Wednesday, 27 July 2011

Lessons on Islam and Democracy from History - Part 2

Lorianne Updike Toler

This morning, a friendly gentleman seated nearby me in a London cafe asked me why, if there was separation between church and state in America, so much of religion infused all aspects of government.

His question highlighted the point I wanted to make here: strong and vibrant religious sentiment and adherence is best facilitated by making it free.  Free to express, and free from state support.

But first let me discuss why this Franco-Angle gentleman saw so much religion in North America, and particularly in governmental emblems and practices.

As I laid out in the first of this blog couplet, the primary reason a national established religion was proscribed in the First Amendment was because religion was locally controlled (and often established, or publically funded) at the state level.  States were not keen to relinquish this control.

Yet a small and persecuted minority in the country thought that establishing religion bespoke its decline.  General assessment bills, an equal-opportunity religious tax, were adopted by a majority of the states once independence from England--and the Anglican Church--was declared in 1776.  Although they would presumably benefit financially from the arrangement, Baptists disdained the tax, deigning they were "not adopted to promote true Piety, but destroy it."  (Petition of 'Several Baptist Associations" August 13, 1785, Library of Congress.) Put otherwise, as James H. Hutson wrote, "the only way [the Baptists saw] to invigorate religion was to let it makes its own way."

Although it is unlikely this philosophy made its way to the halls of Congress and contributed to the reasons why the First Amendment was adopted in its present form, the Baptists of 1785 proved prophetic.

When one looks at America beyond its secular coastlines (yes, that includes looking beyond impractical cultural aberrations common to international misperceptions such as Bay Watch), one will find churches.  Americans by and large are a believing people, with upwards of 83% claiming to belong to a religion,  40% claiming to attend services weekly, and a majority saying religion plays a "very important" role in their lives.  One will also find religious symbology on coins, in plaques, buildings (including the National Cathedral and chapels in public buildings and military complexes), and ubiquitously carved into granite in Washington, DC.  Religious speech will also find its way into public discourse, particularly into presidential speeches.  Office holders are not required to but will often opt to place their left hand on a Bible when taking their oath of office.  Bibles are also frequent for oaths taken in court.  Chaplains and prayers starting the days' work will commence national and state halls of government.

For the Western world, this is unique.  Compare this phenomenon to my current adopted country, the United Kingdom.  Here, according to the 2001 census, only 38% of Britons claimed belief in God.  Church attendance follows.  These numbers are on parallel with fellow Western countries.  And yet, in Britain there is no First Amendment nor proscription on state-established religions. My taxes go towards my local Anglican parish although I belong to another faith.  State sponsorship of religion seemed, over time, to correlate with decreased religious sentiment.

Is there cause and affect here?  Does state sponsorship of religion lessen religious zeal?  I believe that it does.  Providing for its freedom allows more organic urges to take root and prosper.  As the Baptists desired, religion, at least in North America, flourished when made free.  Where it was required, in Europe, it has declined into something resembling a historical relic.

I maintain, as with the first of this blog couplet, that established religions and democracy are not mutually exclusive.  Yet if the Arab world wants to ensure that its people will be the best Muslims, history has demonstrated that religion will take greater hold when disentangled from government.

Thursday, 14 July 2011

Lessons on Islam and Democracy from History - Part 1

Lorianne Updike Toler

In the Q&A of a speech I gave last week, it was assumed by one questioner that the Arab world, because overwhelmingly Muslim, was not ready for democracy.

I balked at this, knowing that many countries have both established religions and democratic republics, including Norway and the United Kingdom.  Indeed, it could be argued that the only reason the United States did not establish a national religion is because so many of the states already had (or had some form of state-sponsored religion).

In late-eighteenth century America, it was assumed that republican (or democratic) self-government required virtue, and the development of virtue required religion.  (See "Religion and the State Governments" chapter in a book on religion and the founding by the Library of Congress' chief of manuscripts.)

Consider this from a Massachusetts newspaper from March 9, 1780: "a very respectable part of this Commonwealth look upon it as a duty which God requires of Legislators, that they make suitable provision for the support of public worship and teachers of religion.  And not only so, but they esteem it as one of their most sacred and invaluable rights."

