Iraqi constitution, Islamic law, human slavery, etc.
MGRABER at gvpt.umd.edu
Thu Aug 4 12:04:04 PDT 2005
Lincoln is, of course, the patron saint of American constitutionalism. This means in official constitution rhetoric, he can do no wrong. I do not mean to call him a buffoon, but I do believe he was profoundly mistaken about some fundamental features of American constitutionalism. It is the case that most framers (though not those from SC and Georgia) believed that slavery was on the path to extinction, though hardly any thought the constitution was going to facilitate the process. Moreover, the argument that expansion merely authorized slavery where slavery was previously legal is problematic given that the Louisiana Purchase was responsible for a significant influx of slaves into the territories.
And it is always worth remembering that the best thing Lincoln ever did for his popularity was getting shot.
>>> "Carrese Paul O Prof USAFA/DFPS" <Paul.Carrese at usafa.af.mil> 8/4/2005 2:51:33 PM >>>
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/04constitution.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
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