When Constitutions Falter: The Limits of Law, as Illustrated by the Debacle in Iraq

By EDWARD LAZARUS

Thursday, Oct. 26, 2006

In law school, I took a course called "Limits of Law." It was taught by an all-star cast of professors, including Aharon Barak, then Chief Justice of Israel's Supreme Court.

The subject matter was wide-ranging. We talked about the tradeoffs that different democracies have made between security and human rights, and the way courts have policed this balance. And we tried to locate the source of strength for the enduring constitutional traditions in both Israel and the United States.

In both countries, this tradition had proven sufficiently strong in recent memory to force and survive the disgrace of important national leaders.

In Israel, a court of inquiry into massacres in Lebanon had brought down General Ariel Sharon. And closer to home, the Supreme Court's decision to require President Richard Nixon to turn over the famous Nixon tapes - a ruling Nixon did not dare defy - quickly led to his impeachment and resignation.

Overall, the purpose of Limits of the Law course was to explore what functions constitutions can reasonably perform and under what circumstances they succeed in their state goals.

Never has a law school course seemed more relevant than now.

Abroad, we appear to be witnessing the implosion of the Iraqi government despite its recent exercise in constitution-drafting.

And at home, we face our own less catastrophic but still fundamental questions about how, in the post-9/11 world, we intend to define constitutional liberty - and, in particular, how will we define and delimit the right to challenge the government's power to incarcerate us or to invade our private lives.

The Iraqi Constitution: Why It Has Failed, But America's Has Survived

When the Iraqi Constitution was being drafted, I wrote in this space (as others did elsewhere) about the extraordinary difficulty of this enterprise in nation-building.

We sometimes forget how difficult it was for this country to conceive our Constitution - and we worked under circumstances much more favorable than those prevailing in Iraq.

In America, our first try at a founding document - the Articles of Confederation - failed to create a workable arrangement and had to be summarily replaced.

Our second try, of course, endures to this day. But we must remember that, despite the genius of James Madison and others, the original Constitution buried the insidious issue of slavery. And burying this issue took a toll not only in immorality, but also in a threat to the survival of the document itself: Our Constitution survives as our governmental charter only because the Union won the Civil War that was prompted, at least in large part, by that very unresolved question of slavery.

In light of this history, the failure of Iraq's constitution to help unify that country takes on, in hindsight, the pall of inevitability. In substantial measure, our Founders had the benefit of a shared cultural heritage and a tradition of relative religious tolerance - and all of this substantially eased the consolidation of the separate states. Moreover, the states, while in some ways differently situated, faced a set of common security threats and economic incentives that drove them toward constitutional union.

Iraq May Have More in Common with Ancient Greece Than Revolutionary America

Today's Iraqi government, by contrast, is an artificial creation of relatively recent vintage, cobbled together despite ancient ethnic and religious fissures that have now opened chasm-wide. Whereas the American colonies had common enemies and the shared experience of a jointly self-determined Revolution, Iraqi constitutionalists face an occupying army and a vicious scramble among factions for military, political, and economic hegemony - all of this in an atmosphere in which terrorist attacks and political assassinations are tragically common, and typically unpunished.

Overcoming all this is, to borrow from my old curriculum, beyond the limits of the law. Iraq, it seems, has descended into just the kind of hell that Thucydides described when talking about civil strife in ancient Greece 2400 years ago:

"The result [of civil war] was that neither side was wont to pay any regard to personal integrity: those who succeeded in accomplishing some act of malice under cover of some fine phrase were the ones to gain general approval. By contrast, those citizens who chose the middle course of moderation perished at the hands of both factions, either for their failure to join in the struggle or due to envy at the fact that they were surviving amid the general chaos."

In our own experience, it was not the Constitution, nor any more general American commitment to the rule of law, that pulled us out of our own spiral of self-destruction.

To be sure, President Lincoln had a constitutional vision of nationhood for which he took the nation to war. But it was the Union Army on the hills of Gettysburg, and Sherman marching across Georgia, brutal and extralegal as this was, that in the end preserved the American experiment. The result was a happy (if terribly costly) ending for the nation.

Iraq Needs a Constitution, But Also Much More, to Gain Stability and Security

It is hard to envision a similar happy end in Iraq - for there is another crucial difference between the two countries, besides the many listed above: Our Constitution was already more than 70 years old when the Civil War began. There was an established heritage for Lincoln to restore, and a process for amending the Constitution, one that had been previously invoked and worked smoothly, by which to re-conceive and rededicate the nation.

Iraq has none of this - which makes imagining restoration so much more difficult.

In 1944 in the midst of World War I, Judge Learned Hand offered a famous and trenchant perspective on the limits of law:

"I often wonder," he wrote, "whether we do not rest our hopes too much upon constitutions, upon laws and upon courts. These are false hopes; believe me, these are false hopes. Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can even do much to help it. While it lies there it needs no constitution, no law, no court to save it."

In this, I think Learned Hand was half-right, and half-wrong. Without the spirit of liberty, a constitution cannot long survive. Iraq is a proving ground for this today.

But at the same time, I think the American experience shows that an existing constitution can indeed do much to "help" the spirit of liberty, where some reservoir of such a spirit already exists.

In this country, the spirit of liberty has waxed and waned amid periodic threats, foreign and domestic. Can it really be said that the document itself, its mere existence as the code our forefathers agreed upon generations ago, has not nurtured - or to use Hand's word, "helped" -- the spirit of liberty?

Over the generations, surely the Constitution has done just that. The repetition of the democratic processes mandated by the document has ingrained in us a habit essential to freedom - the habit of accepting the peaceful transition of power. And the document's reification of elusive concepts like due process and equal protection has created a sense of national aspiration and expectation that serves powerfully as a bulwark against authoritarian drift.

These are no small achievements. And as we learn daily to our sorrow, they can prove tragically hard to export.


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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