The 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.

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.

Well, Congressman Billybob, now you went and did it.
I agreed with all you wrote until I got to that last paragraph.

Then I realized that you left a few things out.
I don't think it was crummy editing.

The first US Constitution was written in a year and failed.
The second one which did not fail took how long?
Louder.... I can't hear you.

That's right 4 years!
And that was amomg states and people who had been "talking about it" for 15 years!.
And on top of all that, and after all that time, they had to cobble together the last bit of an afterthought called the "Bill of Rights"..

Now then, I ask you... You say two years for Iraq to do it is not unreasonable? It would be a fripping miracle!
You think?

From the time Cornwallis surrendered in 1781 to the start of the ratification process for the new Constitution in the US was 10 years.

Anybody who will not avoid looking at reality in Iraq must conclude that some sort of rule of law must be imposed by an outside party while the various tribes, factions and Saddam wannabes sort themselves out.
And I agree absolutely that if the theocracy has a role in the process all bets are off. The only remaining question then is just how long it will be before they get their next deserved butt-kicking.

You're mixing up your time frames. The Articles of Confederation lasted for 11 years, until 1787. Their failure, however, was clear a few years prior to that -- Shay's Rebellion in Massachusetts, the federal bankruptcy which had our ambassadors begging high interest loans from foreign countries at 20% interest.

The whole process of writing the Constitution took a year and a half. First came the Annapolis Convention of 1786. Only five states attended, less than a quorum. It issued the invitation for all states to meet in Philadelphia. It first raised the subject of scrapping the Articles and writing a whole new constitution. A year later in May the Constitutional Convention started in Philadelphia. By the end of the summer it was written.

The ratification process (which is not part of the drafting process) took a year, though Rhode Island and North Carolina -- the hold-out states -- did not ratify for another year. So, the writing of the US Constitution was rather quick, though the Framers had years to think about what went wrong with the Articles.

John / Billybob

Aristotle first wrote about a "constitutional republic" some years prior to 322 B.C. It was not until 1789 A.D. that the first durable constitutional republic was established under a written constitution. Under Billbears' approach, all the failures over all the millenia since Aristotle died should have persuaded the human race to give up on the idea.

Iraq should have a constitutional republic, for the sake of its own people and for the sake of the world. History teaches that is possible. History also teaches what to avoid in the attempt to achieve that.

If the Iraqi Framers are wise, and read their history, I think they will borrow about 50% from our Constitution, and the other 50% from the few other successful constitutional republics in the world today. In short, I expect them to borrow far less from us than we borrowed from the British. But their existing culture and traditions are more divergent from us than we were from the British.

My article specifically states that the Iraqis need to learn from failures as well as successes, including the initial failure of the Articles in the US. Did you miss that reference?

John / Billybob

When the United States became "truly free," we adopted most elements of the British legal system in setting up our system. When France became "truly free" a decade later, they through out all aspects of their former legal and political system and started from scratch.

Our system survived to date, longer than any other constitution ever written by human beings. The First French Republic destroyed itself within a decade. Anyone or any nation which interprets being "truly free" as "do whatever you want and ignore prior examples" is in deep trouble.

John / Billybob

"My article specifically states that the Iraqis need to learn from failures as well as successes, including the initial failure of the Articles in the US. Did you miss that reference?"

No, I didn't miss it, but you cannot compare Iraq to post-WWII Japan. It's apples and oranges. While I agree that "history provides solid answers," it would be to our benefit to look at the history of the Middle East, not the history of a different nation in a different region with a different culture. When it comes to nation-building in the Middle East, the odds are stacked against us.

It was not until 1789 A.D. that the first durable constitutional republic was established under a written constitution. Under Billbears' approach, all the failures over all the millenia since Aristotle died should have persuaded the human race to give up on the idea.

And in its form lasted approxiamately 70 years before it was overthrown as intended by the Founding Fathers. I didn't we should give up on the idea, but I do think before we start spreading Constitutional Republics, which is a far cry from Bush's 'spreading democracy', I think we should fix ours before we start telling other nations how their governments should work.

