AMERICANS REVERE their Constitution. To many thoughtful analysts, it is the source of American national identity, a locus for some of the highest expressions of American ideals. Well before the founders drafted the Constitution in 1787, colonists in New Englandargued that the societies they constructed there reflected fundamental and universal truths of human nature. John Winthrop, who led the Puritan migration to Massachusetts in 1630, compared the Colony of Massachusetts to a "city on a hill," a model for the rest of the world. From Thomas Jefferson to Abraham Lincoln, Woodrow Wilson to Ronald Reagan, American statesmen have endorsed Winthrop's understanding of America as a unique political society founded on essential human truths and respectful of universal human aspirations. It is hardly surprising, then, that many Americans now assume that for peoples the world over, political institutions modeled on the U.S. Constitution would empower citizens to embrace and enshrine freedom. Part of the declared mission of the Bush administration in Afghanistan and Iraq today is to build a constitution. The question is: What would an ideal constitution look like in Iraq and in Afghanistan?

Three JMU faculty members -- integrated science and technology professor Karim Altaii and history professors Shah Hanifi and Kevin Hardwick -- discuss the pros, cons and character of constitutions as well as the nations of Afghanistan, Iraq and the United States.

Embracing History

Karim: Despite America's success with its way of government, Iraq must find its own success. It must create a constitution that resonates with the history and sensibilities of the Iraqi people. Iraq is an ancient culture that reaches back beyond the Golden Age of Islam to Babylonia and Mesopotamia 6,000 years ago. Ironically, that's where the world's first written
laws, the Hammurabi Code, originated.

Shah: Universal human truths, including the U.S. Constitution, are culture bound and historically conditioned. When Afghan culture and history are given analytical primacy, I don't think a U.S. force-fed constitution is necessarily a good fit.

  Kevin: When the American founders espoused their ideals in the 1780s, there's no denying they drew upon a long Anglo-American tradition dating back at least to the great constitutional crises of 17th-century England. But the founders premised the U.S. Constitution on the sovereignty of the people, which in turn implies some real autonomy and dignity for every citizen. Early in the 20th century, many American intellectuals would have argued that only Western societies were capable of democratic self-government. Analysts today who insist that the people of the Middle East are capable of sustaining the rule of law and a government based upon popular sovereignty are in part rejecting an earlier racism.

Shah: Afghan political traditions are largely dictated by geography. The key metaphor for Afghanistan is migration. It is more of a space than a place, a crossroads of cultures and commerce between East and West, and it works well that way. This is the Silk Road, traveled by Alexander the Great and Marco Polo. Most people there are subsistence peasants living in self-governing tribes or miniprincipalities that interact and trade with these travelers.
There has been a weak state tradition. A constitution would seem to be more effective if it originated from the needs of a particular community, rather than being imposed in a top-down manner.

Constitutions Take Time

Karim: The big worry is getting it right -- creating a constitution that all Iraqis can come together under. Perhaps the hardest part will be to work out competing internal relationships and to be perceived as fair.

Shah: An ideal constitution in Afghanistan would need to resolve a number of contradictions between Islamic legal ideals, universal human rights and local normative political practices. And the process of its writing and ratification must represent a larger cross section of the diverse communities of Afghanistan than the recent, rather prefabricated, Loya Jirga engaged.

Kevin: The American founders understood that they had not gotten it entirely right in 1787. They were prudential politicians who compromised some of their principles in order to craft a workable document. The Iraqi or Afghan constitution needn't be immediately perfect either. But it must provide a functional framework for the people to work toward their ideal.

Shah: As in the West, political dialog in the Middle East is sustained and ongoing. An imposed constitutional timetable is antithetical to ordinary Iraqis and Afghans. Democracy is about conversation. It takes time. It may take generations. Cultures have cadences.

Kevin: The larger conversation over the ends and purposes of legitimate U.S. government began in the 1760s and was still very much under discussion in the 1790s, after the Constitution itself had been ratified. It was not until after the Civil War that the nation lived up to its own ideals and explicitly wrote slavery out of the Constitution.

