August 24, 2005

The notion of a "Living Constitution" — in Iraq.

Before you get twisted out of shape by clauses in the Iraqi Constitution — remember that it's all in the interpretation.

Dahlia Litwick defends the the notion of a "Living Constitution" (in the American context) and mentions the Iraqi Constitution.

Mickey Kaus focuses on the actual text of the new constitution: he notes that it calls Islam "a fundamental source" of law and thinks that the word "a" ought to be seen as more important than the word "fundamental." But nothing binds the interpreters to Kaus's textualism. They might adopt the notion of a "Living Constitution" or something like it.

Whether the Iraqi Constitution invokes Islam as its source of law or not, what is more important is what those who apply the Constitution have to say about it. They could import Islamic law whether it's mentioned in the Constitution or not, and they could interpret that Islamic law in a way that respects the rights of women or not. They could also oppress women without referring to Islam.

Glenn Reynolds has this:
Americans are unusually legalistic and unusually focused on constitutions. But plenty of constitutions have wonderful language on paper (the old Soviet constitution was great that way) and plenty of countries (Britain, for example) manage to get by without written constitutions at all. What matters more is political culture. If the Iraqi people want a free, prosperous country and are willing to work for it, they'll get that. If they don't, or aren't, then they won't.

He's right.


Eddie said...

A constitution, in the American context, works really well as a framework for our society. It is similar to what the 10 commandments are to Christianity.

It is living, in the sense that it can, and has been, changed at points in time. Word.

Sloanasaurus said...

It is interesting that the Iraq constitution requires that no law violate "Islam: or "Democracy."

Perhaps something as simple as this could spark the so called reformation in Islam that people have been "hoping for." After all if you have thousands of muslim lawyers and thinkers trying to rationalize islam with Democracy, eventually your going to do it.

VICTOR said...

Given the disputes leading up to the drafting its failure to address certain key issues leaves it a compromise document. Our Framers addressed the issues that they deemed important at the time and were forceful in doing so. Sure there's ambiguity. All documents have ambiguity. But this document is pretty equivocal on the core issues. On that front it's not really the success it's cracked up to be.

Smilin' Jack said...

I'd agree with Glenn's political culture that matters, and constitutions are pretty much irrelevant. But it's surprising to see a ConLaw prof encouraging that kind of talk. :-)

Jimmy said...
This comment has been removed by a blog administrator.
Monty Loree said...

oops.. jimmy is a spammer

Ann Althouse said...

Why am I getting comment spam still???

Ann Althouse said...

Smilin' Jack: "But it's surprising to see a ConLaw prof encouraging that kind of talk."

Actually, it's quite typical of what conlawprofs say.

Ann Althouse said...

Sloanasaurus: Nice observation.

Victor: Leaving some play in the joints can be a positive thing. If you had to nail everything down, it would not be workable. The real constitution will emerge in practice. The important thing is to get the process started, and agreeing on the document is that step.

Elderchang said...

I haven't noticed much discussion about the specific challenges our founding fathers went through when they tried to establish a working government.

The Articles of Confederation, their first shot at it, were tried and found wanting. If anything, that was a poor experiment in decentralized government, the fear of tyrannical rule a bit too extreme. "The" Constitution was their 2nd draft and a significant improvement.

A lot of compromises were made to get even the initial document approved by the drafting members. Congress, in the way that it is organized, is a balance between the influence of small and large states. The 3/5th's compromise was included as a consession to the southern states were slave ownership was more prodominant. Many people forget that along with the ratification of the Constitution came the Bill of Rights, 10 Amendments not included in the original document. In fact, it wasn't until concessions were made to ensure that the Bill of Rights would be included that certain members agreed to become signatories.

If anything, I welcome imperfections in the Iraqi Constitution and an active and conscientious effort to amend it after a few years of hard lessons on what works and what doesn't work.

carla said...

It looks to me like a lot of people are getting screwed under this document. Women, nonIslamists, secularists...seem to be on the disenfranchisment special, when it comes to this Constitution.

