Every Independence Day, many Americans take their Declaration of Independence out of its shroud, admire it, proclaim their allegiance to its principles, congratulate themselves on their constancy in applying those principles, and then put the document away for another year. Many other Americans wrap themselves in the language of the Declaration, or at least in well chosen selected portions of that language, to push any one or more projects of change to the structure of the Republic or its policies. The Declaration of Independence remains one of the great revolutionary documents of our time. Its ideas remain as dangerous as they have been useful. (Some Thoughts On The American Declaration Of Independence And Its Irish/European Connections At Century's End, Law at the End of the Day, July 4, 2006)
I meant to reconsider the dynamic revolutionary potential of the Declaration of Independence and its tension with the stability producing Constitutional instrument adopted in 1789 that I had considered in an earlier essay: Larry Catá Backer, “Some Thoughts on The American Declaration of Independence and the Irish Easter Proclamation,” 8 Tulsa Journal of Comparative & International Law 87 (2000).
(Pix From Scott Long to Facebook who wrote: "View of the approach to Tahrir by Qasr al-Nil bridge (from Cairo
Tower) about an hour ago. I was on this thing an hour before that, and
you could barely move or breathe." June 30, 2013)
For this 4th of July, I thought it useful to consider the dynamic and revolutionary foundations of the American Declaration of Independence on the day after the duly elected leader of the Egyptian state was removed by the military with the approval of masses assembled in urban public squares but against the will of others. ("President Morsi Overthrown in Egypt: Morsi Reportedly Being Held With Top Aides at a Military Facility After Army Suspends Constitution," Al Jazeera, July 4, 2013)).
American political theory stands at the nexus point of a great tension,
which explodes only rarely, between a fundamental belief at the
legitimizing power of sometimes violent expressions of popular will, and
the traditional and conservative embrace by American political culture
of the stability of representative government and the
management of popular will through governmental proxies (the
representativeness of the state apparatus and rule of law as a mechanics for domesticating expressions of will). The former is represented by the Declaration of Independence, a lawyer's document that posits that in the face of a determination of fundamental breaches of basic rights, people may cutr their connection with the state apparatus responsible for those breaches, whoever legitimate these governments might otherwise have been. The latter is represented by our Constitution that establishes a delegation of sovereign power to the representatives of the people and organizes that representativeness in a government operated under rules designed to minimize arbitrary assertions of personal power. Larry Catá Backer, “Some Thoughts on The American Declaration of Independence and the Irish Easter Proclamation,” 8 Tulsa Journal of Comparative & International Law 87 (2000).
But the later is always under the shadow of the former. And it appears that history tends to be the judge of the legitimacy of expressions of popular will, and its effects. Yet, at its clearest, these sometimes violent expressions, when legitimated by history--and the consensus of the community of nations by their recognition--appear to trump all of the premises and structures of a carefully constructed constitutionalism deployed over the last century to mitigate the violent explosions that these acts of popular will sometimes produce. Popular sovereignty can clear away democratically elected presidents as easily as it can be used to legitimate the removal of authoritarian regimes.
The Egyptian context is easy enough to relate:
The Egyptian army has overthrown President Mohamed Morsi, announcing a roadmap for the country’s political future that will be implemented by a national reconciliation committee.
* * * * *
The head of Egypt's armed forces issued a declaration on Wednesday evening suspending the constitution and appointing the head of the Supreme Constitutional Court, Adly Mansour, as interim head of state.
Mansour would be sworn in on Thursday.
Morsi's presidential Facebook page quoted him as saying he rejected the army statement as a military coup.
* * * * *
Sisi called for presidential and parliamentary elections, a panel to review the constitution and a national reconciliation committee that would include youth movements. He said the roadmap had been agreed by a range of political groups.
* * * * *
Speaking shortly after Sisi's announcement, liberal opposition leader Mohamed ElBaradei said the "2011 revolution was re-launched" and that the roadmap meets the demand of the protesters.
Egypt's leading Muslim and Christian clerics also backed the army-sponsored roadmap.
