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Not All Constitutions Are Created Equal

The American Constitution established individual rights as the founding legal and moral basis of this country. The result was a nation whose inhabitants have lived and prospered magnificently, because they were left free to do so. Today President Bush has heralded the establishment of the Iraqi constitution on the grounds that it is a step on Iraq’s path toward freedom. But while all men are created equal, all constitutions are not.

Just as the mere holding of democratic elections does not make a country good or free, neither does the mere existence of a constitution make a country good or free. A constitution is a written statement of a country’s fundamental laws. Such a statement is an indicator of liberty only when it is written and implemented for the sake of preserving liberty.

The Iraqi constitution was not written to preserve liberty, but Iraqi tribalism and the supremacy of Islam.

The Iraqi constitution is a blend of vagueness and outright contradictions, none of which provide any semblance of protection for individual rights. Consider a clause such as this one: “Each person has the right to personal privacy as long as it does not violate the rights of others or general morality” (emphasis added). Certainly no person’s rights should ever be violated by another. But what is the “general morality”? Does it mean public opinion about moral issues? Vague collective generalities of this nature can mean anything to anyone at any given time. A woman might go around without a head covering today, but what if tomorrow the “general morality” declares that she must wear one? Provisions such as this in the country’s founding document leave the individual with no rights, but rather subject to the unrestrained whim of the majority.

But it is the second article of the Iraqi constitution that is most revealing. It states that no laws contradicting the religious law of Islam shall be passed. Contrast this to the U.S. constitution. The very first article of the Bill of Rights states clearly that all citizens shall have the freedom to choose what (if any) religion they care to follow, and that the government will have nothing to do with any religion at all. Our Constitution was specifically set up to ensure that each individual would be free to find work that he deemed best for himself, to marry whomever he loved, and to get as far in life as his own mind and effort would let him, with no interference from the government or any church. The Iraqi constitution as it stands now is the antithesis of that.

But it was the United States that helped the Iraqis write and legitimize their constitution. Weren’t we supposed to be helping to ensure their freedom? Why wasn’t such an obvious contradiction corrected? Because we have forgotten that what the constitution says is more important than the mere fact of having one.

As it happens, there is an example of a time when we did do this right, with quite spectacular results: in post-World War II Japan.

Prior to the war, Japan had a constitution similar to Iraq’s-i.e. without any of the explicit protection of individual rights that the U.S. Constitution held. Without that protection, the militant leaders who took control in the 1930s were able to shut down all dissenting voices; newspapers were stopped, censorship was common, and those writers, editors and thinkers who disagreed with the regime were thrown into jail indefinitely. The regime was then free to offer whatever propaganda it chose about the war to the Japanese people.

Only when the reality of their defeat was brought tangibly home to the Japanese, with the dropping of the atomic bombs in 1945, did the propaganda become exposed as such. The Japanese surrendered unconditionally in the face of that reality, leaving it clear in the mind of each citizen that a militaristic approach to life had failed. In this setting, it was possible for General MacArthur and the U.S. forces designated to watch over the Japanese to draw up a draft constitution that followed the U.S. Constitution very closely (down to the basic language). They then handed it to the Japanese and instructed them to use it as the starting point for a new, freer government.

The purpose of the new Japanese constitution was freedom. The language, on the model of the U.S. constitution, implemented this purpose faithfully. The results are clear: with each individual free to work for his own prosperity, Japan rose quickly from the ruins of war to be counted among the freest and most economically successful countries in the world, and remains one to this day.

It is to this kind of success story that we should be looking now to guide us in our Middle Eastern foreign policy. This is what should have been done in Iraq; first, a complete military defeat (as quickly and with as little loss of American life as possible), which would demonstrate fully and clearly to the country’s inhabitants that violent attacks and resistance are utterly useless. Iraq’s legal and political infrastructure would have be destroyed and discredited in the eyes of Iraqis. Then, if it truly was in America’s self-interest to rebuild Iraq, we could hand them a constitution respecting individual rights.

We should remember that the constitution that came closest to fully upholding individual rights, America’s Constitution, has, in just two hundred years, created the freest, most prosperous nation in the history of mankind.

Audra Hilse is currently a junior at Lawrence University. She is majoring in fiction and minoring in Japanese. She likes to read and write fiction in her spare time.

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