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When
a constitution succeeds, its framers come to be
regarded as visionaries. They are seen in retrospect
to have predicted future difficulties and dealt with
them ingeniously, by building a machine that would
run of itself. From the inside, though, constitution
drafting is not so philosophical and frictionless;
it does not take place under the aspect of the
eternal.
The immediate politics of the moment dominate, along
with the lurking fear that if the constitution is
not ratified, national collapse may follow.
In Baghdad today, as in Philadelphia in 1787,
constitution writing means horse-trading,
improvisation, dispute and deferral. As Iraq's
constitutional process nears its first deadline -- a
draft text is supposed to be approved by the interim
parliament by Aug. 15 -- the members of the
constitutional committee are certainly feeling the
heat. They are busily bargaining with one another,
staging walkouts and issuing ultimatums, and
gambling that the public will embrace their new
design for a unified state. All the while, they are
trying to avoid the fate of their colleagues who
have been assassinated.
Under these tense circumstances, deferral is
understandably the order of the day. The less the
constitution says about controversial issues, the
greater the likelihood that it will be ratified.
Even in peaceful Philadelphia, after all, the
framers kept the word ''slavery'' out of the
Constitution, preferring euphemistic denial, as in
the provision stating that ''the Migration or
Importation of such Persons as any of the States now
existing shall think proper to admit, shall not be
prohibited by Congress prior to the Year one
thousand eight hundred and eight.'' Guaranteeing the
slave trade for 20 years was a classic instance of
the constitutional punt. Such dubious compromises
bought the United States more than 70 years, even if
they ultimately failed to avert civil war.
For the Iraqis, the elephant in the room is the
relationship between government and religion: can
Iraq be a democracy and an Islamic state at the same
time? When I worked as an adviser to the Iraqis who
drafted last year's interim constitution, this
fraught question occupied the authors until almost
the last minute. Leaked portions of the new
constitution, still open to debate and revision,
show that the matter remains as tricky as ever.
Equality for all citizens is guaranteed, but Islamic
law is also prescribed for marriage, divorce and
inheritance. Of course, some elements of Islamic
family law might mandate gender inequality; to
address that possibility, one draft reportedly
provides that religion would trump equality if the
two conflict.
These tentative efforts to reconcile Islam and
democratic equality ensure that future Iraqi
legislators and jurists will have to figure out just
what it means to treat Islam as ''a source of law''
or, perhaps, ''a main source.'' At this time, it is
simply not possible to work out Iraq's religious
identity without alienating either clerics or
secular rights organizations.
Meanwhile, the specter of a national breakup
bedevils the Iraqi negotiators, just as it did the
drafters in Philadelphia. Kurdish autonomy, politely
relabeled ''federalism,'' may be the greatest
stumbling block to reaching a constitutional deal.
Many Arab Iraqis will experience an initial shock
when they look closely at the de facto
self-government that the Kurds have negotiated for
themselves. Meanwhile, ownership of disputed Kirkuk
and its oil fields cannot be assigned without
calling ratification into doubt. As in the U.S.
Constitution, ''secession'' itself will go
unmentioned -- allowing politicians to claim in the
future that the omission either allows or prohibits
Kurdistan from establishing itself on its own.
But the bottom line is that Arab Iraqis, like
Northerners who objected to slavery but cared more
for Union, have no choice but to acquiesce in vague
language that opens the door to Kurdish demands. The
Kurds have a substantial military force and a strong
friendship with the U.S.; who is going to take their
self-government away from them? Anyway, federalism
always entails tension between a central government
and states' rights. So Iraqis must gamble that their
precarious arrangements do not lead to secession and
civil slaughter.
A constitution that acclimates a people to living
with contradiction pretty much guarantees unintended
consequences. The Philadelphia framers decided to
leave out a bill of rights, since they worried that
listing some rights might imply the nonexistence of
others. But when the states' ratifying conventions
insisted on specific guarantees, the first Congress
went to work. Today the 10 amendments (originally
plotted as 12, with our First as the less impressive
Third) seem more like universal principles than a
political afterthought.
For the Iraqis, the unexpected results lie in the
not-too-distant future. But to get there, to arrive
in a world where courts resolve difficult questions
of interpretation in ways the original authors could
never have imagined -- this would be a tremendous
accomplishment for the Iraqis, not to mention the
coalition that unleashed at once the powers of
democracy and anarchy, as if to see which would
prevail. If a future Iraqi Supreme Court ends up
declaring Iraq either an Islamic republic or a
secular democratic state, it will matter little that
neither outcome was intended by the equivocal,
beleaguered, brave and human founders.
Such a decision would, either way, signal that the
constitution had done its crucial work of moving the
basic question of who is in charge out of the realm
of violence and into the realm of constitutional
politics and its handmaiden, constitutional law.
When Iraqis end up expending their energies in their
own version of a contentious confirmation battle,
their founding fathers and mothers will look like
geniuses.
Noah Feldman, a professor at New York University
School of Law, last wrote for the magazine about
church and state in America.
www.nytimes.com
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