an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Leaks from the Iraqi constitutional drafting process
Kim Lane Scheppele
Iraq is supposed to have a constitutional draft ready by 15 August, a bit over a month from now. Subcommittees have been meeting to draft different parts of the document, which will be eventually pulled together into a larger whole.
But perhaps it says something very good about the process that those who are proud of their handiwork so far are leaking their drafts to the press (perhaps to leverage public opinion in their favor?) and the Iraqi press is starting to publish these leaks. Even though the English-language press isn’t covering the constitutional drafting process, the Iraqi press is.
The highlights? Strongly stated protections for speech, religious liberty, equality under the law, science. Relatively robust protections for women, though more in their capacities as mothers than anything else. A strong prohibition on torture, including an absolute ban on using confessions acquired by torture in court. Many social rights. Very little mention of Shari’a. All in all, this is a very interesting document and shows that the Iraqis are not just copying other countries’ constitutions – but also that they are not just copying international human rights agreements either. Posted
by Kim Lane Scheppele [link]
This development is indeed interesting, but more intriguing is whether or not the eventual Iraqi Constitution will evolve into something engendering what Jürgen Habermas termed "constitutional patriotism". Judge Oakes in his Madison Lecture on our Bill of Rights said that it is "a document that embodies as close as we may come to a national religion."
It seems to me that the real challenge lies not in the specific words of a constitution and its bill of rights, but in whether or not a society is structured such that the words in the constitution become something affirmatively aspirational.
Otherwise, many nations have constitutions with very nice but mostly meaningless words, which are honored mostly in the breach. For example, Iraq's 1990 Constitution provided in Article 22(a) that "[t]he dignity of man is safeguarded. It is inadmissible to cause any physical or psychological harm."
The words of a constitution, then, seem to have such meaning as is given to them in their particular (dis)use across diverse contextual situations.
I'm left to speculate whether the drafting of the Iraqi Constitution under the American Transitional Administrative Law will tend to delegitimize it as a (neo-)colonialist/imperialist thing, especially given continuing occupation by American forces, which has no end in sight.
Of course, given the recent optimism expressed by President Bush in his most recent address to the American people, I'm absolutely confident that events are going quite well in Iraq, maybe enough to excuse my skepticism, above. Maybe not.