Postwar Constitution-Building:
Comparing America's Situation with Iraq's Yields a Dismal Picture of Iraq's Likely Future

By EDWARD LAZARUS

Thursday, Apr. 15, 2004

The explosion of violence in Iraq has temporarily shifted the issue of "nation-building" off the front page. It has replaced that issue, instead, with the more pressing question of whether Iraq can be saved from utter chaos.

But assuming that the U.S.-led coalition can restore a semblance of order in the streets, the process of nation-building - its excruciating difficulty, and tantalizing hope - will regain its standing. In the end, that process will act as the ultimate test for whether history will judge the U.S. invasion as a wholesale disaster, albeit one mitigated by the removal of a terrible despot, or at least a partial success.

When this happens, a central focus will be the creation of a new Iraqi Constitution. Somehow this document, which is the subject of a raging debate, must provide the architecture for a democratic state that is hard even to imagine at the moment.

Rarely has a document had to bear such weight. With the disappearance of weapons of mass destruction (WMD) as the raison d'etre for the war, the liberation of the Iraqi people and the creation of a model democratic state have become the Administration's chief justifications for U.S. involvement in Iraq. Naturally, a real working Constitution - not some Soviet-style parchment of extravagant but meaningless guarantees - is essential to the creation of such a democracy. Thus, the Iraqi nation's fate significantly depends on the success of the Iraqi Constitution's Framers.

With these stakes in mind, it seems worth comparing some of the challenges facing Iraq with those that faced the American colonies after our Revolutionary War. The results of this thought experiment - even if briefly indulged - are depressing indeed.

America's Experience: From the Revolution, to the Constitution

After the Revolution, the Founding Fathers faced four profound structural questions for the government they were redesigning through the Constitution -- the new document that would replace the Articles of Confederation, which had proved grossly inadequate.

First, the Constitution's Framers had to strengthen the federal government (which had proven too weak under the Articles), without unduly diminishing the power of individual states. Under the Articles of Confederation, the federal government had had little power. But under the Constitution, things were very different.

In the Constitution, the Framers established a federal government of enumerated powers, with sufficient flexibility to meet whatever contingencies might arise. Meanwhile, the states retained significant authority over matters that did not require a uniform national approach.

Second, the Framers had to find an appropriate balance of power between the small states and the larger states. They solved this problem by devising a bicameral legislature with one chamber organized by state according to population and the other chamber providing equal representation of all states.

Third, the Framers needed to come up with a system of effective government that would not be overly dominated by either the executive or legislative branches. They managed this, as is familiar, through a careful "separation of powers" among three "co-equal" branches of government: the legislative, executive, and judicial.

And fourth, the Framers had to figure out how to deal with the problem of slavery and the large slave population that existed in the South. Here, they decided on a rather ignominious course - outlawing the slave trade after a substantial period of years, treating slaves as "three-fifths" of a person for determining state representation, and otherwise remaining silent on this potentially explosive subject.

How America's Framers Confronted Constitutional Challenges -- and Nearly Failed

None of this political balancing act came easily. But the Framers were inordinately fortunate to count among their number the wisest and most innovative minds - James Madison, Thomas Jefferson, Alexander Hamilton, and many others -- of a highly creative moment in history.

They also benefited from all the wisdom they could glean from the rich intellectual tradition of the Enlightenment, to which they were direct heirs. Locke, Montesquieu, and the other great thinkers of this tradition gave philosophical footing to the American nation-building enterprise.

Further, the Framers, and the fledgling nation on whose behalf they were acting, enjoyed the luxury that, for all the difference between a typical Virginian and a typical New Yorker, they had a wealth of shared colonial experience and were united by powerful bonds forged in the fire of the revolutionary struggle against Britain. In short, they had a shared idea about what kind of government they did not want, and enough common experience to find a shared vision for a better way.

Even with all these advantages, the ultimate success of the American experiment was a nearer run they we like to admit. In 70 years, the Constitutional compromise over slavery, having eaten away at the nation's connective tissue, finally split the nation, causing the Civil War. Had it not been for Lincoln's perseverance and a chance turn at the battle of Gettysburg, we might well be two countries now.

The Iraqi Constitution: Facing More Daunting Challenge than Our Own Framers Did

By comparison, the challenges facing the Framers of the Iraqi Constitution seem immeasurably more daunting. The Iraqis have structural problems in spades.

To begin with, the Iraqi Constitution will have to find a workable balance between the interests of the country's Shiite Muslim majority and its ethnic and religious minorities, including the Kurds, who seek a degree of autonomy that the Shiites do not want to yield.

No less important, the Iraqi Constitution will also have to find a path to religious pluralism through the minefield of those Islamic factions who would like to make the country a theocracy. Already the key Iraqi players are at loggerheads about what role to give religious law in determining the laws of the nation.

These potentially intractable issues, moreover, come on top of the usual blockbuster Constitution-writing dilemmas -- such as how much power to give the national government vis-à-vis the regional authorities, and how to divide power within the national government.

Iraq's Framers Lack the American Framers' Advantages

Unfortunately, in confronting these seemingly insurmountable problems, the Iraqis enjoy few, if any, of the advantages that blessed their American counterparts in 1789.

At least according to recent news accounts, there are no Madisons or Hamiltons on the horizon. Instead, the two main Iraqi rivals negotiating over the Constitution's content, Faisal Istrabadi and Salem Chalabi. Istrabadi is a medical malpractice lawyer from Indiana. Chalabi is the nephew of Ahmed Chalabi -- the former exile group leader whose suspect advice turns out to have misled the Bush Administration at just about every turn.

Worse still, it appears that Istrabadi and Chalabi both view the Constitutional drafting process not so much as a way of creating a enduring governmental structure, but as a way of ensuring greater power for their respective political patrons. Istrabadi's patron is Adnan Pachachi, who is likely to become the new Iraq's first president; Chalabi's, unsurprisingly, is Ahmed Chalabi, who is likely to become the new Iraq's first prime minister.

No wonder, then, that Salem Chalabi pushes for a weak presidency and strong prime minister's role: His patron (and uncle) is slated for the prime ministership, so of course he'd like that position to be as powerful -- and the presidency's powers as modest -- as possible.

No doubt such parochialism could be overcome if other stars were in alignment. But the Iraqis have no indigenous philosophical tradition - no modern day analogue to the Enlightenment principles that informed America's Framers- to guide their transition to democracy. Although Iraq, of course, has its philosophers, their subject has been religion, not nation-building.

Nor do the Iraqi Framers have the same kind of deep reservoir of shared experience that served the American Framers so well. To the contrary, the Iraqi Framers operate in the context of a near-civil war.

Remember, this is a country artificially created by outsiders only a few generations ago. Now, the various factions vying to shape the Iraqi Constitution are divided by a history of profound ethnic and religious animosity that only Saddam's brutality kept in check.

The Immense Difficulty of Crafting a Meaningful Constitution For Iraq

All this makes the process of writing a meaningful Constitution darn near impossible. Constitutions may reflect shared purposes, but they really can't be expected to create them.

Of course, the Iraqi people richly deserve democracy: Self-government should be every person's birthright. But entitlement and reality can be worlds apart - and bridging that gap will take nothing short of the Baghdad version of our "Miracle at Philadelphia."


Edward Lazarus, a FindLaw columnist, writes about, practices, and teaches law in Los Angeles. A former federal prosecutor, he is the author of two books - most recently, Closed Chambers: The Rise, Fall, and Future of the Modern Supreme Court.

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