So Does Iraq Have A Constitution or Not?

Well, sorta.

The Committee charged with drafting a constitution presented it to the Interim Assembly yesterday, just minutes before the time limit ran out, but because of Sunni intransigence the Assembly delayed voting on the document for three days. So, the constitution has been presented, but not yet adopted.

What to make of this situation?

The LA Times gives some indication of what the draft contains:

People who have viewed the document said it includes vague language weakening Iraq's strong central government, enshrining a federalist system, and addressing how oil revenue is to be split between Baghdad and the provinces.

The text calls for such liberties as freedom of expression and the press. It gives Islam a role in national affairs, while offering Iraqis the option of following civil code in areas such as marriage, divorce and inheritance.

But the drafting committee left it up to the transitional National Assembly to sort out issues including specifics on regional rights, the language of the preamble, the removal of Saddam Hussein's former Baath Party members from government, and the exact role of the presidency, officials said.

Read it here.

This pretty much agrees with other reports coming out of Baghdad and represents considerable progress. The vagueness should not be a problem, but probably will be. The American constitution, you will remember, was deliberately vague on a number of matters upon which no consensus or compromise could be reached at the convention. These included slavery and the makeup of the federal judiciary, the relationship of states to the federal authority, definitions of citizenship and the rights attached to it, and a host of other touchy issues, all of which had to be worked out over time through the political process, and for that matter are still being worked out today.

All that a constitution really needs to do initially is to define a structure and procedures within which political controversy can be accommodated. If other provisions prove to be necessary they can be added through an amendment process. Other arrangements can be reached through something less than a constitutional provision. The entire structure of America's federal judiciary, for instance, was defined and redefined through acts of Congress, not in the constitution itself. Yet all sides seem to be wedded to the insane proposal that a constitution must set out in advance definitive answers to any question that can be raised. This is European lunacy and the US should never have bought into it.

If the Iraqis are smart they will adopt a constitution while leaving seemingly intransigent issues unresolved to be addressed through the normal political process and possibly through amendment. The committee has done its job and has presented a basic draft. This can be amended through wider debate in the whole assembly, and further amendment can come as a result of a true national debate during the weeks and months leading up to ratification. That's the way it was done in the US. The Bill of Rights was added to the federal constitution after it had already been ratified and the need for such protections had arisen out of the ratification debates that had taken place all across the country.

The pursuit of consensus is a recipe for disaster. At this time and in this way it cannot be achieved. So the best we can do is to accept an incomplete constitution and allow the normal, non-constitutional process to work out over time solutions to those problems that are now too intractible to be resolved.

I suspect that the problem is that there are too many damned lawyers involved in the process. They think that in the normal course of things basic decisions should be reached through judicial rather than political processes and therefore want as comprehensive a fundamental law as possible. We've already taken a lot of chances in our Iraq adventure -- why not take a chance on the politicians?