Words on Paper
Successful nation-building eventually gets around to the paperwork. Blood, sweat and tears won’t quite seal the deal. For that, we have come to rely on ink too.
Now it’s Iraq’s turn. In an intricate political dance of commission, committee, legislature and electorate, along with the heavy-breathing oversight of the United States, Iraq is set on a course to put its nationhood into writing.
For the record:
12:00 a.m. July 28, 2005 For The Record
Los Angeles Times Thursday July 28, 2005 Home Edition Main News Part A Page 2 National Desk 2 inches; 89 words Type of Material: Correction
Founding documents -- An article about constitutions in Sunday’s Los Angeles Times Magazine cited the following passage and attributed it to the Bill of Rights: “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are life, liberty and the pursuit of happiness. That to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed. . . .” That’s from the Declaration of Independence.
For The Record
Los Angeles Times Sunday August 14, 2005 Home Edition Los Angeles Times Magazine Part I Page 4 Lat Magazine Desk 2 inches; 87 words Type of Material: Correction
The article “Words on Paper” (July 24) cited the following passage and attributed it to the Bill of Rights: “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are life, liberty and the pursuit of happiness. That to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed. . . .” In fact, the text is from the Declaration of Independence.
Call it a “constitution.” It is a big word, one of the biggest in the lexicon of human progress.
The process we know, we venerate and we romanticize: Liberation begets statesmanship, and statesmanship begets a constitution--an end, and a beginning.
A constitution means hope. Or, a constitution means hardly anything at all.
“The citizens . . . are guaranteed by law: (a) freedom of speech; (b) freedom of the press; (c) freedom of assembly, including the holding of mass meetings; (d) freedom of street processions and demonstrations.”
By contemporary standards, the 1936 constitution of the Soviet Union was inspired.
Not only were basic freedoms recognized, such as freedom of expression, but the government went the extra mile and pledged “printing presses, stocks of paper, public buildings, the streets, communications facilities and other material requisites for the exercise of these rights.”
Freedom of worship was safeguarded. “The church in the USSR is separated from the state, and the school from the church.” Women were granted equal rights with men, as well as equal pay and a guarantee of equal “rest and leisure.” Equal rights according to nationality and race were secured--and further, “any establishment of direct or indirect privileges for citizens on account of their race or nationality, as well as any advocacy of racial or national exclusiveness or hatred and contempt, is punishable by law.”
In overseeing the drafting of this constitution, Josef Stalin yielded not an inch of high ground to Jefferson or Madison or Washington, or any of our own Founding Fathers. As it happened, Stalin also orchestrated the police-state killing of millions of internal political “enemies” and sent millions more to concentration camps in one of the world’s most shocking displays of tyranny.
One of those to die in a Soviet concentration camp was Osip Mandelstam. His offense? He wrote a poem about Stalin that ended:
The murderer and peasant-slayer,
His fingers are fat as grubs
And the words, final as lead weights, fall from his lips
Sometimes, constitutions are no more than New Year’s resolutions: good thoughts that don’t stand a chance.
[W]e . . . know that only those remain free who use their freedom, and that the strength of a people is measured by the welfare of the weakest of its members.--Constitution of the Swiss Federation
At a ceremony in autumn of 2003, George W. Bush expressed his worldview in a sentence: “America owns the Declaration of Independence and the Constitution, but the ideals they proclaim belong to all mankind.”
Americans are crazy about constitutions. You can read Bush’s words as generous or imperious, but the significance of our Constitution and the guiding principle of constitutions in general are among the few things that won’t get you a political argument in these contentious times. Just about every step in America’s civic life traces a path back to what our Constitution puts into writing, or, as is most often the case, what we divine from its words. And why not? In arguing for ratification of the U.S. Constitution, Thomas Jefferson called it “unquestionably the wisest ever yet presented to men.”
An odd thing about a constitution: It is a bigger idea when it occupies space in the back of our thinking. Pull it to the foreground and give it a good going over, and it loses some of its magic.
“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are life, liberty and the pursuit of happiness. That to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed. . . .”
Wait. That’s not the Constitution.
” . . . that government of the people, by the people, for the people, shall not perish from the earth.”
That’s not the Constitution either.
” . . . to build by the exercise of our right to self-determination, for ourselves and of our own free will, a single political community which is based on our common consent and the rule of law so as to ensure lasting peace, an irreversible and thriving democracy and an accelerated economic and social development for our country. . . .”
“The people shall have the right to fish.”
(The first reference comes from the Bill of Rights, the second from Lincoln’s Gettysburg address, the third from the Constitution of Ethiopia, and the last from Article I of the California State Constitution.)
Actually, only 52 words in the U.S. Constitution reach for the sky:
“We the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America.”
