Paul Pillar

Constitutional Confrontation in Egypt

The stage in Egypt seems set for yet another surge of political tension and high drama over the coming fortnight, as President Mohamed Morsi has designated December 15 as the date for a referendum on the just-written constitution. The outcome of the referendum will no doubt be widely seen as a test of strength between Morsi's Muslim Brotherhood and its secular opponents, whether it ought to be seen that way or not. The document will be regarded as a Brotherhood product, given a boycott of the constitution-writing assembly by liberal secularists and Christians, and given also Morsi's claiming of special powers to prevent the judiciary from negating the work of the Brotherhood-dominated constituent assembly. The rush with which the drafting of the constitution was completed and with which it will now be put to a vote conveys to many Egyptians an impression of railroading something through. Morsi's recent Mubarak-like pronouncements about threats from “conspiracies” have added to the forbidding atmosphere.

The hastily written draft constitution has something for everyone to dislike, but democracy in Egypt will not live or die based on the result of the referendum. Nor will the balance of power between Islamists and secularists depend on it. Morsi's opponents might even be well advised to drop resistance to letting the new constitution come into effect. Doing so would in a sense be calling his bluff. The powers he claimed for himself at the expense of the judiciary would expire, and the president under the constitution will be a less powerful president than Morsi claims to be now. And as Morsi himself noted, the constitution can be amended.

Secularists might be comforted by noting that the Salafists are unhappy enough with the constitution that they have announced they will boycott the referendum. The Salafists complain that the document vests sovereignty in the people rather than in God.

Egypt needs some kind of constitutional structure if subsequent debates about the direction of the country are to be conducted within an orderly framework rather than being part of a game where all the rules are made up as the game proceeds. Any representative political system needs to start with someone making up rules and acting without having previously recognized authority, but it cannot stay that way indefinitely. Of course Morsi cannot point to any widely accepted authority to claim the power to issue the decree he did the other day, but the other actors in the Egyptian political game don't have much more of a legal basis for doing what they are doing either.

Any U.S. officials or other Americans who offer advice to the Egyptians during this politically interesting time might allude to the experience of the United States in establishing a constitutional order during its early days. The writers of the U.S. Constitution certainly exceeded their authority when instead of amending the Articles of Confederation they created an entirely new constitution and specified that it would come into effect with less than unanimous approval by the states. The participation in writing the constitution was incomplete. Rhode Island did not attend, the New Hampshire delegates arrived late, most of the New York delegates left early, and several who stayed for the whole meeting refused to sign the product. Significant opposition to the document persisted, and demands for amending it were strong enough for the first ten amendments to be a task of the very first Congress. The lesson is that the success of, and respect for, a constitution is a function of the political habits and attitudes toward it that develop over time. It does not depend on the legal basis on which it was initially written, and it does not depend on who was in power or who favored the constitution when it was first written.