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More Liberal Than Us

The provisional Iraqi constitution is a progressive's dream. And there is a good chance it may remain just that.
 
 
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On March 8th, a group of 25 handpicked Iraqis signed a constitution that will become the law of the land when the United States transfers sovereignty over to the Iraqi Governing Council this June.

The Transitional Administrative Law (TAL) is nearly twice as long and significantly more complicated than the U.S. Constitution. It is also, ironically, far more progressive. Despite the right-wing ideologues behind the regime-change experiment, the TAL institutes principles that liberals in American only dream about.

Here are a few highlights:

Article 12: "All Iraqis are equal in their rights without regard to gender, sect, opinion, belief, nationality, religion, or origin, and they are equal before the law."[ital added] The Civil Rights Act bans gender discrimination in the United States, but gender equality is nowhere enshrined in the Constitution. The Equal Rights Amendment would have done that, but after passing the Senate and House in 1971-72 it failed to clear enough statehouses to be ratified.

Article 13(H): "Each Iraqi has the right to privacy." Such a right is not specifically mentioned in the Fourth Amendment, but two centuries of jurisprudence have interpreted it as granting such a right, culminating most controversially in Roe v. Wade. But to this day, Supreme Court justices such as Antonin Scalia, Clarence Thomas and members of the Federalist Society call it a fiction.

Article 14: "The individual has the right to security, education, health care, and social security." Nothing even approaching such a right exists in the U.S. Constitution, but for millions of kids in failing schools and the 43.5 million Americans without health insurance (me included), the idea of requiring government to provide adequate services is appealing.

Article 15: "No one may be unlawfully arrested or detained. ... Every person deprived of his liberty by arrest or detention shall have the right of recourse to a court to determine the legality of his arrest or detention without delay. ... Civilians may not be tried before a military tribunal. Special or exceptional courts may not be established."

We do have those rights in our Constitution, kind of. But the U.S. Constitution explicitly allows for habeas corpus to be suspended in "cases of rebellion or invasion." The Bush administration has used that loophole to detain hundreds of suspected terrorists, including two American citizens, without the right to an attorney, due process, or the possibility of appeal or recourse.

Article 17: "It shall not be permitted to possess, bear, buy, or sell arms except on licensure issued in accordance with the law." Our constitution leaves open the possibility of regulating arms, but the NRA and others have fought any regulation, advocating that the Constitution countenances nearly unfettered personal arms use and ownership.

The Coalition Provisional Authority's official line is that the constitution was "written by Iraqis for Iraqis." But it's hard to ignore that it was written by 22 men and three women handpicked by the CPA and that the process was overseen by Paul Bremer, who, as head of an occupying power, had final say. Given that, how does one explain its progressive character?

It is true that many of the articles cited above -- the ban on detentions without charges, for example -- are clearly Iraqi responses to the brutality of Saddam's regime. But the benefits of the TAL's democratic provisions to the Bush administration are equally clear. Now that the retroactive causus belli for the war has become the "liberation"of Iraq, it is vitally important that the United States establish a liberal democracy -- and fast. So with no WMD in sight, and the United States desperate to get U.N.'s help, the CPA has helped produce a constitution that even Dennis Kucinich could love.

But more importantly, since the TAL is operable only until an elected Iraqi government formally drafts a constitution (projected to be about a year from now), it hardly matters how ambitious it is, or what rights it grants.

What's more, despite its progressive provisions, the TAL isn't particularly democratic. It sets up tri-partite presidency composed of one Kurd, one Shiite and one Sunni, and a complicated federalist structure that greatly empowers unelected local councils and allows regional blocs (such as the Kurds) to veto any new constitution.

There is no shortage of noble constitutions in the world. Haiti has a perfectly good constitution, but it hasn't prevented an endless string of coups. Afghanistan has a new constitution, but it hasn't stopped warlords from imposing Taliban-like brutality. Even China's 1982 state constitution proclaims citizens "enjoy freedom of speech, of the press, of assembly, of association, of procession, and of demonstration."

Ultimately, a constitution is only as good as the process by which it's produced and the institutions that exist to support it. Right now the only secular institution in Iraq is the Pentagon -- and it's not equipped or designed to create a stable democracy ex nihilo .

So despite all the attractive provisions in the TAL, I'd still choose our flawed but durable Constitution. Though a right to health care would be nice.

Christopher Hayes is a freelance writer based in Chicago.