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It’s an analysis piece that argues the “terse and old” U.S. Constitution is too out of date.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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  • Per Smith

    Mollie, did you read that actual study the NYT is referring to? It is available for free through the SSRN, and if you bother to read it you’ll see that your “ghost” actually doesn’t exist. Freedom of religion is in 97% of the constitutions surveyed in 2006, up from 83% in 1983. As the NYT accurately portrays freedom of religion is one of the most ubiquitous rights around, and one that other countries still share with our constitution. So as that right has become increasingly enshrined in the constitutions of other countries those countries have still drifted further away from our constitution. What does that mean? This has nothing to do with freedom of religion, it is, as the NYT reports, other rights that are increasing the countries surveyed that do not exist in our constitution.

  • Jeff

    The Copts are bitter-clingers, just like U.S. Roman Catholics and others who are holding on backwardly to outmoded notions of religious liberty. Their false consciousness must be “transformed” via kulturkampf — and transformed good and hard.

  • Per Smith

    That should be 81% in 1946. My mistake.

    Freedom of religion – 1946 = 81%, 1956 = 88%, 1966 = 87%, 1976 = 88%, 1986 = 92%, 1996 = 95%, 2006 = 97%

  • Colmar

    The U.S. Constitution is all about negative liberty whereas most people today care about positive liberty. Canada and Europe are good examples of what people are ready to sacrifice for the sake of the “right” of welfare.

  • Stan

    Thank God for Canada’s Charter of Rights and Freedoms. By almost any measure, Canada has a brighter and more civil democracy than the United States, as well as a greater commitment to equal rights for all its citizens. I suspect that is the reason that it is so popular.

    I do not understand this part of your post:

    “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.”

    Canada’s Charter also guarantees the free exercise of religion and prohibits the government establishment of religion. It is true that Canada allows the government to support Catholic schools, which continues to be a source of controversy, but otherwise does not establish a state religion.

  • http://catholicecology.blogspot.com/ Bill P.

    Good piece. Thank you. It brought to mind the work of Christopher Dawson, Harvard’s first professor of Roman Catholic studies (his conversion to Catholicism gave him some depth in the topic).

    In Christianity as the Soul of the West, Dawson wrote,

    Every society rests in the last resort on the recognition of common principles and common ideals, and if it makes no moral or spiritual appeal to the loyalty of its members, it must inevitably fall to pieces.

    In the past, society found this unifying principle in its religious beliefs; in fact religion was the vital centre of the whole social organism. And if a state did not already possess a common religious basis, it attempted to create one artificially, like the official Caesar-worship that became the state religion of the Roman Empire. And so, today, if the state can no longer appeal to the old moral principles that belong to the Christian tradition, it will be forced to create a new official faith and new moral principles which will be binding on its citizens.

    What is needed is an infusion of this scholar (and his sources) in contemporary conversations. He may very well provide a good read to today’s journalism students, and many others.

  • Per Smith

    I would still like to know how you can make the argument that “religious liberty loses appeal” when it has risen from 81% – 97% in surveyed world constitutions in the sixty year span 1946-2006. “Official state religion,” during the same period decreased from 39%-22%. Not doing the proper research before writing this up is one thing, but are you seriously sticking to this? It’s right there in the study. I’ll link it again.

    study this is based on – download for free, read for a modest sum of time

  • http://www.getreligion.org Mollie

    Per Smith,

    If you want to discuss the study, that’s fine, although this is not the forum for that discussion. The headline is a play on the headline that ran in the New York Times. No need to overthink it.

    The point is that one can not realistically discuss the U.S. Constitution, and its appeal or lack thereof, without having some knowledge of how First Amendment protections are understood in certain parts of the world as a net negative.

    Sometimes reporters miss stories by assuming generally held opinions where there are none. This would be a prime example. When Ruth Bader Ginsburg suggested to Egypt that they not follow the U.S. Constitution, are there any ghosts there? What are they?

    How would Muslim countries view enshrining freedom of religion or a negative liberty view that prohibits governments from infringing upon religious liberty?

    How can that not be a part of the story for a front pager on the Constitution?

  • Per Smith

    The NYT wrote a story based on a study which contends that in a variety of ways our constitution is reflecting new constitutions in democratic countries less and less. This study affirms the fact that religious liberty is one of few rights that are enshrined in most constitutions. It is one of the few ways in which we are still similar to these new constitutions. How on earth are they missing part of the story here? Religious liberty is a non-story when it comes to world constitutions because it’s ubiquitous.

    Why on earth should a “front pager on the constitution” need to cover how Islamic countries, specifically, view religious liberty. You seem to imply that this is a given, but I can’t for the life of me understand why it would be. Here again, is an example of an article that claims to critique religion coverage in the media, but does so on a completely faulty premise. This wasn’t a religion story. Indeed religion was a non-story for the reasons I’ve outlined several times now. You can’t make religion seminal to this story by simply asserting that it ought to be. Furthermore you can’t make Islamic theocracy specifically seminal to the story just because it’s something you’re critical of and want a forum to write about. As I said at the Prop 8 article I highly suggest you all reconsider what you claim you’re doing here. Cheers.

