Share

Opinion

Mohamed Morsi, meet John Adams

|
Opinion,Op-Eds

Egyptian President Mohamed Morsi made a predictable move last week when he issued a decree granting himself broad powers above any court as the guardian of Egypt's revolution. It was predictable because that's what tyrants do: usurp power and quash opposition. But it was also unfortunate. After all, Egypt is widely regarded as the cradle of civilization and should be well past authoritarian rule.

The world largely credits the United States with perfecting the doctrine of checks and balances -- the idea that liberty is best secured if political power is both divided and shared among distinct branches of government. However, the origins of the principle lay in antiquity, and that makes President Morsi's recent power grab even more disappointing. The genesis of checks and balances is complicated, but it is a story the world needs to appreciate at this transformative moment in time.

The story starts in ancient Greece, with Aristotle and the theory of a mixed constitution: a form of government that integrates elements of democracy, aristocracy and monarchy. The next chapter is written by Polybius, in his characterization of the ancient Roman constitution, and Polybius is followed by Marsilius of Padua's famous critique of Pope John XXII during the Middle Ages, in which Marsilius -- in a notable departure from the class-based taxonomy of Aristotle and Polybius -- adopts a functional approach to the allocation of government power.

Sir John Fortescue's writings about 15th-century English political institutions come next, especially his emphasis on the unique role of judges in a healthy regime. Gasparo Contarini's paean of praise during the 16th century to the Venetian constitution is another critical step, in that Contarini is the first great political thinker to actually describe a system of checks and balances: a system in which government power is not simply separated but countervailing.

The story takes a dramatic turn when England's King Charles I commits constitutional theory in the 17th century to balance among government institutions, rather than dominance by one, and reaches its climax in the 18th century with Montesquieu's famous idea that political power should be divided among the legislative, executive and judicial branches of government. John Adams writes the concluding chapter when he develops the political architecture of an independent judiciary in his 1776 pamphlet, "Thoughts on Government." The epilogue is penned by the framers of the U.S. Constitution when they memorialize Adams' political architecture in Article III, and by John Marshall and other early American judges when they engage in the ultimate expression of judicial independence: judicial review.

With respect specifically to Egypt, what makes President Morsi's power grab particularly problematic is that the Egyptian form of government -- to the surprise of many, I'm sure -- recognizes a place for strong and independent courts. As of last week, Morsi does not. He has just about said as much: The Egyptian president seems to be telling the Egyptian people that they need to surrender the last checks on his power in order to save democracy from Hosni Mubarak-era judges.

In truth, however, what President Morsi has done is return Egypt to the days of the pharaohs -- precisely what had earned his predecessor his ouster in the first place. The Egyptian people obviously realize this, as their current protests make plain. The world can only hope that the idea of unchecked power will be defeated this time, too. History is on the side of freedom.

Scott Douglas Gerber is a law professor at Ohio Northern University. His books include "A Distinct Judicial Power: The Origins of an Independent Judiciary, 1606-1787."

View article comments Leave a comment