Karim: The people of Iraq have a long memory. Some can draw a comparison between the U.S. invasion and the Mongol invasion. List the tasks to be accomplished, not the deadlines. A constitution with teeth needs popular support. Let the country have the debate. It must be authentic and transparent.

Kevin: Indeed, a constitution must derive from the organic public traditions of the people it governs. The people will not uphold a constitution they consider illegitimate.

 

Choosing Legitimate Leaders

Karim: The constitution committee must be directly answerable to the people and not try to install itself in power. Future leaders should be relevant and meaningful to Iraq and chosen by Iraqis, not outsiders.

Kevin: The American founders all had well-established credentials, earned by long experience in politics. Most of them began their political careers during the Revolution and drew considerable authority from that.

Shah: Because Afghans generally don't have well-developed notions of statehood or nationalism, their most effective leaders are local. But constitution-making there has been a top-down endeavor, emanating from Hamid Karzai, an expatriate restaurateur on the CIA payroll for years, and a handful of westerners in Kabul. The effort has not reached into the hinterlands to ascertain the will of the people. The way al-Qaida and the Taliban were politically successful was through their focus on local mosques and markets. The Taliban moved around the countryside in pickups. They worked from the rural areas in toward the urban centers.

Karim: Saddam obliterated the opposition in Iraq, so now that he is gone there is a big power vacuum and chaos and violence are filling it. Emerging leaders will gain credibility by having an established reputation in some field of endeavor. Now the Shiite cleric al-Sistani is perceived as the most moderate and consistent. Another potential leader is the nuclear scientist al-Shahristani, who went to jail instead of working for Saddam. The people believe he is a principled and honest man. Others who will emerge will be technocrats and professionals.

Is a Constitution Necessary?

Shah: I think we need to step back and ask is a constitution necessary? For Afghanistan, I don't know that it is. Historically Afghanistan is an intersection of mobile groups including pastoral nomadic tribes with migrating Indian bankers. The culture is one of nonbinding commerce. These archaic but cosmopolitan tribes have their own relations with one another and with the world already.

Kevin: But aren't tribal societies vulnerable to external predatory powers? When they work, constitutions establish both the institutional structure and the common sense of identity necessary to defend a nation from external threats.

Shah: In Afghanistan, however, the state is not traditionally the primary guarantor of security. The central government, dominated by an urban merchant class, is in fact often perceived as hostile and threatening, not protective and empowering.

Kevin: After the Revolution, the 13 former British colonies, now independent nation states, felt the same way about a strong government. Anything that smacked of monarchy or aristocracy was the enemy. But after a time, they realized that the new American states were weak and individually susceptible to interference from large nations like France, Britain or Spain. The Constitution and the strong federal government it created were in part a defensive move.

Karim: Iraq has always been an esteemed nation. Even during the British occupation, the British saw that it was wise to withdraw from the cities rather than try to completely take over the country. Later Saddam purportedly built up the fourth-largest military in the world. Its success as a modern socialist state gives it its pan-Islamic relevance.

A Framework for Decision-Making

Kevin: Constitutions accomplish at least two things. First, they establish a frame of government. Second, they create a formal answer to basic political questions. How do we determine a correct course of public action? By what standards shall we judge our public actions proper or just? What comprises legitimate authority? Without a constitution of some sort, how do people make these decisions?

Shah: Let the culture speak to it. Assume that working agreements are already there and that local mechanisms are legitimate. Tribes are sophisticated entities, and they can be incredibly democratic and egalitarian. They are a viable and very resilient method of social organization, even though they may appear outdated. Within the tribe, everything is relational; members of the tribe are oriented to relations with others. You can become a leader simply by feeding others. Tribal political leadership has a lot to do with availability and responsiveness to the people and connections to other tribal leaders.

