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 Times’ Adam 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.
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.
A member of the Humane Pursuits editorial board, Connor Ewing is a doctoral candidate in Government at the University of Texas. He has worked in philanthropy and public policy in D.C. and the Midwest. Connor is to Humane Pursuits what Artificial Reason was to Sir Coke’s notion of law: the accretion of insight, the knowledge of the ages—what Russell Kirk, in his characteristically lapidary way, termed the wisdom of the species. It thus follows that the quality of his work is wholly dependent on the other writers. Accordingly all errors, muddled arguments, and tired cliches should be attributed to them, with each receiving an equal portion of the blame.