That composes the preamble in its entirety. Not to diminish the lasting power of those few words, but the remainder of the Constitution reads like Hoyle on the game of poker.
Simply put, the Constitution lays forth rules of governance. Who sits down to play the game, and the luck of the draw, are different matters.
The general minimum wage must be sufficient to satisfy the normal material, social, and cultural needs of the head of a family and to provide for the compulsory education of his children.--Constitution of Mexico
“Constitutions are ubiquitous,” says constitutional advisor and University of Richmond law professor John Paul Jones. “There is one governing my household, for example. Another governs the National Hockey League, albeit badly. . . . Genghis Khan ruled subject to such a constitution. In the event that the body with oversight authority--the Grand Council--found his violation of the constitution sufficiently egregious, he could be killed lawfully and his successor elected.”
More than an authority on constitutions, Jones oversees the University of Richmond’s vast collection of the constitutions of the nations of the world, an online library to satisfy scholar and insomniac alike (https://confinder.richmond.edu/).
“Our Constitution is breathtakingly short, idiosyncratic and vague in critical places,” Jones continues. We attribute genius to its drafters, but--and here, literary critics and copy editors take note--it frequently lapses into the passive voice. “Whether deliberately or carelessly . . . is now hard to say,” Jones observes, “but my fourth-grade teacher would not have been pleased.”
A teacher could also quibble with grammar in the phrase “more perfect union,” perfection not being a matter of degree.
In the modern context, the constitutions of nations often, but not always, tend to follow the U.S. example and include not just rules for the administration of authority but corresponding declarations of “rights” as safeguards against the use of authority. “The danger,” says Jones, “is that rules about power are amoral in nature, while rules about rights cannot be, so their mix may be unstable.”
Indeed, the linkage of rules in the U.S. Constitution and rights in the first 10 amendments was a happenstance expedient to patch over potential instability among the politically minded of 18th century America. A good many thoughtful people at the time warned that by spelling out specific rights, Americans would end up getting boomeranged--putting other rights into jeopardy.
“I go further and affirm that bills of rights . . . are not only unnecessary in the proposed Constitution but would even be dangerous,” wrote Alexander Hamilton. He reasoned that government would be tempted to poke its nose into any matter that wasn’t prohibited.
“For why declare that things shall not be done which there is no power to do?” he asked. “Why, for instance, should it be said that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed? . . . What is the liberty of the press? Who can give it definition which would not leave the utmost latitude for evasion?”
Hamilton called bills of rights “abridgments of prerogative in favor of privilege.”
The National House of Chiefs shall . . . undertake an evaluation of traditional customs and usages with a view to eliminating those customs and usages that are outmoded and socially harmful.--Constitution of Ghana
Thaw out and restore to life a person frozen in Arctic ice for the last millennium and the world might appear to be fairly orderly, just and sane--judging by the constitutions that guide its nations.
Conversely, a person who has followed news headlines for the past few years might scan various constitutions and wonder if there is a reading comprehension problem among more than a few of the world’s leaders.
North Korea’s constitution is a dilly. In contrast to the U.S. Constitution, which does not mention democracy even once, the Kim family constitution of North Korea pledges it repeatedly. Such as: “The state shall effectively guarantee genuine democratic rights and liberties.”
More, the North Korean constitution promises “the material and cultural well-being of its citizens.” At the end of a hard day’s labors, the North Korean constitution further declares, “Citizens have the right to relaxation.”
Saddam Hussein governed Iraq for more than a decade under a constitution proclaiming that “public office is a sacred confidence.”
Fidel Castro may be the favorite bad boy of American conservatives, but his constitution for Cuba contains a clause that conservatives here can only envy. Article 36 defines marriage as a “union between a man and a woman.”
So as not to overlook our own failings, we might remind ourselves that the vaunted Founding Fathers agreed upon a Constitution that enshrined the slave trade for at least 21 years. Among Section 9’s “Limitations on Powers Granted to the United States” was a strict limit on import taxes assessed upon slaves to an amount “not exceeding ten dollars for each person.”
Castilian is the official Spanish language of the state. All Spaniards have the duty to know it and the right to use it.--Constitution of Spain
So central is the idea of a constitution to our nation’s political affairs, to our very image of ourselves and our expectations for emerging nations, that some Americans are surprised to learn that like-minded democratic countries have managed to prosper without the need of one. In fact, two nations that the United States counts among its dearest friends today, Britain and Israel, have no written constitutions.
Great Britain pulls off the delicate task of existing as a monarchy, a democracy and a nation with an official state religion by adhering to centuries-old traditions and a collection of guiding covenants put into writing over the years. Israel, unable to resolve such basic questions as the place of God in a constitution, has failed to agree upon a written constitution for more than a half-century--relying instead on a set of Basic Laws, its 1948 declaration of establishment and the day-to-day tussles of electoral politics.
