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Thoughts on the Iraqi Constitution

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Professor John Eastman is my colleague at Chapman University Law School, and a scholar on the American founding. On the program today we discussed the difficulties of 1787 and their parallels in the Iraq of 2005:

HH: Joined by Professor John Eastman, my colleague at Chapman University Law School, and a PhD, in addition to being a J.D., and for that reason, my guest expert today on how we approach the Iraqi constitution debate. John, good to have you here.

JE: Thanks, Hugh.

HH: John, I was reading over, and George Allen and I were talking about this earlier today, the Iraqi draft constitution in the New York Times today. And I’m struck at how absolutely pessimistic many American commentators are, apparently unaware of the difficulties of the Philadelphia negotiation in 1787. I was hoping you could just sort of do a little riff here and brief us on that negotiation.

JE: Well, sure. I’d actually start back prior to Philadelphia, and go to Annapolis in 1786, where they didn’t even get enough states to get a quorum to have the Constitutional Convention. And I’d go back further than that still, to 1777, when we had our first constitution, the Articles of Confederation, and it took six years before Maryland was willing to join in, after Virginia gave up some land claims in the west. And you know, these things mattered greatly, because Maryland was concerned that Virginia, with all of its claims in the Ohio River Valley, would overwhelm some of the smaller states. And it held up a formal constitution, and ratification on that initial plan, for years. Then you get to 1787, we had a Constitutional Convention in Annapolis, that had Virginia and a few other states, and all they could do was basically agree to get back together again the following year, and plead with their colleagues in the other states to join them. And even with that, the convention was due to start sometime in March in Philadelphia, and it wasn’t until May 25th that they actually had a quorum of states to begin deliberation.

HH: Now John Eastman, pause for a moment. Tell people some of the problems that plagued the states under the Articles of Confederation.

JE: Well, you know, you had a weak, centralized government, deliberately so, because they had just thrown off the rule of a king. But it was so weak that it couldn’t even collect revenues to pay its army. George Washington was continually having to deal on the battlefront with lack of supplies and lack of pay for the soldiers, and threat of mutiny as a result. The central government could only ask the states to send in their respective shares. They had no enforcement power to do that. And that was one of the problems. There was no provision to regulate trade among the states, so there were basically mini trade wars breaking out. Rhode Island was taxing everything that went through its port on its way to Connecticut or western Massachusetts, and the people in those areas thought that was illegitimate. So you had basically a real concern that this fledgling union was going to fall apart over petty differences and trade wars, under the Articles of Confederation. And you know, the leading statesmen of the day agreed, but they didn’t quite know what to do about it.

HH: And so they convene in Philadelphia in the summer of 1787, and there are deep divisions. Identify some of those divisions for people.

JE: Well, the big divisions, often unspoken, but sometimes explicitly addressed, was slavery. By then, most of the northern states had outlawed slavery. Most of the southern states not only kept it, but thought it was critically important to their economy. And so, the balance of power in the new central government was going to have to be pretty even, so as to not interfere with this issue, because they couldn’t grapple with that at the same time they were trying to establish a new union. They had just defeated the British, but the British were still salivating over coming back in and taking over again. The second thing is big states versus small states. If you give power in the central government’s legislature based on population, New York, Virginia, Massachusetts and Pennsylvania run everything, to the detriment of New Jersey and Maryland and Rhode Island and what have you. If you give it equal votes to each state, then the small states are going to have a much greater role in the national government than their population would warrant. And this was an intractable problem, finally settled by the compromise that gave population-based control to the House of Representatives, and state-based control to the U.S. Senate.

HH: Have you noticed, by the way, in the Iraqi constitution, that while there is a population-based House, there is a second House, the composition of which is as yet undetermined?

JE: Yes, yes I have. You know, and one of the most interesting things. I actually got a call from the Defense Department, it was a year and a half ago now, to be part of a team to help negotiate with the Iraqis on the constitution, and provide some ideas. The reason I was called, I didn’t end up going, but others did of similar expertise, was because of our understanding of American federalism. And ultimately, I think there has to be some federalism aspect to Iraq, to deal with the different regional and population power bases, if you’re going to have a constitution that works.

HH: And of course, they had different divisions as well. They had frontier states, and states that were secure completely from the Indian threat. They had states that were rich and poor, and they had states that were Catholic, states that were Anglican, and states that were by and large, Protestant to low church.

JE: That’s right. You had states that…women were allowed the right to vote, New Jersey. You had states where you had to own property in order to be able to vote. And how to set voting qualifications for members of Congress, when you had such differences among the states on even the basic right to vote, was a pretty intractable problem as well.

HH: Now given that background, are you surprised that it is so difficult in the birthing in Baghdad?

JE: No. I’m not at all surprised. In fact, if anything, you add to it the deep religious animosities, and cultural animosities that exist between the peoples there, that we didn’t have. We were a largely homogeneous population in 1787, in a way that Iraq is not. The fact that they have gone as far as they have, as quickly as they have, is the real story here.

HH: Now of course, the down side is, slavery was dealt with in the United States Constitution obliquely, and it really simply postponed the ultimate reckoning. Do the religion divisions in Iraq remind you of the American founding’s sort of compromise on slavery that could not eventually be compromised?

JE: Yeah, I think so. I actually think there was an American compromise, but we lost the ability to play that card by 1820. And I think you know, there are two things. They’ve got a huge issue there that they’re going to need to grapple with at some point. It may be asking too much for them to be able to grapple with it now, while they’re also grappling with creating a new government, and a new nation. So, you need to…sometimes, you have to reach a compromise just to forestall the question, to let the dust settle on everything else, so you can then grapple with that question unadorned.

HH: Now finally, John Eastman, it was a generation of genius, both in 1776, and again in 1787. They eventually referred the Constitution to be voted on, not by the states or the provinces or other legislators, but by the people themselves. Do you see a similar thing underway in Iraq?

JE: Well, I do. And the importance in the American Constitutional experience was that that meant that the new Constitution appealed directly to the ultimate authority, the sovereignty of the people, and didn’t go through these intermediary authorites of state governments. And that meant one, and a practical thing, they didn’t have to get unanimous consent that was required under the Articles of Confederation, and something they wouldn’t get, because Rhode Island was boycotting the thing. But it also put the Constitution on the higher authority of the people directly, and recognizing that. Now, one of the things that was interesting is the American people had had a generation of experience in governing themselves in their colonial legislatures. The Iraqi people, you know, this past generation, has not had that experience.

HH: Oh, good point.

JE: And so it’s an extraordinary thing that they are able to pull this together as quickly as they have, without that experience of actual self-government. I mean, you live under a tyrant, you don’t have to exercise your self-governing power. You’ve just got to try to stay alive.

HH: John Eastman, a great lesson. Thanks for spending some time doing that today. I thought it was great backdrop for watching the drama unfold in Baghdad.

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