Iraqi constitutionalism (one day, Iraqi time, to go)
Bob Sheridan
bobsheridan at earthlink.net
Sun Aug 14 11:59:03 PDT 2005
One of the American attorneys working on the Japanese draft constitution
under MacArthur was a woman who pushed for an equal-rights-for-women
provision; she nagged and won an "Oh, all right if you insist" sort of
capitulation. She was recently honored in Japan for the good this did,
which was apparently considerable. I don't know whether Japanese
culture had a previous developing theme favoring an improvement in the
status of women, but I doubt it; female subservience had been the rule,
I believe.
Once you provide a right and it develops a democratic consituency,
you're in for a new world, it seems, and efforts to remove it, once
embraced by those most closely affected, are going to be a whole new
problem.
We seem to think here that rights once granted can be easily taken back
by changing the composition of the Court.
I wonder.
Equal rights for women here were also provided for, or rather acquiesced
in, in a backhanded way. The provision against sex descrimination was
inserted into the (I believe) Civil Rights Act/1964 by an opponent as a
sure deal killer in the expectation that it would be laughed off as too
silly, or too dangerous, to contemplate, as I recall, as in "You want to
give equal rights to racial minorities? Why not women as long as you're
at it, ha, ha, ha."
rs
Mary Dudziak wrote:
> Yes, there was a continuing occupation. I don't believe it was
> contemplated that self-government would immediately follow. But the
> constitution was a crucial part of the path toward self-government b/c
> of its prohibition on the use of armed force. Also, Mark Tushnet is
> absolutely right to point out that there were previous liberal
> constitutional traditions in Japan, and that's an important part of
> the story. As I understand it -- and please correct me if I'm wrong
> -- the earlier history is thought to be important to the
> constitution's durability over time, in spite of the rather
> undemocratic nature of its adoption. But in contemporary Japanese
> constitutional politics, one argument reformers will make for change
> is that the constitution is illegitimate b/c it was the product of
> occupation. I don't know how widespread or how convincing these sorts
> of arguments are.
>
> Mary
>
> At 08:38 AM 8/14/2005, Paul Finkelman wrote:
>
>> Mary clearly you know more about this than I do, and I am on the road
>> and cannot do any research, but my recollection was that the US
>> continued to run Japan until 1949 and so any "constitution" would not
>> have had much affect on running the country. Please correct this if
>> wrong.
>> paul finkelman
>>
>> Mary Dudziak wrote:
>>
>>> I've only dipped in occasionally on these posts, so sorry if this
>>> has been gone over before. To answer Lynne's question re: Japan,
>>> Gen. Douglas MacArthur gave his U.S. Army staff a week to write a
>>> constitution for Japan, which was then given to the Japanese, who
>>> were pressured by the U.S. to adopt it. This is discussed
>>> beautifully in John Dower, Embracing Defeat: Japan in the Wake of
>>> World War II. So -- yes, there was a short time limit, but for
>>> other more glaring reasons, the experience in Japan is not what we
>>> want to repeat in Iraq.
>>>
>>> Mary Dudziak
>>>
>>> At 05:53 PM 8/13/2005, Lynne Henderson wrote:
>>>
>>>> Again, I ask a question I have asked earlier--did we set time
>>>> limits on Japan and Germany in writing their constitutions after
>>>> WWII? (These seem to me to be the most comparable, as the U.S. was
>>>> victorious and occupying at least part of the countries
>>>> involved), The Germans certainly had some experience with a
>>>> written constitution and may have been up to speed, but for the
>>>> Japanese, a constitution in the Western sense was a new concept and
>>>> way of thinking. It is ironic that our government seems ot think
>>>> "democracy", "freedom," and constitutions just are obvious to
>>>> anyone and easily accomplished.
>>>> Respectfully, I don't think publicity has much to do with the
>>>> problems in drafting an Iraqi consttitution--unless there is far
>>>> more coverage of the negotiations in the Iraqi press than I am
>>>> aware of. (Although perhaps the return to religious law and its
>>>> implications for women has caused problems, and an analogy might be
>>>> drawn to our own founder's eliding the issue of slavery, the real
>>>> issues--women's issues are *never* decisive in history thus
>>>> far--are "federalism" and the power of the Kurds and Shi'ites over
>>>> the the Sunni and economy . . . .) The coverage in this country
>>>> hasn't exactly been prominent, except for brief mentions of the
>>>> President said X, the US said Y , the ambassador is pressuring and
>>>> making suggestions, etc.
>>>>
>>>> Lynne Henderson
>>>>
>>>> Prof. Lynne Henderson
>>>>
>>>> On Aug 13, 2005, at 4:17 PM, guayiya wrote:
>>>>
>>>>> I am reminded of Madison's remark that had the Convention not been
>>>>> secret, no Constitution would have emerged. Are the media and our
>>>>> gossip making a Founding myth impossible?
>>>>> Daniel Hoffman
>>>>>
>>>>> Sanford Levinson wrote:
>>>>>
>>>>>> From tomorrow's New York Times. Again, I ask why the US
>>>>>> considers Monday a "sacred" date. Is it because of 1) a sober
>>>>>> belief that it is truly best for the Iraqis to rush toward some
>>>>>> gerry-built incomplete "constitution" or 2) the deserate desire
>>>>>> of the Bush Administration to declare that "progress is being
>>>>>> made"? Unfortunately, I view this as a rhetorical question.
>>>>>> Does anyone seriously believe that 1) is the correct answer?
>>>>>
>>>>>
>>>>>>
>>>>>
>>>>>
>>>>>> sandy
>>>>>
>>>>>
>>>>>>
>>>>>
>>>>>
>>>>>>
>>>>>
>>>>>
>>>>>>
>>>>>
>>>> <br>
>>>> <div>_______________________________________________</div>
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>>>
>>>
>>> Mary L. Dudziak
>>> Judge Edward J. and Ruey L. Guirado Professor of Law, History and
>>> Political Science
>>> University of Southern California Law School
>>> Los Angeles, CA 90089-0071
>>> phone: 213.740.4789
>>> fax: 213.740.5502
>>> e-mail: mdudziak at law.usc.edu <mailto:mdudziak at law.usc.edu>
>>>
>>>
>>>_______________________________________________
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>>>Conlawprof at lists.ucla.edu <mailto:Conlawprof at lists.ucla.edu>
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>>
>>
>>
>>--
>>Paul Finkelman
>>Chapman Distinguished Professor of Law
>>University of Tulsa College of Law
>>3120 East 4th Place
>>Tulsa, OK 74105
>>
>>918-631-3706
>>(voice)
>>
>>918-631-2194 (fax)
>>
>>Paul-Finkelman at utulsa.edu <mailto:Paul-Finkelman at utulsa.edu>
>>
>>
>>
> Mary L. Dudziak
> Judge Edward J. and Ruey L. Guirado Professor of Law, History and
> Political Science
> University of Southern California Law School
> Los Angeles, CA 90089-0071
> phone: 213.740.4789
> fax: 213.740.5502
> e-mail: mdudziak at law.usc.edu
>
>------------------------------------------------------------------------
>
>_______________________________________________
>To post, send message to Conlawprof at lists.ucla.edu
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