Constitution Writing 101
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.