Posted on 04/27/2003 7:57:47 PM PDT by Congressman Billybob
Basics of The New Iraqi Constitution
What are the essentials for the Iraqis to write a new constitution – one that has a chance of taking root in that beleaguered nation?
First, we look at geopolitical realities. Some critics of nation-building in Iraq claim that it is "an artificial nation" with borders that were drawn "arbitrarily by colonial powers." Therefore, they conclude that it is unlikely to survive as a single nation. The critics ignore the fact that every nation in the world except Australia, New Zealand and Japan has at least one artificial international border, drawn as a result of military or political machinations.
Only those three, of the 193 nations in the world, have borders that are entirely natural – the oceans and seas that surround them. For example, the United States conducted one war against Mexico and threatened another against Canada, before its respective southern and northern borders were fixed as they exist today. (As Casey Stengel used to say, "You could look it up.")
There are sound reasons for maintaining Iraq with its present borders, regardless of how arbitrary they may have been initially. Turkey seeks to encroach on northern Iraq, Syria on central Iraq, and Iran on southern Iraq and the Shi'ite areas of Baghdad. Only guaranteed borders for Iraq can shut down those respective foreign ambitions.
Accept the idea that Iraq should continue to exist. What form of government must it have, and how can that be guaranteed by its new constitution?
The religious and ethnic diversity and hostility among the people of Iraq is evident for all to see. What examples are there to show how these can be peacefully accommodated?
For an end to the religious battles and murders that have marked the history of Iraq, one conclusion is obvious. The new Iraq cannot be a theocracy, giving primacy to any religion, specifically to the Shi'ites comprising about 60% of its population, who until the American-led liberation were brutally repressed by the Sunnis under Saddam Hussein. How can any nation, through its constitution, prevent the majority religion(s) from dominating the minority ones?
Three examples are available. The first is the United States, which forbids any official religion and guarantees the freedom of worship of all religions. The example at the opposite end of the scale is India. Its constitution recognizes sixteen official languages, seven official religions (plus hundreds of official sects), and specifies in detail the powers of all its constituent states. That is why its constitution is the longest in the world, running to thousands of pages. Though India is a secular state, it guarantees the religious freedom of its citizens by explicit guarantees extended to each. Either the US or Indian method would work for Iraq.
The third good example is Switzerland. It is divided into Cantons, each of which is dominated by one of its linguistic, ethnic and religious components – those are the Germans, French, Italians and Romanch. The Swiss government is a "loose federation" in which all its Cantons ("states" in the US, or "provinces" in many other nations) have a very high degree of autonomy, with only minimal functions reserved to the national government.
All three of these nations are constitutional republics. Though all are generally referred to as democracies, the constitutions of all three forbid a simple majority from changing the accommodations made for their religious or other minorities. All three constitutions forbid amendment except through various types of supra-majority decisions.
Exactly the same MUST be done in the new Iraqi constitution. For legitimacy, it must be approved by the people of Iraq. But it MUST NOT be a pure democracy.
Few nations in the world have ever attempted to establish themselves as a pure democracy. And all that have tried, have failed. Athens is cited as the first democracy. But it had a limited franchise. Only native citizens who were male and not slaves, were allowed to vote. They amounted to about 10% of the population. And even that small group still was sufficient to permit the demagoguery which led to its destruction.
From 447 to 404 B.C., Athens had its "Golden Age" under Pericles. It had democracy, peace, and prosperity. But when, by democratic vote, the Athenians banished General Alcibiades, it sealed its own doom. He left Athens, briefly joined the Spartans, and that contributed to the defeat of Athens in the Second Peloponnesian War.
Aristotle's treatise, On Politics, defined democracy as one of the corrupt forms of government. His conclusion was that any pure democracy would eventually vote itself into failure. He was right about Athens; he has been right since then, with the most recent example being France.
After its Revolution, France established a pure democracy. Its government quickly degenerated into a tyranny, with each new set of elected leaders feeding their predecessors to the guillotine. Applying this lesson to Iraq leads to the conclusion that Iraq should not be established as a pure democracy, but as a constitutional republic. Leaders might be elected democratically, but their powers must be circumscribed by the constitution. And the constitution itself must be protected by a supra-majority requirement for ratification of any amendment.
Again, the lessons of history are clear. As Madison, Hamilton and Jay wrote in the Federalist, the US Constitution should not be amendable "by the mere whim of a majority." The same applies to any constitution in any country, including Iraq. Only a constitution which offers protection to minorities of any type – religious, ethnic, linguistic, etc. – is worthy of the name "constitution." And only a supra-majority requirement can prevent any constitution from self-destruction at the hands of a temporary majority.
