Constitution Writing 101





Mr. Dresner is Assistant Professor of East Asian History at the University of Hawai'i at Hilo, and a regular contributer to HNN. His research is on modern Japanese social history.

When U.S. Secretary of State Colin Powell gave the Iraqi Governing Council six months to draft a new constitution, I had a flashback. Two years ago, in Cedar Rapids, Iowa, I was teaching an undergraduate seminar on the U.S. Occupation of Japan, particularly the drafting of Japan's 1947 Constitution. To give the students a taste of constitution writing, we spent a class writing a new constitution for Iraq. What we came up with in that hour and fifteen minutes is remarkably close to what is being discussed today.

Some background is in order. When the U.S. occupied Japan (1945-1952) at the end of WWII it did so with the intent to reform the country. There were competing theories as to why Japan had become an expansionistic and militaristic society, all of which contributed to the reforms imposed by the U.S. Reform of the political structure, though, topped just about everyone's list, starting with the "supreme and inviolable" position of the emperor in the 1890 Constitution. Douglas MacArthur was in charge of the Occupation, and among the instructions he gave the Japanese was to revise their Constitution to make it more "liberal" and "democratic" and less prone to militaristic manipulation. When the Japanese government's draft leaked a few months later, it was widely and correctly seen as a failure: sovereignty remained with the Emperor, rather than the people, and other changes were similarly mild.

MacArthur then instructed the Government Section of the Occupation to produce a draft based on a few notes of his own. He gave them one week! The draft those twenty-four people produced was modified slightly in translation and also in the process of approval in the Japanese Diet (parliament), but remained mostly intact and very progressive. Media or parliamentary references to U.S. involvement in the constitution-writing process were censored, creating the temporary impression that the radical changes contained in the new constitution were of Japanese origin. The new constitution was approved by the Japanese people by an overwhelming majority, and remains unamended to this day. It was that intensely creative brainstorming and debating session, resulting in a constitution for someone else, which I wanted to recreate for my students.

Assume, I told my students, that the U.S. had conquered and occupied Iraq in the 1991 Gulf War. Saddam Hussein is gone and the government of Iraq is a hollow shell. It is up to you to create a new democratic structure that will bind the country together in spite of the serious divisions within Iraqi society. Since I thought it was just an intellectual exercise with no practical application, I didn't take notes on the results, but here's what I do remember:

Some of what we amateur constitutionalists discussed still frames the discussion today. New Iraq would have to be democratic with universal adult suffrage, secular with strong protections for religious minorities, egalitarian to the point of preserving a portion of national and local legislative positions for women, and a divided government, with a strongly independent judiciary and legislature acting as checks on the relatively weak chief executive. I don't remember that we resolved the issue of direct election or parliamentary selection for the chief executive. Nominations for judicial posts were controlled by higher courts and confirmed by the legislature (regional for lower courts and national for appeals and Supreme Courts), eliminating the executive from the process, which I thought was very creative and probably quite workable. I'm not certain we addressed the issue of oil revenues, though if we did, we probably assigned them to the central government for infrastructure and education expenses without a lot of debate.

The most interesting feature of the constitution of New Iraq was the legislature, and the way it implemented a strongly integrated federal system. New Iraq was to be divided into three areas -- Kurdish, Sunni, Shiite -- based on census data (and revised periodically based on future census returns) each of which would be further divided into relatively small legislative districts. 250, I think, was the number we settled on for the whole country, which translates to under one hundred thousand persons per district, and the number of districts would expand (or contract) with the population. But the three "states" of New Iraq would not have entirely separate legislatures or executives. Rather, the national legislature would also function in caucus as regional legislatures. In other words, each legislator would serve in two bodies: a local, ethnically-based parliament and a national parliament. For legislation to pass the national body it would have to meet several tests: first, constitutionality; second, majority vote; third, it would have to have a majority in at least two of the ethnic blocs. This last restriction would prevent a single, more populous group from ramming through legislation without strong support from at least one other bloc.

Reflecting on both the parallels with Japan and the experience of constitution design suggests two conclusions. First, the six-month deadline (late March of 2004) strongly suggests that failure by the Iraqis to establish a clearly democratic, secular, and workable constitution might be followed by U.S.-directed constitutional discussions. Are we working with the Iraqi Governing Authority behind the scenes with suggestions, guidelines, or draft language, or are we going to wait until the six months has passed? I'm not saying that the Iraqis are incapable of writing a constitution, but I'm not at all confident that they can organize a strongly legitimate constitutional convention which can produce a viable draft acceptable to the major Iraqi groups and the United States under current conditions in the time remaining.

