I had the distinct pleasure of reading some of the latest work of my colleague and mentor Michael C. Dorf of laceName w:st="on">CornelllaceName> laceName w:st="on">LawlaceName> laceType w:st="on">SchoollaceType> just as the Iraqi Council of Representatives was passing its election law, finally, paving the way for a Jan. 16, 2010 election. This is fantastic news for Iraq, or perhaps better put a fantastic relief after what could have been an awful disaster. However, before I go into details, I should say the election does directly relate to Professor Dorf’s work, and as I read his piece, I could not help but reflect on how some of his thinking on American constitutionalism might, or might not, apply beyond US borders. It is a fair question, as Professor Dorf to some extent mentions cross border examples, and in any event it’s the only question I dare ask, as it is only there where I feel even remotely competent to comment (and largely praise) publicly and even then only by virtue of a cursory blog post.
Professor Dorf’s work, Aspirational Constitutionalism, is primarily an attempt to answer from a different perspective a question that seems rather prominent among constitutionalists—that of the philosophical justification for the “dead hand”. Why, in other words, should a bunch of dead, white, Protestant, slaveowning (in many cases, anyway) men have any right to rule from beyond their graves by virtue of a document that is almost impossible to amend, someone like me, who is neither dead, nor white, nor Protestant, nor slaveowning (though I am a man, I’ll cop to that one)?
Some rules, such as structural rules, Professor Dorf indicates, might well be justified because by setting forth ground rules, they help focus later generations on substantive policy questions rather than reinvent the wheel every single time. This is the first of many parts that is relevant to Iraq, as every election we reinvent the wheel here. Number of seats, open and closed lists, voter registration rules, and of course Kirkuk, always Kirkuk, are reargued and the entire work of the parliament is held up for weeks while everyone jockeys for position. I like the notion of a constitution establishing ground rules to avoid this nonsense, and more effectively than Iraq’s constitution has.
But this notion of ground rules is harder to explain when it comes to rights. The general explanation to justify the dead hand, Professor Dorf indicates, has something to do with “anti-backsliding”, meaning the establishing generation knows pretty well what rights are important to be respected, and they know that at times of crisis, there is “backsliding”, and if we start to ignore these rights during these periods, we will come to regret it. The Founding Fathers, much like Ulysses with the Sirens (Dorf’s analogy, I can’t take credit for it), bind us so we don’t do something we ourselves know we will regret. Much analysis follows concerning backsliding, its justifications, and whether or not it is largely accurate, but I will omit here in this cursory reflection. I highly recommend the very readable article, however (77 GW Law Review 1631) to get a fuller flavor.
Dorf indicates, however, that very often the drafters of an amendment aren’t trying to prevent a status quo from backsliding, they are trying to create a change, and entrench it. So backsliding isn’t what it’s about. The 19th Amendment is about giving women the franchise when they didn’t have it in a great number of states, the 13th Amendment is about freeing the slaves. It’s not like the US had no slaves and were worried in a time of crisis they might be tempted into enslaving people; quite the contrary, they had slaves and wanted to free them. But tied to this notion of entrenching change is an aspirational element, of hoping future generations take it further, in a manner that befits the later generation’s time. Due process and equal protection are broadly worded in the hope of allowing for the realization of aspirations concerning the values entrenched in them, as are things like free speech. Even giving women the franchise might contain broader unstated aspirations regarding gender equality. Professor Dorf is largely okay with these aspirational values notwithstanding the dead hand, seeing as how they are not unlocked until a future generation chooses to do the unlocking, and their unfolding is a product of court interpretation that constantly changes anyway and so aren’t as binding as one might think.
