“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.”
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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.