Iraqi and American democracy

Mark Graber MGRABER at
Mon Jun 13 07:02:13 PDT 2005

Consider one reply to the below, a version of which is common made as to
why the United States might justifiably have different hate speech
policies than Germany.  Given the long history of American freedom,
there is little risk that a license to torture under extremely rare
circumstances will be abused.  Given Iraqi history, however, it is best
to ban the practice altogether.  I should emphasize that I am not
defending this position as correct (I think it wrong), but merely as

Mark A. Graber

>>> "Sanford Levinson" <SLevinson at> 06/12/05 10:47AM >>>

Or consider the following, which is Article 15 of the Transition
Constitution, and ask yourself if the Bush Administration could defend
some of its present positions under the following: 
(((G)       Every person deprived of his liberty by arrest or detention
shall have the right of recourse to a court to determine the legality of
his arrest or detention without delay and to order his release if this
occurred in an illegal manner.  [Should we advise them to change "every
person" to "every citizen"?  That wouldn't please the Bush
Administration with regard to Padilla and Hamdi.  So how about "every
person not labeled by unreviewable fiat a 'terrorist'" deprived of his
(I)        Civilians may not be tried before a military tribunal. 
Special or exceptional courts may not be established.
(J)        Torture in all its forms, physical or mental, shall be
prohibited under all circumstances, as shall be cruel, inhuman, or
degrading treatment....    

From: conlawprof-bounces at on behalf of Sanford Levinson
Sent: Sun 6/12/2005 9:28 AM
To: JMHACLJ at; VOLOKH at; conlawprof at
Subject: RE: Iraqi and American democracy

I will rise to the bait and ask why it is that a discussion of US policy
vis-a-vis the drafting the Iraqi Constitution, by far the most important
such project in the world today, raises "nothing much that would advance
a reasoned discussion of constitutional lawl."  (I realize that many of
the members of this list disagree, as evidenced by their postings, but I
am curious why Mr. Henderson disagrees.  Is it that I stated my point a
bit tendentiously?  Does the word "much" suggest that there is at least
"something" that is relevant to "a reasoned discussion of constitutional

Let me ask my question a somewhat different way:  Do the Iraqi drafters
of their own constitution have anything at all to learn from the present
operation of our constitutional system in the US?  If so, are the
lessons positive or negative?  Do US specialists in constitutional law
have anything at all to learn from the Interim Constitution (drafted
under heavy US influence, even if not control) and/or from the process
of constitution formation now going on in Iraq?


From: JMHACLJ at [mailto:JMHACLJ at]
Sent: Sun 6/12/2005 6:19 AM
To: VOLOKH at; conlawprof at; Sanford Levinson
Subject: Re: Iraqi and American democracy

In a message dated 6/12/2005 5:07:24 A.M. Eastern Standard Time,
SLevinson at writes nothing much that would advance a
reasoned discussion of constitutional law.
-------------- next part --------------
An HTML attachment was scrubbed...

More information about the Conlawprof mailing list