An Inconvenient Sphinx

When my Arab friends talk about “the humiliation of the street” and express their earnest support for the protesters’ demand that Mubarak step down, I empathize with them. But one observation stands in the way of my fullest sympathy. Egypt has a constitution, and nobody is saying that Mubarak has violated it. We can agree — can we not? — that people shouldn’t be able to change a country’s legitimate constitutional leaders merely by taking to the streets. If Mubarak has not violated the constitution, his rule is illegitimate only to the extent that Egypt’s constitution is itself illegitimate.

What has been missing in the U.S. government’s response is some consideration of the central constitutional question. We have expressed solidarity with the protesters’ demand that elections be opened to all parties and that the sweeping emergency detention powers that were promulgated in 1981 be lifted. But our recognition of the states that were created in the wave of decolonization — recognition we granted automatically, with no regard to the nature of their regimes — has left us with no objective criteria with which to judge the legitimacy of any state’s constitution under international law. As a result, we are forced to focus on the marginal problem of Mubarak rather than the central problem of Egypt’s constitution.

Click here for the full story.