The Decline of ‘We the People’?

Connor Ewing: The American Constitution is no longer the model for aspiring democracies. What are we to make of this?

One year after a popular uprising removed Hosni Mubarak from power, the Egyptian people are poised to establish a new government. After elections for their upper legislative body later this month, the Egyptian parliament will start to craft a constitution.

Against this historic background, U.S. Supreme Court Justice Ruth Bader Ginsburg visited Cairo last week to meet with members of the legal community.

During her stay she sat for an interview with an Egyptian television station. She was asked whether Egypt should look to the American constitution for guidance. Her answer, in short, was no. “You should certainly be aided by all of the constitution writing that has gone on since the end of World War II,” she replied, “I would not look to the U.S. Constitution if I were drafting a constitution in the year 2012.” She then went on to suggest the constitution of South Africa, Canada’s Charter of Rights and Freedoms, and the European Convention on Human Rights as possible guides, all of which guarantee the protection of significantly more rights than the American Constitution.

This advice, as The New York TimesAdam Liptak wrote on Monday, is consistent with what recent research tells us: the American constitution, which used to be the first model for other countries to imitate, is losing its influence.

Predictably, Ginsburg’s comments raised a few eyebrows. Did a sitting Supreme Court justice just tell an aspiring democracy to look elsewhere for constitutional inspiration? Did she really say that Canada is a better example? Canada? Liberty Counsel, a conservative legal nonprofit, promptly put out a press release saying that Ginsburg had “insulted the U.S. Constitution” and “pointed Egypt in the direction of progressivism and the liberal agenda.” Matthew Staver, Dean of Liberty University School of Law, was quoted in the release as saying, “For a sitting U.S. Supreme Court Justice to speak derisively about the Constitution she is sworn to uphold is distressing, to say the least. Justice Ginsburg’s comments about our Constitution undermine the Supreme Court as an institution dedicated to the rule of law, as well as our founding document.” This, many conservatives agreed, was but the latest evidence of liberal contempt for the Constitution.

A Response to Critics

These criticisms are, frankly, nonsense. Ginsburg did not say that the South African or Canadian constitution was better than its American counterpart. And she did not, as some would like to infer, say that the U.S. would be better off with a charter of government closer to the European Convention on Human Rights.

Loyalty to the Constitution does not require constitutional imperialism, the idea that all other constitutions should be just like ours. Saying that the Constitution may not be the best guide for Egypt no more undermines the Supreme Court than my saying that wearing suede shoes in the rain diminishes the sublime pleasure those footwear can otherwise afford. Noting the limits of the Constitution, as misguided as Ginsburg’s views there and elsewhere may be, is quite different from saying that it is thoroughly flawed or an inadequate foundation for American government. Rather, it draws attention to the conditions that created and strengthened the Constitution, a focus that helps us recognize different conditions in different countries that might need different approaches. (For example, the American Founders said the American constitution was wholly unsuitable for a people that was immoral and unreligious, or had no tradition of self-government from which to draw.)

There are, it must be said, problems with Ginsburg’s rationale for recommending the models she cited. There is an unmistakable hint of presentism in the advice she offers. It sounds like she thinks the American Constitution is inferior just because it is old. She also mostly focuses on substantive rights guarantees; on what she wants out of the constitution rather than the structures and procedures that would make it work—a tendency that is often part of a larger impatience with constitutional strictures. One could also fault her for allowing her praise of other constitutions to outweigh her attention to the advantages of the American example.

But far from defending the honor of the Constitution and the American political tradition, conservative critics of Ginsburg’s comments fell prey to constitutionism—the glorification of a particular constitution and the political institutions it establishes rather than the goals of constitutional government. In so doing, they unwittingly advocated a vision of politics at odds with the traditional conservative understanding of well-founded government.

Constitutional Craftsmanship

The art of constitutional craftsmanship (Justice Ginsburg may prefer “craftspersonship”) consists in designing governmental structures that work with a particular country’s social, political, and historical context. Thus, a successful constitution is one that best pursues the ends of constitutional self-government—rule of law, consensual governance, rights protection, national security—within a context of myriad variables beyond the drafters’ control.