Certainly our own Constitution has had it's ups and downs..and needed great fixes. And this one may as well. But this is a country that's looking more and more like a theocratic Islamic state..and less and less like a representative democracy.

Had the American people been told the truth about this (and make no mistake..there were a lot of predictions out there that this is how it would go down)..none of us would have agreed to it.

This is the epitome of painting lipstick on a pig.

Brando said...

Well, when signing time finally arrives, i hope they all can see what they're doing. They're having a little trouble keeping the lights on in Baghdad.

Thersites said...

Instapundidt may be right. But he could have been equally right three years ago and saved us the whole trouble of the invasion. Besides, it's not terribly difficult to predict what sort of political culture you're going to get in a country without basic security and reliable public services. And where the only authority that remains comes either from the gun or from religious figures not notably interested in full rights for women.

Nobody left to blame for the botched invasion but... the Iraqis. Good for Glenn!

Brando said...

and don't forget the liberals, thersites. those whacky, treasonous liberals. if it weren't for them, hell, there'd not only be a valid constitution, but a Starbucks on every corner in Baghdad.

Sloanasaurus said...

There has been a lot of talk about the new Iraq essentially becoming another "theocratic state." For example Carla writes:

"...But this is a country that's looking more and more like a theocratic Islamic state..and less and less like a representative democracy...."

To help people along, I think it would be wise to understand what an Islamic "Theocracy" is and how a constitution would read that would set up such a Theocracy.

Therefore, to put the Iraq constitution into context, we should consult the Iranian Constitution (available online). Below are the applicable Articles that set up the Theocracy (note I have nto seen or heard of anything remotely like the Guardian Council in the Iraq Constitution)

--Iranian Constitution--

Article 91 [Guardian Council]
With a view to safeguard the Islamic ordinances and the Constitution, in order to examine the compatibility of the legislation passed by the Islamic Consultative Assembly with Islam, a council to be known as the Guardian Council is to be constituted with the following composition:
1. six religious men, conscious of the present needs and the issues of the day, to be selected by the Leader, and
2. six jurists, specializing in different areas of law, to be elected by the Islamic Consultative Assembly from among the Muslim jurists nominated by the Head of the Judicial Power.

Article 92 [Term]
Members of the Guardian Council are elected to serve for a period of six years, but during the first term, after three years have passed, half of the members of each group will be changed by lot and new members will be elected in their place.

Article 93 [Mandatory Formation]
The Islamic Consultative Assembly does not hold any legal status if there is no Guardian Council in existence, except for the purpose of approving the credentials of its members and the election of the six jurists on the Guardian Council.

Article 94 [Review of Legislation]
All legislation passed by the Islamic Consultative Assembly must be sent to the Guardian Council. The Guardian Council must review it within a maximum of ten days from its receipt with a view to ensuring its compatibility with the criteria of Islam and the Constitution. If it finds the legislation incompatible, it will return it to the Assembly for review. Otherwise the legislation will be deemed enforceable.

Article 95 [Extended Review]
In cases where the Guardian Council deems ten days inadequate for completing the process of review and delivering a definite opinion, it can request the Islamic Consultative Assembly to grant an extension of the time limit not exceeding ten days.

Article 96 [Majority]
The determination of compatibility of the legislation passed by the Islamic Consultative Assembly with the laws of Islam rests with the majority vote of the religious men on the Guardian Council; and the determination of its compatibility with the Constitution rests with the majority of all the members of the Guardian Council.

Article 97 [Attendance in Parliament]
In order to expedite the work, the members of the Guardian Council may attend the Assembly and listen to its debates when a government bill or a members' bill is under discussion. When an urgent government or members' bill is placed on the agenda of the Assembly, the members of the Guardian Council must attend the Assembly and make their views known.

Article 98 [Authoritative Interpretation]
The authority of the interpretation of the Constitution is vested with the Guardian Council, which is to be done with the consent of three-fourths of its members.

