Friday, August 26, 2005


It’s not every day the world watches a constitution come together or the Supreme Court get a new member. We’re seeing both, but with little appreciation of how one informs the other.

The nomination of John G. Roberts to the U.S. Supreme Court frankly matters little to Iraq, but the writing of an Iraqi constitution matters for Roberts because it’s unclear where he stands on original intent.

This notion, that judges should hew to the intent of the framers of the U.S. Constitution, is what drives Antonin Scalia and Clarence Thomas, who have been cited by President Bush as his model for Supreme Court justices. It follows that Bush nominated Roberts because he’s confident Roberts is an originalist.

The evidence is circumstantial, including that Roberts has the blessing of Edwin Meese, who’s credited with putting original intent atop the national agenda as far back as 1985 and has somehow gone from national embarrassment to eminence grise. (Come to think of it, that’s an even bigger national embarrassment.)

Harry Reid, the Senate’s top Democrat, has slightly better evidence that Roberts believes in precedent over originalism, having discussed it with the nominee recently. Roberts’ record supports this, with Texas law professor Sanford V. Levinson telling The New York Times that he “would be shocked if he turned out to be a strict constitutionalist like Scalia or Thomas.”

The problem with being an originalist, not to be too obvious, is that you really have to know what writers of our Constitution were thinking. This is complicated by the fact that time doesn’t stand still, meaning it’s hard to discern Thomas Jefferson’s intent on issues of the Internet, and by originalists’ tendency to ignore the founders’ intent whenever it becomes uncomfortable for them. For instance, Scalia and Thomas insist the Constitution does not give U.S. citizens the “right to privacy” that is the foundation of, among other things, legal abortion. But it doesn’t even pass the laugh test to say there was no intent for privacy among people fleeing religious persecution for the inalienable rights to life, liberty and the pursuit of happiness.

Being present at the birth of an Iraqi constitution, especially one for which the United States is serving as midwife, is a fortuitous way to consider conditions when our own Constitution was created. Hundreds of years have passed, so constitution-writing technology, so to speak, must be vastly improved over our then primitive capabilities. There can be no questions about intent, of course, when the writers of the constitution are even now in the process of laying down their intent in crystal clear prose.


Not quite. As the Times said Wednesday,

Some secular Iraqi leaders complained Tuesday that the country’s nearly finished constitution lays the groundwork for the possible domination of the country by Shiite Islamic clerics, and that it contains specific provisions that could sharply curtail the rights of women.

The secular leaders said the draft, which was presented to the National Assembly on Monday, contains language that not only establishes the primacy of Islam as the country’s official religion, but appears to grant judges wide latitude to strike down legislation that may contravene the faith. To interpret such legislation, the constitution calls for the appointment of experts in Shariah, or Islamic law, to preside on the Supreme Federal Court.

The draft constitution, these secular Iraqis say, clears the way for religious authorities to adjudicate personal disputes like divorce and inheritance matters by allowing the establishment of religious courts, raising fears that a popularly elected Islamist-minded government could enact legislation and appoint judges who could turn the country into a theocracy.

The courts would rely on Shariah, which under most interpretations grants women substantially fewer rights than men.

Language reserving a quarter of the Assembly’s seats for women has been relegated to a section of the constitution labeled transitional, which is of uncertain legal force and duration.
[emphasis mine]

And these are just some of the issues unresolved or resolved unclearly in the document.

This constitution, which has already missed two deadlines and is almost certain to be submitted unfinished, isn’t just vague on intent. It specifically leaves massive, nation-shaping issues to be settled later by judges, many of whom will probably be religious figures keen on instituting religious law: The draft declines to say how secular Iraq will be, but will let clerical judges decide. This is somehow acceptable to our most powerful politicians, who demand our own judges not wander from the beliefs of a group whose last member died in 1836.

Perhaps these same politicians should explain how Bush became president. As American University law professor Jamin B. Raskin writes in “Overruling Democracy: The Supreme Court vs. The American People” (Routledge, 2004), “Nowhere [in the Constitution] is the Supreme Court given any formal role at all in choosing the president or resolving competing interpretations of the electoral college provisions.”

Thomas and Scalia didn’t reject Bush vs. Gore. They voted with the 5-4 majority to appoint Bush to our highest office. They did, however, agree that the case should not be considered a precedent. Why should it? It was technically unconstitutional.

Bush is correct in saying “We had a little trouble with our own conventions writing a constitution,” but can’t acknowledge how this admission either weakens his stance on originalism or shows what a dangerously deformed baby it is he’s cooing over in Iraq.

More on this topic later.

1 comment:

eric said...

Bush should read (ooooh, that's a stretch) Founding Brothers by Joe Ellis. And then eat a peanut butter sandwich and say "Aaron Burr."