Philip C. Bobbitt
How to ruin a milestone constitution
by Philip Bobbitt,
The Guardian, Thursday August 25, 2005
There is good and bad news coming out of Baghdad about the proceedings to present a draft constitution to the elected Iraqi assembly, but the best and the worst have not been much reported. The most hopeful development, more important really than any provision in the constitution, is the plan to present it to the people for ratification in October. It has been widely reported that Sunni leaders are hostile to provisions for a federal structure. Some commentators are fearful that Sunnis, who have majorities in four Iraqi provinces, may be able to mobilise their adherents to take advantage of the provision that permits a vote by a two-thirds majority in any three provinces to prevent adoption of the constitution.
In fact, the resort to a popular referendum for ratification – the movement to government by consent rather than by decree or intimidation – represents a milestone in Iraqi history, whatever the outcome of that vote. Though Americans rightly venerate the role of our framers, it was the ratification of the US constitution by the people that endowed it with sovereignty. Far from welcoming Sunni scepticism about the constitution, Abu Musab al-Zarqawi must be grinding his teeth. Elections are what he fears most.
In one respect, however, the new constitution has taken a highly unfortunate turn. Rather than giving every Iraqi an equal, inalienable share in a private holding company endowed with the society's oil and gas assets, and then requiring the state to tax the people in order to raise state revenues, the drafters have chosen to endow the state directly with Iraq's oil wealth.
This is a tragedy, for it means that Iraq will go the way of every wealthy oil state that takes revenue directly from the country's patrimony without levying taxes, such as Nigeria or Saudi Arabia – where representative institutions have yet to take hold, profits are expatriated and government officials allocate all contracts.
It may sound cynical, but the genius of the American constitution does not lie in our bill of rights, but in biannual elections for the House of Representatives, where every bill for taxing or spending must originate. Not one penny can be spent without congressional action. Every two years someone must come to the citizenry and explain precisely why he or she took money out of their pockets.
This constitutional point was at the heart of the Iran-Contra affair. Let me illustrate. Suppose current US deficits climb to even more vertiginous heights such that the budget of the Smithsonian Institution is cut by Congress. One result is that, say, the famous Museum of Natural History has to restrict its viewing hours. Into this breach steps a wealthy philanthropist (or corporation); a gala dinner is held among the dinosaur skeletons and stuffed mastodons; a huge sum is raised. The taxpayer is not required to put up any funds. The museum reopens. Everyone is happy. Well, not everyone. Not the constitutional lawyers, for example, because the funding of federal projects without congressional action is unconstitutional.
Thus when Ronald Reagan's CIA director came up with the idea of privately financing a covert action agency to avoid congressional scrutiny, he was in fact proposing an end-run round the constitution itself. The result almost wrecked the administration.
The great jurist Oliver Wendell Holmes Jr left much of his estate to the US government, but this had to be passed by a congressional statute because not even the acceptance of bequests to the country is permissible without congressional action.
We long ago learned the error of taxation without representation. Now we are learning there is no real representation without taxation. Only when the state is compelled to go to elected assemblies for money, as Charles I learned, does true government by consent flourish.
It may be that Iraq's first try at representative government will fail. If it does, a resourceful and ancient culture will simply try again until a workable structure can be agreed. What must not happen is that the new practice of representation through elections withers through a lack of state accountability. Great oil wealth will allow the new Iraqi state to bypass the necessity for realistic taxation. This has profound implications for corruption, low economic performance and weak representative institutions. Then someday a populist demagogue will come to power through the very elections for which Iraqis have sacrificed so much.
This leader – an Arab Hugo Chávez – will blame the US and UK for the disappointments that ensued after the adoption of the constitution. That would be a bitter irony because the US and the UK are also making great sacrifices to bring representative institutions to Iraq.
Philip Bobbitt teaches constitutional law at the University of Texas; his new book, The War Against Terror, will be published next spring