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Present at the Creation

James Madison & Co. can help turn Iraq's factions into a functioning democracy

by Randolph J. May
Legal Times, May 5, 2003

Now that the fighting is over, the spotlight in Iraq has turned to the daunting task of "nation building." Indeed, two preliminary conferences attended by many of the diverse elements of Iraqi society already have been held to begin an exchange of views concerning what a government of a free Iraq should look like.

With respect to the difficult days ahead, the words of our own first president are particularly apt: "My anxious recollections, my sympathetic feeling, and my best wishes are irresistibly excited whensoever, in any country, I see an oppressed nation unfurl the banners of freedom." George Washington's empathetic ode to freedom is stirring indeed. But in thinking about the monumental challenge facing Iraqis, I find myself returning most often to the words of James Madison, the man more than anyone else responsible for the drafting of our own Constitution.

No doubt the most formidable obstacle to the viability of an Iraqi government that respects individual liberties within the context of a representative democracy is the existence of deep, long-standing factional divisions. There are the familiar religious and ethnic Iraqi factions -- from Shiite to Sunni Muslims, even to Christians, and from Kurds to Turkmen to Arabs to Chaldeans. And there are divisions between rich and poor, between village and city folk, and between former members of Saddam's inner support circle and those outside who have been persecuted by the Baathist regime. Even keeping in mind the ethnic strife, say, that followed Yugoslavia's splintering, it is difficult to imagine more fractious societal ingredients out of which to create a stable democratic regime than the present Iraqi stew.

It is in his consideration of the role of factions in the formation of a working democracy that Madison's own writing is perhaps most instructive. In devising the scheme for our own federal republic, the founders understood enough human history to appreciate two fundamental, and they believed, universal truths about human nature.

First, as Madison put it in The Federalist No. 51, men are not angels; rather most are, at least in no small measure, self-interested and ambitious. Second, as Madison elaborated in the famous Federalist No. 10, people have always divided themselves into factions. And, indeed [this is key], they always will as long as they are free to pursue their interests in the way they see fit. In dictatorships like Saddam's, factionalism is suppressed, but at the cost of freedom.

Madison pointed out in Federalist No. 10 that "[a] zeal for different opinions concerning religion, concerning government, and an attachment for different leaders ambitiously contending for pre-eminence and power . . . have, in turn, divided mankind into parties, inflamed them with mutual animosity, and rendered them much more disposed to vex and oppress each other than to co-operate for their common good."

For Madison, the structural answer to self-interested faction was the familiar division of powers and checks and balances embodied in our constitutional framework. The federal nature of the Union divided power between the central government and the states. And, at the central government level, the tripartite system divided authority among the legislative, executive, and judicial branches.

To address Iraq's factional divisions, it seems clear that some sort of federal union, rather than unitary central government, will be necessary. At the national level, the success of our own tripartite separation of powers model offers a useful guide. There certainly are healthy parliamentary democracies in which the executive and legislative branches are melded in a way that they are not in this country [think Great Britain]. But the parliamentary form, with the more frequent dissolution and reassembling of multi-factional coalition governments, often leads to instability [think the post-World War II revolving door governments in Italy.] While regularly scheduled free elections are essential, a new Iraqi government will need a high degree of stability and accountability that a fractious parliamentary system may not assure.

Importantly, it probably will be advisable for somewhat more authority to devolve to the provincial level than is the case with regard to our own federal/state division. Drawing the boundaries of the provincial governments is likely to be contentious. All of the Kurds do not live in the north, all of the Shiites are not concentrated in the southern region, all of the Sunnis do not reside in Baghdad and environs, and so on. But the major groups likely will demand, and it should be possible to fashion, provincial boundaries in which certain religious and ethnic factions roughly predominate, and in which they operate with a considerable amount of autonomy.

Even so, there still will be many minorities living under provincial governments controlled by majority populations with whom the minorities long have been at odds, sometimes fiercely so. While we Americans were by no means a homogeneous people even during our colonial period, the Iraqi factions have a longer and richer history of acrimony. It is only natural that the various minority groups, wherever they find themselves residing, will be concerned about securing religious liberty and freedom of speech. And it is only natural that Iraqis from many walks of life, having been traumatized by Saddam's brutal regime, will seek reassurance that they will be protected against the hallmarks of oppressive and lawless regimes.

As did our own founders, Iraq's nation-builders should rely on more than structural safeguards to protect against government-sanctioned oppression. The ideology of freedom that led the early Americans to revolution also led them to demand passage of a Bill of Rights. Madison had defended the adoption of the structural Constitution without such a rights specification. But after ratification, he introduced in the first Congress the bill that became the Constitution's first 10 amendments. In an October 1788 letter to Thomas Jefferson, he offered two justifications: the "political truths" declared in the bill of rights would "become incorporated with the national sentiment," and on occasions when the danger of oppression arises from the acts of the government rather than "interested majorities of the people," a bill of rights would "appeal to the sense of the community."

For Iraq, it will be especially important that fundamental rights -- such as freedom of speech and religion, protection against capricious searches and arrests, fair trial guarantees, and prohibitions against self-incrimination -- be explicitly specified in the new federal-level charter. The delineation of such rights cultivates a constitutional culture -- the national sentiment of which Madison spoke -- in which respect for individual freedom becomes an integral part of the societal fabric.

Moreover, even while Madison recognized that written bills of rights in and of themselves might be only "parchment barriers," their mere existence also nurtures the concept of independent judicial review. In offering his bill on the House floor in June 1789, Madison put it this way: "If they [bill of rights] are incorporated into the constitution, the independent tribunals of justice will consider themselves in a peculiar manner the guardian of those rights." For an Iraqi democratic experiment to succeed, the idea of an independent judiciary at the federal level whose job it is to enforce the safeguards to individual freedom will need to be incorporated into the constitution.

Our own constitutional system has much to offer Iraq, or, for that matter, as Washington put it, any "oppressed nation unfurl[ing] the banners of freedom." While it provides a very good model for self-government, I am under absolutely no illusions that it will do simply for the Iraqis to adopt our constitutional framework lock, stock, and barrel.

Ultimately, as in our own case and in the case of all nations striving to establish a democracy, the balance likely will hang in the character of the men and women who emerge as leaders of the nation-building effort. For all of Madison's reliance on structural checks and balances and the Bill of Rights as safeguards against abuses stemming from the darker side of human nature, he pointed out in The Federalist No. 55 that "there are other qualities in human nature which justify a certain portion of esteem and confidence." He warned that the preservation of republican government "presupposes the existence of these qualities in a higher degree than in any other form."

None of our founders were angels. But we were blessed then with an extraordinary set of leaders who seized the moment to institute a government infused by a shared commitment to freedom and checks on the arbitrary exercise of power.

Indeed, what made Washington such a remarkable leader for his time was the sense he conveyed to the public of his own virtue, especially his reluctance to grasp for power. In the weeks ahead, as Iraqis hold the crucial deliberations looking toward the adoption of a new constitutional charter, let's hope that Iraq's own virtuous Madisons and Washingtons emerge as well

Randolph J. May is a senior fellow and director of communications policy studies at the Progress & Freedom Foundation in Washington, D.C. The views expressed are his own and do not necessarily reflect the views of the foundation. His column, "Fourth Branch," appears regularly in Legal Times.

© 2003 Legal Times. All rights reserved. This article is reprinted with permission from Legal Times.



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