Pope Tawadros, the head of the Coptic Church, said the plan offered a political vision and would ensure security for all Egyptians, about 10 percent of whom are Christian. Egypt's second largest Islamist group, the Nour party, said in a statement that it agreed to the army roadmap in order to avoid further conflict.
Morsi, Egypt's first freely elected president, came under huge pressure in the run-up to Sunday's anniversary of his maiden year in office, with his opponents accusing him of failing the 2011 revolution by concentrating power in Islamist hands.
The embattled 62-year-old proposed a "consensus government" as a way out of the crisis. That was not enough for the army, and Mansour, a previously little known judge, was installed as the country's interim leader. ("President Morsi Overthrown in Egypt: Morsi Reportedly Being Held With Top Aides at a Military Facility After Army Suspends Constitution," Al Jazeera, July 4, 2013)).
These events had been preceded by mass mobilization in Egypt largest cities that paralleled those which when deployed against Hosni Mubarak, were said to have lent legitimacy as public expression for the end of the previous authoritarian regime.
The contests for legitimacy were fairly starkly drawn as well:
Hundreds of thousands of Egyptians have flooded the streets determined to oust president Mohamed Morsi on the anniversary of his turbulent first year in power.
There are reports at least four people are dead and at least 40 others injured in clashes between supporters and opponents of Mr Morsi, as fears of widespread violence begin to grow.
The largest crowd filled Cairo's Tahrir Square and the area around the presidential palace. Protesters say Mr Morsi has failed to rule for all Egyptians. (Matt Brown, "Hundreds of thousands protest president Mohammed Morsi's rule across Egypt," ABC New, July 1, 2013).
Mr Morsi, who was previously a senior Muslim Brotherhood leader and is Egypt's first freely elected president, was catapulted to power by the 2011 uprising that ended three decades of authoritarian rule from Mubarak.And thus Egypt provides a great testing point for the contradictions of Western political theory that is represented by a simultaneous adherence to the principles of popular power and those of managed rule of law constitutionalism. A popularly elected president, who in his activities rouses a large portion of the population precisely because he is deemed to seek to constrain the inalienable rights of that population through the invocation of constitutionally sanctioned procedures designed to manage conflict in an inclusive way but that will instead produce the subordination of the rights of large portions of the population (the Turkish government ought to take heed at this point as it also begins to face the horror of this abyss) is removed by the military at the instance of the population and to the chagrin of his supporters. On the one hand, the sanctity of elections is diminished--a formalist gesture that has been the foundation of much that passes for constitutionalism in its aspect of enhancing popular participation in government. To some large extent this is an attack on the formal aspects of democratic government. On the other hand, the current regime had quite vocally become sectarian, in the sense that it meant to use its election to effect a revolution of its own, not violently, but by using the formal mechanics of Egypt's democratic institutions to reshape its political organization to become something else--a sectarian Islamist state, now grounded in substantially different organizational principles, one that would effectively marginalize large portions of the population. To some large extent this is am attack on the functional aspects of democratic government. For most states embracing Western political and constitutional ideals, the contradictions complicate principled reaction.
His opponents accuse him of betraying the revolution by concentrating power in Islamist hands and of sending the economy into freefall.
But his supporters say many of the challenges he faces he inherited from a corrupt regime and that he should be allowed to serve out his term, which ends in 2016. (Ibid).
The American position was curious but reflects this conundrum. It was especially curious if one were to have considered the American reaction to a statement of this kind had it come from the government of the European states in 1776-83.
"As I have said since the Egyptian Revolution, the United States supports a set of core principles, including opposition to violence, protection of universal human rights, and reform that meets the legitimate aspirations of the people. The United States does not support particular individuals or political parties, but we are committed to the democratic process and respect for the rule of law. Since the current unrest in Egypt began, we have called on all parties to work together to address the legitimate grievances of the Egyptian people, in accordance with the democratic process, and without recourse to violence or the use of force.
