July 31, 2005


Foundering? (NOAH FELDMAN, 7/31/05, NY Times Magazine)

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. [...]

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.

Democracy may not always endure, but anarchy never does.

Posted by Orrin Judd at July 31, 2005 11:58 PM

The enemies of freedom always abhor federalism. Like Nero, they wish society had a single neck to be throttled at will.

Posted by: Lou Gots at August 1, 2005 12:27 AM

To be sure, the question is whether true self-interest, political or otherwise, can ever be formulated, let alone implemented, in a pride-shame culture, where absolute cynicism and a pathologic belief in the most far-fetched lies appear to be the order of the day.

But then, this is the gamble; and it has got to work. Making sure it all goes up in flames, death, and destruction is the goal of the enemy, his enablers, and supporters.

Posted by: Barry Meislin at August 1, 2005 6:12 AM

Anarchy doesn't endure, but it usually transitions straight to tyranny.

Posted by: Mike Earl at August 1, 2005 10:12 AM