Iraqi and American constitutions

Lawrence Solum lsolum at gmail.com
Wed Jun 15 05:02:50 PDT 2005


On the question of what makes are constitutions legitimate, I think
that there are actually two distinct questions.

1. What qualities in a constitution confer legitimacy on the outputs
of constitutional processes?  I think this is the question that Tim
addressed in his post, quoted below.

2.  What confers legitimacy on a constitution itself?  It might be the
case that legitimacy is conferred on a constitution by its content,
but that is not the conventional view.  Certainly, democratic
legitimacy is conferred on a constitution by the democratic processes
for the adoption of the constitution.

Dick Fallon's recent article on constitutional legitimacy has an
excellent treatment of questions of constitutional legitimacy & there
is also an article by Randy Barnett & a chapter in his book, Restoring
the Lost Constitution.

On 6/14/05, Mortimer Sellers <msellers at ubalt.edu> wrote:
> 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
> 
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> ===========End of original message text===========
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-- 
Lawrence Solum
John E. Cribbet Professor of Law
University of Illinois College of Law
lsolum at gmail.com


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