The basic characteristic of this revolution, which distinguishes it from other movements that have taken place in Iran during the past hundred years, is its ideological and Islamic nature. After experiencing the anti-despotic constitutional movement and the anti-colonialist movement centered on the nationalization of the oil industry, the Muslim people of Iran learned from this costly experience that the obvious and fundamental reason for the failure of those movements was their lack of an ideological basis.--Constitution of Iran
From afar, the burden on Iraq’s leaders to produce a consensus constitution seems almost unfathomable given what Americans know of the country’s religious and ethnic rivalries and the meddlesome intrigues of its neighbors.
One thing they will not lack, however, is an abundance of insight and advice from these shores.
In practically any good-sized American city, a scholar with something thoughtful to say about constitutions is easier to find than a baby-sitter on a Friday night or a roofer after a spell of rain. A walk through the campus of just one university, say, UCLA, turns out to be a 2,000-year adventure in constitutionalism.
Thomas Schwartz, a philosopher in the department of political science, speaks from having been a consultant to four governments in the writing of constitutions--the result of a flowering of nationhood after the breakup of the Soviet Union. Bound by agreement not to disclose which nations, Schwartz’s advice then and now is straightforward and unsentimental: “You put on paper how you choose and change the government--who is in charge of what,” he says. “If you do a good job of constituting the basic parts of government, the executive and the legislature, making clear how they are chosen, how they are changed and what their powers are, the rest mostly takes care of itself.
“If you don’t,” he continues, “you can write 1,000 pages of lofty ideas and they will be just empty rhetoric.”
Schwartz sounds, at first, like a provocateur in challenging conventional notions about what is lastingly important in a constitution. It may “help” to enshrine basic rights in a constitution, as the United States ended up doing, he says. But trying to convey idealism for the ages is only a conceit.
“One of the problems I’ve had with clients is that they want to concoct bills of rights that guarantee every good thing--housing, food, education. Does it help to put those lofty goals in a constitution? It may, or it may not, but what is clear is that a constitution cannot itself enforce these promises.”
His advice to Iraqis is to follow the wisdom of James Madison: Design a constitution that achieves consensus by assuaging public fears instead of trying to inspire hopes. In a practical sense, that means granting minority Kurds and Sunni Muslims “much more paper protection” than might seem necessary as an incentive for them to yield to majority Shiite rule. “Successful constitutions are those with widespread assent. From that, they draw their legitimacy.”
Or as Madison put it in the Federalist paper No. 51: “It is of great importance in a republic not only to guard the society against the oppression of its rulers, but to guard one part of the society against the injustice of the other part.”
Good people and good governance can overcome a bad constitution. The inverse is not equally true.
The Haitian people proclaim this constitution in order to . . . establish a strong and stable State, capable of protecting the country’s values, traditions, sovereignty, independence and national vision.--Constitution of Haiti
“Americans expect too much of constitutions,” says Lynn Hunt, professor of history and past president of the American Historical Assn. “A constitution cannot supply what institutions lack,” she continues. “The most important thing is building viable political institutions.”
Hunt, who is the Eugen Weber professor of modern European history at UCLA, says constitutions fail when they try to anticipate and correct for the future. Who could have foreseen, for instance, the demise of four French republics, or the continuing conversations about reforming the fifth?
Just as a leaf floats because of tension on the surface of the pond, nations that can both accommodate and contain social tensions ride high while others founder or sink.
“Tensions are essential,” says Hunt. She points to nations of the developing world, or even mighty Russia, where government falls short of ideas written in the constitution because tensions cannot be tolerated or contained by those who govern.
If challenged, Hunt says, she could write a workable constitution in a single day. But the struggle to make it a convincing constitution, under which people feel both “protected and represented,” is a far bigger chore. “Americans expect too much of constitutions because theirs is so successful. People say, ‘Ours is perfect. Why can’t everybody do it?’ People suppress the fact that it took us two tries and a lot of work to get it right.”
The U.S. Constitution was written during the course of a long summer, but numerous other documents served as preface: from the Mayflower Compact of 1620 and the Declaration of Independence in 1776 to a first stab at organizing the union of states, the Articles of Confederation in 1778. After the Constitution was signed on Sept. 17, 1787, ratification by the 13 colonies was not concluded for almost three tempestuous years.
Children shall be treated equally and as individuals and they shall be allowed to influence matters pertaining to themselves to a degree corresponding to their level of development.--Constitution of Finland
“It helps to be rich,” says Joyce Appleby, professor emeritus of history at UCLA and also past president of the American Historical Assn. “We shouldn’t forget the importance of American prosperity.”