Karim: The wrong constitution can be divisive. The interim Iraqi constitution
essentially establishes quotas -- so much representation for Sunnis, so many for Shi'ia, and for the Kurds and so forth -- giving the minority Kurds and Sunnis what amounts to a veto over Shi'ia majority rule. This method plants the seed for civil war. Iraqis don't know what a Sunni triangle is. Iraq is a mosaic of long-established ethnicities and religions. Years ago, my sister came home from school and asked my mother whether she was Sunni or Shi'ia. My mother told her that's not important. The constitution that will be created by the government to be elected in January must avoid these ethnic and religious divisions.

Shah: As written, the constitution of the Islamic Republic of Afghanistan has serious problems. It bars any law "contrary to the beliefs and provisions of the sacred religion of Islam." That statement gives a structural opening for hyper-conservative and intolerant Islamic theologians to dominate the judiciary and society at large. I'm interested in the Sikhs, Hindus, Christians and Jews who have a long tradition in Afghanistan.

Kevin: In the United States, it is just the opposite. American security comes from having a written fundamental law, which uses the ambitions of our elected officials as checks upon their potential to destabilize republican government. But the fundamental law does not have to be written. Although the British constitution is not formally codified in a single document, it upholds British ideals and gives Great Britain its cultural and political identity.

Shah: We shouldn't be forced into thinking just about states. In Afghanistan, no well-
cultivated political notion of state exists. Afghan citizenship was never cultivated.

Karim: In Iraq the opposite is true. The tribes of Iraq still had some influence into the 1950s, but that has given way to a modern state culture. There is a very strong nationalism. Uruk, a sense of Iraqi identity, has existed for thousands of years, even though territorial boundaries have changed many times. Even under the previous regime, which I have no love for, Iraq was an advanced society. Until the U.N. embargo, they had the best medical care and technology in the region.

Getting the State to Behave

Shah: Afghanistan shouldn't be viewed as an ordinary modern state. It has one of the highest infant-mortality rates in the world, one of the lowest literacy rates and rampant poverty. And yet many of the people are quadrilingual with connections all over the world. With their mobility comes diversity. This gave Afghanistan its inherent cultural tolerance. Though impoverished, Afghans are among the most politically astute people anywhere.

Kevin: Wouldn't a constitution engage and protect them? A constitution is an expression of agreement as to how citizens will conduct themselves and how government will treat them. After their experiences of anarchy and tyranny over the last two decades, surely the Afghans and Iraqis need that assurance?

Shah: The Taliban were a response to the mujahideen, who were funded by the United States to counter the Soviet invasion. Many of the mujahideen were thugs, rapists and drug smugglers then. The Taliban gained power by stopping mujahideen crimes against humanity. They collected guns and eradicated poppies. Ironically, some of those mujahideen are now power brokers in the Kabul government negotiations. It is such a shame that the world has come to know and engage Afghanistan through these CIA-funded bandits.

Structuring the Government

Karim: Throughout the 20th century, Iraq -- as a monarchy or republic -- has had a series of constitutions that were ignored. I believe popular sovereignty should be the basis for the future, with representation and participation based on the individual -- one person, one vote, irrespective of religion or ethnicity. Officials should be chosen by popular vote, again without set-asides for any
particular religious sect or ethnicity.

Kevin: It sounds to me more as if the interim Iraqi constitution is treating the various ethnic and religious groups in the country as components in a federal system. James Madison, like numerous others at the Philadelphia convention, emphasized the necessity of building checks and balances into the institutional structure of government. The U.S. Constitution balances the powers of each branch of government. But equally, it balances the federal government against the governments of the individual states. Federalism is an important aspect of the checks and balances that characterize the U.S. Constitution.

Karim: In Iraq, I don't think it's true federalism. Geographic provinces do not cleanly coincide with ethnic and religious populations. There will be war to determine where to draw the lines and who will live where and under whose authority. Remember what happened when the British left India and then the country split into East Pakistan (now Bangladesh) and West Pakistan? There was horrific bloodshed as people fled areas where they were the minority. Pakistan and India are still fighting over Kashmir 60 years later.

