Wade's World

Just leave it where Jesus flang it.

Thursday, August 25, 2005

Federalist No. 37 And The Iraqi Constitution

I arrived at the subject of this post by accident, although the general parallel had occurred to me several times over the post month -- i.e. how the deliberations involved in drafting the Iraqi Constitution are similar to the drafting of the U.S. Constitution.

In the course of reading Kevin Drum's terse opinion on Originalism I was directed to this post by Mitchell Freedman which contends that, among other things:
The point of [James] Madison in [Federalist No. 37 ] ... is that the use of broad terms in the Constitution recognized differences among the founders and that only experience will provide a sense of meaning to the broad terms.
Freedman further contends that Federalist No. 37 "posit[s]
a strong federal presence in the area of economic regulation passed by legislatures--as opposed to courts...." In short, Freedman holds up Fed No. 37 as evidence of the Framers' intention that the Constitution be viewed as a "living document." Curious about this interpretation of Madison, I took Freedman's suggestion and reviewed Fed No. 37. While Freedman's interpretation is more than a little strained in my opinion, as I found little to suggest that Madison considered the Constitution to be a "living document" (although, to be fair, Freedman also held up as evidence, and recommended a reading of, M'Culloch v. Maryland, 17 U.S. 316 and Gibbons v. Ogden, which do discuss Constitutional interpretation even if neither case renders the document as elastic as Freedman suggests), what I did find was a wonderfully appropos admonishment to those expecting perfection from the constitutional drafting process.

Which leads me to the actual subject of this post -- the parallels betwen the drafting of the Iraqi and U.S. Constitutions. In Fed. No. 37, Madison defines his audience, and that of the Federalist Papers in general, as:
... those only, who add to a sincere zeal for the happiness of their country, a temper favorable to a just estimate of the means of promoting it.

Persons of this character will proceed to an examination of the plan submitted by the convention, not only without a disposition to find or to magnify faults; but will see the propriety of reflecting, that a faultless plan was not to be expected. Nor will they barely make allowances for the errors which may be chargeable on the fallibility to which the convention, as a body of men, were liable; but will keep in mind, that they themselves also are but men, and ought not to assume an infallibility in rejudging the fallible opinions of others.
Leaving aside Madison's use of rhetorically preparing the reader to agree with him ("I'm only writing to reasonable people, who are the only people who see the wisdom of my words. Surely you, Dear Reader, are a reasonable person, aren't you?"), he is asking us to contemplate the minor miracle that a Constitution was drafted in the first place ("many allowances ought to be made for the difficulties inherent in the very nature of the undertaking referred to the convention"). After all, the Framers were basically wandering in the wilderness when it came to deciding what the structure of the country would look like:
The most that the convention could do in such a situation, was to avoid the errors suggested by the past experience of other countries, as well as of our own; and to provide a convenient mode of rectifying their own errors, as future experiences may unfold them.
A direct comparison can be drawn to the drafting of the Iraqi Constitution. Certainly there is no other model from which to draw in the Middle East, with exception of Aghanistan. Nor is there any Islamic country, again with sole exception of Afghanistan, that can provide guidance other than, as Madison put it, to "furnish no other light than that of beacons, which give warning of the course to be shunned, without pointing out that which ought to be pursued." To be sure, the Iraqis have the benefit of numerous "beacons" left by constitutional democracies; many times more than what was available to the Framers of the U.S. Constitution. But the novelty of a Constitution being debated and drafted in a region that has henceforth known little more than dictatorship and colonialism should not be lost on us. No matter what the Iraqis come up with, it will be but another step into the wilderness where they will leave their own beacon for (hopefully) future Middle East democracies.

