Religious liberty loses appeal

The front page of Tuesday's New York Times including a "side bar" by Supreme Court reporter Adam Liptak headlined "‘We the People’ Loses Appeal With People Around the World." It's an analysis piece that argues the "terse and old" U.S. Constitution is too out of date. Liptak mostly relies on a new study by two law professors to argue his case but is bolstered as well by Supreme Court Justice Ruth Bader Ginsburg's recent comments. She gave an interview in Egypt last week where she said “I would not look to the United States Constitution if I were drafting a constitution in the year 2012,” she said. She recommended looking at the South African Constitution, the Canadian Charter of Rights and Freedoms or the European Convention on Human Rights.

Liptak begins:

The Constitution has seen better days.

Sure, it is the nation’s founding document and sacred text. And it is the oldest written national constitution still in force anywhere in the world. But its influence is waning ...

There are lots of possible reasons. The United States Constitution is terse and old, and it guarantees relatively few rights. The commitment of some members of the Supreme Court to interpreting the Constitution according to its original meaning in the 18th century may send the signal that it is of little current use to, say, a new African nation. And the Constitution’s waning influence may be part of a general decline in American power and prestige.

He makes his case, pointing out how difficult it is to amend the Constitution (apparently some people think that's a bug, not a feature) and its general inflexibility "Congress shall make no law ..." (ditto). Another sample:

Americans recognize rights not widely protected, including ones to a speedy and public trial, and are outliers in prohibiting government establishment of religion. But the Constitution is out of step with the rest of the world in failing to protect, at least in so many words, a right to travel, the presumption of innocence and entitlement to food, education and health care.

As you can imagine, there's been plenty of political response to this analysis piece from the New York Times. And that's what an analysis piece is designed to do -- provoke reaction.

But I highlight it here for the rather obvious ghost. There's likely a powerful answer to why the U.S. Constitution is less popular among some new governments than, say, the Canadian Charter of Rights and Freedoms (which has come under strenuous criticism from civil libertarians across the spectrum). Certainly the prohibition of government establishment of religion -- which is glossed over here not to be mentioned again -- is part of it. So would be the other relevant clauses in the First Amendment, including the free exercise of religion.

I'm willing to have someone try to make the case that the reason why Egypt and other emerging Muslim governments don't want to follow the U.S. Constitution is because it doesn't enshrine "entitlements" to food, whatever that means.

But help me if I'm wrong, but do you think that maybe Egyptians might put less stock in the free exercise of religion and more in the establishment of a state religion than the U.S. Constitution allows? What about other countries with majority Muslim populations?

It's just a reminder of how reporters and others fail to understand that the American relationship of church and state arises out of particular religious and political environments and traditions. These aren't easily translatable to a Muslim environment, although some scholars have made headway on just this point.

But to write about the Constitution's lack of appeal in emerging governments and to miss this rather glaring point serves no one, even in an analysis piece from the front page of the Times. Just ask the Copts in Egypt whether they'd rather have an enshrined entitlement to education or the freedom to practice their religion without paying the ultimate price. That freedom of religion probably doesn't seem so "old" and antiquated to the dying Christians as this piece put forth. But to ignore it, is another thing entirely.

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