the people would thereafter be given the chance to discuss and vote on the constitution after two weeks time.
Several groups are now regretting that vote, and are coming up with their own plans to devise a constitution for Egypt. I have blogged about one group who has devised technology through which texts from the world's constitutions may be easily inserted into an Egyptian constitution here and about several groups who have called for a new constitution before parliamentary elections here. Yesterday, the Hisham Mubarak Law Center announced their own populist plan for involving every-day Egyptians in constitution-writing, involving questionnaires and the hosting of discussion groups regarding political structure and individual rights.
Based on the people's overwhelming approval of the transitional plan, these efforts sound extra-legal, problematic beginnings for a document destined to be the quintessential legal text for the country. The coalition groups from yesterday's blog, however, counter this argument by pointing out that SCAF nullified the transitional agenda amendments by nullifying the 1971 constitution upon the later issuance of 63 articles.
Yet the legitimacy of SCAF's unilateral actions in decreeing the 63 articles abolishing the constitution may also be called into question, and so the legal arguments work themselves into neat little circles.
For one whose career has centered around the United States' beginnings, this all sounds very familiar. Enter James Madison, George Washington, Virginia governor Edmund Randolph, and others of the Virginia delegation to the federal convention of 1787. This convention was commissioned specifically to amend the Articles of Confederation. Yet before the convention convened, Randolph, in a letter to Madison, introduced the idea that Virginia, being a large and populous state (and the first state to recommend such a convention), should propose their own plan. Madison picked up on the idea, and wrote back to Washington and Randolph with seven ideas for such a plan. On the first real working day of the convention, May 29, 1787, Randolph proposed what came to be known as the "Virginia Plan," with 23 resolutions outlining a frame of government with three political branches.
Other delegates raised objections, saying that the "acts of Congress recommending the Convention, or the [state] Commissions of the deputies to it" could authorize a discussion of a plan which did more than amend the Articles. Yet this was quickly and silently passed over, as the delegates had eleven years of first-hand experience with the Articles' impotence. They knew that, legality or no, the problems of state would not be heal through simple amendment.
The delegates were criticized for their extra-legality once the Constitution emerged from the secret convention. Yet through thorough public discussion in the states and a long ratification process, what was once illegal assumed the imprimatur of legality.
Perhaps some degree of practicality is required in the messy, hard beginnings of any new government. This so long as an extra-legal steps are carefully made legal by direct and thorough consultation with the supreme sovereign power, the people.