Second, and on the other hand, a small group of college students, with a little professorial guidance, did come up with a creative and substantive system in just over an hour. The next step for our little experiment would have been trying to translate the system as described into clear constitutional language, but surely a few days would have sufficed for a first draft. The system we designed was not simply a transplanted U.S. Constitution or based on some of the other federal systems (Switzerland, Germany, India, etc.) bandied about as models for New Iraq. I'm not going to say that this was a perfect system, or that it addresses all the issues at play in Iraq today. It was original, appropriate to the situation, and flexible. If we could do it, so can the Iraqis.

The question is whether the U.S. administration in Iraq is helping them to work through the political and ethnic tensions which might interfere with creating a coherent system, or waiting for them to fail. Unlike Japan under U.S. Occupation, the U.S. in Iraq has a much less powerful mandate to impose changes, less international support and much less control over media. The six-month deadline needs to be clarified: what happens in April 2004? It would be much harder to hide U.S. authorship of an Iraqi constitution and it would be much less likely to be accepted as legitimate and thus an effective foundation of stable government. Our best hope for a stable and democratic New Iraq is for the U.S. to facilitate an authentically Iraqi process in which the Iraqis can be creative and authentic.


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amjad owais - 12/22/2003

Iam so sorry to bathering you all ,but i want aersearch about history of writting and how it's devoleped all this years till now..if you can help over here i will be thankful very much
note:
please if u could send me it in easy spilling and easy to understan.
thanks alot,
(AMJAD OWAIS)


Erika - 11/8/2003

I would like to know the process of the writting of the Confederation , and what issues did the foundin fathers agree and disagree on. Also how much diffrent was the Constitution compared to the Articles of Confederation?\

I would appreciate if you emailed me this info,
thanks


Ammianus Marcellinus - 10/15/2003

You are, of course, right. The Iraqis are fortunate in having very sophisticated lawyers trained in the civil tradition to do this, and, in the Ba'athists and Sadrists, very clear images of what their new constitution must address. As you may not know, the work of the American judicial advisory committee that visited Iraq to help start the process had an interesting byproduct. One of the Iraqi lawyers gave 6th Circuit Judge Gilbert Merritt a copy of a Nov. 12, 2002 Iraqi newspaper article that identified an Iraqi intelligence agent in Pakistan, Abid Al-Karim Muhammed Aswood, as the person responsible for the coordination of Iraqi activities with those of the Osama bin Laden group. The readers of the Tennessee and Kentucky newspapers that reported that apparently are much better informed than those who must rely instead on the N.Y. Times and Washington Post.


Ferdinand Maloja - 10/15/2003


There really is no good historical precedent for what George W. Bush is doing in Iraq, which partly explains why so many people from Oslo parliamentians to the Pope are appalled by his actions and statements. The Swiss case comes a bit closer, since there, unlike Japan in 1945 but like Iraq today, a legal and state structure was implanted as a result of an unprovoked invasion (e.g. by Napoleon). Switzerland's constitution today, however, mainly dates from 1848 when it was modelled most closely after the American one, even to the extent (if I recall correctly) of having an upper house of parliament with two members from each Canton. And, there was a swiss baseball league in the 1980s.


Herodotus - 10/15/2003

Happily ignoring Mr. Ferrel as well, I appreciate the link you posted with the copy of the old constitution. I don't think that the intention of the Iraqis is to reimpliment the 1925 one with minor changes but rather to pull large chunks of really meaningful parts out (Articles 9, 10 and 11, about the due process of law and about taxation look good) and use that as a basis for a new one. Article two, as you noted, would be right out. So there we're in agreement, I think. I do like the no lunatics part. I'm glad the Iraqis are going to write a coherent one. Some constitutions become downright weird.


F.H. Thomas - 10/15/2003


It seem to me that Dr. Dresner has written close to the perfect HNN article. It's very relevant, focuses on the appropriate historical examples, nicely integrates the seminar results, and has just enough compaction to give others the possibility of a comment or two. In style, it is essential clarity.

I would like to have someone hit the application of the Swiss model in this case, in more detail, but otherwise, this one's a homer.


