"...These international complications are just one of the reasons why Iraq is unlikely to have a functioning constitution with any reasonable chance of survival within six months...."
*** Whether a country has a written constitution or not, if the country hangs together for any length of time this must mean it has something that functions as a working constitution in fact, even if it's simply a strong man like Marshall Tito of the former Yugoslavia, who kept things from flying apart by serving as the lid on a can of explosives. Eventually the explosion, the genocide, and our intervention, in the absence of European intervention first. We had our first written constitution (1787). Our differences were papered over until we flew apart. By force of military might we reunited and were held together by force until, with passage of time, sufficient centripetal forces emerged to allow withdrawal of federal troops from the South after the presidential election of 1876, Hayes over Tilden by the forerunner of a chad and a Supreme Court decision. These centripetal forces included the North, or the country, giving up on trying to change the South until after WWII and the coming of the Civil Rights Revolution. We have a different constitution now than before the Civil War, starting with the Civil War Amendments 13, 14, 15, and direct election of senators, the 17th. What kept Iraq glued together before Saddam? There was a constitution. As I understand it, it hasn't been in use since Saddam took power and it is available for re-use if satisfactory. Secession seems to me to be inconsistent with the idea of nationhood, which presupposes national unity for the duration. Secession seems to be in the nature of a power not a right. Hohfeld described this. The South had the power to secede, but not the right. Why would one wish to build a right of secession into a constitution, written or unwritten, when the power exists, if one is willing to risk it, and the only test is success? In the case of Iraq, the unifying factors seem to be the frightened neighbors, Turkey and Saudi Arabia, who will not tolerate independence for Kurds and Shiites. Two lids on the can, so to speak. With nowhere to go, Kurds, Sunnis, Shiites and others are going to have to figure out how to do the next 8,000 years. The past 8,000 has been written in blood, with notable accomplishments for the world between bouts, such as Abraham walking out of Ur and conversing with God... rs SFLS -----Original Message----- From: Discussion list for con law professors [mailto:[EMAIL PROTECTED] On Behalf Of Kim Lane Scheppele Sent: Saturday, October 04, 2003 2:52 PM To: [EMAIL PROTECTED] Subject: Re: The Iraqi constitutional convention Questions of secession and democratic representation in the new Iraqi constitution are particularly problematic because of the international context within which Iraq finds itself, a context which has no easy analogy to the American case. On secession: Turkey has expressed extreme nervousness about an independent Kurdistan in the north, perhaps even enough to go to war against it should it declare itself. Saudi Arabia has expressed extreme nervousness about an independent Shiite Republic in the South, to the point of considering it presumptively hostile to their particularly strict form of Sunni Islam. If the new constitution allowed either to secede, we could reasonably expect a new round of devastating wars in the region. On representation: For many of the same reasons, the US has never endorsed a one-person, one-vote principle for Iraq and seems particularly reluctant to entertain the idea of a truly representative constitutional convention. Shiites are about 60% of the population and are particularly aggrieved by their historic subjugation at the hands of the Sunnis, so one might reasonably expect a truly representative process run in simple majoritarian terms would produce a constitution that would ensure Shiite domination. But if that were to happen in post-war Iraq, this would generate complicated foreign relations -- an overly friendly Iran and an overly hostile Saudi Arabia, seen from the perspective of present US policy. So the US is in the awkward position of championing democracy while simultaneously being wary of a simple majoritarian system. These international complications are just one of the reasons why Iraq is unlikely to have a functioning constitution with any reasonable chance of survival within six months. There is simply no easy solution to these issues on the horizon at the moment. Presumably some strong form of federalism is the only way to square the circle here, in which case the asymmetric federalisms of Spain, Canada and Russia might be more attractive as models than the symmetrical federalism of the United States. 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]
