Leaning on the musings of artist John Powers, I wrote a post a couple of days ago about states as political manifestations of what John called a “used future”—a world that shows its provenance. Drawing on John’s discussion of the used future George Lucas self-consciously constructed for Star Wars, I suggested that states are more like the Millennium Falcon in their guided but messy assembly of disparate elements than they are like the Death Star and the grandiose Modernist ideals it represented.
Egypt’s draft constitution nicely encapsulates this idea of states, and constitutions in particular, as used futures. Constitutions are schemata for the future practice of politics within states, and political scientists and policy-makers often lade the drafting of these schemes with heavy expectations. The rewriting of basic rules is seen as an opportunity to reboot whole societies—to end old conflicts, to prevent new ones from emerging, and to channel officials’ and citizens’ behavior in more fruitful directions. If we just get the rules right, the thinking goes, we can knock a previously troubled society onto a new and more desirable equilibrium path.
As Egypt is reminding us, though, real-world constitutions are not elegant constructs that have been meticulously designed to guide the development of a harmonious new society. More often, they are collages composed of disparate elements, each with its own historical provenance. A constitution is meant to embody a specific vision of the future, but that document can’t escape the pasts and presents of the people who actually draft it. Constitutional provisions aren’t produced by actuaries armed with formulae whose elements and solutions are objectively known. Instead, they are haggled over by human beings who arrive at the negotiating table with their own interests and prejudices and who fear what the uncertainties of the future they are crafting may bring for themselves and their families and friends.
Partly because they are written by committee, constitutions often contain inconsistencies and even contradictions. In a recent press release, Human Rights Watch identifies several of these in Egypt’s draft constitution. For example, on the question of free speech:
Article 45 protects freedom of expression without stating what legitimate limitations are permissible and how to balance this right against article 31, which states that, “The individual person may not be insulted,” and article 44 prohibiting “the insulting of prophets.” Articles 31 and 44 are not legitimate limitations on freedom of expression under human rights law, and they would appear to make difficult, if not impossible, any meaningful reform to existing penal code provisions that criminalize “insult” and defamation, provisions frequently used in the past to prosecute critics of the government.
And on the inviolability of citizens’ rights:
Article 81 states that no law may limit the essence of the rights and freedoms set out in the constitution but goes on to say that, “These rights and freedoms shall be exercised insofar as they do not contradict the principles set out in the Chapter on State and Society in this constitution.” The provisions in that chapter include article 10, which states that, “The state and society shall commit to preserving the true nature of the Egyptian family,” and article 11, which states that, “The state shall protect ethics and morals and public order.” The language in both these provisions is overly broad, open to interpretation, and available to justify wide-ranging limitations on key rights, Human Rights Watch said. It appears to place the “true nature of the family” and morals and public orders above fundamental rights.
Philosophically, I’m a liberal, so I believe HRW is right to suggest that Egypt would be better off if its constitution-writers resolved those inconsistencies now in a liberal direction. Still, as a purely analytical matter, it’s fascinating to see liberalism, Islamism, and other forms of traditionalism colliding so awkwardly in a single document. Different chunks of this text clearly signify distinct streams of Egyptian and world history. Instead of the Modernist ideal of an urban machine built from the ground up, we get the architecture of an old city in which buildings from many eras stand side by side.
Actually, Americans should be more familiar with this conundrum than we are. More than 200 years after our founding documents were written, we’re still arguing over what they mean, often phrase by phrase, sometimes even word by word. Curiously, in spite of this unending and intense debate, we’ve constructed a national myth in which the rules of American politics were delivered unto us like sacred texts by a cabal of farsighted and public-minded men. In the construction and repetition of that myth, we gloss over the diverse historical origins of those texts, the profound disagreements they elided, and the many messes they have since failed to prevent or even created.
Maybe Egyptians today can learn from our mistakes—not just in the wording of the constitution they adopt (or don’t) now, but also in acknowledging the inevitability of ambiguities in that document and recognizing that the future will keep delivering opportunities to haggle over them anew.
Dart-Throwing Chimp 
Grant
/ December 4, 2012Most constitutions across the world contain some guaranteed right to freedom of speech and the like. They just usually allow it only very narrowly, whether due to dictators just interested in the thin image of respectability or bickering revolutionaries insisting on their own views that contradict each other. If something were easy and had widespread acceptance it probably would have been done a long time ago.