Fundamental Mistakes in Fundamental Law

by William J. Watkins, Jr.
by William J. Watkins, Jr.

It was touch and go, but the U.S.-appointed Iraqi Governing Council has approved an interim Constitution. Iraq’s current "government," the Coalition Provision Authority, is now scheduled to dissolve on June 30, 2004. In its place will be an Iraqi government exercising full sovereignty, or at least as much sovereignty as the Bush administration finds convenient.

The interim Constitution was crafted in secret meetings and its contents shaped by designated American legal advisers. "This is a capsule of where Western civilization has gotten," crowed Samuel Issacharoff, a professor of constitutional law at New York’s Columbia University, "and it reflects the best aspirations for humanity under the law."

The influence of American constitutionalism is obvious as one reads the sixty-two articles of the interim Constitution. Mind you, not the influence of the old written Constitution drafted by Madison and his colleagues in Philadelphia, but rather our modern unwritten Constitution. Not the Constitution that limited the powers of the national government and protected individual liberty, but the Living Constitution that involves the national government in the minutest aspects of our lives.

Take "rights" as an example. According to Article 14 of Iraq’s interim Constitution, "the individual has the right to security, education, health care, and social security." This means that the individual’s fellow citizens are required, via the compulsion of the State, to take some positive action to provide him with these benefits, err uhh, "rights." Most likely the handing over of wages so that another member of society will be provided with medical care, a government pension, etcetera. This is analogous to the situation in the United States where the Congress and the Bush administration have recently created a new prescription drug entitlement that seniors claim to have a "right" to.

Under our old written Constitution, the citizen’s rights were prohibitions against government interference, i.e., "negative rights." With the First Amendment, for instance, the federal government was prohibited from enacting laws restricting our speech. This right could be exercised without restricting the same right of our neighbor or requiring our neighbor to take some positive action to provide us with a platform for speech. This ancient understanding of rights has now been relegated to the history books in both Iraq and the United States.

The mimicking of American constitutionalism does not end with rights, but carries over into quotas. Under Article 30 of the interim Constitution, an electoral law will be passed that "aim[s] to achieve the goal of having women constitute no less than one-quarter of the members of the National Assembly." While undoubtedly women in the Islamic countries of the Middle East have often been second-class citizens, a quota written into the election law is no cure for historic wrongs. So long as the franchise is extended to both sexes, women may elect representatives who share their beliefs. On its face, Article 30 contemplates that all women share the same ideals and that only female representatives can properly identify with female constituents.

Quotas are part and parcel of modern American constitutionalism as we attempt to eliminate the vestiges of racial discrimination with more discrimination. This is the essence of affirmative action. The inspiration for Iraq’s quota provision could be Grutter v. Bollinger, a 2003 U.S. Supreme Court decision which held that affirmative action in law school admissions is constitutional. The Court reasoned that the discrimination is a positive if it leads to a diverse student body. By diverse, the Court assumed that a black candidate holds beliefs and opinions different from a white candidate. The Court did not explain how skin pigmentation affects one’s ideology, but nonetheless assured us such diversity is beneficial.

Not only did the Supreme Court’s decisions inspire the drafters of the interim Constitution, but also the institution itself. Under Article 44, an Iraqi Federal Supreme Court is established with the power of judicial review: "Should the Federal Supreme Court rule that a challenged law, regulation, directive, or measure is inconsistent with this Law, it shall be deemed null and void." Though the interim Constitution declares the Iraqi people to be sovereign, it sets up the Federal Supreme Court as the final arbiter of Iraq’s fundamental law. In effect, the people and their representatives take a backseat to unelected judges.

At one time in the United States, our High Court was but a co-ordinate branch of the national government. The president, Congress, and Court all had an equal right to interpret the Constitution. If differences arose and the branches could not reach an accommodation, the Founders expected the people to serve as ultimate arbiter, either by the ballot box or assembled in convention for the purpose of exercising ultimate sovereignty. This is now a thing of the past, and the unelected Supreme Court has final authority to interpret our Constitution. How nice of us to pass this principle along to the Iraqi people.

If the Iraqi interim Constitution "reflects the best aspirations for humanity under the law," then humanity is in serious trouble. It is bad enough that the United States has abandoned a foreign policy based on peace and nonaggression in favor of the imperial adventures in Iraq, but it has also infected Iraqi institutions with the same poisons corrupting our government. If we are going to stay in the business of nation-building, the least we could do for the conquered people is to set them off on the right foot.

March 12, 2004

William J. Watkins, Jr. [send him mail], is an attorney practicing in Greenville, South Carolina, a research fellow at the Independent Institute, and the author of the recently released Reclaiming the American Revolution: The Kentucky and Virginia Resolutions and their Legacy (Palgrave MacMillan, 2004).

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