Noah Feldman

regime, but its defenders rightly pointed out that it was still more impressive than any other constitutional body in any Arab state.

Since Mr Mubarak fell and the Islamists were elected, the court has actively tried to constrain the government. The impulse may have been public-spirited at first, but it quickly descended into anti-democratic partisanship on the side of the army. The culmination of the court’s efforts came when it dissolved the elected legislature in June. One of the court’s justices later admitted the court was on the side of the military regime all along and prepared its rulings against the legislature from the moment the elections took place.

There is good reason to think that the court was poised to dissolve the elected constituent assembly, just as it dissolved the parliament – one more step toward declaring the presidential election invalid and creating a constitutional coup d’etat against Mr Morsi.

Make no mistake: The result of any such action by the courts would be to assure the continued power of the military leaders, who have not accepted the results of the elections. The struggle between the elected Islamists and the army is not over. Properly speaking, Mr Morsi’s decree is part of that struggle. Perceiving the court as a tool of the military, he was trying to take it out of the game pre-emptively.

Yet the means Mr Morsi adopted were naive – and they backfired badly. Nothing in the interim constitution, or in general constitutional principles, allows the president to ignore a court’s constitutional judgment.

What he should have done was turn to the constituent assembly itself. With no permanent constitution in place, it is the assembly that embodies the will of the people, not the president.