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.

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