The Constitution drew from decades of colonial political experience; it was a political triumph that both grew out of and built upon that experience. To say that a constitution, whether the American or any other, should be the model for all others ignores the intricacies of culture, society, and history that a successful constitution must address.

As strange as it may seem, and as difficult as it may be for some to admit, Justice Ginsburg sounded positively Madisonian in her advice to Egyptians. Prior to assuming his pivotal role at the Constitutional Convention, James Madison undertook a study of the political arrangements of previous confederacies. The result, “Notes on Government,” formed the basis of many of his arguments at the convention and during the ratification debates. Similarly, in her comments Ginsburg took stock of recent constitution writing and indicated what she thought were important points for the Egyptian people to bear in mind. One might take issue with her analysis, but doing so doesn’t require holding up the Constitution as the model par excellence. Because we should hope that Egyptians are able to establish a just constitutional order, we should hope that they do as we did and craft a constitution that complements their political culture.

And for that reason, it shouldn’t surprise us if theirs looks different from our own.

2 Comments

  • February 25, 2012

    zcrippen

    I’m going to push back a little bit on this one, Connor. What bothers me about Justice Ginsburg’s comments is not that she acknowledged that other constitutions can be valid in the formation of new democracies, but rather that she expressly steered away Egypt’s leadership from looking to our own.

    Comments such as “ours cannot be your sole guide,” or “understand that ours is only the starting point,” would be wholly acceptable–and incidentally, ones with which I would entirely concur.

    The trouble with the comment she made is that a sitting Supreme Court Justice completely discredited our own Constitution as the foundation of modern democracy, and simultaneously diminished its relevance in the modern era.

    That, more than anything, is troubling.

    Z

    http://www.zacharycrippen.com

  • March 22, 2012

    David Tomkins

    While the ends of constitutional government are the same for all communities, the means chosen to those ends differ by time and place. They need to be responsive to the detail of one’s own community, its past and its prospects. If Egypt is going to have a constitution that doesn’t just look good on paper but that actually brings about constitutional government (which is surely what we want), it will need to come up with means that will work in the Egyptian context and that will be acceptable to the Egyptian community given its past and its prospects. That is no easy task. It is much harder than simply adopting another community’s successful constitutional model — or even cherry picking from several different successful constitutional models. Much of the genius of the US Constitution was its ability to draw on the constitutional tradition of the American people, all the while making some important modifications. While the US Constitution was new, it both drew on the American people’s own constitutional past (both in colonial America and going back further in the mother country) and gave life to the American people’s aspirations for the future. While Egypt can certainly learn from and draw on the constitutional experience of other countries (including that of the United States), I am far from sanguine that adopting what is in Egypt essentially a “foreign” form of constitutionalism will lead to constitutional government. The last 200 or so years is full of examples of failed constitutional experiments including, I might add, of countries that have been heavily influenced by the US Constitution.

    I’m quite happy for people to say that Egypt shouldn’t adopt a foreign form of constitutionalism and expect it to work wonders. And I’m more than happy for people in Justice Ginsburg’s position to say that. It’s a message that needs to be heard. That said, Justice Ginsburg’s remarks were unwise. That a sitting Supreme Court Justice would make them is worrying. For starters, she should have chosen her words more carefully knowing that what she says in Egypt is also going to be picked up in America. She was in my view (and I’m not even American so don’t have any personal attachment to the US Constitution) too disparaging of the US Constitution. She could easily have made the correct and (to reasonable minds at least) unobjectionable point that Egypt should draw lessons (whether positive or negative) not only from the constitutional experience of the United States but indeed all other nations, without disparaging the US Constitution in the process. She could even make the correct and (to reasonable minds at least) unobjectionable point that the US Constitution is itself the product of a particular people at a particular point in time and that its own framers considered it far from perfect, without disparaging the US Constitution in the process.