Iraqi and American democracy

[Volokh, Eugene]

    I often much admire Sandy's work, but this analogy strikes me as
utterly unpersuasive.  It may work as militant anti-Bush rhetoric; it
does not seem to me to work as the thoughtful constitutional analysis.
 
    The federal government in the U.S. happens to have had, for about
four years, all three branches controlled by Republicans or Republican
appointees.  I'm not positive when this last happened, but I suspect it
was around the early 1930s.  For several years in the 1960s, all three
branches were controlled by Democratic appointees; the rest of the time
we've had a mix, which we're sure to have again.  The last Presidential
election was 51-48 in favor of the Republicans; the next one may well be
51-48 in favor of the Democrats.  Congress switched hands in 1994; it
may well do the same in 2006.
 
    Some state legislatures and governors are Republicans, some are
Democrats; we have no idea what the mix will be like in six years.
Gerrymandering, practiced assiduously both by Democrats and Republicans
over the decades, provides some stickiness, but recent experience has
shown that the system is eminently susceptible to change of party
control.  Democrats "are expected to be good sports,"  rather than
violently revolting, "over the Republican takeover" simply because
Democrats and Republicans are both expected to be decent and intelligent
people, who have some at least a modicum of a sense of proportion -- who
realize that in a functioning democracy such as the U.S., this too shall
pass, and "wait 'til next year" is both more effective and more morally
right than violent revolt, or for that matter than dark mutterings about
supposed fascism around the corner or about supposed analogies to Iraq.
 
    In Iraq, we're talking about the first democratic constitution of a
society that is deeply riven to the point of near civil war -- and
certainly of massive political violence -- along hard-to-change ethnic
and religious divides.  In the U.S., we're talking about a temporary
narrow majority that one party has won, largely by swinging independent
voters, for the last several years, and that it is very likely to lose
(certainly in terms of control of all three branches) within the next
several years.  In Iraq, we are truly talking about the constitutional
order, intended to endure at least for a generation or two; in the
U.S.,we are talking about the outcome of the latest turn in a
well-established and generally pretty smoothly functioning
constitutional game.
 
    This, I hope, will be a rare post of mine on threads such as this
one.  I have generally found that whenever a thread descends into (or
starts out as) partisan commentary on the supposed sins of DeLay, Frist,
Bush, Rove -- and it would be the same as to Clinton Sr., Clinton Jr.,
or any of the betes noir of the Right as well as of the Left -- it
becomes useless for serious constitutional analysis.  I usually just
delete the post unread, as I suspect many others do, too; or read them
and think about how hard it is to do helpful analysis of constitutional
law when the issues are tied up on just in one's ideological worldview
(which is inevitable) but also with partisan passions.  (Of course,
that's true for partisan passions for both parties, but just as the
Clinton-haters were most vocal in the 1990s, the Bush/DeLay//Rove-haters
are most vocal today.)    
 
    Eugene
 
 

 

	I note the following from a story in today's New York Times
about the US calling on other countries to pressure the Iraqi government
to be more inclusive:

	"The ostensible reason for the conference is for the
international community to recognize the legitimacy of the newly elected
Iraqi government," said an administration official, asking not to be
identified because of the implicit criticism of the new government of
Mr. Jaafari. "The other reason, less stated publicly, is to get the Iraq
government to commit to steps so that it is not a narrowly based Shiite
regime." 

	 

	So let me get this straight:  It is perfectly all right to have
a "narrowly based [conservative Republican] regime" in the US,
including, of course, DeLay type gerrymandering, but not in Iraq.
(Moreover, as I prepare to teach the Interim Iraqi Constitution to my
students at the Central European University in Budapest tomorrow, I
can't help but notice that it is considerably more liberal, in respects,
than the US Constitution, and, to boot, it requires licenses of anyone
who would own a private firearm.  Did the Bush Administration know of
this infringement of the right to bear arms, or is it just another
"fundamental right" that's for Americans only?)

	Or is the real difference that Sunnis will violently resist the
"narrowly based Shiite regime," whereas Democrats are (or at least are
expected to be) good sports about the Republican takeover?

	 

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