In two weeks, the Iraqis are supposed to vote on a new national constitution, one that was drafted last summer by a national assembly. Already there are predictions that this constitution, if approved, could lead to civil war because many northern Kurds feel they would be better off on their own, while the minority Sunnis who enjoyed power under the Baathist regime might be oppressed by the empowered Shiite majority. Then there’s the potential difficulty of reconciling women’s rights with the “Islamic law” provision.
But if America’s own constitutional experience is any example, we might be expecting much too much from any new Iraqi constitution. After all, our own constitution did not prevent a civil war, and it was controversial from the onset.
Under English traditions dating back to the Magna Carta of 1215, which limited the arbitrary power of the king, and under colonial charters which described the powers of government, as well as voluntary agreements like the Mayflower Compact, Revolutionary-era Americans had a long practice of defining government in writing.
But the first American effort at a national constitution, the Articles of Confederation in 1777, was less than a resounding success. The Articles sufficed, just barely, to keep the Continental Army in the field long enough to exhaust Great Britain’s willingness to continue a distant war.
The Articles failed in peacetime, though. Without a common enemy, the 13 independent states squabbled furiously among themselves, nearly going to war over matters like fishing rights on the Potomac River.
Thus the call in 1787 for a convention of delegates from the states to consider revisions in the Articles. The delegates vastly exceeded their authority because they wrote not a mere revision of the Articles, but a totally new system of government.
It was opposed by many patriots, among them Patrick Henry of Virginia, already famous for stating, “Give me liberty or give me death.” He called the Constitution “the most fatal plan that could possibly be conceived to enslave a free people.” Many states refused to ratify it unless there was a Bill of Rights to limit the enlarged new powers of the central government.
The federal constitution was a product of many compromises. Big states with large populations got the House of Representatives. Small states got the Senate, where their interests could be protected because each state, large or small, got two votes.
The House was directly elected and thus democratic, but it was only one-half of one of the three branches of government. The Senate was selected by state legislatures. The president was not directly elected, but chosen by a special electoral college which was in turn chosen by state legislatures. Judges were selected by the president and the Senate.
The Constitution contained an uneasy compromise between slave states and free states. Free states were required to return escaped slaves, who were euphemistically called “persons held to service or labor,” but the importation of slaves could be banned after 1808.
Some of its flaws were fixed quickly. The Bill of Rights, which limited the power of Congress, took effect in 1791, just four years after the Constitution was written. The method of selecting the vice president (the runner up in the electoral college) did not anticipate political parties, so President John Adams had a vice president, Thomas Jefferson, who was frequently working against him. It had to be fixed with the 12th Amendment after the tie vote between Jefferson and Aaron Burr in 1800.
The federal constitution should be a model of clarity, but we still argue about whether there’s a right of privacy or of individual gun ownership. Despite more than two centuries of presidential elections, we nearly had a constitutional crisis with the Florida vote in 2000.
Our constitution was written by well-read, practical men who made substantial compromises to create a functional government. They did a pretty good job of it. But their first efforts certainly weren’t perfect. So how can expect the Iraqis to get it all right on their first try?
Ed Quillen of Salida (ed@cozine.com) is a former newspaper editor whose column appears Tuesday and Sunday.
