Iraqi and American constitutions

[Malla Pollack]

Theorists argue moral constitutional legitimacy on various grounds:  the
process of creating the constitution (eg. Originalism), the substantive
content of the constitution (eg Dworkin), and the procedure for creating
legislation contained in the constitution (eg John Hart Ely's Democracy and
Distrust)-- with of course various combinations represented.  

Malla Pollack
Visiting Associate Professor 
Univ. of Idaho, College of Law
mpollack at uidaho.edu
208-885-2017 [please note change]
 

-----Original Message-----
From: conlawprof-bounces at lists.ucla.edu
[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Mortimer Sellers
Sent: Tuesday, June 14, 2005 5:13 PM
To: mschor at suffolk.edu
Cc: conlawprof at lists.ucla.edu
Subject: Iraqi and American constitutions

Doesn't the legitimacy of a constitution depend more on its actual content
and structure than on the process that generated it?  This is the main
difference between a constitution and ordinary legislation.  Some methods of
constitution-drafting will be more likely to generate a good constitution
than others, and some will be more effective in securing initial public
support, but procedure has more importantance within the structure of a good
constitution than it does in generating the constitution in the first place.
Constitutions earn legitimacy by establishing good procedures.  If they are
generated by good procedures, so much the better, but ultimately those too
were established by some other means.  The ultimate question is what
deliberative structures generate the most just results,  At some point this
question must be addressed directly, to justify everything that follows.
The constitution constitutes deliberative procedures and not vice versa.

               Tim Sellers

-----Original Message-----
From:	conlawprof-bounces at lists.ucla.edu on behalf of mschor at suffolk.edu
Sent:	Tue 6/14/2005 2:13 PM
To:	SLevinson at law.utexas.edu
Cc:	VOLOKH at law.ucla.edu; conlawprof at lists.ucla.edu
Subject:	Re: Iraqi and American democracy

I have to disagree with the premise of the question.  What makes a
constitution legitimate is not necessarily the drafting process or the
ratification process but what comes afterwards.  I think that the difficulty
in transitional democracies is the long inter-generational process by which
a constitution becomes entrenched when it becomes the only "game" in town
rather than the drafting or ratification process.  So I think that the
United States is in many ways a model when it comes to constitutional
entrenchment but not for the reasons that one might suspect.  There is
nothing particularly right about our constitutional arrangements and there
is quite a bit, frankly, which is wrong about our formal institutions.  For
example, as Dahl has argued, our constitution is not particularly
democratic.  Moreover, presidential democracy may facilitate democratic
breakdown as Linz has argued.  What is right about American
constitutionalism is the manner in which social movements have !
 over time used the constitution to broaden citizen attachment to rights.
Wood's argument about the radicalism of the American revolution is a good
example of this process.  In any case, I have an article coming out this
fall dealing with the problem of constitutional entrenchment in Latin
America that makes this argument.  

I think that there is another problem with the question which goes to the
differences between the 18th and 21st centuries.  An elite driven process of
constitutional drafting and ratification was not only legitimate but
revolutionary by 18th century standards.  Such a process would not be
accepted today very easily.  So the lessons that one might draw from the
American experience flow, as I suggest, more from the somewhat invisible
process by which a constitution makes the transition from a piece of paper
to a living institution than from the mechanics by which the American
constitution was drafted and ratified.

Miguel

==============Original message text===============
On Tue, 14 Jun 2005 3:28:34 pm GMT "Sanford Levinson" wrote:

 

Consider Article 60 of the Transitional Iraqi Constitution:  

		The National Assembly shall write a draft of the permanent
constitution of Iraq. This Assembly shall carry out this responsibility in
part by encouraging debate on the constitution through regular general
public meetings in all parts of Iraq and through the media, and receiving
proposals from the citizens of Iraq as it writes the constitution.

		Now consider the way that the US Constitution was drafted.
Today I suggested to my students (at the Central European University, who
are considerably more experienced than we are in the exigencies attached to
drafting constitutions for societies in transition) that one can imagine two
ends of a spectrum, one of which was the drafting process of the US
Constiutution, a model of perfect opacity, in which everyone swore (and kept
to) an oath of secrecy, so that the first time "we the people" found out
about the Constitution was when it was submitted for ratification.  At the
other end of the spectrum is the Iraqi Constitution, which papears to
require maximum transparency in the drafting process, including feedback
from the "out-of-doors" audience.

		So the question is this:  Does the Iraqi Constitution,
drafted, it is said, with the advice of American experts, represent a
rejection of our own constitutional history and an implicit judgment that
the process by which the US Constitution was drafted was illegitimate, or,
on the other hand, does it represent a judgment that the conditions in Iraq
are such that only a transparent process will produce a legitimate
constitution (itself a highly debatable judgment, as Jon Elster has argued
with respect to the virtues of opaqueness generally as encouraging candid
speech and necessary compromise in divided socieites)?

		One can go on, incidentally, to Article 61, which in
relevant part provides:

		The draft permanent constitution shall be presented to the
Iraqi people for approval in a general referendum to be held no later than
15 October 2005. In the period leading up to the referendum, the draft
constitution shall be published and widely distributed to encourage a public
debate about it among the people.

		(C) The general referendum will be successful and the draft
constitution ratified if a majority of the voters in Iraq approve and if
two-thirds of the voters in three or more governorates do not reject it.

		Again, one will note obvious differences from the
ratification process of the US Constitution.(Does anyone believe,
incidentally, that the Constitiution would have met even the 9-state
ratification requirement of Article V had popular ratification been
required?)  So how, if at all, does one compare the two procedures?  Does
one say simply that the two societies are so different that it is irrelevant
to compare them at all (though one would still have to ask if Article 61
makes any more sense than Article 60, at least if one is interested in
getting an actual constitution, cf. the European debacle attached to popular
referenda on the European Constitution).

		If one believes, incidentally, that there is nothing to be
gained by comparing the US and Iraqi (or any other) constitutions, then
shouldn't American law professors gracefully decline any and all invitations
to give advice to other countries faced with the prospect of drafting their
own constitutions on the ground that we literally have nothing useful to
say?  

		sandy

		 

		 

		 

===========End of original message text===========



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