Does Anyone Actually Believe in Countermajoritarian Difficulties: Lessons from Once Occupied Iraq
I've been writing a chapter in a book about the use of international law in domestic court proceedings, with my chapter focused on Iraq, predictably enough. The chapter will be out, I don't know, sometime I guess--the problem with book chapters is that you have no control over publication schedules. In any event, in preparing the chapter, I was struck by Article 23 of the Transitional Administrative Law, which I had seen before but never had the occasion to consider very carefully. It reads as follows:
On its own, this is whatever it is. It empowers a judiciary to decide what types of fundamental rights there might be in the world, it acknowledges at least implicitly that these are subject to change and that the judiciary will evolve to recognize more such rights and grant them to the people as against the vicissitudes of electoral politics which might not always be on the right(s) side of history.
What is odd is that this Transitional Administrative Law, which served as interim constitution in Iraq for a period of 15 months, was drafted at a time that the United States was in occupation of Iraq. I mean this in a legal sense--Iraq's sovereignty was vested in what was known as the Coalition Provisional Authority, which had something known as the Iraq Governing Council to advise it. The IGC did the drafting, but the CPA, which was US run, had a great deal of control over process and product, far more than it did, for example, when the final constitution was drafted under the auspices of a sovereign, and elected, Iraqi National Assembly and American input came through the Embassy.
What we know of the CPA is that it was deeply and fundamentally ideological (safe to say I know this from personal experience as well). And Rajiv Chandrasekaran tells us that in at least two cases, CPA staffers were vetted precisely on the basis of whether or not they supported Roe v. Wade.
This is now quite odd, because the criticism of Roe is that it grants the judiciary the ability to add rights that are not specifically enumerated in the Constitution. This is what is referred to in conservative outlets colloquially as "judicial activism" though the more precise difficulty in legal academese is "countermajoritarianism", meaning that the judiciary, an unelected branch, decides to the derogation of Congress, an elected branch, what activity it is that deserves protection. The idea among those who would want to use Roe as litmus test would be to determine that staffers are opposed to countermajoritarianism and instead hold to the principle that judges should not decide the people's values, but rather the people themselves should.
There is a great deal of literature on this subject, whether there really is a countermajoritarian problem, can it be overcome, what it means to have one, and the like, and I will not discuss any of that so as not to reduce it unfairly in a short rendition. The point for our purposes is that the opposition to Roe is grounded in the principle that the only rights that the judiciary should recognize are those strictly defined in the constitution, that judges shouldn't "make law" beyond that, and that to do so is undemocratic.
The problem being, how can you, on the one hand, adhere to such a position and then on the other, countenance TAL Article 23? That article specifically invites "judicial activism" of this sort. It wants the judiciary to find rights, to add them, to use them to the derogation of legislative authority. The whole article does not make sense otherwise, it's saying enumeration is not enough at all, find other things judiciary and please add them too.
Put another way, this clause, if it were inserted today into the U.S. Constitution, would make it infinitely easier to develop rights to same sex marriage, or reproduction. One may question whether or not the 14th Amendment language can support a right to abortion (though Balkin makes a fairly strong argument in one of his pieces on this) or a right to same sex marriage, but a right "befitting a free people possessed of their human dignity"? Is there any doubt that supporters of same sex marriage or abortion rights would describe the respective rights as being precisely within that category?
So what possessed the CPA not to draw a line here and instead to accept, indeed to actively encourage, robust references to international law and human rights in a manner that, had a single one of them advanced anything remotely similar in the U.S. context, would have meant they wouldn't be in Baghdad in the first place because they would hold to unacceptable positions? Why, when Feisal Istrabadi or Salim Chalabi (two main drafters of the TAL) came up with this, didn't the CPA blanch at the prospect, and insist on the recognition only of clearly enumerated rights, so that the judge is once again an umpire and not a rights maker?