Jonathan Dresner - 10/15/2003

Herodotus,

Ignoring Mr. Ferrel for the moment, I took the liberty of looking up the constitution you mentioned: http://www.constitution.org/cons/iraq/iraqiconst19250321.html

First, it's a constitutional monarchy: do you really think the Iraqis are going to resurrect that system? Article 19 is particularly interesting: the people surrendering soveriegnty to the king in perpetuity. The King is also chief executive (Art. 26), with all the power of the presidency and more (including appointing members of the Senate and an absolute power of veto). This is not a symbolic monarchy, as in England or post-WWII Japan: this is real monarchy.

Second, the section on rights reminds me of the Meiji constitution I cited above: every right is qualified with "within such limits as may be prescribed by law" or a similar phrasing. This is effectively the same as no protection at all for minority groups or views.

I do like Art. 30 para. 9, though, barring "lunatics and idiots" from serving in Parliament. Not from serving as King, though. And para. 10 bars relatives of the King from serving in Parliament, so that's at least some check on his power.


I don't think this is a viable starting place. I think they're better off tossing it and starting over completely.


Fred Ferrel - 10/15/2003


And Louis XVI and deGrasse, having "liberated" America from King George III, then handpicked the delegates to the Constitutional convention of 1787 (called to revise the earlier Articles of Confederation) ?


There is nothing "legitimate" about a war of conquest launched by draft-evaders under an unAmerican doctrine of preemption in a cloud of lies about terrorist connections and weapons of mass destruction, and in disgraceful defiance of long-standing American traditions, alliances and diplomatic procedures. Trying rationalize this absurdity using bogus historical analogies confers no legitimacy either.

Should readers here desire "bashings" and "spoutings", the archival record at HNN of prior comments by "Herodotus" provides a more than ample stock of examples.


John Kipper - 10/15/2003

One of the most interesting governmental apologies was recently announced by the government of Benin, in West Africa, that specifically apologized for the actions of tribal chiefs who were so instrumental in providing the slaves for the Atlantic trade.


Herodotus - 10/15/2003

"Would that be the constitution under which Saddam was re-elected by a margin of 99.9% to .1% ?

Typical half-witted Bushapologia."



You have no idea what you're talking about. The Iraq constitution of 1990 is no longer in force, having been set aside after the invasion. That included the 1995 revision that named Hussein president. The Iraqis had a viable constitution in 1925, which lasted quite effectively until 1958. There have been successive illegitimate ones since then.

They are not crafting one from scratch (unlike the Constitutional Convention in Philadelphia) but are in fact revising an earlier one with appropriate updates for time, culture and technology. That's a considerably easier job. If I wanted to bash you with ad hominems, I'd suggest that you comments were typical uninformed, self-righteous spoutings but that might be intemperate.


Fred Ferrel - 10/14/2003


"Well, considering that the Iraqis already have a constitution, the problem shouldn't be too long for them on that front."

Would that be the constitution under which Saddam was re-elected by a margin of 99.9% to .1% ?

Typical half-witted Bushapologia.


Herodotus - 10/14/2003

Well, considering that the Iraqis already have a constitution, the problem shouldn't be too long for them on that front.


Jesse Lamovsky - 10/14/2003

Interesting question about apologies by governments for past policies. Let me think...

I'm pretty sure there has been compensation on the part of local and state authorities in Florida and Oklahoma for the Rosewood and Tulsa massacres, respectively. I'm not clear whether there has been any formal apology to the aggrieved parties in those cases, though.

The postwar West German government, to the best of my knowledge, apologized for the murderous manner in which the Nazis treated Jews and other subjugated peoples in Hitler Europe. No such apologies came from East Germany, however.

We can also include the Vatican apologies for the attachment of historical responsibility to the Jewish people for the death of Christ.


Jonathan Dresner - 10/14/2003

I just want to point out that the December 15th date is a deadline for a plan, not for handover itself: at that time the Iraqi Governing Council is supposed to have a "timetable" for a constitution, elections and recovery of sovereignty.

And, to be honest, one of the things which I gloss over in my article is the role of the international community in hurrying the process along. The US, by setting timetables and deadlines, is clearly trying to appease some of the critics (e.g. France, most of Middle Eastern nations, most Americans) who are concerned that the US is going to be a presence in Iraq indefinitely (or for a few years which is the same thing these days), but that gives me more concern that the process Powell and Bremer have set out is intended to fail, and what happens after that is unclear.