Shah: Policymakers should first reappraise their outdated and stale caricatures, fundamental assumptions and working hypotheses of tribalism, ethnicity, gender and democracy in Afghanistan. These underlying dysfunctional predicates -- the operative modes of discourse and action -- are sadly produced and reinforced by most academics. The state needs to address and celebrate its own diversity.

Religion and State

Karim: Iraq is largely a secular society with a strong separation between religion and the state since the times of the Ottoman Empire. Realities are fluid. Iraqi law had long ago outlawed polygamy, until after the Iran-Iraq war when there were so many widows who needed financial support. Sharia is the default law, but Iraq has allowed the people to choose to follow secular law. In our family, for instance, the girls receive a larger inheritance than the boys.

Shah: Religion is not the villain the media would have you believe. Islam is typically loose and flexible in Afghanistan. It was imported along with everything else. The Taliban were an aberration. They arrived in response to the excesses of the mujahideen. Otherwise, in Afghanistan there is a long tradition of secular law, local practices and Sharia coexisting, to be sure uneasily in certain episodes, but this arrangement has been relatively durable.

Kevin: Separation of church and state in the United States was a function of religious sectarianism. Conflict between the various Protestant movements in late 18th-century America had the potential to be destabilizing. By requiring that the federal government not take sides in religious conflict, and by subordinating religious conflict to secular law, the U.S. Constitution reduced potential threats to political and social order. Religions have thrived in the United States. The United States is one of the most religious first-world countries in part because of the Constitution's success at separating church and state.

Shah: The people of Afghanistan are primarily Muslim, but there are many varieties of Muslims as well as non-Muslims. Afghanistan is the great crossroads of cultures and religions, as well as great trade routes, and the people are naturally tolerant of diversity. An effective constitution needs to enshrine and legitimize that diversity while building a fresh new sense of commonality.

Karim: Religious extremists are a very small minority in Iraq, even though all recent constitutions say Islam is the source of constitutional legitimacy and authority. Although Iraqis feared political persecution under Saddam, they did not fear religious persecution. You could criticize
God, but not Saddam.

Legal Processes

Kevin: The whole point of a constitution is to create legitimate authority and the conditions for the rule of law. Effective constitutions domesticate and control state violence, punish criminal violence and provide a framework for dispute resolution.

Shah: There is no overarching law recognized by all communities across Afghanistan. There are competing frameworks.

Kevin: Who adjudicates disputes and ensures justice? People with guns?

Shah: Not in ordinary circumstances, where, for example, in the event of theft or bodily harm, one can activate local political networks towards calling a jirga. Ordinarily jirgas are temporary councils of 12 respected members of the community who come together for the resolution of a particular dispute and then disband. There is no hierarchy, and negotiations continue until absolute consensus is reached. Some principles, call them "concepts that work," guide them. Honor, for instance. Nang, or female-centered honor. Melmastia, or hospitality to travelers and neighbors. Badal or blood revenge. In most disputes, specially selected tribal representatives negotiate on behalf of the people.

Kevin: A constitutional order founded on popular sovereignty and civic equality of all adult, reasoning people, respects the self-determination of all citizens. Would a political and social order derivative from tribal customs, or from Islam, acknowledge the autonomy of women and their capacity to participate in self-government?

Shah: Remember, the Taliban's aberrant behavior arose in a lawless context. They ended near pandemic mass rapes, collected small arms and eradicated poppies. In more normative local terms women are situated in relation to men (and children) who form families and extended kin groups. Women's political voices are not only heard but, arguably, dominate these domestic units that are publicly represented by men. Women's active and democratic participation in political processes through this and other local tribal mechanisms can look more efficient and democratic than the U.S. Electoral College.