How long will it take for Iraq to develop and put in place a democratic government under a constitution that limits the powers of its government? Again, history provides solid answers. It took two years for Japan to put in place its new government under its new constitution after World War II. That process was, of course, strongly guided by General Douglas MacArthur. It took India two years to put in place its own constitution, with its elaborate protections for religions, languages, and its constituent states.
It took the United States less than a year to write its first constitution. But that constitution, called the Articles of Confederation, failed utterly within eleven years for political and economic reasons. That failure led five states to call the Constitutional Convention in Philadelphia in 1787. In turn, that Convention drafted the Constitution which, as amended, has remained in place longer than any other constitution ever written for any other nation in history.
The US provided in those events another critical example for those who will write the new Iraqi constitution. They should pay attention to the failure of the first American constitution.
There is no room for constitutional failure in Iraq. Its first effort must be successful. It does not have the luxury of a second chance or more, as the US and most other nations have had. If the first Iraqi constitution fails, Turkey's influence will reach in from the north, Syria's from the west, and Iran's from the east. Iraq will then have a tripartite dictatorship to replace the single one from Hussein. The historical example here is Lebanon.
Originally, Lebanon was accurately described as the "Switzerland of the Middle East." Its divergent ethnic and religious groups existed peacefully side by side. Despite its lack of oil, it was one of the most prosperous nations in that region. When it degenerated into guerilla warfare between those factions, Syria moved into the power vacuum that resulted. Syria still dominates Lebanon, and its troops occupy the Bekaa Valley, the center of agriculture – and terrorism – in Lebanon.
Notice I am not suggesting that Iraq would benefit from adoption of the US Constitution as is, suitably translated. That would most assuredly fail. I suggest that the Iraqis spend substantial time with the histories of constitution-writing, across many societies and across the centuries. It is a record mostly of failure, but from that the Iraqis can learn what not to do.
They should take their time. Two years is not an unreasonable time for such an effort. Furthermore, the reestablishment of Iraqi government for Iraqis should not be done from the top down. A democratic republic is best established from the bottom up. The Kurdish areas in the north already have a functioning elected government. Basra should be next, since it has a relatively homogenous population. Mosul and then Baghdad should follow, because the principles of multi-ethnic and multi-religious government must and can be worked out there.
Should the UN be involved in the process of Iraqi constitution-writing? Absolutely not. A majority of the nations of the UN have no use for religious or political freedom, or honest and fair courts of justice, or respect for basic human rights. Furthermore, some of its nations which are themselves highly civilized, have economic or political reasons for interfering in Iraq – such as Germany and France.
Regardless of what the process is labeled, the umbrella of American and Coalition power should be the guarantee of Iraqi borders and Iraqi freedom of movement, of religion, of the press, etc., until the new Iraqi constitution is completed and a new national government is established and, most importantly, functioning. All criticisms opposing that policy should be summarily rejected.
Looking at history, the odds are against Iraq succeeding in establishing a constitutional republic on the first effort, and having it survive. The best chance they have depends on the Coalition maintaining the stability of Iraq until that moment. Coalition involvement in the peace is equally as important as its involvement in the war. The proper and circumscribed use of American power for a few years is essential to the long term success of Iraq.
And lastly, as for those who accuse the US of imperialism, those charges should be rejected summarily. As in Japan and Germany after World War II, after the war is won, and after the peace is won, the US will not only withdraw but provide such aid as is needed. Imperial powers do not voluntarily withdraw. Throughout history, no empire has ever shrunk by choice. Once the US withdraws from Iraq, it will prove, once again, that it is not an imperial power interested in empire.
The current "empire" of the United States consists of Puerto Rico, the US Virgin Islands, Guam, the Northern Mariana Islands and American Samoa. The largest of these, Puerto Rico, has repeatedly decided by referendum to remain a territory, rejecting both independence and a petition to become a state. Some "empire." Those who accuse the US of creating an empire are geopolitically ignorant. So they must learn the truth again, from the Iraqi history now playing out.
The first great task that America committed itself to in Iraq was the elimination of the brutal dictatorship of Saddam Hussein. Many lesser tasks remain, from restoring power and water to finding illegal weapons and patrolling the streets. Just one critical task remains – helping the Iraqis arrive at a constitution which can establish an honest and effective government for all the Iraqi people – one which can endure. Just as we rewrote the history of warfare in freeing Iraq, we must help the Iraqis rewrite the history of constitution-drafting in creating their own constitution.
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About the Author: John Armor practices law in the US Supreme Court and is a scholar of comparative constitutions. One of his books and two dozen of his articles are on constitutions.