The answer it seems to me is rather obvious. The CPA was the occupying authority and had handpicked its Governing Council advisors. They weren't bad selections to be clear, they did select people at the time with considerable popular followings, but the numbers were skewed secular relative to what everyone knew would come when elections came which was a much higher proportion of Shi'i Islamists. The Shi'a themselves were pushing for these elections, and the Americans at the time pushing for delay, for that reason alone. It must also be fairly said that Istrabadi and Chalabi are themselves very much secular people. I don't accuse them of hypocrisy in the slightest--they may support progressive realization of rights by a judiciary in the American context as well--I just mean they were drafting at a place and time where they knew that the next group might not be as friendly as they to modern liberal human rights regimes. That's context, not criticism.
So the drafters wanted to make sure that a relatively secular Iraqi institution, the judiciary, had some control over the development of rights in the emerging state because they figured maybe the legislature wouldn't be so kind. And the CPA, suspicious of America's supposedly liberal elite judiciary (which it's not, but okay), saw a potential ally in the comparable Iraqi institution. That is, they trusted the Iraqi secular judiciary more than the Islamist storm, and hence they were solicitous of putting more faith and more power into that institution than they would have countenanced in the United States. This is not altogether different from Senator Brownback's ultimately failed jihad to ensure the complete separation of religion and state in the emerging Iraq. He is an ardent secularist, a committed one, when the religion in question is Islam, but when it's America, and the question is Christianity, then he wants to know whether disestablishment really means separation.
So in the end, to be clear, it's not the notion of countermajoritarianism that bothered the CPA, or its conservative staff so committed to it in theory they didn't want anyone in Baghdad who didn't agree with them. Rather, it's countermajoritarianism when used in a manner that seems to thwart one's own central political ends. If countermajoritarianism is used against the other side, that is, to thwart their political ends, then it seems quite fine.
In the end, you true majoritarians will be happy to know, Article 23 did not survive, a common criticism of similar proposals t be included in the final constitution coming from the Islamic parties and being, you got it, that it is offensive to the principles of democracy for international rights to trump domestic understandings of social and religious order.
In all the world, I search for doctrinal or jurisprudential consistency, and I have such a hard time finding it.
HAH
The enumeration of the foregoing rights must not be interpreted to mean that they are the only rights enjoyed by the Iraqi people. They enjoy all the rights that befit a free people possessed of their human dignity, including the rights stipulated in international treaties and agreements, other instruments of international law that Iraq has signed and to which it has acceded, and others that are deemed binding upon it, and in the law of nations.
On its own, this is whatever it is. It empowers a judiciary to decide what types of fundamental rights there might be in the world, it acknowledges at least implicitly that these are subject to change and that the judiciary will evolve to recognize more such rights and grant them to the people as against the vicissitudes of electoral politics which might not always be on the right(s) side of history.
What is odd is that this Transitional Administrative Law, which served as interim constitution in Iraq for a period of 15 months, was drafted at a time that the United States was in occupation of Iraq. I mean this in a legal sense--Iraq's sovereignty was vested in what was known as the Coalition Provisional Authority, which had something known as the Iraq Governing Council to advise it. The IGC did the drafting, but the CPA, which was US run, had a great deal of control over process and product, far more than it did, for example, when the final constitution was drafted under the auspices of a sovereign, and elected, Iraqi National Assembly and American input came through the Embassy.
What we know of the CPA is that it was deeply and fundamentally ideological (safe to say I know this from personal experience as well). And Rajiv Chandrasekaran tells us that in at least two cases, CPA staffers were vetted precisely on the basis of whether or not they supported Roe v. Wade.
This is now quite odd, because the criticism of Roe is that it grants the judiciary the ability to add rights that are not specifically enumerated in the Constitution. This is what is referred to in conservative outlets colloquially as "judicial activism" though the more precise difficulty in legal academese is "countermajoritarianism", meaning that the judiciary, an unelected branch, decides to the derogation of Congress, an elected branch, what activity it is that deserves protection. The idea among those who would want to use Roe as litmus test would be to determine that staffers are opposed to countermajoritarianism and instead hold to the principle that judges should not decide the people's values, but rather the people themselves should.