My thoughts on this are two as they relate to Iraq. First, I’m rather surprised by Professor Dorf’s seeming indication that the dominant theory of constitutional rights among scholars (which he is challenging) tends to relate to backsliding. I take the man at his word, he is the constitutionalist, I’m the Iraq person, but I cannot help but wonder if only Americans could come to such an unnatural and odd conclusion that the point of rights is to prevent backsliding of future generations. The structural rules of a constitution are certainly not about backsliding, they are about creating and entrenching a change. Yes they aren’t necessarily aspirational either, but they certainly are much more about creating a change and entrenching it than worrying about backsliding. You don’t say 4 years instead of 5 for a president because you are worried about backsliding, you are doing it because you think it’s a good idea that hasn’t been done before and that you want carried forward. In Iraq, the entire constitutional structure is about creating such changes.
For Americans, I suppose it’s natural given the structure of our constitution to imagine drafters thinking one way about structural rules (change the past) and another way about rights (prevent their regression) because our rights are largely amendments, our structure largely articles. It breaks down prettily that way. Few other constitutions do. The argument that rights are about preventing backsliding seems to suggest constitution drafters in other countries think one way about Chapter One, and then another about Chapter Two and yet another about Chapter Three. Like I said, odd and unnatural.
Even more obviously is the fact that most emerging democratic countries did NOT enjoy the rights they are granting and in fact struggle mightily to determine what rights, particularly of the social and economic type, should be ruled by the dead hand, and what should be left for future policy. I’ve been reviewing closely the constitutional provisions of the Iraq constitution and their evolution in drafts in preparation for my own book on the Iraq constitution, and it is remarkable how much play there is, how much give and take, precisely on this question. Everyone is seeking to entrench particular choices, the real question is which ones belong entrenchment.
Moreover, there is no doubt that many of these articles have aspirational elements, again particularly as concerns social and economic rights. In Iraq, they are so broad, so extensive, so generous, that they are hard for the state to realize, and the fact that much of the direct language (guarantees of “appropriate income” to the unemployed) were replaced with more general phrasings that appear now suggest a strong measure of (unstated) hope of progressive realization in the future.
So I suppose my own limited comparative view causes me to endorse rather enthusiastically the notion of the reality of aspirational constitutionalism, though the same experience causes me to wonder whether there might be harm of a different variety associated with it that Professor Dorf does not anticipate or at least does not mention. I wonder whether aspirationalism might be a feel good method for current decisionmakers and elites to avoid what they recognize to be a moral responsibility to the disadvantaged through effectively inviting some later generation to worry about the problem rather than addressing it themselves, however imperfectly.
In Iraq, I suppose there are two ways to go about achieving health care. You could do an assessment of the current health problems. You could then determine how much money dedicated to what could help where. You could try to dedicate that money. You could approach aid organizations, or you could figure out whether oil revenues could be allocated, and you could make hard, controversial decisions that will improve people’s lives immeasurably, but will also cost a significant amount in time, money, effort and political capital and will fall far far short of anything approaching reasonable universal health care. Way short. Or you could draft a pretty constitutional provision you never intend to do a thing about that offers health care universally and hope someone else does all the rest of it for you and more at some later date. And in Iraq, it seems we’ve been doing a little too much of the latter, a little too little of the former. Not enough achievements on the ground, far too many unachievable promises on paper. This, I submit, is for us becoming an existential threat.
And I wonder whether or not I might make a similar (if not existential) argument in the US case, though I tread on dangerous grounds, not being a US historian or an American constitutionalist. Couldn’t one argue that the Reconstruction Amendments paved the way for the abandonment of black rights rather than their realization? That the North was tired, the price paid was already too high, that it wasn’t worth the additional effort, and that in any event, the laws all look good now, so hopefully the South will go ahead and do the right thing, if not now, then later. Couldn’t you argue that aspirationalism is in some ways a copout, an attempt to avoid difficult decisions and a way to allow someone who sees what they recognize to be a moral wrong and is not committed enough to end it to do something about that wrong (Jim Crow, no health care, whatever) to sleep at night? Couldn’t you maintain that the proper course of action is not the dead hand but the living one, to make real, effective changes, not paper ones you know will be ignored, and achieve what you can, and hope the next generation builds on your achievements, not puts into practice what you put into words? I wonder.
But like I said, all of this is but momentary reflections from a different perspective on a much more deeply considered piece.