Other critics argue that written constitutions are largely irrelevant, as with the former Soviet Union. But the Soviet Union's constitution wasn't a bottoms-up document drafted by duly elected political representatives of the Soviet people and ratified by the electorate. It was a top-down farce cynically foisted on the people by a tyrannical oligarchy that was never meant to be anything more than a propaganda tool. By contrast, the Iraqi draft is an outgrowth and guarantee of popular sovereignty.
I am greatly encouraged by many provisions in the draft. Its preamble is American in form, but quite different in substance -- the framers have adopted our framework, but tailored it to their culture and worldview, making it an Iraqi document with an American flavor, not the other way around.
But more important than the preamble's rhetorical flourishes are its republican elements, its commitment to the rule of law, its real limitations on governmental power, and its affirmative grants of "rights and freedoms."
We should understand, though, that the express grants of "rights and freedoms" in Chapter Two of the draft would indeed be worthless without the real divisions of governmental power it aims to establish.
As Justice Scalia observed in his trenchant dissent in Morrison v. Olson (1988), "Without a secure structure of separated powers, our Bill of Rights would be worthless, as are the bill of rights of many nations of the world that have adopted, or even improved upon, the mere words of ours."
As if with that admonition in mind, the Iraqi draft separates governmental powers among the legislative, executive and judicial branches (Chapter Three), to guard against consolidation of governmental power. Likewise, the federalist division of power (Chapters Four and Five) not only seeks to accommodate the various sectarian factions and regions, but to maximize regional and local autonomy, while preserving a sufficiently powerful national unity.
There are plenty of reasons to approach this venture with caution, and there are legitimate questions about whether democracy and freedom are as compatible with an Arabic and Islamic culture as a Judeo-Christian one.
But one thing should give us great hope. The Iraqi people themselves have undertaken this project of their own volition and at enormous personal risk. If democracy and freedom were inherently incompatible with their culture, would they even be this far along in the process?
Ironically, we should be gratified by the significant hiccups in this process, without which we should be justifiably suspicious of its legitimacy. If democracy and liberty are to work in the Arab Middle East, I can think of no better, albeit imperfect, way to go about it than what we are witnessing today in Iraq.
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