Of course, if we were to fix our form of government, we wouldn't be telling other nations how to live because the neocon policy of expansion wouldn't exist either

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.

I can see where you might think that but again, the real issue is establishing the rule of law, and specifically well defined property rights. Peruvian economist Hernando de Soto does an excellent job of explaining the relationship between property rights and a sustainable economy that will lead to prosperty:

"As a result, we are now beginning to realize that you cannot carry out macroeconomic reforms on sand. Capitalism requires the bedrock of the rule of law, beginning with that of property. This is because the property system is much more than ownership: it is in fact the hidden architecture that organizes the market economy in every Western nation. What the property system accomplishes is so central to capitalism that developed nations have come to take its success for granted; indeed even most property experts are unsure about the connections between property systems and the creation of capital. Yet these connections exist. Without them, buildings and land cannot be used to guarantee credit or contracts. Ownership of businesses cannot be divided and represented in shares that investors can buy. In fact, without property law, capital itself -the instrument that allows people to leverage their assets and their transactions- is impossible to create: the instruments that store and transfer value, such as shares of corporate stock, patent rights, promissory notes, bills of exchange, bonds, etc., are all determined by the architecture of legal relationships with which a property system is built. And the problem is that 80 percent of the population of developing and former communist nations do not have legal property rights over their assets, whether it be homes, businesses or intellectual creations."

If you haven't had a chance yet to read "The Mystery of Capital", give it a shot. It's a great book.

Conceptually, I agree with you. The problem I see lies in determining who the oil belongs to, since it is a natural resource and any question of who owns the land that the oil lies under or which ethnic group is entitles to which oil containing region has been so muddled by years of nationalization and Saddam's rule that I don't think it will be possible to assign ownership to the oil until the rule of law and property rights have been established for some time and tribalism has faded (if possible). The goal of the provision that I mentioned was to ensure that no tribal group uses a position of power to steal the oil resources for its own exclusive use by making it a national resource where any benefits are distributed equitably nationally. If you've got a better way to keep Iraq from turning into the typical Third World kleptocracy, that could be better. I simply don't want to see Iraq go down the same road that so many Third World tribal democracies have gone.

Thanks for the reading recommendation. I'll add it to my wish list.

Good suggestions, CongBB. TaxRelief is right, though, it needs to have a significant "individual liberties" component.

I read an excellent analysis by Mary Anastasia O'Grady in which she stated that many of the problems of Latin America result from the fact that LatAm constitutions are based on a 19th century European liberal model in which the rights of the State take priority. The US Constitution is, on the other hand, based on 18th century thought, in which the rights of the individual take priority.

She felt that the tendency of Latin American countries to adopt a kind of statism, regardless of whether they were left-wing or right-wing in their political make up, was the result of this flaw in their constitutions.

I thought it was an excellent observation, and I think any new Constitution for Iraq should do two things: 1. Guarantee the rights of the individual; and 2. Structure the government of the State. That's essentially what ours does.

Part of it is a fundamental statement of principles, and then the rest of it is the administrative structure put in place to guarantee these principles.

Billbears;

Some of the detail in your history is unlike any I have read, at least in my reference works, nor, for that matter, in a few of the far left books I have on the CIA. Would you mind referenceing this historical info? In particular:

1) The threat to use nuclear weapons in Lebanon.(In what context was that ? Against Lebanese army? Didn't the PM of Lebanon actually encourage the intervention to preserve his own rule ?)

2) The reference for the secret plans to invade Iraq AND, more importantly, the role of those plans NOT as a contigency, but as an active plan UNTIL Soviet counter threats derailed it (that seems unlikely given Soviet impotence at the time, in this region).

3) Kurdish rebels were supported in 1960 ? What was the failed attempt against Quassim (by Baathists?) and what was the U.S. role?

4) In 1963, the U.S. supported the coup...what does that mean? I.E. the U.S. favored the coup ? What else ? What backing ? After the coup, the U.S. handed over a list ? That's it ?

5) Tacit support for the initial attack in 1980? How was that established ?

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