My New Republic column is online.
It’s become fashionable to bash Iraq’s provisional constitution in the last week, and everyone from The Washington Post’s editors to TNR’s own Spencer Ackerman has gotten in on the act. Critics have charged that the constitution devolves too much power to local authorities and creates a central government too weak to midwife the birth of liberal democracy. To back up this claim, they point to several specific elements of the provisional constitution that appear to privilege local government over Baghdad’s authority. First, they complain that the provisional constitution leaves too much power in the hands of local militias, specifically the Kurdish peshmerga. Second, they note that two-thirds of voters in any three provinces can veto a permanent constitution, thereby ensuring that Kurds can hold the constitution hostage to their demands. Third, they argue that the right of provinces to join together into regions–enshrined in the provisional constitution–will promote ethnic factionalism. And finally, they note that the document grants provinces the right to nullify or modify laws passed by the central government.
But while they’re right that the provisional constitution will shift power out of Baghdad, they’re wrong to believe that this is a problem. In fact, the document, while imperfect, does a pretty good job of using tribalist means to promote liberal ends…
UPDATE: Matthew Yglesias notes that in my prewar column on Iraqi federalism I had said the following:
Federalism need not, as some suppose, mean one big province for the Kurds, one for the southern Shi’ite Arabs, and one for the mid-country Sunni Arabs. (Still less does it require, as the Kurdish draft constitution suggests, one supra-provincial government for the Kurds and one for the rest of the country–a terrible arrangement.) More numerous, smaller provinces, including an autonomous Kirkuk, might well be better for stability and for the protection of minorities: Two or more Kurdish provinces would be less likely to secede than one big one; splitting up the Shi’ite region into a number of units could prevent it from gaining disproportionate power. This is not the same as “non-ethnic” federalism, a catchword used by some of the non-Kurdish opposition. Kurds need to and deserve to have effective control over the province(s) in their part of the country in order to protect their interests against an Arab-dominated center. But not all of the provinces in a federation need to be ethnically demarcated, and ethnically demarcated areas probably shouldn’t consist of one-government-per-ethnicity.
and he wonders how I sqaure that with my support for the TAL, which allows any three or more provinces to join together into regional governments., and which recognizes one such extant region, the Kurdish Regional Government.
While I’d rather that the TAL had spelled out more explicitly the relationships between the regions and the component provinces, it looks to me as if the provinces remain the fundamental units– certainly outside Kurdistan. I hope the permanent constitution makes clear that regions aren’t forever, that provinces can withdraw from one region and join another or none (including the Kurdish provinces; I think the KRG is entrenched only during the transition). In the meantime, we have a KRG that doesn’t dissolve the component provinces, and no regions entrenched in the rest of the country– much less regions entrenched on ethnic or confessional bases. The hybrid model of the TAL seems like not a bad arrangement to me, and much better than a constitutional entrenchment of three massive regional governments with no internal provinces– the worry I was describing a year ago.
Notes on sources and further reading:
The essential work on constitutional design in ethnically divided states remains Donald Horowitz, Ethnic Groups in Conflict, which can be usefully read alongside his later A Democratic South Africa?: Constitutional Engineering in a Divided Society .
The fuller version of my argument for ethnic federalism as a strategy to counterbalance the dangerous centralizing tendencies of ethnic majorities or staatvolk is found in two essays: “National Minorities Without Nationalism” in Alain Dieckhoff, ed., The Politics of Belonging: Nationalism, Liberalism, and Pluralism; and “Language Rights, Literacy, and the Modern State,” in Will Kymlicka and Alan Patten, eds., Language Rights and Political Theory. The argument draws heavily on ideas from my book The Multiculturalism of Fear and from Rogers Brubaker’s Nationalism Reframed : Nationhood and the National Question in the New Europe.
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