The Iraqi Constitution and Federalism

Just a few thoughts after our discussion in Con Law:

The new Iraqi constitution has embraced federalism in that it is requiring 2/3 of the people in each of the [18?] provinces to ratify, there is horizontal and vertical separation of powers.

I'm fuzzy on the details of exactly what the text contains, but I concur that this marks an important moment in Iraq's history, similar to our nation's founding.

We discussed why federalism is a good thing for Iraq and the parallels with our own founding. My thoughts were that, since Iraq is moving from a state of tyranny, not unlike we were after the revolution, federalism is necessary in order to protect the fledgling democracy from slipping back into tyranny.

Iraq has the benefit [a double edged sword as it turns out] of learning from our mistakes with the Articles of Confederation. For the first 13 years, states were autonomous and the governors held all the power. This was an absolute failure which nearly led to civil war. Therefore, we embraced federalism and delegated some powers to the three branches of the federal government. This more or less calmed the situation until the Civil War.

The problem with Iraq jumping over the "13 year step" that we took is that the provisional government has triple-duty: it must first define the borders of the provinces, establish provincial governments, and then get the provinces to come to a supermajoritarian agreement on the constitution. We at least had the benefit of having already-formed states and governments from which to delegate federal power, and ratification of our constitution didn't come all that easily.

This is no light matter, as the Shiites are making quite obvious. Representing a 60% majority, they are not going to give in to the veto power of the minority [Sunnis and Kurds].

There is another quite interesting twist to the Iraqi government: from what I have read, they are planning on having three "presidents" -- one Shiite, one Sunni and one Kurd. I may be wrong on this, but if that is the case, it just makes everything all that much more complicated.

There is also an emerging issue that perhaps one of the federalism clauses will spark a civil war. This would be an unfortunate and ironic result, since the principles of federalism are, in the Iraqi context, designed to prevent such a thing.

I'm not sure if this is the same clause that caused 8 of the 15 Shiite delegates to walk out of the signing party -- the clause had to do with legislation -- the operative wording being that Islam would be "a" source, and not "the" source [as the Shiites want] of legislation.

Again, we can see a complicating difference with our founding: we have separation of church and state, they do not.

I had one other concern about the parallels and differences between our founding and the Iraqi constitution: ours seems to have been a "bottom-up" delegation of federal power. The people had all the power, gave the power to the states, which in turn enumerated some of that power to a federal government.

The Iraqi situation seems to be a "top-down" formation: the people do not have any power until the federal government gives it to the states, and then the states give it to the people. I may be completely wrong here, but it seems a fundamental problem. The Iraqi constitution does carve out some "inalienable rights" [freedom of speech, freedom of religion (except that Islam is the "official" religion) and something like the life, liberty and pursuit of happiness idea]. But it appears that these rights are being "granted" to the people by the federal government, rather than pre-existing.

Maybe the top-down/bottom-up distinction doesn't make a difference because we are dealing with the formation of a government in a completely different context than the formation of our government. The mechanics of the formation are unique, and what is important is what comes out in the end and whether it provides a stable form of government.

I'm keeping an eye out in the coming days, and I hope to get my hands on at least some relevant portions of the proposed constitution to hang my hat on.