Tuesday, 28 February 2012

Foreign Assistance v. Foreign Intelligence in Egypt's Constitutional Moment

"No civilized nation provides legal means by which its authority 
can be defied, its rule discarded, its government overthrown." 
(Preface to 1960 reprint of Extracts from the 
Journal of the Provincial Congresses of South Carolina, 1776-1776)

In reading this article about how Egyptian officials are rejecting foreign assistance in writing its constitution, I was of two minds:  first that I think their constitution will be better off if it is organic, yet second that I hope that a rejection of foreign assistance does not mean a rejection of foreign intelligence regarding constitution-writing.

While I believe very strongly that good constitutions are the result of internal deliberative processes, because constitution-creation is a necessarily extra-legal process, there aren't currently any legal norms by which to effectuate it, and certainly would not be within the given country.

This means that successful methods for *how* to accomplish a revolution and change must be found outside one's own country.  Models of constitutional change should be found from contemporary society and from history.  It doesn't hurt to also look to other models to discover constitutional elements and institutions worth replicating in a given country.

James Madison and James Wilson of the American Founding generation were both exceptionally well-versed in constitutional history.  Wilson was said by another Constitutional Convention delegate to have known even the constitutional history of Iceland, and Madison prepared in the months previous to the Convention by studying successful confederacies (or federal systems as they would now be called) from throughout history.

In reality, world constitutional history from the date of its transition to written constitutionalism with the creation of constitutions in the United States has witnessed that countries cannot but help be influenced from abroad.  Having a written constitution in and of itself is an inescapably American idea, like it or not.  The idea of a modern parliament is inescapably British.  Adopting judicial review in the form in which it is most often adopted--wherein one national court can review decisions of the legislature before or after passage on the motion of a variety of political figures or even citizens--is a hybrid Austrian-American model.

If Egypt wishes to create the best system possible for them, they should figure it out on their own but recognize that the best models for constitutional change and even some constitutional institutions inevitably do come from other country's successes, so it might as well do to learn from their constitutional histories.

Sunday, 12 February 2012

The Dividing Line Between Religion and Politics: My Argument

My purpose in going to London this week was to help an organization start a student chapter at Oxford.  In doing so, the organization sponsored an Oxford Union debate over the proposition, “The Dividing Line Between Religion and Politics Should Shine Brightly.”

I’m afraid that, despite the profound eloquence and passion of the two speakers who flew out from the States for the debate—a federal appellate judge and a renowned legal scholar—along with their two co-debaters, their argument against the motion was unsuccessful.  They lost by about thirty votes out of near 300 cast.

They used convincing examples of the Reverend Martin Luther King, the founders of the European Union, and William Wilberforce using religion to inspire the best of motives to help win political causes.

Yet I can’t but help think they stretched a good point too far and thus lost unnecessarily.  There is a word in the proposition with which even Thomas Jefferson, who first penned the words “wall of separation between church and state,” would have disagreed: “brightly.”

In his draft letter to the Baptists of Danbury, Connecticut, Jefferson put a word before the famous phrase and later crossed it out.  It wasn’t till 200 years later that James H. Hutson, chief of the Library of Congress’ manuscript division, detected with new microscopic technologies what the word was.  Jefferson initially wrote that there should be an “eternal wall of separation between church and state.”  Later, thinking better of it, he crossed out “eternal.”

Within 48 hours of sending a letter he knew would become famous, Jefferson also did something he knew would draw attention: he began attending church regularly.  Not that he hadn’t ever been to church before.  Yet this was the beginning of his first regular attendance over multiple years.  And it wasn’t just any church he was attending.  This was Church at the Capitol, held in the House of Representatives (currently Statuary Hall), where many who mattered in the young capitol worshipped every Sunday, served by rotating preachers of all faiths.

Jefferson also began to allow public funds to be used for this service, as the national band, paid by his government, played at the services, and Jefferson began opening all federal buildings for worship services, there not yet being houses of worship built in the young capital.

As Hutson also illustrated, the very public attendance at a State-sponsored non-denominational religious activity was meant to be interpreted alongside the letter to show just what Jefferson meant with his letter.  Yes, there was a wall of separation, but there were meant to be a few non-denominational doors and windows in it. 

In any event, Jefferson’s wall, or line, certainly didn’t shine very bright.  Just enough to prevent government control and requirement, but not quite support or allowance, of religion. 

I wholeheartedly support Jefferson’s position. Had I made a speech, perhaps I could have added a few more votes to the tally.  Maybe even 31. 

Thursday, 2 February 2012

Ginsburg, Franklin, and the Egyptian Constitution

Yesterday, Justice Ginsberg gave an unprecedented interview in Cairo.  She encouraged Egyptians to look to models in modern constitutions, such as the South African Constitution, and the American Constitution, highlighting, among other things, First Amendment rights.

As part of the same visit, the U.S. judicial delegation met with grand Mufti Ali Gomaa, who said that Egyptian Copts are partners in Egypt, and that the new constitution should be consensual without discriminating against individuals (ostensibly the Copts).

In navigating a course that could be supported by new Muslimist majorities and still respectful of other religions, Egyptians may also want to consider the first Constitution and constitutional processes adopted by the tolerant state of Pennsylvania, where all religions were welcomed.  In 1776, two weeks before the Declaration of Independence was signed, the Conference of County Committees met in Carpenters Hall, Philadelphia, and outlined a qualifying oath for constitutional convention electors:

"I________ do declare that I do not hold myself bound to bear allegiance to George the Third King of Great-Britain, &c.....That I will oppose any Measure that shall or may in the least interfere with or obstruct the Religious Principles or Practices of any of the good People of this Province, as heretofore enjoyed."

Then there is this edit made by agnostic deist Benjamin Franklin to the first Pennsylvania Declaration of Rights (crossed out text in square brackets, Franklin's additions in carrots):

"That all Men have a natural and unalienable Right to worship almighty God according to the Dictates of their own Consciences and Understandings: And that no Man ought or of Right can be compelled to attend [any Place of] <any> Religious Worshop, or <erect or> support [a maintain any Worship Place or] <any place of Worship or maintain any> Ministry, contrary to, or against his own free Will and Consent.  Nor can any Man <who acknowledges a Being of a God> be justly deprived or abridged of any Civil Right as a Citizen, on account of his <Religious sentiments or> peculiar Mode of religious Worship.  And that no Authority can or ought to be vested in, or assumed by, any Power whatever that shall in any Case interfere with, or in any Manner controul, the Right of Conscience in the free Exercise of religious Worship."

I found it rather interesting that Franklin, who rarely went to church and didn't believe as most others did, thought it justifiable for a man to be deprived of civil rights as a citizen who did not acknowledge a Being of a God.  Although this is an unwritten code for elected officials (most presidents and politicians are expected to say (and believe it) "God Bless America!"), it would never be written today nor required of regular citizens.  However, this kind of tolerance with a religious requirement to at least believe in one Supreme Being could offer a middle way forward for Egypt.

Seems to have worked for Pennsylvania, where there are more obviously observing faithful of all religions than I have seen in any other city, including Salt Lake City.