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This is a menu of the topics on this page (click on any): U.S. Mistakes, Not Just U.S. Successes, Can Lead to Valuable Lessons The Fraught Decade Between the Declaration and the Constitution The Constitution as an Imperfect and Amendable Document Misleading U.S. History Should Not Create Unrealistic Expectations for Iraq .
Finding the Right Government for Iraq:
U.S. History Shows That It May Take Time, Patience, Rethinking, and Amendment
By MARCI HAMILTON
Saturday, Apr. 26, 2003, reprinted from www.findlaw.com where Professor Hamilton writes a column every other Thursday.
With General Jay Garner's arrival in Iraq this week, the question on everyone's mind is this: What kind of government will Iraq have? Will it be democratic enough? Will it fit the Iraqi people, or merely be an import from the U.S.? Will it permit the "right" amount of freedom? Will separation of church and state and other features of the U.S. Constitution and other western constitutions be a part of the new Iraqi Constitution, as well?
In the midst of anxiety about the answers to this questions, lots of doomsday scenarios are being painted. In particular, doomsayers like to point fingers at Afghanistan, where a fully operational democratic government is not yet in place.
The truth, however, is that there need not be a smooth road to a successful democracy. To the contrary, the U.S.'s own rocky road to representative democracy should give the pessimistic pause. No one should assume either that there is only one chance for Iraq to get it right, or only one form of government that can work in Iraq.
After all, the U.S.'s own experience belies these claims. While the U.S. system is now a masterpiece, it's important to remember that the Constitution that now governs was necessary because the first constitutional order in the United States failed. For centuries, this order has been a work in progress.
In civics, Americans are taught the highlights of American history, in an account that focuses primarily on the Declaration of Independence and the Constitutional Convention. But this cherry-picking is a shame, because it makes the path of American democracy look too easy, too predetermined - as if Providence had guaranteed it from the start.
In fact, the ten years between the Declaration and the Convention were some of the rockiest in this country's history. Our children, and the rest of the world, could learn as much from our mistakes as from our successes.
America's first attempt at representative democracy was embodied in the Articles of Confederation. It was an abject failure, for two main reasons.
First, the drafters of the Articles of Confederation were overly optimistic in their assessments of the characters of the men who would rule in state governments of the era. State governors had their powers curtailed, for fear they would operate as monarchs. State legislators correspondingly expanded their power, and they were no virtuous lot.
The expectation that these men would rule to serve the common good was dramatically disappointed. Instead, unchecked by the powerless state governors, the legislators became "vortices of corruption."
Second, the drafters of the Articles of Confederation were also overly optimistic in their belief that the states, on their own, would coordinate their agendas under the aegis of some larger purpose. Corrupt state legislators focused not on serving the public good, but on granting special favors to serve their own interests. They also seemed incapable of coordinating with other states a common trade policy, or serving common military needs.
Indeed, they refused even to pay their share of taxes to support the Congress. And Congress had no means to force them to do so; the Articles of Confederation simply had not effectively empowered Congress to force the states to coordinate in the interest of a greater good.
As a result, taxes were high, the economy was weak, and the people had little influence on the legislative cabals that purported to represent them. The States were, in effect, separate sovereigns, only loosely tied together by the Articles. They were under no compulsion to do what was in the greater good beyond their own borders.
Observing these developments, citizens became frustrated. Had they fought so fiercely for independence from Britain only to be subjects of the unaccountable, unworkable governments that had been set in place following the Declaration?
Angry, they took up arms once again. Shay's Rebellion in Massachusetts marked the moment when it became absolutely clear that the Articles had failed to create a stable or accountable governing system - or, indeed, even a government superior to the colonial regime that had been overthrown. The Constitutional Convention was called as an emergency meeting to head off the possibility of more civil unrest.
In sum, the first American experiment fell flat. These were dark times, not the gentle slide to democracy too often presumed.
The Framers were properly chastened by the failure of the Articles of Confederation. The Revolutionary Era that was ending had been utopian - with citizens placing an optimistic trust in human goodness and the essential virtue of Americans over Europeans. Now, however, the Framers had developed - and sought to accommodate in the Constitution - a more realistic distrust in all individuals holding power, based on experience that power indeed tends to corrupt. The checks and balances and the separation of powers--from the three branches of the federal government, to federalism, to separation of church and state--for which the United States Constitution is revered arose out of this fundamental understanding.
The root of the Framers' distrust was not a cynical assessment men were evil in all circumstances. On the contrary, it was a pragmatic distrust in human nature as corruptible but capable of good. This pragmatic distrust was married to a hope that a better constitutional arrangement could deter abuses of power and could direct officials' attention to the greater good. Utopia was no longer a goal.
Accordingly, when the Framers sent a cover letter with the completed Constitution to Congress, they humbly declared that this was not a perfect document. They noted, in particular, that surely there were abuses of power they had not been able to imagine, and therefore to deter. There was a palpable sense that they were imperfect men crafting what could only be an imperfect document.
Thus, the Framers had come to the Constitutional Convention not to create the perfect document, which they now understood all too well was impossible. Rather, they came to try to do the best they could under exigent circumstances. They were pragmatic, and experimental. If there is anything the United States' constitutional history has to offer Iraq, it is this humble spirit.
Within their document, the Framers included a formal amendment process. And after they had finished, it was used no fewer than twenty-seven times. If the Iraqi's first Constitution similarly evolves over time - or even has to be discarded, to start from scratch, as the Articles of Confederation were - we should not be surprised and the Iraqis should not despair.
American triumphalism too often has moved the troubled history I have described far into the background, preferring to concentrate on the U.S.'s shining successes, rather than on its periods of unrest and uncertainty. The Constitution, for instance, is presented as having miraculously paved the way to U.S. power and might.
The Constitution is a miracle, to be sure. But if the decade before the Convention, and all the subsequent amendments (as well as the Civil War!) are forgotten, then a fundamental truth of constitution-making is missed. It is this: Constitutions are imperfect documents that need to be fitted to their people, and ever amended to improve their fit.
Thus, as the Iraqis debate their constitutional future, they should not be burdened with the expectation that they have only one chance to get it right. We are still trying to get it right, with amendments in our future, no doubt. Nor should the world stand in harsh judgment as the Iraqis search for the right balance of liberty and order for them.
Marci Hamilton is the Paul R. Verkuil Chair in Public Law, Benjamin N. Cardozo School of Law, Yeshiva University. Professor Hamilton's columns are available on an archive at http://writ.corporate.findlaw.com/hamilton/. Her email address is firstname.lastname@example.org