Article 99 [Supervision of Elections]
The Guardian Council has the responsibility of supervising the elections of the Assembly of Experts for Leadership, the President of the Republic, the Islamic Consultative Assembly,
and the direct recourse to popular opinion and referenda.

Thersites said...

The Iranian constiution: Irrelevant when it comes to the manner in which social & political power will be weilded in the New Iraq. The Irish constitution of 1937 merely mentioned a "special relationship" between Catholicism & the Irish state, for instance, & included protections for adherents of other religions, but for decades that was pretty damn near a theocracy in terms of how ordinary life was experienced by citizens of the Republic.

In Iraq the de jure is going to get its butt royally kicked by the de facto, and it's delusional to pretend otherwise.

The Exalted said...

It is not the constitution but the political culture that matters?

I wonder if this blog would endorse your extremely odd view if you would turn that same laser beam of intelligent analysis onto our own society.

Brando said...

Well, look at Syria. It is constutionally a democracy. But on paper only. In reality, it is an authoritarian regime much like Iraq was. Even Saddam claimed to have garnered 100% of the vote every time he was "re-elected."

Seems clear that the social and political culture in the New Iraq is gonna play a pretty big role in what actually becomes accepted, practised and enforced, if in fact Iraq remains one country and doesn't split apart.

Sloanasaurus said...

The religious and political culture in Iraq is very dislocated, especially among the Shia. See this link for a description of the various Shia factions:

Another fact that people overlook when comparing Iraq and Iran is the social and cultural differences. Consider the following:

Iranians are mostly Persians and other central Asian ethnic groups
Iraqi's are mostly Arab and Kurds

Iranians speak Farsi
Iraqi's speak Arabic and Kurdish

The terrain of Iraq is mostly desert and broad plains.

The terrain of Iran is mostly rugged mountaineous.

The last time Iraq and Iraq was controlled by the same leader/government was in the 14th century for a brief time after it was conquered by the Mongols.

Just because Iranians and 60% Iraqis are both shia doesn't mean they are natural allies or allies at all.

And don't forget the Iraq/Iran war.

Too Many Jims said...


You are definitely correct that it is too easy to say that Iraq is going to be another Iran, just because they are both predominantly Shia. That said, the link you provided hardly gives me much comfort. Other than Al-Sistani, you have Muatada Al-Sadr cronies and guys who either were exiled in Iran, or still reside in Iran. (The article does mention another U.S. backed moderate, the only problem is he was assassinated, hardly adding to my comfort.)

Earlier in the thread you pointed out adherence to Sharia is not enshrined in the Iraqi constitution as it is more formally in the Iranian constitution. You are undoubtedly correct. The proposed Iraqi constitution does provide: "The Supreme Federal Court will be made up of a number of judges and experts in Sharia (Islamic Law) and law, whose number and manner of selection will be defined by a law that should be passed by two-thirds of the parliament members."

Given that the Shia constitute 60-65% of the Iraqi population, it would not be unbelievable that they could garner two-thirds of the seats. If the non-kurdish Sunnis do not participate or there other issues (have they learned to gerry mander their constitutiencies or will that come later), it is virtually guaranteed. The Shia may not be able to agree who serves as their leader (I am sure from time to time these squabbles come up in Iran) but they may be able to set aside these differences to agree on an adherence to Sharia.

Tom said...

One question that I have is, will Iraqis give the constitution any credibility at all? After all, Saddam had a constitution guaranteeing all kinds of rights and freedoms that they never received, and he changed it at the drop of a hat to suit whatever whim he was feeling at the moment. So will Iraqis see their new constitution as a guarnator of rights and freedoms, or have they been so burned over those decades of Saddam's rule that they'll dismiss it as just more window dressing for a government they don't trust? It'll be interesting to see.

Thersites said...

Another fact that people overlook when comparing Iraq and Iran is the social and cultural differences.

Right. So of course they are likely to be much more influenced by the United States than Iran, because our culture is much more similar.