Monday, 13 June 2011

Supermajoritarian Rule of Law or Constitutional Bust


The assumed inevitability that the Muslim Brotherhood and parties closely aligned ideologically to it will win parliamentary elections and therefore play a dominant role in selecting the committee to author Egypt's new constitution has prompted many discontented articles such as this.   Emad Gad writes in How to Author a Constitution:

"Herein lies the problem...the power that will win a majority in the next parliamentary elections will play a decisive role in drafting Egypt's new constitution that will determine Egypt's future in the coming years."

Yet when did it become inevitable that parliaments should play such a large role in the creation of a constitution?  There is an inherent flaw in such a procedure which is producing much of the discontent.

To demonstrate the flaw, let's take a look at the history of the U.S. Constitution as an example of a rather long-lived constitution that has been accepted by most of the people it has governed as legitimate.

The Continental Congress did not commission the convening of the Constitutional Convention.  True, the Continental Congress knew of the convention, and did not oppose it.  Yet congressional approval of the convention which produced the Constitution was garnered almost as a procedural afterthought.  Rather, it was the individual state legislatures which selected and commissioned their own delegates to attend a convention to amend the Articles of Ratification.  Yet even these duly-elected bodies did not have say in final passage except to approve, as Congress had, the election of separate ratifying conventions.

The sovereign power of any nation, as American founding father James Wilson so aptly described in his 1791 Lectures on Law Introduction, is in the people at large.  Constitutions should therefore draw from this power.  Yet while political power possessed by parliaments also draws from the people through elections, they are not and should not be the only body capable of producing a written constitution.

Circumventing political bodies is best when creating and ratifying a written constitution because such is a very different sort of law than that normally passed by parliamentary or congressional bodies.  The work products of political bodies are changeable because the bodies themselves are changeable.  This because the rule of law for political bodies and their political work products is majoritarian rule, and majorities change.  Yet using majoritarian rule, or political power, to create a written constitution (versus an unwritten one, such as the British Constitution), wreaks havoc on the stability and continuity such a constitution is designed to create.

In order to demarcate between political and constitutional bodies and recognize an even greater role for the people, the rule of law for constitutional bodies and their work product should be supermajoritarian rule.  This rule should be applied to the selection of the constitutional body, to the creation of its work product, and to the ultimate ratification by the people.

In the example of the United States, the supermajoritarian rule can be found in the selection of delegates from the states, paired together with how the delegates voted in convention.  The state legislatures, or localities, elected their own delegates.  Although parties did not yet exist in the nascent state of the union, sectionalism or regionalism played largely the same role, the South against the North, and the small against the large states.  Yet these "parties" were equalized and a greater-than-majority, or a supermajority, was required in that each state delegation had one vote in convention.

This supermajoritarian procedure, over time, produced near-consensus within the Convention. That consensus served to legitimize the Constitution once proposed to the state ratification conventions (a supermajority of which were required for the Constitution to go into effect) and has contributed to its ongoing perceived legitimacy and acceptance by the American people as previous minorities became majorities.

Similar supermajoritarian procedures will ensure greater success to Egypt and similarly situated countries.  Selecting a constitutional convention through supermajoritarian procedures, and then adopting rules that will ensure supermajoritian processes during the drafting, as well as in the ratification, will ensure that the Egyptian Constitution will be the Egyptian people's constitution for generations to come, not just the Muslim Brotherhood's during the era in which they are in or can prolong their power.

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