Iraqi constitution, Islamic law, human slavery, etc.

[Carrese Paul O Prof USAFA/DFPS]

List members may be interested in a cautiously optimistic report from
today's NY Times about the latest iteration of a draft Iraqi
constitution - Kirk Semple, "Constitution Panel Proposes Some Limits on
Role of Clergy" (see
http://www.nytimes.com/2005/08/04/international/middleeast/04constitutio
n.html?).  Optimistic in the sense that the Aug 15 deadline may well be
met, and the document may well meet many of the criteria for a decent
liberal constitutionalism that many on this list (perhaps even those
most anxious and enraged) would stipulate - while still being, of
course, a decent and liberal constitution Iraqi style.  On that last
point, I note that Montesquieu's political science suggests that we
should not be as pessimistic as some here have been about Iraq's nascent
constitutionalism - and Montesquieu is the modern political scientist
who lays the groundwork for fusing constitutionalism and comparative
politics/law, which helps us to foresee the spread of constitutionalism
to non-European peoples, and thus to get some perspective on a case such
as Iraq.  Not accidentally, Montesquieu is among the most important
sources for understanding the complexity and messiness of the American
Constitution as it unfolds from 1785-1803 (Annapolis convention to
Marbury v. Madison).  Montesquieu's great watchwords are liberty,
constitution, natural right, and perhaps most important of all,
moderation - moderation being the concept, and the political/moral
attitude, that embraces complexity and the blending or balancing of
various ideas and powers in a people (or across peoples, as in the right
of nations and diplomacy).  This NYT article is just one snapshot of an
ongoing process in Iraq, but it buttresses the views of Brad, Jim, and
some others that the Iraqis just might produce a moderate, complex
constitution and begin to pull themselves out of a century that has seen
them buffeted by great power politics from without and tyranny from
within.

 

One of the complexities of our constitutional founding is indeed
slavery, and Lincoln is the one who rescues us from that evil and begins
to address its consequences.  In response to pronouncements by Mark and
others that Lincoln is a buffoon on every front, I would ask what such
critics think of Frederick Douglas's eventual praise for Lincoln as a
tactician about the slavery problem (1876 address dedicating the
Freedmen's Monument in Wash DC); and, of the recent analysis of Lincoln
as a military commander and strategist by Elliot Cohen, a chapter in his
book Supreme Command: Soldiers, Statesmen, and Leadership in Wartime
(Free Press, 2002).  Since the constitutional competence of the 1787
framers also has been severely criticized on this point, I would add to
the list Lincoln's defense of the compromises they made in his 1860
Cooper Union address (perhaps one source of the defense that Laycock and
Stoner have recently offered) - where is Lincoln wrong there?  Or at the
least, in light of these three sources defending Lincoln and the framers
on these issues, might some of us be more moderate in our criticisms or
at least the tone thereof?  After all, it is not just the Iraqis who
need to learn the moderation of constitutional self-government; isn't
that something we all have to learn and affirm every day?

 

Paul Carrese

 

-----Original Message-----
From: conlawprof-bounces at lists.ucla.edu
[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Mark Graber
Sent: Thursday, August 04, 2005 11:31 AM
To: conlawprof at lists.ucla.edu
Subject: RE: Iraqi constitution, Islamic law, human slavery, etc.

 

But,of course, that powerful government also spread slavery to the
southwest, interfered with English efforts to abolish the international
slave trade, and, almost spread slavery to Central America.  My sense of
the universe is that almost every assumption that framers made about the
future of slavery and slavery politics was wrong.  Probably best to say
that do no merit much of the blame or credit attributed to them and
remember a) that the slaves were freed because the north won the war, b)
that there is not reason to think good guys inevitably win wars, and c)
once the shooting stars in most wars, predictive capacities weaken
considerably.

 

Mark A. Graber

>>> "Douglas Laycock" <DLaycock at law.utexas.edu> 8/4/2005 1:19:44 PM >>>

Sandy is fond of questioning whether the Constitution was worth the
continuation of slavery, but that was not the choice.  The choice was
between a unified government that protected slavery, or a separate
government or governments in the south thath proteted slavery.  Had that
course been chosen, there is no reason to think that slavery would have
ended by 1865.  The north had neither the will nor the power to end
slavery in 1787.  Acquiring the will required political and moral change
and perhaps economic change; acquiring the power required a national
government.


Douglas Laycock
University of Texas Law School
727 E. Dean Keeton St.
Austin, TX  78705
   512-232-1341 (phone)
   512-471-6988 (fax)

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