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2.04.2012

Justice Ginsburg to Egypt: Don't copy the U.S. Constitution

Let's say you're a newly democratizing country – say, Egypt – in the market for a new constitution. What constitutions, if any, should you consider as models in drafting your own? According to Justice Ginsburg, the answer is, maybe Canada or South Africa, or constitutions written after World War II more generally. But ... not the U.S. Constitution itself. Video clip of her comments (televised in Egypt) here; partial transcript here.

Adam Liptak of the New York Times has a column scheduled for publication on Tuesday in which he will be taking on the topic of the (declining) influence of the U.S. Constitution as a model for constitution-makers in other countries. The column will touch upon Justice Ginsburg's comments, as well as a forthcoming article that Mila Versteeg and I wrote entitled "The Declining Influence of the United States Constitution" (SSRN link here; look for it in the NYU Law Review come June). (Full disclosure: No, the Comparative Constitutions Blog doesn't have spies inside the New York Times; I received a call from Mr. Liptak earlier this week.)

The question of where constitutional drafters should and actually do look for inspiration has always been a topic of tremendous interest and importance to other countries, not to mention comparative constitutional law scholars. Quite possibly, Justice Ginsburg's comments and some media coverage could (re)focus the attention of a wider audience on comparative constitutional law in a way we haven't seen since the initial furor over Supreme Court citation of foreign law in hugely controversial cases such as Lawrence v. Texas. And to the extent that this new topic attracts the attention of non-comparative constitutional scholars, perhaps the focus might even shift away from the usual scholarly preoccupation with judicial interpretation, toward the actual writing of constitutions in other countries (or, failing that, how the U.S. Constitution itself could perhaps be revised). That would, in my view, be an extremely healthy thing.


POSTSCRIPT: Predictably, the legal blogosphere has taken note of Justice Ginsburg's comments. Fellow Canadian Paul Horwitz at PrawfsBlawg; and, pleasantly enough, The Volokh Conspiracy coming to Justice Ginsburg's defense and suggesting that her comments are perfectly fair, not inappropriate, etc.

3 comments:

  1. It's even more interesting and revealing that Justice Ginsburg didn't recommend constitutions that come from countries that resemble Egypt (large, Muslim, developing), such as Indonesia. Indonesia has a nice balance between religious freedom and Islam that might fit Egypt better than Canada or South Africa's more absolutist stance.

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    2. This is fascinating David, thanks for posting.

      I think Ginsburg's words here are appropriate and that the importance of modeling a constitution towards or away from the US model goes far beyond the rather obvious matter of religious freedom. As well as having the oldest extant constitution in the world The United States also possesses one of the shortest.

      With the famous exception of India, common law countries such as the US and Australia generally have very brief constitutions essentially outlining governmental structures and then delineating very basic rights. While this makes a good deal of sense in the context of a highly federalized common law system based largely on precedent, it would be unlikely to work well with Egypt's complex web of Civil Laws.

      The Egyptian legal system, as I understand it, is built primarily upon the combination of Islamic (Shariah) law and the Napoleonic Code. Given this legal basis, it would be surprising if the Constitution did not, at the very least, begin to lay out or at least outline some of the more important legal rules within its sovereign constitution, the highest sphere of codified law.

      Furthermore, over time, there has been a tendency for constitutions to become longer (both in word count and in number of articles) as more types of material has been deemed relevant for inclusion and the relationships between different governmental, civil and international institutions have become more complex.

      Frankly, any new Egyptian constitution succinct enough to be fit on four hand-written parchment pages would certainly not be comprehensive enough to coherently organize and define institutions, set up a basic system of laws and accountability and separate powers while at once outlining fundamental rights. Ginsburg is right, new times create new paradigms.

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