  • Jeff

    Kudos to MSNBC of all places for letting the biographer of Dietrich Bonhoeffer — Eric Metaxas — tell it like it is:

    http://www.youtube.com/watch?v=0vX4atISyjo&feature=player_embedded

  • http://www.getreligion.org Mollie

    Per Smith,

    I know you just discovered the site yesterday, but you seem sort of demanding that our work match what you want to write.

    By all means, if you want to start a site that does your particular criticism, please feel free to do so. But otherwise, perhaps you could set back for just a bit and learn a bit about what we do and then weigh in?

    I’ll take my time to respond to you one more time. I’d like you to try to be a bit more thoughtful before your next comment.

    The NYT wrote a story based on a study which contends that in a variety of ways our constitution is reflecting new constitutions in democratic countries less and less.

    Well, it mentioned that study. It also mentioned (again) the comments Ruth Bader Ginsburg made on Egyptian TV last week. And all of these things are happening in a milieu of the Arab Spring, where Muslim countries are overthrowing their governments and drafting new Constitutions (although that part wasn’t highlighted — a ghost, if you will). Your citation of stats from 1946-2006 are not going to reflect the “news” portion of why this is front-page news on the country’s paper of record. What is the news portion? Why, the Arab Spring, to take the most prominent example.

    This study affirms the fact that religious liberty is one of few rights that are enshrined in most constitutions. It is one of the few ways in which we are still similar to these new constitutions. How on earth are they missing part of the story here? Religious liberty is a non-story when it comes to world constitutions because it’s ubiquitous.

    To the contrary, the article you praise included the passage that Americans are “outliers in prohibiting government establishment of religion.” If you want to dispute what the reporter said, that’s fine. But my beef with his line was that it was the only line of what so clearly is a major issue in the drafting of new constitutions in Muslim countries.

    Why on earth should a “front pager on the constitution” need to cover how Islamic countries, specifically, view religious liberty. You seem to imply that this is a given, but I can’t for the life of me understand why it would be.

    Again, Arab Spring, by way of example.

    Here again, is an example of an article that claims to critique religion coverage in the media, but does so on a completely faulty premise. This wasn’t a religion story. Indeed religion was a non-story for the reasons I’ve outlined several times now. You can’t make religion seminal to this story by simply asserting that it ought to be. Furthermore you can’t make Islamic theocracy specifically seminal to the story just because it’s something you’re critical of and want a forum to write about. As I said at the Prop 8 article I highly suggest you all reconsider what you claim you’re doing here. Cheers.

    Except the opposite.

    Again, you’re welcome to join the conversation here. I’m sure you have plenty to add. But feel free to just sit back and get a feel for things before telling us how to do our work.

    Best,

    Mollie

  • Chris

    What is not discussed in the article is how it is much harder for a constitution to guarantee a right to “tangibles”, such food, education and healthcare. The devil is in the details there–how is food defined (3 meals a day, tiramisu for dessert, or a handful of rice) and who defines it? A constitution couldn’t seriously guarantee food for all–what if there is a famine? It’s easier for a constitution to guarantee rights that don’t require tangible or monetary resources: freedom of religion, press, assembly, etc.

  • http://fkclinic.blogspot.com tioedong

    The dirty little secret is that any constitution that enshrines rule of law will be ignored or distorted by those who prefer a culture of bribes and kickbacks.link. All the laws in the world don’t work if they aren’t followed.

    In the Middle East, the corruption of secular dictators was the cause for revolt, so the public reaction is to make the state “Islamic”, in hopes for an honest government.

    It won’t work, of course as the corruption will continue, the new corrupt politicians will scapegoat the west for their problems, while diverting public rage against internal enemies, i.e. minority religions and pushy women without veils, instead of protesting corrupt mullahs and politicians.

    Reform from above simply won’t make much difference. You need to reform the culture from the grass roots up. That is why the real story that is being ignored is how the “protestantization” of South America, China, and the Philippines is causing a grass roots revival of honesty.

