AW: Iraq Constitution

[RJLipkin at aol.com]

In a message dated 8/30/2005 11:00:52 PM Eastern Standard Time,  
isomin at fas.harvard.edu writes:

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)?


In the United States we did  (and continue to) allow "one form of transition 
back to the 'old regime,' where  "old regime" is defined in a pretty virulent 
and morally odious  sense.  We permit white supremacists to spew forth their 
hateful speech and  morally pathological racism. And however bitter a pill we 
find these fringe  reprobates,  I believe that most constitutional democrats 
judge that from  the perspective of the kind of constitutionalism we embrace 
"Jefferson Davis  Two" (perhaps he's not the best example for my present 
purposes) in the form of  David Duke and he must remain a viable electoral 
possibility.  This doesn't  define "old regime" in a meaningless manner, but it does 
permit  electorally a return to the old regime (suitably modified: no slavery, no  
violence against blacks, but voting in race conscious ways and even white  
separatism). 
 
        Not all bad regimes are  completely bad.  And not all genuinely bad 
features of bad regimes pose an  imminent threat to constitutional democracy 
even one newly  formed. Thus, I don't think constitutional democrats have the 
luxury  of sweeping rejections of members of the bad old regime and if we are to 
retain  our democratic credentials.  Built in constitutional protections for  
the victims of the bad guys are surely permissible, even required.  But  
writing off an entire ethnic group or political party that still is odious in  
certain ways, but nonetheless acquiesces to the protections in the new regime  
are still part of "We the People."
 
        In terms of our capacious  interpretation of "free speech," yes it 
was wrong to draft a German constitution  foreclosing a suitably modified 
neo-Nazism, that is, a Nazism insisting on Aryan  supremacy, but renouncing genocide 
seems required by constitutional democracy.  Should the post-World War II 
German constitution  vigorously (virtually absolutely) the rights of life and 
liberty for  Jews and others brutalized in the holocaust? Absolutely!
 
        I don't know precisely what  kind of aspirations Baathist, in the old 
regime, were committed to. But I've  heard often that it included 
"socialism." The possibility of a Baathist  socialist party, one not engaging in torture 
and murder of Iraqi citizens in the  tens of thousands but committed to other 
old regime Baathist goals, does  seem to be a requirement of constitutional 
democracy.
 
        However, the point of  departure for this thread, I think, was 
whether it would be appropriate to  ignore the Sunnis opposed to the New Iraqi 
constitution especially to its  commitment to federalism. On the grounds of 
inclusion, fairness, and respect,  those Sunnis not guilty of crimes or aiding and 
abetting crimes, but simply  religiously Sunni Arabs must not be ignored in the 
formation of the new regime  on constitutional, moral, or practical grounds.
 
Bobby
 
Robert Justin  Lipkin
Professor of Law
Widener University School of  Law
Delaware

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