Herodotus - 10/14/2003

Your comments are thoughtful. You'll be pleased to read, if you haven't already, the story today that the U.S. has picked December 15 as the handover day to the new Iraqi government. You will also, no doubt, have seen that the UN has approved the request from the coalition to expand NATO's security perimeter in Afghanistan, where the international community has also agreed it is wise not to withdraw force at a time when the political sovereignty is still so weak.


Oscar Chamberlain - 10/14/2003

There's an old famous joke about the guy lost in the hills. He finally sees someone and he asks, "what's the best way to the city?

The reply, of course, is, "First of all, I would not start from here."

I would not have started with an invasion of Iraq, or with the understaffed occupation, or with our diplomatic isolation, or with George W. unapologetically bad leadership.

But like it or not, this is where we start from. We have taken responsibility for the Iraqi people, to a point. Walking away before we have done our best to give them a stable political situation and a functioning infrastructure would be immoral. However, for their freedom and ours, we need to give that responsibility back to them as quickly as possible.

In that context, articles such as Dresner's are useful as practical guides for getting the best possible result out of a bad situation.


Bill Bailey - 10/14/2003


Mr. Dresner,

Apologies start at home, I'm afraid. With all due respect (and you certainly deserve much more than most voices at HNN), the job of the historian is to research the past and let the chips fall where they may, not to "convince a few people on the other side".
(Frankly speaking, there is not much of any “side” here anyway. You’d probably have a bigger audience as part of one of 1627 panel sessions at the AHA general meeting).

It is superficial and misleading to talk of a new constitution for Iraq without discussing the history of how America came to be in charge of giving it one, the history behind the lack of an invasion of Saudi Arabia (where most of the 9-11 hijackers came from) to give it a democratic constitution, the lack of pressure on Sharon's Israel (where the main cache of Mideastern WMDs are) to adhere to UN resolutions calling for the Palestinians be given their country and constitution, etc. etc.

This is too much for one article, you say. Fine, take it one step at a time then. But in that case you can't leap to the happy ending of Iraqis becoming inspired Iowan-like practitioners of participatory democracy. Nor can I see the value of looking at past apologies, when it is the crying LACK of apologies by the current U.S. presidential Administration that is the great roadblock to progress in Iraq and around the world. If you want to “focus” on just the Japan-Iraq constitutional "parallel", that is well and fine too, but in that case give us the real historical meat: i.e. talk about why this and other World War II "parallels" are mostly fraudulent smokescreens for a failing policy of opportunistic militarism, the latest in a series of failed justifications for an unAmerican "preemptive" war designed to exploit America's current fears for short term partisan advantage while actually increasing the real dangers to America in the long run.

I think I've made my point. HNN needs you more than you need them. Try to stick to history, and to the most salient and relevant historical aspects of the present, in your future writings. The less praise you get from Heuisler, Markell, Lloyd, "Herodotus" and their rude brand of failed Limbaugh wannabes, the better you are doing.

Bill Bailey


Jonathan Dresner - 10/13/2003

Mr. Bailey,

I can't really do everything in every article: I wanted this to focus on the parallel, the exercise and the future. You're right about the abuse of historical parallels and legal structures in the present (I was very disappointed that there was no discussion of Fisher's military tribunal article http://hnn.us/articles/1710.html) and I was hoping that this article would be one more nail in the coffin of the comparisons to post-WWII occupations. Perhaps too mildly put, but I'd really like to convince a few people on the other side rather than simply inflame everyone.

I wonder how often the American government has actually apologized for anything. Frankly, it's not something governments do much anywhere, but it would be interesting to see if we could compile enough examples to make a real list and maybe draw some conclusions from it.

The only US one I can think of off the top of my head is the apology and reparation for the US internment of Japanese and Japanese-Americans in WWII (http://hnn.us/articles/585.html). If you include state and local governments you might get a longer list, including the recently-discussed Kent State massacre apology.

The Japanese government has a long and tortured history with non-apologies for WWII actions as well, resulting in a few "personal" apologies by Prime Ministers but never one endorsed by the government as a whole.

Any other candidates?


Bill Bailey - 10/13/2003


JD: "We need to begin a process now that will be distinctly Iraqi and legitimate and result in a workable government based on broad participation and carefully guarded rights."

