AW: Iraq Constitution
tushnet at law.georgetown.edu
Tue Aug 30 10:27:40 PDT 2005
Embedded in this post is an interesting problem with the idea of
militant democracy. The argument here is that remnants of the old
regime can be barred from seeking high office (the precise formulation
here doesn't matter, so you can tinker with it to get it right) until
there is no real prospect of electoral success -- after which the
presumption in favor of letting everyone participate in elections takes
(1) What does militant democracy do in the immediate aftermath of the
transition about authoritarians who are not remnants of the old regime?
In Germany they (i.e., the Communist Party) were barred from
participating, but the rationale for their exclusion can't be the same
as that for excluding the remnants of the old regime; it has to be
something about the general risk of reversion to authoritarianism, I
(2) What does militant democracy do at the later stage, when there is
no prospect of the old regime winning an election (and so it is allowed
to participate) but when there is a realistic prospect that a *new*
authoritarian movement will succeed electorally? The U.S. tradition, or
at least the Holmesian tradition ("if in the long run the ideas of
proletarian revolution are going to prevail, the only meaning of
democracy, etc." -- not an exact quote), is that the new authoritarians
can't be excluded. The German tradition is seemingly, mildly, to the
contrary. The logic of the exclusion of the Communist Party (from
elections -- the concern wasn't with the risk that the Soviet army would
invade then-West-Germany, but that Communists might win elections there)
would seem to support the exclusion of the new authoritarians.
isomin at fas.harvard.edu wrote:
>This raises several important issues, but I don't think it undermines the case
>for strong measures against leaders of the old regime:
>1. I agree that there should not be what Mark Graber called "mass executions."
>However, I think it is perfectly possible to punish top leaders of the previous
>regime without "excessive and unjust executions, imprisonment, and so forth."
>The German and Japanese examples show how this can be done.
>2. I am very skeptical of the reformability of top members of the old regime who
>are guilty of serious crimes. True, punishing such individuals might include
>some who are more reformable than others, but on balance the risks of leaving
>such people free strike me as far outweighing the putative benefits. Perhaps
>specific individuals who make a major contribution to the transition to
>democracy can be left alone on a case by case basis (as the US did with the
>Emperor of Japan, though it's hard for me to say whether that decision was
>correct). But punishment should be the rule.
>3. No, I do not believe that a nascent liberal democracy should allow any form
>of transition back to the "old regime," unless "old regime" is defined so
>broadly as to render the term meaningless. And I do not think that a "Saddam
>Two" with Baathist "aspirations" but no prior record of crime should be
>considered "constitutionally acceptable" in Iraq (and in fact the draft
>constitution seems to forbid this). Should a similar "Hitler Two" have been
>considered "acceptable" in West Germany in 1950? Were the US occupiers and the
>West German drafters of the 1949 constitution wrong to have foreclosed such an
>option (by banning neo-Nazis from contesting elections)?
> As a general matter, I would of course prefer to allow any and all parties to
>contest electins, no matter how odious their ideology. But in countries where
>democracy is not firmly established and backsliding to authoritarianism or
>worse is a real danger, it seems to me the lesser of the available evils to
>restrict the electoral rights of the old regime elements than to allow them to
>imperil the rights of everyone else (including not just their political rights,
>but often even their lives) by returning to power. Years from now, when liberal
>democracy is more firmly established, the ban on "old regime" candidates should
>probably be lifted (e.g. - I would not ban neo-Nazi candidates in Germany today,
>as opposed to in 1950), but that is precisely because they no longer have a
>serious chance of gaining power.
>This approach is by no means perfect or without its costs, but it seems to have
>worked reasonably well in several countries, while the risks of the opposite
>approach are all too apparent in recent events in Russia and a number of other
>recently democratized states.
>Quoting RJLipkin at aol.com:
>>In a message dated 8/29/2005 9:34:47 PM Eastern Standard Time,
>>isomin at fas.harvard.edu writes:
>>More broadly, anytime one makes a transition from an oppressive or
>>authoritarian system to one that is at least relatively liberal and
>>democratic, it is essential to cut off the path of retreat by ensuring
>>that the forces of the old regime have no chance to return to power and -
>>even more importantly - to create the perception among the population more
>>generally that such a return has no chance.
>>This raises three serious problems. First, beaus it threatens (though of
>>course does not necessitate) a "reign of terror"--excessive and unjust
>>executions, imprisonment, and so forth--it is extremely dangerous. Second,
>>not show mercy to those in the old regime who are committed to democratic
>>change. And finally, a constitutional democracy must permit a "return"
>> modified of course) to certain vforms of the old regime. In Iraq if a
>>majority chose Saddam Two--an individual with Baathist aspirations who is
>> guilty of no crimes foreign or domestic, isn't that constitutionally
>>Robert Justin Lipkin
>>Professor of Law
>>Widener University School of Law
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