"The United States is monitoring the very fluid situation in Egypt, and we believe that ultimately the future of Egypt can only be determined by the Egyptian people. Nevertheless, we are deeply concerned by the decision of the Egyptian Armed Forces to remove President Morsy and suspend the Egyptian constitution. I now call on the Egyptian military to move quickly and responsibly to return full authority back to a democratically elected civilian government as soon as possible through an inclusive and transparent process, and to avoid any arbitrary arrests of President Morsy and his supporters. Given today's developments, I have also directed the relevant departments and agencies to review the implications under U.S. law for our assistance to the Government of Egypt.
"The United States continues to believe firmly that the best foundation for lasting stability in Egypt is a democratic political order with participation from all sides and all political parties —secular and religious, civilian and military. During this uncertain period, we expect the military to ensure that the rights of all Egyptian men and women are protected, including the right to peaceful assembly, due process, and free and fair trials in civilian courts. Moreover, the goal of any political process should be a government that respects the rights of all people, majority and minority; that institutionalizes the checks and balances upon which democracy depends; and that places the interests of the people above party or faction. The voices of all those who have protested peacefully must be heard – including those who welcomed today's developments, and those who have supported President Morsy. In the interim, I urge all sides to avoid violence and come together to ensure the lasting restoration of Egypt's democracy.
"No transition to democracy comes without difficulty, but in the end it must stay true to the will of the people. An honest, capable and representative government is what ordinary Egyptians seek and what they deserve. The longstanding partnership between the United States and Egypt is based on shared interests and values, and we will continue to work with the Egyptian people to ensure that Egypt's transition to democracy succeeds." (Statement by President Barack Obama on Egypt).
The president appeared to walk a fine line between the radical power of popular action at the heart of the Declaration of Independence, and at the heart of the legitimacy of the American Revolution from the United Kingdom, and the language of stability, negotiation and rule of law limitations on expressions of popular will outside of the processes created for its representative expression through the apparatus of government as formalized in the American constitution. Indeed, application of these principles might well have produced not an American Revolution but a new form of union with what would become Canada and the United Kingdom as part of an inclusive transition to democratic governance. It would certainly have produced a substantially different approach to the large mass of colonial dissidents whose attachment to Britain was and remained strong and whose only real option after 1783 was either giving up their fundamental allegiances or emigrating.But for all that the U.S: President supports, if tepidly, the expression of popular will interpreted by the military establishment as legitimating the removal of a duly elected President from whom popular support had eroded--and to engage in this removal extra-constitutionally, that is outside of the rule of law based procedures in place to remove Presidents.
And therein, perhaps, lies the great danger for this Republic, one worthy of at least a moment's thought on its birthday: The United States would have been prepared to accept any sort of Republic, even one whose fundamental values were irreconcilable with our own. This is position first developed in the second Bush 44 Administration but one to which the current President also appears to adhere. (President Bush's Second Inaugural Address: A Revolutionary Manifesto For International Law in Chaotic Times, Law at the End of the Day April 1, 2006). That is perhaps, as it ought to be--though it opens the prospects of admitting the legitimacy of democratic republics organized under religious principles (Iran) and Marxist Leninist principles (China). The difficulty arises when American administrations begin to value form, especially an empty formalism (in the form of elections, and the appearance of representative governments whose mechanics ape our own), that masks agendas that seek to repress the popular will. Electoral campaigns are an expression but not necessary the only or best expression of political will. And governments, especially the administrative apparatus created to manage political communities, are not constituted as eternal expressions of an unchanging relationship between administrative state and people. The exposition of the dangers of creating an inverted relationship between political communities and and the form of government established for their welfare is one of the great features of the American Declaration of Independence. The conditionality of the government thereafter established in the respective states of the union, and together in a federal government, were embedded in the constitutions that followed. The Egyptian people remind us that governments remain legitimate only as long as they remain representative. Democratic governments all the more so. While governments may be constituted to maximize the likelihood of this relationship, they do not guarantee it, either through the forms of election or the habits of rule by law. The Declaration of Independence is the American expression of that most fundamental premise of government--that in democratic societies government exists only during good behavior, the existence of which is presumed when government conforms to appropriate forms of behavior, but when this presumption is overcome, no amount of compliance with the niceties of form can save it from the popular will. Governments that remain responsive to its people tend to last much longer.
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