BB: Yes, but legitimacy can never be achieved unless an American president apologizes to the world for the lies, hypocrisy and arrogance associated with our country's reckless invasion and ill-planned occupation, and turns over the reins of power to the UN and the Iraqis. Unless that apology comes soon, e.g. no later than an inaugural address of January, 2005, there will never be any legitimacy - we can then only hope for forgiveness for an unAmerican folly worse than Vietnam.

Needless to say, such an apology is unlikely to come from people engaged in a deliberate campaign of raping history in order to concoct self-serving but quite phony comparisons between 1945 and 2003. More than a few ridiculous examples appeared on this website in recent months, and it is a pity that you did not take this opportunity to more explicitly disassociate yourself from them, Mr. Dresner.


P.S. Using Iraq as a theoretical parallel in the classroom in August, 2001 makes a lot more sense than it would have in October, 2001. I'd've had a quite different reaction to your article if you'd not only made that detail clear, but emphasized it.


Jonathan Dresner - 10/13/2003

Mr. Bailey,

You're not wrong in your comments, but I think we have different aims.

In the exercise, I wasn't really trying to make perfect parallels. Vietnam and Korea were old news: they have constitutions of their own now, so the exercise wouldn't have the excitement that comes from an unresolved issue. Iraq was a convenient place: not too complex for quick explanation (Kosovo would have taken a week!), present in my students' minds (sanctions were ongoing, and discussion about whether Gulf War I ended to soon was still ongoing), but the September 11, 2001 attacks hadn't yet happened (this was at the very beginning of the semester; If they had, I might have done Afghanistan). But the focus of the course was a very narrow slice of Japanese history and it didn't make sense to spend more than a little bit of time on the parallelism.

Your other two comments have to do with my glossing over the origins of the present situation. I have no disagreement with your criticisms of the Bush administration's war planning or war justifications; I've said and written very similar things myself, and will continue to do so. But it's done. We are the occupying authority in Iraq. We are responsible for making sure that Iraq when we leave it is as stable and safe as possible. We need to begin a process now that will be distinctly Iraqi and legitimate and result in a workable government based on broad participation and carefully guarded rights.

And I think, from your comments, that we are basically in agreement in that regard.


Bill Bailey - 10/13/2003


Coming from a real historian, as opposed to the various and sundry ersatz versions more commonly found here, this article is a real disappointment.

1. Why use Iraq in 1991 as a classroom parallel to 1945 Japan (at a time "two years ago" -right after 9-11- when the only people saying much about Iraq were folks like Richard Perle and Paul Wolfowitz, who have about as much in common with Douglas MacArthur as do Howard Stern or Al Sharpeton) ? Kosovo would have been in the actual memories of undergrads two years ago, Vietnam or Korea at least in adjacent time zones to Japan. For that matter, one could even use 1786-87, which would at least have been closer to what was in McArthur’s mind in 1945.

2. It was something of a relief to read, near the end of this article, that "unlike Japan under U.S. Occupation, the U.S. in Iraq has a much less powerful mandate to impose changes, less international support and much less control over media". Clearly Professor Dresner is not ready to abandon the complex realities of history. But these caveats by no means suffice to cover the gaping chasm between FDR's war in the Pacific and W's war to save us from imminent attack by Saddam's huge arsenal of uranium and poison gas. The Japanese fought a brutal but successful war of conquest, years before the U.S. ever got involved and, understandably, expected something like the same victor's justice to be meted out to them in '45. Iraqis lived through two decades of a much more oppressive dictatorship (supported for its first decade by the U.S.), two failed wars on their own territory, and a decade of harsh sanctions before G. W. Bush's unprovoked, cowardly, hypocritical, deceptive, and above all, badly managed aggression. There is no MacArthur-Bremer parallel in the degree of potential receptivity to imposition of a constitution from outside.

3. Worst of all, Dr. Dresner implies an utterly ahistorical parallel between the two Gulf wars. Having failed miserably in most of its stated objectives in Iraq, the GWB Administration is now redoubling its efforts at blanketing America with propaganda. These PR efforts have nothing to do with accurate history and everything to do with mythmaking. Dresner (unwittingly one certainly hopes) falls right into line by implying that Bush Junior in 2003, in defiance of the UN and world opinion, was somehow merely "finishing" the work of Daddy Bush (who had the world behind him in 1991).


Rod S - 10/13/2003

Interesting article, but David Letterman solved the problem when he suggested we just give the Iraqi's our constitution since we're not using it any way. :-)