“We the People of Egypt. . .”
The preamble to the United States Constitution reads as follows:
“We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence,promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.”
Interestingly, it begins by stating the object of the constitution, namely, “form a more prefect Union”; this was a statement of explanation as to why the radical step of drafting a new constitution was taken when the delegates to the constitutional convention had only been given authority, ostensibly, to reform the Articles of Confederation which had governed the United States in the years following independence. James Madison wrote Federalist No. 40 in defense of the legitimacy of this new draft in the absence of express authorization to replace the Articles of Confederation. While the Articles of Confederation were largely derided as dysfunctional, few thought it was necessary for it to be replaced in its entirety.
More interestingly from the perspective of the contemporary Egyptian constitutional debate, while no one disputed the poor performance of the government established by the Articles, the Anti-Federalists opposed the new constitution out of fear that it would destroy individual liberty. The preamble, indirectly answers that, declaring that this new constitution would effectively provide the public goods of justice; domestic tranquility; the common defense; and the general good. By “delivering the goods,” so to speak, the new constitution would “secure the Blessings of Liberty” for present and future generations of Americans.
The first draft of the constitution, famously, did not have a Bill of Rights, largely on the argument that the federal government, because it was a government of limited powers, there was no need to include a bill of rights, and indeed, it might give the erroneous impression that the newly formed government was a government of unlimited powers. More importantly from my perspective, however, was the federalist theory of the relationship between government structure and rights: they were skeptical of a bill of rights because they were suspicious it would be nothing but a “parchment barrier.” Instead, the structure of the government needed to limit, to the extent practicable, the possibility that one faction could take power and govern despotically.
As the Egyptian constitutional crisis comes to a head, there has been surprisingly little heard on the views of Egyptian activists regarding the proposed structure of the government. Yet, these provisions will be much more important for the daily lives of Egyptians, and the potential legitimacy of the constitution, than its rights provisions: if the constitution creates a government that can “deliver the goods”, the very same public goods set out in the preamble to the US constitution, it will be successful; if not, it will be a failure.
It would be useful then if we could hear from the activist community regarding their thoughts on the proposed structure of governance, because at the end of the day, that is what will matter to the Egyptian people, not the identity of the people who drafted the constitution.