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"Once the US withdraws from Iraq, it will prove, once again, that it is not an imperial power interested in empire."
- Congressman BillyBob"And that's the goal, the commitment of the United States and our coalition partners -- Iraq must be democratic."
- President Bush
I guess it's not technically an empire if you only conquer a nation, force it to adopt the government of your choice and then pull out -- except for a few permanent military bases, of course -- with the implied threat that you will return and do the same thing again if the people get out of line. It would only be an empire if you conquer a nation, force it to adopt the government of your choice and then remain as an occupying force -- that is, expanding the number of troops in the region beyond just a few permanent military bases -- with the implicit threat that you will do the same thing again if the people get out of line.
As you can clearly see, the differences are staggering. AMERICA IS NOT INTERESTED IN EMPIRE.
The quote you use on history is actually, "Those who forget their history are condemned to repeat it." The source is the late, great historian, Georges Santayana.
As for getting this article out, I will be very interested to see, via Google News searches over the next few days, how many parts of the lamestream media choose to pick up and publish this article from UPI.
Cordially,
John / Billybob
John / Billybob
This is also the reason for following the Swiss pattern of a "loose confederation." By all that's right and holy, the presence of Germans, French, and Italians in Switzerland should have caused it to be torn apart in either WW I or WW II. Because of its constitutional design, it survived both those wars intact.
John / Billybob
Second, you ignore the history of all the real empires in human history. They conquered. They retained power. And they extracted tribute, originally in the form of slaves but later in the form of tribute. The United States does NOT retain power (witness Japan, Germany, the Philippines, etc.). And, rather than extract tribute, we send aid.
So, exactly as I said, America does not behave like any other empire in the history of the human race.
John / Billybob
Here is the full text of this article, as published on the UPI wire.
John / Billybob
It towers above everything else of yours that I have read here on FR. Just superb.
For an old redneck, you're not so dumb ;-)
UPI has the article featured on the front page of its website. The timing could not be better, since the "all-coalition" meeting is taking place in Baghdad, right now.
John / Billybob
I hope and I believe that those who write the new Iraqi constitution will not make the same mistake.
John / Billybob
And failing five times previous in Iraq is not repeating history?!? Considering one of those times created the situation that Hussein took advantage of to come into power.
Yes Congressman, those who ignore history are condemned to repeat it. The numerous times that Britain and France became involved in Middle East affairs, before our own nation had imperialistic visions, were just glowing successes weren't they? Ahhh, but it's the good ol' U.S. of A. now isn't it? So that makes it alright and sets the situation that everything will work out right?
Constitutional Amendments 1-10: The Bill of Rights
Note: The following text is a transcription of the first 10 amendments to the Constitution in their original form. These amendments were ratified December 15, 1791, and form what is known as the "Bill of Rights."
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.
No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.
In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any Court of the United States, than according to the rules of the common law.
Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
Yes and no. The important thing to remember is that the oil is a resource and that Iraq is "tribal". The incentive to rape that resource to enrich one's own tribe will destroy the collective sense of a "public good" that is necessary to make a Western democracy work and the public utilization of a natural resource like oil work. No, I don't think you can just throw democracy and a free market economy at people who are busy thinking about dominance, not power sharing or the rule of law, any more than you can grow crops by throwing a handfull of seeds in the middle of concrete highway.
Surely you mean in the short term?
Until a super-majority decides to change it, which would mean that Iraqi polictics had matured enough to handle something more democratic.
Long term there would have to privatization of all the major income generators and service providers. An alarm or a little bell should go off in anyone's head anytime they hear, use or think the words "fairly distributed" or their equivalent.
And those alarms would certainly go off if Iraq had a market economy and a vital democratic system to prevent the development of the typical third-world kleptocracy.
Constitutions should deal with fundamental rights. There is no basis for distribution of wealth in a rule of law that is intended to be a sound basis for the development of a "Free Republic".
If the Iraqi people make a tribal grab for the oil so they can use the money to dominate their opponents, much as Saddam did, they can print their contitution on toilet paper because that is all it will be good for. For a constitutional republic to work, you need to have a national identity, the rule of law, and the public's interest in preserving the previous two. They aren't ever going to get there if they are all too busy trying to grab the oil to gain power and any movement in that direction will be killed if any of them succeed in making that grab, and we'll be right back where we were.
"It is unfortunate that you choose to ignore world history in assessing the situation in Iraq."
Based on Post #8, I would say billbears has a pretty good understanding of the situation in Iraq.
Ahh, but if they're truly free, then it isn't our place or right to determine what government another nation chooses. But of course they're not truly free now are they?
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