When I heard of Justice Ginsburg’s statement before an Egyptian audience today, I have to admit I just couldn’t work up the amount of outage as many on the right. Many folks fail to consider that a good part of our constitution is strictly mechanical, and represents compromises brought about by folks who were facing the daunting task of bringing 13 separate sovereigns together into some kind of national Republic. Much of the mechanics of the US constitution doesn’t translate into the political cultures of other countries, even if the overarching principles are worth studying (for which I would include to RKBA to be among those principles).
And it might well be that Egypt might be well-served by a very different approach than the U.S. Constitutions â€” for instance, with regard to relations between the federal government and more local governments, with regard to whether to have a Presidential system or a parliamentary system, with regard to how hard the constitution would be to amend, with regard to how judges are selected and how long they serve, with regard to how the President is selected, with regard to the relationship between the two chambers of the legislature, with regard to whether all executive officials work for the President or whether some are independently elected or selected, with regard to just how to craft the criminal justice system, and so on. (And here I just speak of the big picture questions, and not more specific details.) Remember that even our own statesâ€™ constitutions differ in many respects, especially with regard to separation of powers and the selection and tenure of judges, from the U.S. Constitution. Again, that the constitutional text, coupled with a wide range of extratextual political and legal practices, has worked well for us over 200+ years doesnâ€™t tell us that it would work well for Egypt for the coming years.
I tend to agree, and with the rest of his argument. I certainly have many disagreements with Justice Ginsburg’s interpretations of the U.S. Constitution, but in many ways the US Constitution reflects the unique circumstances of this country’s founding, and continuing political struggles, that is not necessarily reflective of the political struggles in other countries. To be sure, it outlines many guarantees I believe are universal, but most of the constitution revolves around structural components which are arguably suited to our culture, but perhaps not others. It would, for instance, be difficult to imagine the French arguing over the meaning of interstate commerce, to the extent Americans do today, and have done since the founding.