I've been worrying about # 7 on Sandy's list (establishment of religion), with respect not only to the issue of constitutional drafting but also recent published reports about our role in the restructuring of Iraq's public education system, where, as I understand it, we have put some pressure on Iraqi educators to reduce Islamic elements in instruction. How far may we go in telling the Iraqis what to do about religion in their culture before we transgress the obligation of governmental neutrality with respect to religion in our culture? To the extent that Iraq was a Muslim nation when we invaded it, with Islam as an established state religion (I'm not sure of the facts here), are we not acting against a specific religion, and hence violating our own constitutional obligation to maintain religious neutrality, if we call for any change in the status of Islam under a new constitution? And are we not also acting against Islam, thus violating neutrality, when we press for a toned-down role for Islamic teaching in Iraqi education? Though I am not at closure on this in my own thinking, my preliminary view is that any position other than acquiescence in Iraqi self-determination regarding the role of Islam in public life risks a violation of the Establishment Clause.
Mark Rahdert Temple
At 03:34 PM 9/30/03 -0500, Sanford Levinson wrote:
A news story today indicates that some Iraqis are suggesting that it will take up to a year to negotiate a new constitution, whereas the Administration seems to suggest that six months will be enough. For all of our ostensible expertise on constitutional issues, do we, as American constitutional lawyers (who probably, as an empirical matter, have not engaged in the close study of any non-American constitutional system), have anything relevant to say about the optimal amount of time a remarkably divided, dysfunctional society like Iraq should be expected to take to draft a new constitution? And, of course, the more volatile question is whether we, as American constitutional lawyers, have anything relevant to say about what the new constitution should say. Riding several of my own hobbyhorses, I'd be interested in knowing how many people on the list would advise (or even insist that) the Iraqis adopt the following features of our constitution:
1) Article V 2) life tenure for judges (who will be presumed to have the power of judicial review) 3) the electoral college 4) bicameralism plus a presidential veto 5) a right to bear arms 6) capital punishment as a constitutionally legitimate punishment (see Amendments V, XIV) 7) the prohibition of an established religion 8) toleration of seditious and/or religious/ethnic "hate speech"
sandy