State responses in providing for religion varied.  Some had state or locally-established (state-funded) religions.  When the Anglican Church was disestablished with independence in 1776, most state legislatures instituted "general assessment" taxes, wherein citizens could choose to which church their monies would go. "Nothingarians" were allowed to direct monies instead to education.  Virginia, based on the work of James Madison and Thomas Jefferson, narrowly defeated such an equal opportunity religious tax.

Much more will be said in part II about why state or locally-sponsored religion did not last long and about how democracy and religious tolerance necessarily coincide, but history here carries the point:  established religions and democracy are not mutually exclusive; indeed, many of America's founding generation would argue that state-fostered religion was necessary to a properly-functioning democracy.

Tuesday, 12 July 2011

Taking Job Applications for Arab Spring's Framers

James Madison's General Remarks on the Convention
The vacuum of leadership in Egypt may stall the full fruition of the 25 January revolution.  Protestors took to the streets again last Friday in Cairo and Alexandria to demand several things, including that a constitution be written first, before parliamentary elections, and higher wages.  Many are still there, and reports of conditions are grave.

To the people, those in power seem little different to those who participated in Mubarak's regime, and questions arise as to who is left with enough experience to lead change.

Super-constitutional principles drafted with input from leaders in 11 parties are being issued soon, but will the people and those who lead them in the 25 January uprising accept these principles and those who drafted them as legitimate and consistent with the spirit of 25 January?

Who will be accepted as legitimate framers of Egypt's new constitution?

If the Arab world can learn from history, perhaps they will countenance learning about why the American Framers were--and still are--accepted as legitimate by the American people.  Why were these individuals so successful?

In my research this morning, I came across the above document written by James Madison near the end of his life, circa 1830-6.  In it, he discusses a few characteristics of those who participated in the American constitutional convention in 1787.

Here is most of what he says about his fellow framing brethren in "Gen[era]l remarks on the Convention" (available digitally at CCCXLIII):
  1. [they were] members of the most select kind & possessing particularly the confidence of the Constituents
  2. also generally of mature age & much political experience
  3. Disinterested men & candor demonstrated by mutual concessions & frequent changes of opinion
  4. Few who did not change in the progress of discussions the opinions on important points which they carried into the Convention
  5. Few who at the close of the Convention, were not ready to admit this change as the enlightening effect of the discussions
  6. And how few, whose opinions at the close of the Convention, have not undergone changes on some points, under the more enlightening influence of experience
Sounds like a job posting for new regime leadership in Arab countries, no?  Wanted: leaders trusted by the people with 10+ years of political experience, ability to admit mistakes and learn from others, and agility in debate and compromise.  

Who fits this description in Egypt, Tunisia, Libya, Syria, Yemen, and Bahrain?  I can think of a few.

Friday, 8 July 2011

Constitutional Success

Lorianne Updike Toler

How does one measure the success of a constitution?

It is one thing for a constitution to be popularly accepted upon its inception, even by a majority of the people.  But a good constitution stands the test of time, thereby creating long-term economic, cultural, and political stability.

In speaking on the topic this last week at the Landsdowne Club, I argued this point: constitutions should be judged by its active acceptance by the people over time.  In short, by its longevity.

By this measure of success, the British, American, and Norwegian constitutions are by far the most successful.  Yet if one is looking to write a constitution, the American is the best, most successful example, as the Brit's constitution is not written, and the Norwegian was patterned after ours.

Take two recent articles and the furor they have produced: Time Magazine's cover editorial by x-Constitution Center head Richard Stengel, One Document, Under Siege, wherein he discusses modern-day constitutional issues, and E.J. Dionne's July 4th editorial, What Our Declaration Really Said, wherein Dionne excoriates the Tea Party for misrepresenting the Constitution.  The latter has attracted no fewer than 3,000 comments and both have spawned endless email forwards and blog posts like this.  Regardless of the merit or non-merits of the arguments made (not to mention the hopefully innocent inaccurate and cursory legal and historical arguments throughout), these editorials and the responses they  elicited speak to a fundamental attachment to the American Constitution by parties and individuals of all political stripes.