Karim: What happened in Afghanistan, though, can't be generalized to other Islamic countries. The Middle East is not one big homogenous bloc, which the West doesn't understand. In Saudi Arabia, for instance, women cannot legally drive. In Iraq, the conditions are different. Of my four sisters, one is a medical doctor, two have Ph.D.s and one is an engineer. Iraq had a female minister of education way back in the 1950s.

The Economy

Karim: The constitution should not be used to exploit Iraq's natural wealth. If the state privatizes oil, for instance, there will be hostilities. Up until 1973, when Saddam (then vice president) nationalized the oil industry, Iraq received less than 50 percent of its own oil revenues. After the initial boycott it caused, Iraq developed a strong middle class, with 95 percent literacy. Saddam spent a lot of those revenues on infrastructure, the military and education, which was free for everyone -- even higher education.

Shah: As the opium trade shows, Afghanistan has a lush agricultural potential from its great fertile valleys. It has historically exported horses, sheep, timber, dried fruit and nuts. The tribal system is sustained by a sophisticated system of cash and credit. Economically and culturally, the key thing about Afghanistan is mobility, the ability to cross borders and move human, intellectual and commercial capital. The chaos and extremes of the last 20 years -- the Soviet invasion, the mujahideen, the Taliban, the U.S. invasion -- have disrupted that. Daisy Cutters and bunker-busting bombs have destroyed ancient irrigation systems and now land mines make it difficult to farm and travel. The economy is now being outsourced to nongovernmental organizations.

Karim: It is a mess in Iraq, too. The finance minister, a high school classmate of mine, has declared all companies will be privatized. But after 13 years of sanctions, Iraqis have no money to buy any of them. The Saudis, Kuwaitis, Americans and, by some accounts, Israelis, are rushing in. They're creating resentment against foreign investment.

Shah: Today Afghanistan must reconcile its natural pastoral-trading economy with the false pretenses of a burgeoning global economy dominated by the Microsofts, Marriotts and Coca-Colas that are now colonizing Kabul.

Security First

Karim: I fear Iraq might not get through this without some kind of civil war, especially if the constitutional process races ahead of the people's sensibilities. Sure, Iraq can learn from the American experience, but ultimately they must create what's right for themselves.

Kevin: When Americans disagreed in the 1860s about the fundamental values a constitution should maintain, they ultimately resorted to war to settle their differences.

Karim:  Freedom will mean nothing if people cannot feel safe. People are afraid of being kidnapped and held for ransom from criminals, of political assassinations and car bombings by, call them, insurgents, terrorists or foreign fighters and of being caught in the crossfire. People are very afraid to leave the house. Imagine if when James Madison was writing the Constitution there were bombs going off around his head.

Shah: When looking at the overall context of lawlessness, poverty, illiteracy, political puppeteering, military occupation and an obsession with manhunting currently characterizing that environment, I think ordinary Afghans are far more concerned with immediately pressing issues such as physical security, food, water, warmth and medicine. A constitution is of secondary concern. Ultimately, for Afghans to think of themselves as a nation and to fashion a constitution that works, they must educate themselves about themselves. The way to do that is to rebuild public education. It could take 25 years -- two generations of K-12 -- to build an informed citizenry. 

Karim: What's the use of a constitution that guarantees free speech and privacy, for instance, if you don't follow it? Politicians in America don't always follow the Constitution. So many great concepts and ideals have been expressed in Iraqi constitutions over the years: That people are the origin of the state's power; that freedom of belief is protected; that individuals are equal in the eyes of the law. But these ideals have turned out to be just so much paper. How can the people have faith that this next constitution will be respected -- by the future government and by foreign governments?

Kevin: A lot of Americans are complacent, that's true. And there has always been tension when a leader is faced with the temptation or opportunity to abuse power. But people understand that when justice comes, even when imperfectly applied, they will be held to the ideals in the constitution. Overall, Americans have done a pretty good job. We must fight the battle all the time, however. As Jefferson argued, committed citizenship is not accidental. It must be cultivated. All of us who care about the continued vitality of republican self-government, and especially those of us who are educators, have an obligation to promote it.