Iraqi constitution

[Kim Scheppele]

1868 and IraqThe main reason why Iraq can't break into three pieces (at least not on the US's watch) involves foreign relations.   

Turkey has a restive Kurdish population that would take heart from a separate Iraqi Kurdistan.  The adjacent region of Turkish Kurds might attempt to secede from Turkey if they had something to join.  In fact, at one point, Turkey said it would invade if Iraqi Kurdistan went its separate way in anticipation of its own domestic crisis.  But that was before Turkey was drawn into the EU accession process and has been a model European aspirant since then.    

Saudi Arabia pronounced its nervousness (and potentially aggressive intent) at a Shi'a state on its borders, particularly one friendly with Iran, if Southern Iraq were to become a separate state.    Saudi Arabia has been silent, at least to international ears, during this constitutional process, so perhaps it would not be so hostile to an Iraqi breakup now.   

A tripartite split would leave the Sunni section an economic basket case without oil resources -- another problem for the international community (and the US in particular). 

So, there has been incredible international pressure to hold Iraq together.  But in recent months, those who objected loudly to an Iraqi breakup a few years ago have held their tongues.   Whether Iraqis themselves can find common ground to stay together, especially under the time pressure of the present constitutional process, is another story.  But the foreign relations of an Iraqi smash-up are likely to be very, very complicated.  

Elizabeth Dale points to something really important in this process -- that the expectations for the Iraqi constitution may have exceeded what any constitution can live up to.   At this point, I'd settle for a constitution that does not make things worse -- which I am not at all sure the present draft constitution is.  

What disturbs me most about the present draft constitution is that it appears to have reached compromises by throwing into the draft contradictory sentences to placate each camp. (New laws cannot violate Islam, but they also cannot violate constitutional rights or democratic principles; everyone is equal before the law, but someone has to have two Iraqi parents to hold high office -- etc. etc.)   That means that the real political bargains have not been struck and the commission is just kicking the can down the road a while longer. The present draft may not be really a constitution -- but a recipe for future political conflict.  I hope I'm wrong.  

best
kim

Kim Lane Scheppele

Director, Law and Public Affairs Program
Laurance S. Rockefeller Professor of Public Affairs in the Woodrow Wilson School and University Center for Human Values
Faculty Associate in Politics and in Sociology

Woodrow Wilson School 
415 Robertson Hall
Princeton University
Princeton, NJ 08544 
Phone:  (609) 258-6949
Email:  kimlane at princeton.edu  


  ----- Original Message ----- 
  From: Elizabeth Dale 
  To: 'Sanford Levinson' 
  Cc: conlawprof at lists.ucla.edu 
  Sent: Wednesday, August 24, 2005 7:04 PM
  Subject: RE: Iraqi constitution 


  I certainly agree that the whole issue of historical analogies is fraught, history is a bit too much of a moving target to make most analogies hold up, so in the end the really interesting question is what analogy is drawn by which person. 

  But that having been said, Shays Rebellion did last from 1786-1787, and it did have some role in influencing the constitutional debates. And then there were those spots of trouble in Pennsylvania not too long after the US Constitution was ratified.

  I don't do it very often, so let me say it here: Bush is right to the extent he is saying constitutions don't always settled everything or work very well from the moment they are ratified. At some level they are acts of faith, and subject to the same passions and controversy. 

  Which is not to say I have much positive to say about what's happening in Iraq. I'm just not sure it's reasonable to hope that a constitution there will solve those problems or make that country work as a country. One could make the argument that people in China tried to use several draft constitutions/short lived constitutions to make a nation-state, and failed, for nearly 50 years. One could make the argument (perhaps an even better one) that the US tried, and failed, to use a single constitution for the same purpose until 1861.

  One of the underlying assumptions in this entire discussion is that if this were done right somehow things would work out okay. I honestly can't say I agree with that assumption. What would a constitution that made Iraq an okay place, with some sort of chance to thrive, look like? I can't imagine one. That's not to say I think the current draft is good, or even a nice try, but merely to say I can't imagine what something workable would look like. Sometimes things are so broken they can't be fixed, which is the problem with the "pottery barn" theory -- sometimes, if it's broken, a spot of glue means you can still use it when you don't have guests over; other times, when it's broken, it's shattered and the only thing you can do is toss it out. 

  Why is it the best thing for Iraq to continue to be Iraq? Why wouldn't it be best to encourage three separate countries, with three different constitutions?  Doubtless there's a reason this is unacceptable, but it dawns on me I've never seen it articulated. If someone could refer me to a good analysis of the issue, I'd appreciate it a lot.


  Elizabeth Dale 

  Associate Professor, US Legal History, Department of History, 
  Affiliate Professor of Legal History, Levin College of Law 

  University of Florida 
  PO Box 17320 
  Gainesville, Florida 32611 

  edale at history.ufl.edu 
  http://plaza.ufl.edu/edale 
  352-393-0271 ex 262 
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