Fashioning a Constitution is also beset by the difficulties inherent in all complex systems and in the language used to define them, such that the same words can mean entirely different things to different people:
Experience has instructed us that no skill in the science of government has yet been able to discriminate and define, with sufficient certainty, its three great provinces the legislative, executive, and judiciary; or even the privileges and powers of the different legislative branches. Questions daily occur in the course of practice, which prove the obscurity which reins in these subjects, and which puzzle the greatest adepts in political science. The experience of ages, with the continued and combined labors of the most enlightened legislatures and jurists, has been equally unsuccessful in delineating the several objects and limits of different codes of laws and different tribunals of justice ... Besides the obscurity arising from the complexity of objects, and the imperfection of the human faculties, the medium through which the conceptions of men are conveyed to each other adds a fresh embarrassment. The use of words is to express ideas. Perspicuity, therefore, requires not only that the ideas should be distinctly formed, but that they should be expressed by words distinctly and exclusively appropriate to them. But no language is so copious as to supply words and phrases for every complex idea, or so correct as not to include many equivocally denoting different ideas.
Madison concludes that the Constitutional Convention was surely inhibited by the rancor involved with applying definitions and delineations to the "boundary between the federal and State jurisdictions." In order to induce the States to relinquish certain powers, and to vest them in the federal government, the Framers had to agree on the defininitions that limited those federal powers, despite "three sources of vague and incorrect definitions: indistinctness of the object, imperfection of the organ of conception, inadequateness of the vehicle of ideas." Arriving at any sort of agreement as to those terms was a monumental task, according to Madison, indicating the enormity, and the unlikely outcome, of the undertaking.

Incidently, this passage from Fed No. 37, is the source of Freedman's contention that Madison envisioned the Constitution as a "living document." I don't think Madison suggests any such thing, but Freedman's point is well-taken that the Constitution was always meant to be interpretted, and that the imprecision of language almost certainly precludes the most rigid of interpretations as those attributed to "Originalists." However, if one contemplates that Madison was describing the Constitutional Convention as the time and place where those imprecisions and vagaries of language were hammered out to a commonly acceptable form, I believe this passage in fact undermines Freedman's interpretation. But I digress ...

Looking to the Iraqi convention, they have surely been hampered (or "embarrassed" as Madison would say) by the difficulties in arriving at precise language. This must be especially true where the differing factions do not even speak the same language in some cases, much less the same dialect. Agreeing on terms that are precise enough to hold the same meaning for all the drafters, but still broad enough to allow for application to both current and future situations, is hard enough where the drafters share a common language, as Madison highlighted. Doing so amongst the various populations that currently occupy Iraq must be even more difficult by an order of magnitude.

Madison goes on to describe the tensions between the various States and other factions that contributed to the document's substance:
As every State may be divided into different districts, and its citizens into different classes, which give birth to contending interests and local jealousies, so the different parts of the United States are distinguished from each other by a variety of circumstances, which produce a like effect on a larger scale.
With so many competing interests involved, each of which had to be catered to on some level, the drafting of the Constitution was subject to great strain from the contrary impulses, so much so that Madison marvels:
The real wonder is that so many difficulties should have been surmounted, and surmounted with a unanimity almost as unprecedented as it must have been unexpected. It is impossible for any man of candor to reflect on this circumstance without partaking of the astonishment. It is impossible for the man of pious reflection not to perceive in it a finger of that Almighty hand which has been so frequently and signally extended to our relief in the critical stages of the revolution.
Certainly the same adulation can be extended to the Iraqis, who have been subject to no lesser strains than those faced by the Framers. At least the Framers were able to draft away without the constant threat of violence that pervades the Iraqi deliberations, and without such a jaundiced global eye critiquing ever aspect and outcome of the process as that faced by the current drafters.

My (undoubtedly unoriginal) point is merely that the expectations being placed on the Iraqis by some is not warranted when one considers the great difficulty faced in forming our own Constitution, as ably illuminated by James Madison. While the end result may not, for some, adequately resemble the U.S. Constitution, it will be an important milestone nonetheless. The Iraqis are owed at least a modicum of respect for their effort, and measurably more so for the finished product.

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