More on Iraq's New Constitution
So far, as I understand it, Iraq has an Interim Constitution, to be followed by a Transitional Constitution, then a more-or-less permanent constitution.
There is a tremendous focus on keeping any one institution or part of government from being too strong, and on an elaborate bill of rights, to be defended by an impartial judiciary. This is all very "American-style"--although one wonders if the presidency is going to be as strong as in the U.S.
Kurdistan has been promised some degree of autonomy; this will surely be followed by similar demands from the Sunnis. My proposal, to repeat myself, would be an upper house treating distinct regions as equals, regardless of population, like the U.S. Senate. This gives them a kind of conditional veto over legislation.
The great fear is the requirement that the Sharia or Islamic law be considered "one source" of all law--and that this may be taken to mean all law must be consistent with Islamic law. This would establish religion, contrary to the U.S. example, and open the possibility of a new Islamic fundamentalist regime in the Middle East. Certainly the Grand Ayatollah Sistani is being treated as though he can veto any constitutional arrangement he chooses.
Jack Balkin has brought out a surprising aspect of the new constitution: it goes further to the left than the existing U.S. Constitution, and incorporates features that only liberals, in today's politics, would favour. Will Bush preside over a victory by liberal Democrats like Kerry and Kennedy in 2004--in Iraq?
(Link via Atrios--sneering and sarcastic, as always).
(The Iraqi constitution provides the right to education, health care, and social security--none of which appear in the U.S. constitution, and none of which have been recognized as fundamental rights by the U.S. Supreme Court. There is also a right to access to the courts that seems to go beyond what Jose Padilla was granted. There is a provision to prepare for gun control, with no right to bear arms; and a reference to ensuring consistency with international treaties. The latter provision would almost certainly have an effect, for example, on capital punishment).
This reminds me of the constitution General MacArthur had drafted for Japan immediately after World War II. In many ways it would have been considered too liberal for the U.S. at the time--yet MacArthur was a hero to conservative Republicans. They saw him as standing resolutely up to the Communists in Asia, an arena that those partly-treasonous Democrats had supposedly neglected. MacArthur, who had barely lived in the continental U.S. as an adult, and certainly knew nothing of the new cities and suburbs, was looking for a party--any party--that would treat him like the god he obviously was. They were made for each other.
By his tough resoluteness in Korea, his refusal to emulate Chamberlain, his display of manliness that made all the wimps and traitors look bad, MacArthur provoked China into invading Korea. This was almost a unique example of the Chinese adventurism that was constantly predicted in the Cold War. The consequences live on to this day.
Some detail on MacArthur's constitution for Japan--which remains largely in effect (surely a great work of statesmanship):
"Their work resulted in a thoroughly progressive document. Although the emperor was acknowledged as the head of state, he was stripped of any real power and essentially became a constitutional monarch. A bi-cameral legislature with a weak upper chamber was established, and with the exception of the Imperial family, all rights of peerage were abolished. Thirty-nine articles dealt with what MacArthur called 'basic human liberties,' including not only most of the American bill of rights, but such things as universal adult sufferage, labor's right to organize, and a host of marriage and property rights for women. But the most unique and one of the most important provisions came in Article 9, which outlawed the creation of armed forces and the right to make war. It's not clear whether or not the 'No-war clause' originated with MacArthur, but it certainly would not have been included without him, and its presence in the constitution has had an enormous impact on Japan's postwar history."
Update: MacArthur also apparently approved of Japan's 1948 Eugenics Law, which provided abortion on demand for a small fee.
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