As the statue of Saddam Hussein came crashing down, President Bush told the Iraqi people, “You deserve better than tyranny and corruption and torture chambers. You deserve to live as free people. And I assure every citizen of Iraq: your nation will soon be free.”
Despite the promise of freedom, mobs of looters and religious extremists challenge public order in Iraqi cities and petty despots wait in the wings. Iraq faces the same difficulties that confronted Americans like Madison, Hamilton, and Washington two and a quarter centuries ago: forming a government strong enough to protect the lives, liberty, and property of its citizens, while preventing it from violating those rights.
The American Constitution is a limitation on the power of government, not on private individuals. Our Founders feared the anarchy of mob rule as much as the tyranny of an oppressive king. They established a constitutional republic, not a pure democracy. Madison warned that unbridled majorities will always “sacrifice the weaker party or obnoxious individual…Democracies have ever been spectacles of turbulence and contention; have ever been found incompatible with personal security or the rights of property; and have been in general as short in their lives as they have been violent in their deaths.” Without limits, democracy amounts to what Benjamin Franklin described as, “two wolves and a lamb voting on what to have for lunch.”
Fundamental rights are not subject to a public vote in a constitutional republic. The U.S. Constitution provided a republican framework to strictly limit majority rule: separation and enumeration of powers; checks and balances between branches and levels of government; and an independent judiciary with the power to void executive or legislative acts which violate individual liberty or property rights.
The Framers were realistic idealists. They proclaimed that man is essentially rational and capable of self-government, but acknowledged man’s capacity for passion and injustice. They instituted a government strong enough to protect individual rights, but strictly limited in its power to infringe upon them.
The Iraqis are a diverse people – Kurds, Shi’a, Turkomans, Sunnis, and others. However, the American system of government has brought unprecedented liberty and prosperity to an even more diverse population, representing every race, language, and culture around the globe. Oppressed people continue to flock to our shores for a chance to breathe free.
In coming weeks, retired-U.S. General Jay Garner and leading Iraqis will meet to form an interim government. Its most important task will be to adopt a national constitution. When electricity was restored in Baghdad, we did not expect the Iraqis to rediscover Ohm’s Law. Why, then, ask Iraq’s transition government to “reinvent the wheel” when it comes to unleashing human potential?
A great start would be to give every delegate to Iraq’s constitutional convention a copy of Bernard Siegan’s, “Drafting a Constitution for a Nation or Republic Emerging into Freedom.” Professor Siegan is a Distinguished Professor of Law who has taught at the University of San Diego for over 30 years. He was a member of the National Commission on the Bicentennial of the
U.S. Constitution. He has counseled government officials throughout Eastern Europe and South America on constitutional principles. His books have been translated into many languages, including Polish, Portuguese, Spanish, Bulgarian, and Ukrainian.
Siegan drafted a 17-page model constitution for an emerging republic, providing for a popularly elected national assembly, a president, and a two-part supreme court, with one part empowered to deal exclusively with constitutional matters. Empowering the Supreme Court to declare acts of the legislature or president unconstitutional provides strong protection against oppressive laws and regulations. According to Siegan, “rule by 50% plus one…should not be the final arbiter of all human affairs.” Siegan’s model would help safeguard Iraqi minorities from the tyranny of the majority.
Siegan’s model also contains a powerful Bill of Rights, which would protect the Iraqis’ rights of religion, speech, press, assembly, petition, association, and privacy. They would be free to enjoy rights to life, liberty, and property including “any form of human activity” that does not deny those same rights to others. After suffering 30 years of oppression in a police state, Iraqis accused of committing a crime would receive a fair trial and be considered innocent until proven guilty.
Iraq has vast oil resources. Their economy could quickly recover from the poverty of dictatorship and war with the help of international investors. Siegan says most modern constitutions do not provide sufficient protection for property and free enterprise. “The nations emerging into freedom do not have the option of following this practice. Their economic viability necessitates attracting foreign and domestic investment, which will be difficult to accomplish unless ownership and entrepreneurship are legally secured.” Siegan’s model provides strong protection for private property and economic liberty. Businesses could invest in Iraq’s economy without fear of confiscation, repression, or economic instability.
President Bush has pledged that America will help to build a peaceful and prosperous post-war Iraq that protects the rights of all its citizens. Introducing them to Professor Siegan’s magnificent blueprint for a constitutional republic would be a great place to start. We Americans have a unique opportunity to share our ideals with the Iraqi people, and to support them in securing the blessings of liberty to themselves and their posterity.