Several elements of the American Constitution are admittedly antiquated, including the prohibition against "corruptions of blood" (sounds gruesome, but simply means that criminal punishments cannot injure multiple generations).  Yet not only is the basic structure of government laid out by its strictures still in operation, it is integral to the identity of many, many Americans.

If constitutional success is measured by the length of the people's embrace, the U.S. Constitution can be measured a smashing success.

What do *you* think?

Wednesday, 6 July 2011

The Moroccan Case for Independent Constitutional Authorship

Lorianne Updike Toler

In gradeschool, I often was required to hand my homework or test over to the individual across, behind, or in front of me.  Even though this system sometimes provided for embarrassment in unprepared students, it ensured fairness in making edits and corrections.

When an institution's work or powers needs to be checked, who is best-suited to correct it?  The institution themselves, or another?

In Morocco, King Mohammed VI anticipated a revolution by proposing a new constitution, voted on by the people on Friday, July 1.  Yesterday it was announced that 98% of the Moroccan people voted in favor of the constitution, which will result in the establishment of a Parliament with legislative authority.

Yet Twitter was a flurry on Friday with reports of underhandedness at the polls and over-reporting.  For instance, Rmidicitizen tweeted, "testimony: some voters are given only the paper saying YES, the one saying NO given only to those who seem educated."

Another pollwatcher, houdac, said "2h to go-48% participation at 16h local time."  Still another tweet from arabist indicated that by 3:00 p.m. Moroccan time, only 24% of the popular neighborhood of Rabat, Yaacoub al-Mansour, had voted.

In response to the announcement of overwhelming support for the new constitution, the streets in Morocco were full of protestors yesterday--both against the constitution, and against the agitators.  Watch this video depicting the two sides:

Many are claiming the King of Morocco has sent a compelling message to Arab sovereigns in how to respond to Arab Spring uprisings while keeping one's crown.  Yet perhaps the protests highlight the kinds of problems that children--and kings--encounter when correcting their own work.

Tuesday, 5 July 2011

"Normal" Constitutional Procedure for Egypt

Saad Al Katatni

Lorianne Updike Toler

In the face of a planned massive constitution-first protest in Cairo this Friday, July 8, there are reports that the Supreme Council of the Armed Forces may postpone Egypt's planned elections in September 1-3 months.

The Muslim Brotherhood will likely gain a majority of the seats in parliament which would thereafter chose the majority of the members of the constitutional council.  According to Gamal Essam El-din, these Islamists "insist that parliamentary elections are held ahead of drafting a constitution," apparently referring to some normative procedure for drafting constitutions.  Indeed, the Wall Street Journal reports Saad Al Katatni, the general secretary of the Muslim Brotherhood's Freedom and Justice party as saying, "if the constitution is first that would create a lot of problems for us."

Predictably, those who are primarily responsible for the toppling of Mubarak in February and who back creating a constitution before elections claim such a procedure is more in alignment with normative standards.

"It is only normal to draft a constitution first," The Eygptian Gazette reports judicial expert Mohamed Nour Farahat as saying.

So what is truly "normal" for constitutional procedure?  This begs the question of whether norms have been adopted or recognized by any international body.  To date, none has.  Rather, history here is the best guide in establishing normative procedure for constitution-making.

The procedure adopted in the country that set the normative standard of having a written constitution saw a constitution adopted first before general elections.  This is a tough comparison, however, because the U.S. constitutional convention met concurrent to rather than at the request of the national legislature. Localities--states--elected both the congressional delegations and called forth the convention and selected the delegates to that convention.  

If this experience can be paralleled, perhaps the powers which can call forth a parliament--the people--can also call forth a constitutional convention.  If some type of selection procedure can be identified to systematically select and send representatives to a national constitutional convention, according to normative standards established by history, such a constituted body would have power to draft a constitution, so long as it was thereafter ratified by a supermajority of the people.