Academic journal article Texas Law Review

A Constitution without Constitutionalism: Reflections on Iraq's Failed Constitutional Process

Academic journal article Texas Law Review

A Constitution without Constitutionalism: Reflections on Iraq's Failed Constitutional Process

Article excerpt

I. Introduction

Theoretical physicists hypothesize a "sum over histories," a concept having its roots in the Heisenberg Uncertainty Principle and the Schrödinger equation postulated in quantum mechanics.1 The idea is that there are universes parallel to the one we inhabit where, for example, the French Revolution did not occur and the Bourbon kings continue to rule to this day in an unbroken chain.2 Moreover, there is an infinite number of parallel universes whereby the infinite chains of possible permutations relating to French history since July 14, 1789 (and, for that matter, before) have played themselves out.3 In this multiverse of infinite possibilities, the 2003 military intervention by the United States in Iraq was accomplished competently. A constitutional process unfolded a decade or so later; one in which Iraqis of all political and ethnoconfessional persuasions participated. Wise leadership prevailed, and compromises were struck that caused the efflorescence of national cohesion and harmony. The result has been a peaceful and fecund Iraq.

Regrettably, in our universe, virtually everything that could go wrong did so. Far from engendering national cohesion, the constitutional process very nearly ripped the country apart and threatens still to do so. The process was initially boycotted by Iraq's second largest ethnoconfessional group, Sunnï-Arabs.4 Some of their supposed representatives, recruited by the U.S. Embassy, participated as unelected members of the Constitutional Drafting Committee.5 When an impasse occurred, the elected representatives of the two other major ethnoconfessional groups, Shii Arabs and Kurds, excluded them from the process.6 Those articulating a vision for the most radical restructuring of the country controlled the process, and they were in no mood for compromise. The result was the ignition almost immediately of a brutal, and in Iraq, unprecedented wave of ethnoconfessional violence that has left tens of thousands of civilians dead and up to 5 million externally and internally displaced persons. Why did the constitutional process fail so miserably after what was a collective sigh of relief that Iraq's brutal dictator had been removed from office?

This Article argues that there are two principal reasons for the failure of the Iraqi Constitution of 2006[7] and the process surrounding it to engender national cohesion. First, the process of constitution drafting in Iraq was an insufficiently organic one. Rather, its terms of reference were too often dictated, or so it seemed, by U.S. interests, such as narrow partisan and electoral issues in Washington. Second, and equally important, the new political elites did not trust each other and had not arrived at a sufficiently common vision for what the new constitutional order should be. Because of factors exogenous to the constitutional process itself, those with a (probably minority) view favoring a radical reordering of the state were able to impose their vision on the draft text. The result has been constitutional tension that erupted into ethnoconfessional violence and that threatens further instability.

Ultimately, this Article concludes that early constitutional drafting in the case of Iraq was devastating. Instead, a modus vivendi should have been attempted, one which preserved the status quo. This would have allowed the political elites to engage in confidence-building measures, develop trust in one another, and develop a compromised, but shared, vision of the future for the state. Instead, before this process could be nurtured, the parties were forced into a negotiation "for all the marbles" in a zero-sum environment. The result has been disastrous, in no small part because positions in the postconstitutional period have hardened, as compromise now would result in more than one party losing face with its constituents.

The analysis in this Article is divided into three parts. Part II describes briefly the deeply divisive question of federalism as it occurred in the constitutional negotiations in post-2003 Iraq. …

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