Whether or not the Egyptian constitutional referendum passes may be less important than who controls the courts. Nathan Brown considers the "question of who will interpret and apply the constitution's Islamic provisions":
There are, at first glance, few differences between the clauses in this draft and those in the 1971 constitution. But the meaning of constitutional articles can change according to who is in charge of upholding the document. And the constitution introduces two new elements. The first is the provision that al-Azhar should be consulted on matters of Islamic law. The second is a carefully negotiated clause that defines the "principles of the Islamic sharia" (which have been Egypt's main official source of legislation since 1980). The language consists of a series of technical Islamic legal terms that are difficult to understand in Arabic and which defy translation into clear English: "The principles of the Islamic sharia include its general indications, its foundational jurisprudential bases, and the accepted sources, in the schools of Sunni community." On the one hand, parliamentarians and judges could use this language as a justification for writing large parts of traditional Islamic jurisprudence into law; on the other, they could ignore it since the constitution gives no guidance on how the new article is to be implemented.
Ellis Goldberg looks beyond the constitution:
The answer no longer lies in a draft constitution that very few of the demonstrators, on either side, are likely to have read. Egyptians along with the citizens of a great many other places have learned what is on paper is only a part of the constitution. The other, most important, part lies in the institutions that give the constitutional language presence in everyday life. To some degree this means the habits and choices of low level officials and to some degree it means the courts. And the simple and sad reality for the Brotherhood is that a great many Egyptians distrust, dislike, or fear them and worry that, having come to control the legislature and central executive, they plan to take over the courts as well as staff many of the lower levels of the government.
President Morsi has been unable to allay this distrust, fear, and dislike and over the last week he and his allies have, through words and actions, intensified it. This may be unfair and its results may be tragic, but it remains a profoundly political issue with which he and any Egyptian politicians who aspire to lead the country will ultimately have to deal.
The Dish 