Anyone Want a (Slightly) Used Constitution?
by Jack Kenny
by Jack Kenny
There seems to be a good deal of concern over the delay in adopting a constitution in Iraq. We want, after all, the Iraqis to have the same blessings of freedom and democracy that we enjoy as Americans. So perhaps we should be less concerned about when the constitution is adopted than we are about what, if any, guarantees of liberty it will offer.
Will religious liberty, for example, be so clearly stated and so firmly guarded that the Iraqis may count on a supreme judiciary to determine for them when, where and under what circumstances they may offer a public prayer or have a public display pertaining to a religious holiday? Will they be able to find out, simply by asking their supreme judges, if they may have a prayer at a school athletic event or graduation ceremony?
Will the rights spelled out in the new constitution come with "penumbras" out of which new rights may "emanate," effectively trumping the old? Will a woman's right to "terminate a pregnancy," nowhere mentioned in our constitution, but discovered in the penumbras thereto by our own supreme judges, be similarly hidden in the Iraqi constitution? Or will it be spelled out in plain Arabic?
Will the freedom of speech be guaranteed to Iraqis throughout the land, or will it be limited to "free speech" zones such as we have in the U.S.? Will the rabble of Iraq be permitted to "freely assemble" to petition and seek "redress of grievances" or will care be taken to ensure that their rulers need not look upon nor even be aware of the aggrieved? Will concern for both safety and "civil rights" ensure that anti-abortion protesters, should there be any, will be subject to greater restrictions than those protesting, say, nuclear power plants?
Will the Iraqi constitution be flexible enough to permit some peaceful demonstrators to be prosecuted as racketeers? Will the right of the people to "keep and bear arms" not be infringed, except when the government determines what kind of arms are permitted or establishes "weapons-free" zones where no arms at all are allowed? Will the principle of "equality before the law" be permitted to run amok in Iraq or will it be reined in, as it is here, by the time-honored principle, "Some are more equal than others"?
Will the Iraqi constitution allow for the protection of endangered species, whether or not liberty is among them? Will it be possible to protect such species by arresting and prosecuting a farmer for plowing or fencing his land if either activity threatens the migration or habitat of a kangaroo rat or a long-horned beetle or a Delhi Sands flower-loving fly? Will the government be empowered to protect wolves and other predatory creatures from the violence of a shepherd defending his flock? May Iraqis rest secure in the knowledge that some winged and furry species enjoy a protection of the law denied to some undesirable "species" of humanity?
If the new government in Iraq is to be restricted by a constitution of enumerated powers, as ours is, will it also have, as ours does, a commerce clause broad and ambiguous enough to permit the government to do whatever the rulers deem is in the public interest? Will the "commerce" subject to state regulation include what a person grows on his own land for his own consumption?
Will the constitution include a "takings clause" that will not unduly hinder progress nor impede enterprise by forbidding the taking of people's homes or businesses to facilitate a private development?
Will the Iraqi constitution allow the chef executive to decide, at his own discretion, whether to wage war against other sovereign nations? Will it allow for the elimination of "due process" for citizens deemed by the chief executive to be "enemy combatants"? Should the Iraqi people be surprised to see Saddam Hussein, captured by American forces in December, 2003, go on trial while U.S. citizen Jose Padilla, arrested at O'Hare airport in the spring of 2002, remains in federal prison, though still not charged with any crime?
Will the Iraqi people, like their American counterparts, be allowed rulers as great as the Caesars? ("Upon what meat doth this our Caesar feed, That he has grown so great?") Do the people of Iraq really need a constitution in this new, enlightened age?
October 17, 2005
Manchester, NH, resident Jack Kenny [send him mail] is a freelance writer.
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