  • Mohamed

    It is interesting, if you read arabic to look into the pot of soup full of revolutionary declarations from the days of january last year that combined are all versions of the Declaration of Independence. A soup because the liberties confirmed in those declarations by so many back then each intersected to a large degree in absolute majority with each other, but there were also various sizes of minority intersection as well.

    in the end though, much like in the 13 states of the US, the bergers win out and the decleration of independence needed to be stifled with the constitution in an effort to curb the libertine nature of those first few years – deemed chaotic. Thus society’s conventions were reinforced, this after a temporary period of fluidity accompanying the turmoil of society’s breaking away from other long standing conventions (king and country, sovereign, etc). At a moment like that everyone was given liberty in some sense from convention and in doing so, all convention was fair game

    the constitution then comes to roll back the liberty of revolution

    in the arab world and egypt it’s a 3-d axis rather than a 2-D axis:

    parties can be communist or capitalist; conservative (right) or progressive (left), but also in Egypt secular or sectarian

    e.g. w/ #rank of ‘majority’ in parliament
    Muslim Brotherhood, #1 – capitalist sectarian center
    Salfasts (fundies) #2 – capitalist sectarian right
    Wafd (grand old party of egypt)#3 – capitalist secular right
    Egyptian Block (new coalition) #4- social-capitalist secular center
    Revolution Continues (new coalition) – socialist secular left

    all by the way agree to the right of freedom of worship as fully guaranteed
    f

  • David J. White

    Has the US Constitution ever really been much of a model for other countries? I’m not referring to things like “rights” and protections; rather, I’m talking about the basic governmental structure that the US Constitution sets up. It seems to me that more countries with democratic constitutions have preferred to follow either the Westminster model (government by the party or coalition that controls the legislature, with a figurehead, ceremonial “president” standing in for the British figurehead monarch) or a strong president / weak legislature and courts model, than the American separation-of-powers / equal branches model. In fact, is there *any* other country that has really modeled its constituional machinery on ours?

  • Roger

    Let’s no forget that the 1st Amendment freedoms of religion and press were not part of the original Constitution but were part of its first modification, known as the Bill of Rights. These rights were added to overcome opposition to the ratification of the Constitution, and they were a positive addition to the document. Our Constitution was groundbreaking 231 years ago and still carries some weight but was not perfect. Our constitution accommodated for legal slavery in its original version and a new country would do well to skip over that glaring mistake. Fortunately our Constitution is dynamic by design that has enabled it to be modified and grow along with the country. Even if our religious freedoms were an afterthought to the whole constitutional convention, they set down simple concepts with wide interpretations. Its the interpretations where all the scuffling goes on.

    Justice Bader Ginsburg is right in that there are newer better examples to copy for writing a new modern constitution. Suggesting there are better examples to copy is not to say that any of our freedoms are losing appeal. A justice would know, but I wouldn’t go as far as Justice Scalia who prefers the Soviet Constitution to ours. http://www.youtube.com/watch? feature=player_embedded&v=Vaqc0CieXoU

    ‘Declining Influence’ may just be that the simplicity of our Constitution isn’t working so well for a very complicated modern world. Witness the deadlock in Washington, which was by design also. Our Constitution has had its problems and we definitely need to keep amending it to continue improving it.

  • michael henry

    “…. miss this rather glaring point…”

    In all honesty, as seen by post after post after post on GR, isn’t that what the NYT is getting a well deserved reputation for?

    But your right. Missing the particulars of the US constitution and saying the puzzle piece doesn’t fit elsewhere misses the boat. We could just as easily say, in a context one will never ever see in the MSM, that sharia loses appeal in the West.

  • http://www.ephesians4-15.blogspot.com/ Randy

    The bigger question is can you have the other freedoms without the non-establishment clause? I don’t know that you can. If not, then western style civil rights will never take hold in the Muslim world. At least not until they stop being Muslim or the Muslim faith develops in this area. Neither seem likely anytime soon.

  • Bain Wellington

    Mohamed @14, freedom of worship is just one aspect of freedom of religion, which includes the freedom for individuals to profess the religion of their choice, and the right for religious groups to manage their own affairs and acquire property. Many Muslim majority countries may well permit freedom of worship (although Saudi Arabia does not) while prohibiting (as Malaysia does, for example)the propagation of religion among Muslims, or while imposing (as Indonesia does, for example) bureaucratic obstacles in the way of erecting places of worship.

    Article 46 of the constitution of the People’s Republic of China (as adopted in 1978) is so restrictive as not to mention even freedom of worship:-

    Citizens enjoy freedom to believe in religion and freedom not to believe in religion and to propagate atheism

    It seems to enshrine freedom of conscience, but the freedom to keep your beliefs to yourself is no concession whatever.

  • Bill M.

    We will see a second Constitutional Convention in our lifetimes. Count on it.

  • Dave

    Mollie, I won’t dispute the lack of reverence for religious freedom, as the West understands it, that prevails in Moslem countries.

    But one reason our Constitution may not be an attractive model is that it embeds so much of our history. The original text vs the first ten amendments are a replay of the Federalists vs the Anti-Federalists. The Civil War amendments are a replay of, well, the Civil War. Moving from “Congress shall make no law…” to comparable restrictions on states is largely the product of Supreme Court jurisprudence, a relationship not clearly spelled out in the text in the first place.

    If we’re going to criticize journalists for their coverage of this unpopularity overseas, imho it should be over their under-coverage of this aspect of our Constitution.

    However I support your basic point. In the part of the world where new constitutions are being written, the American approach to religious freedom is not popular. (I would call it “the Western approach” but would not care to affront our Canadian correspondents.)


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