Iraqi constitutionalism (meanwhile, 6000-9000 miles away)
SLevinson at law.utexas.edu
Sat Sep 10 19:37:47 PDT 2005
From tomorrow's NYTimes
The operation in Tal Afar came as leading Sunni Arab and Turkmen
political parties in Kirkuk announced that they were opposed to Iraq's
new constitution and would wage a campaign for its defeat in the Oct. 15
Speaking Saturday at a joint news conference, the Sunni and Turkmen
leaders said the document's provisions on Kirkuk would marginalize them
by allowing displaced Kurds to return and dominate the city.
The announcement hinted at possible conflict in Kirkuk, a city whose oil
riches and volatile ethnic mix has long been viewed as a tinderbox.
Kurds have insisted on Kurdish control of Kirkuk, but the city's other
ethnic groups have grown increasingly resentful.
"What is written in the constitution is reassuring for the Kurds and
marginalizing for Arabs and Turkmen, and it is the beginning of a bloody
conflict," said Sheik Abdul Rahman Manshid al-Asi, the leader of the
Sunni Arab Obeid tribe. "Arabs and Turkmen have the power to deploy
themselves and defend Kirkuk and work for Iraq's unity, even if we had
to use force of arms."
The leader of the Turkmen Front, Saad Edeen Arkij, said Turkmen groups
were planning to start forming armed militias to defend their rights
against the Kurds. Militias are banned under Iraq's new laws, but the
Kurds have been allowed to keep theirs, the pesh merga.
I assume, as a legal matter, that it really doesn't matter that the
Sunnis and Turkmen of Kirkuk are opposed to the constitution, since
there is no plausible way that their province will be 2/3 against the
constitution. But is there any reason to believe that they are simply
bluffing and will peacefully accede to a constitutoin, assuming it is
ratified, that leads them to form armed militias in order to defend
their rights. And, incidentally, is their any particularly plausible
argument that justifies the Kurdish and Shiite militias but not the
Turkmen one, other than the circular argument that the elites who wrote
the constitution wish to disarm their most likely opponents.
One other newsnote: David Brooks has an interesting/smarmy column in
http://www.nytimes.com/2005/09/11/opinion/11brooks.html?hp that takes
(well deserved) potshots at the New Orleans emergency plan, itself
available at www.cityofno.com/portal.aspx?portal=46&tabid=26). His
concluding paragraphs are as follows:
In short, the plan was so beautiful, it's too bad reality destroyed it.
The plan's authors were not stupid or venal. They are doubtless good
public servants who worked in agencies set up to prepare for this storm.
And yet their elaborate plan crumbled under the weight of the actual
But of course this illustrates the paradox at the heart of the Katrina
disaster, which is that we really need government in times like this,
but government is extremely limited in what it can effectively do.
Katrina was the most anticipated natural disaster in American history,
and still government managed to fail at every level.
For the brutal fact is, government tends toward bureaucracy, which means
elaborate paper flow but ineffective action. Government depends on
planning, but planners can never really anticipate the inevitable
complexity of events. And American government is inevitably divided and
power is inevitably devolved. ...
So of course we need limited but energetic government. But liberals who
think this disaster is going to set off a progressive revival need to
explain how a comprehensive governmental failure is going to restore
America's faith in big government.
Fair enough, but then why should anyone, most certainly including
Brooks, ever have had faith in the "big government" behind the Iraq
invasion? It seems to me that both liberals and conservatives are
schizophrenic with regard to their faith in government these days, but
conservatives have more explaining to do inasmuch as they've been
running things for the past six years. And if there is going to be no
new progressive movement, then what will happen. Do conservatives have
an answer other than rugged individualism and relying on faith-based
institutions to find billioins of dollars to succor the poor, rebuild
cities, and take care of the environment. To tie this into our topic of
US constitutionalism, is this what is meant by Mark Tushnet's analytic
notion of "constrained constitutionalism" or my colleague Philip
Bobbitt's notion of the "market state" that is replacing what he calls a
"nation-state" distinguished by some notion that government actually has
a duty to look after the wefare of its citizens, and to create competent
bureaucracies that can do that.
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