New Constitutions and the Negative Example of Iraq

Nathan J. Brown offers some punchy  comments on what’s next for those countries preparing to draft new constitutions after revolutions (e.g. Tunisia, Libya, Egypt). Titled “Americans, Put Away Your Quills,” the article frames the appropriate and limited role of Western countries during this vital drafting period. Brown opens his argument by reminding Western observers that the constitutional phase is a messy one—and that all experiences, even the American one, are colored by ugly politicking and negotiation. Says Brown:

First, when outsiders give advice, they tend to ask an abstract question: what would be the best constitution for a given society? Not only do they often know little about that society, they forget that constitution writing is a supremely political process. It is not carried out by philosopher kings but pushed through by real political forces playing a gritty political game. Despite what some of us may dimly remember from junior high school U.S. History, our process was no different. Constitutional kibitzing rarely finds an enthusiastic audience. After the initial election in the various Arab countries, the constitution will be the first test of the new balance of political forces — and it will be the first real opportunity for them to discover not simply how to compete, but how to cooperate. Even more important than the text they produce, the patterns of interaction they establish as they draft will produce lasting patterns for politics. They need to keep their eyes on each other — and that is precisely what they will do.

Brown believes Western nations and the international community can still positively affect the outcome of constitutional negotiations, however, and he writes:

So are we to be mere spectators? Largely yes, but not completely. There are things we can do to help. First, we can communicate that rule of law works internationally as well as domestically — the newly reconfigured members of the family of nations cannot jettison their international obligations that come in the form of various human rights instruments, the United Nations Charter, and other binding bilateral agreements. If the United States can overcome its own phobia of international law, it will find these documents a promising source of values and of language that Arabs have already accepted in theory. Indeed, some of those clauses that tend to make Americans most nervous — especially those related to Islam — are generally vague, symbolic, and ambiguous at most in their practical legal affects. Illiberal applications of such clauses can often be hemmed in by robust, specific, and enforceable references to international human rights instruments.

Also of note is Brown’s repeated references to the Iraqi experiment, and how the United States mapped its own traditions onto the Iraqi process, with poor results. “We saw in Iraq how much U.S. understanding of the constitution drafting process was colored by the U.S. experience. Commentators rushed to speak about a ‘Philadelphia moment,’ recommended favorite clauses from the Bill of Rights, and even argued over judicial review by reference to Marbury vs. Madison or Roe vs. Wade,” Brown reminds us. “We should have learned our lesson: much of our advice will be bad and most will be irrelevant.” Later in the article, Brown writes: “The U.S. attempt to graft some familiar structures, terms, and concepts familiar into the Iraqi text often left Iraqi politicians baffled — and largely had to be abandoned as the United States finally concluded that any constitution Iraqis agreed upon was better than one that made sense to Americans.” Without a doubt, Brown cites Iraq’s experience as supremely negative, which should sting American policy-makers since they engineered it.

It’s worth noting that the thrust of Brown’s comments are not limited to academia. In fact, most recently, Libyan rebels also cited Iraq as a negative example which they wished to avoid. Amazingly, neither academic or indigenous critiques of Iraq’s legacy prevent architects and advocates of the war from pretending the invasion of Iraq in 2003 enabled the Arab uprisings of 2011.

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