I want to resist Sandy's temptation to jump directly into constitutional design, even though I teach a course on constitutional drafting. In particular, having observed some constitutional drafting processes at close range and participated in a couple, it seems to me that it's important to start with the history of the place and the specifics of the culture and legal system. Toward that end, I've found the following sources helpful.
The Public International Law and Policy Group and the Century Foundation has produced a sobering report on the major issues involved in drafting a constitution for Iraq. The report can be found at: http://www.tcf.org/Publications/iraq_report.pdf The Iraqi constitution of 1990 is at: http://www.oefre.unibe.ch/law/icl/iz00t___.html And the Iraqi constitution of 1925 can be found at: http://www.geocities.com/dagtho/iraqiconst19250321.html (For those interested in constitutional borrowing, the 1925 Constitution begins, "We, the King . . ." What seems to me most troubling about a future Iraqi constitution is that the country is a cobbled together collection of people and places without a common sense of history or (as far as I can tell) a common sense of the future. Iraq's own brief constitutional history (seen in the documents above) is not particularly promising as a place to start. By contrast, the Afghan constitution started with far more inspiring raw materials -- in particular, a 1964 constitution that was a perfectly respectable modern constitution that actually functioned for nearly a decade. As a result, when the war ended in Afghanistan, the 1964 constitution could be restored and used as a starting point for the new drafters. Just where one starts to get a grip on constitutional issues in Iraq will be much harder because there is no such prior text that could provide a point of common reference if the drafting process produces deadlocks. This is one tough place to write a constitution. best kim Kim Lane Scheppele Professor of Law and Sociology University of Pennsylvania 3400 Chestnut Street, Philadelphia PA 19104 Phone: 215-898-7674 Fax 215-573-2025 Email: [EMAIL PROTECTED] ----- Original Message ----- From: "Sanford Levinson" <[EMAIL PROTECTED]> To: <[EMAIL PROTECTED]> Sent: Tuesday, September 30, 2003 4:34 PM Subject: Re: The Iraqi constitutional convention > 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