U.S. politicians and statesmen of the era may have been absorbed with the fine points of how to provide representative government without bringing on unchecked democracy--yes, that was a primary worry in the design of the Constitution--but workaday Americans had different fish to fry. They were eager to strike out in search of economic independence in a bountiful land. For that reason, Appleby says, Americans were fortunate that the Constitution “wasn’t put under enormous pressure” before the ink had dried--a circumstance beyond the control of a nation such as Iraq.
It also helps to be patient.
UCLA’s Scott Waugh is a historian of medieval England. This era of kings predated formal constitutions, yet it was the interval of history when rulers and subjects first began to work out disputes in writing. The Magna Carta, which is always included among the watershed documents in Western history, was an attempt to settle a war between King John and his restless barons--and ultimately became a precursor to the modern constitution.
“It articulates a set of values and ideals that were coming into being during the course of the 12th century,” says Waugh.
Among these were fundamental ideals recognized today in the U.S. Constitution and those of most other nations: that laws serve to protect the citizenry and that taxation requires popular consent. “It was designed as a grant by the king to his subjects,” Waugh explains. “But it was only a step from there to the idea that these were the rights of citizens.”
The lesson of this piece of history is that for all its importance, the Magna Carta did not serve its intended purpose. It was not adopted by King John. The war continued. Ten years passed before the king’s successor agreed to its terms; yet its influence continued for more than 700 beyond that.
“To understand these events is to remove the illusion that our own questions are unique to us,” Waugh says. “And it shows us that there were very specific antecedents to the American system of government and to the American Constitution.”
The citizen’s rights are inseparable from his duties. . . . Parents have the responsibility to bring up their children into good citizens. . . . Children and grandchildren have the duty to show respect to and look after their parents and grandparents.--Constitution of Vietnam
Long before there were thoughts of such things as political constitutions, men began to plumb the bottomless waters of philosophical constitutions: documents that proposed to organize society according to fundamental human nature. Both Plato and Aristotle attempted to put such “constitutions” into writing.
According to legend, only Plato had the chance to test his idealized state in which the good in humans could be guided for public good. It supposedly occurred on the occasion of a change of rulers in the city of Syracuse in 366 BC.
“It lasted about four days before he was forced to flee,” says John McCumber, a philosopher in UCLA’s department of Germanic languages. This momentary occurrence should not be taken lightly by contemporary Americans, McCumber says.
The quest for philosophical insight into the nature of man and how it might be directed for common good continued to occupy many deep minds in the centuries following Plato before finally dying out in the 18th century with the rise of the more practical idea of political constitutions. “If you’re going to write a philosophical constitution, you’ve got to know what human nature is. Philosophers finally decided they didn’t,” McCumber says.
What worries him today is that the red state-blue state divisions in the United States are beginning to transcend ideology and politics to return to troubling matters of philosophy. What is the nature of marriage? What is the nature of religion?
“That is a big change,” he says. “Those are the kinds of questions that can undermine a republic.”
The Republic of Afghanistan is a nonaligned country which does not join any military bloc and does not allow the establishment of foreign military bases on its territory.--Constitution of Afghanistan, 2001
Geoffrey Garrett, dean of UCLA’s International Institute and director of the Burkle Center for International Relations, is absorbed by the realpolitik confronting Baghdad’s transitional government.
In best-case, worst-case terms, Garrett says the most that Iraq can hope for, and the world can hope for it, are small steps forward, or maybe just a demonstration of willingness not to step back from two Herculean objectives: “To create an identity on the part of the citizenry at large, a connection between the people and the constitution. And to reconcile power struggles among Shiite, Kurdish and Sunni elites.
“What they need to do is something that moves them in this direction,” Garrett continues. “They are smart enough to know they can’t cut all the deals on day one. What they have to do is make the commitment to sit down on day two, three and four. The commitment is the beginning.”
The alternative “disaster scenario,” as Garrett calls is, is horribly familiar: the post-Cold War disintegration of Yugoslavia, replete with civil war, slaughter, misery.
In the end, as with most politics, Iraq’s fate depends on its luck in selecting leaders. They must, of course, be farsighted--if you will, Jeffersonian in their capacity to “like the dreams of the future better than the history of the past.” Equally important, Garrett says, they must “be able to deliver"--that is, sell their constituencies on the wisdom of whatever agreements and compromises a divided government can hammer out.
It is possible to imagine the anxiety, doubt, fear and hope that every Iraqi must bear--unmoored and adrift, as Egyptian novelist Naguib Mahfouz once said, “in a sea in which waves of joy and sorrow were clashing against each other.”
As an exercise in empathy, we might ponder the “what if.” What if America’s founders had put an expiration date on the Constitution, a “sunset clause” of the type that is so popular among today’s breed of legislators?
Would we, could we, rise to the occasion in the year 2005? Would Americans be farsighted? Could our leaders divine and deliver consensus?
Would we still be so crazy for constitutions if we had to write a new one for ourselves?