There is a great deal of literature on this subject, whether there really is a countermajoritarian problem, can it be overcome, what it means to have one, and the like, and I will not discuss any of that so as not to reduce it unfairly in a short rendition. The point for our purposes is that the opposition to Roe is grounded in the principle that the only rights that the judiciary should recognize are those strictly defined in the constitution, that judges shouldn't "make law" beyond that, and that to do so is undemocratic.
The problem being, how can you, on the one hand, adhere to such a position and then on the other, countenance TAL Article 23? That article specifically invites "judicial activism" of this sort. It wants the judiciary to find rights, to add them, to use them to the derogation of legislative authority. The whole article does not make sense otherwise, it's saying enumeration is not enough at all, find other things judiciary and please add them too.
Put another way, this clause, if it were inserted today into the U.S. Constitution, would make it infinitely easier to develop rights to same sex marriage, or reproduction. One may question whether or not the 14th Amendment language can support a right to abortion (though Balkin makes a fairly strong argument in one of his pieces on this) or a right to same sex marriage, but a right "befitting a free people possessed of their human dignity"? Is there any doubt that supporters of same sex marriage or abortion rights would describe the respective rights as being precisely within that category?
So what possessed the CPA not to draw a line here and instead to accept, indeed to actively encourage, robust references to international law and human rights in a manner that, had a single one of them advanced anything remotely similar in the U.S. context, would have meant they wouldn't be in Baghdad in the first place because they would hold to unacceptable positions? Why, when Feisal Istrabadi or Salim Chalabi (two main drafters of the TAL) came up with this, didn't the CPA blanch at the prospect, and insist on the recognition only of clearly enumerated rights, so that the judge is once again an umpire and not a rights maker?
The answer it seems to me is rather obvious. The CPA was the occupying authority and had handpicked its Governing Council advisors. They weren't bad selections to be clear, they did select people at the time with considerable popular followings, but the numbers were skewed secular relative to what everyone knew would come when elections came which was a much higher proportion of Shi'i Islamists. The Shi'a themselves were pushing for these elections, and the Americans at the time pushing for delay, for that reason alone. It must also be fairly said that Istrabadi and Chalabi are themselves very much secular people. I don't accuse them of hypocrisy in the slightest--they may support progressive realization of rights by a judiciary in the American context as well--I just mean they were drafting at a place and time where they knew that the next group might not be as friendly as they to modern liberal human rights regimes. That's context, not criticism.
So the drafters wanted to make sure that a relatively secular Iraqi institution, the judiciary, had some control over the development of rights in the emerging state because they figured maybe the legislature wouldn't be so kind. And the CPA, suspicious of America's supposedly liberal elite judiciary (which it's not, but okay), saw a potential ally in the comparable Iraqi institution. That is, they trusted the Iraqi secular judiciary more than the Islamist storm, and hence they were solicitous of putting more faith and more power into that institution than they would have countenanced in the United States. This is not altogether different from Senator Brownback's ultimately failed jihad to ensure the complete separation of religion and state in the emerging Iraq. He is an ardent secularist, a committed one, when the religion in question is Islam, but when it's America, and the question is Christianity, then he wants to know whether disestablishment really means separation.
So in the end, to be clear, it's not the notion of countermajoritarianism that bothered the CPA, or its conservative staff so committed to it in theory they didn't want anyone in Baghdad who didn't agree with them. Rather, it's countermajoritarianism when used in a manner that seems to thwart one's own central political ends. If countermajoritarianism is used against the other side, that is, to thwart their political ends, then it seems quite fine.
In the end, you true majoritarians will be happy to know, Article 23 did not survive, a common criticism of similar proposals t be included in the final constitution coming from the Islamic parties and being, you got it, that it is offensive to the principles of democracy for international rights to trump domestic understandings of social and religious order.
In all the world, I search for doctrinal or jurisprudential consistency, and I have such a hard time finding it.
HAH
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