Summer Travel and Comparative Constitutional Law

When they travel on vacation during the summer, people bring all sorts of things with them—-usually interesting things. They might pack a novel they have long wanted to read. Perhaps, as one of my friends now does, they bring materials with them to help them write a screenplay they have long wanted to compose.

I always pack the constitution of the country where I will be taking my vacation. I think reading the entire constitution of another country from time to time can be enormously interesting and helpful, to professors of comparative constitutional law and domestic constitutional law alike. It not only makes the country you are visiting more interesting, but also can highlight some larger trends in comparative constitutional law.

Last month, I traveled to Morocco, and so I read the constitution of Morocco. I will post a few items over the next week related to this constitution, which highlighted for me several larger things of note:

(1) Noah Feldman has written about this in the context of the Middle East—-and we now have the raw material thanks to the Elkins, Ginsburg and Melton database—-but it is about time that someone writes a major book about the growing trend in the past several decades to create constitutions that both permit the free exercise of religion and officially establish a state religion. This relationship seems anathema to scholars of American constitutional law, and even those foreign constitutions that American scholars seem to know either establish a secular regime (France, Turkey) or do not permit free exercise at all (less free places). But it strikes me that a successful and interesting development in the past generation has been the coupling of a Free Exercise Clause in a constitution with the opposite of an Establishment Clause. The Constitution of Morocco is an excellent example of this. The Constitution of Morocco states in its Premable that it is “[a]n Islamic . . . state” and in its Article 6 that “Islam shall be the state religion.” but also in Article 6 that “[t]he state shall guarantee freedom of worship for all.”

The social realities created by both a free exercise clause and a state establishment of religion are complicated, but seem to match the social reality of a world of increasing constitutional liberty and increasing religiosity. Individual citizens feel free to practice religion free from governmental coercion, but the combination of population patterns (which mean that people of like religious tend to live in the same country with other people of the same religion) and an increasingly religious world (meaning that religious homogeneity is socially prominent because religion is more socially prominent) mean that there is a constitution that matches the social reality: religious liberty coupled with the sense of the endorsement of religion (if not explicitly by the state, at least implicitly perhaps because of the dominance of a particular religion in a particular nation-state).

Morocco did not feel like a religiously diverse country. I saw no crosses and no Jewish stars while there. But there was also no sense of religious coercion, and I felt very comfortable talking to Muslim residents about my non-Muslim religious background. There was the social reality–matched by the constitutional language–of religious liberty.

On the flip side, it felt like a country with an established Muslim religion. That is in part because of demographics—-the population is 99 percent Muslim. In a place like Morocco (without an overwhelmingly powerful government with massive extractive and regulative capacities) even a formally established religion might not mean much if the government does not have the capacity to do much with that formal establishment of a religion. But it was more than that. There were places in Morocco where it was clear that Islam and the state intersected each other rather than avoiding each other.

–DF