23 November 2012
Revolutionary prerogatives and constitutional coups, then and now
Whatever favorable impression President Morsi of Egypt may have made upon liberal observers abroad as a mediator between Hamas and Israel this week has most likely been overshadowed by his perceived "power grab" at home this weekend. The recently-elected leader has conferred a kind of immunity upon himself against a judiciary still infested, to use his own metaphor with "weevils" from the Hosni Mubarak regime. The rationale is that Morsi and his government are trying to carry out a "revolution," and that leftovers from the old regime should not be able to impede them. The situation is awkward, obviously, since the revolution has left the "weevils" in place, though Morsi is now trying to sideline them or at least limit their relevance. In keeping with the revolutionary imperative, Morsi has claimed authority in terms inevitably ominous to western ears, granting himself by decree the power (as quoted by the Guardian newspaper) to "take the necessary actions and measures to protect the country and the goals of the revolution." In other words, Morsi is acting like the "commander in chief" of the revolution, and if what's happening in Egypt actually is a revolution, what else could people expect? Taking the broadest perspective, the real complaint against Morsi and the Egyptian reformers in general is that theirs is a haphazard revolution. Can it even be a revolution if it retains a judiciary dedicated to enforcing the old regime's constitution, presumably by the old regime's standards? But had he or any other revolutionary authority simply done away with the judiciary, or even with specific untrustworthy jurists, the same critics would cry "power grab!" But what's a revolution if not a power grab? How can a revolution appear other than "unconstitutional" from the perspective of relics of the old regime? Constitutions are designed to preempt revolution, or at least so think many constitutionalists. It was Abraham Lincoln's idea, for instance, that a constitution could have no provision for its dissolution through revolution. In Egypt the confusion seems rooted in everyone's desire to maintain some actual continuity between the old regime and the new. At risk, as far as liberal critics in and out of Egypt are concerned, is the rule of law. From their perspective, Morsi has empowered himself to govern as a dictator, just as American presidents have seemed to do through sweeping claims of national-defense prerogatives. The likelihood of a president actually becoming a dictator depends in part on partisan perceptions. The Muslim Brotherhood is probably unalarmed by Morsi's move, while smaller parties are understandably spooked and are hitting the streets of Cairo to protest. Americans should keep their own history in mind as they watch Egypt and the rest of the "Arab Spring." It's not too great an exaggeration to note that almost every word of the Constitution was opposed as some kind of power grab by the executive branch or the judiciary or the larger states, and the work of the Philadelphia convention was denounced as unconstitutional under the Articles of Confederation. Antifederalists saw aspiring tyrants all around them in 1787. That doesn't prove by analogy that liberal Egyptians are wrong to see Morsi as an aspiring tyrant, but it's a reminder that revolutions always come with such fears. If they didn't, they wouldn't be real revolutions. A real revolution inevitably replaces one rule of law with another that will inevitably judged by the standards of the past and contending ideals. It's always a messy project, and Egypt's revolution may be messier, if not necessarily bloodier, than others. It's no surprise the people are pressing panic buttons now, -- need I remind you that Morsi and his party are dreaded Islamists? -- but objectively speaking it's probably a little too soon to panic, just as it's definitely too soon to tell whether the Egyptian revolution will amount to anything at all.