A Crucial Document for a New Iraq

What's so important about a constitution? Madeleine Brand speaks with Philip Bobbitt, a law professor and constitutional expert at the University of Texas, about why it's so important for Iraq to have a document spelling out rights and responsibilities for a post-Saddam nation.

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ALEX CHADWICK, host:

Here's one way out of the Iraq constitutional quandary: Just skip it and go ahead without one. Britain seems to get along fine absent a constitutional document. The former Soviet Union had one but never did provide the safeguards it guaranteed. Philip Bobbitt is a constitutional expert and professor of law at the University of Texas. He spoke earlier with my DAY TO DAY colleague, Madeleine Brand.

MADELEINE BRAND reporting:

So constitutions, who needs them?

Professor PHILIP BOBBITT (Constitutional Expert, University of Texas): Well, every state has a constitution. In fact, every society, a bridge club, the Mafia. Every group that is constituted in some particular way for a particular purpose has a constitution, whether it's written or not. The British just don't have a written constitution.

BRAND: But is it true that sometimes these constitutions are merely pro forma documents that often are not translated into reality?

Prof. BOBBITT: That's exactly right. The key thing to look for--I suppose there are two key things. One is you want to see what mechanisms there are for enforcing the constitution against the state itself. So you want an independent judiciary, sometimes separate but linked branches of government. And then secondly, you want some ethos, some sense of what's proper, what's done. The reason we don't, for example, prescribe where you can live or who you get to marry or how many kids you can have isn't because there's a text in the Constitution that says government can't do those things; it's because our people have a sense that this would just be unacceptable.

BRAND: Given the Iraqi efforts to create a constitution and the very disparate and disharmonious elements in the society, what would you recommend to them in terms of setting forth some sort of prime arguments in the constitution that should be in there?

Prof. BOBBITT: Well, you know, I think they're actually doing it just about right. The most important element now will be the referendum; it won't be the constitution. The referendum will be a ratification by the people. In America, we often talk about the importance of the framers. And we have every right to be proud of the framers, but they were just the drafters. They were just the lawyers who wrote the Constitution up. The real power lay in the people in our ratification conventions. Some time in October, I think, the Iraqi people are going to vote on this, and the fact that Sunnis may oppose the constitution and turn out in large numbers to oppose it is, in many ways, a victory, because it's a way of transferring to the democratic process the making of a new state.

BRAND: Well, so, do you think that US authorities have unrealistic expectations in terms of the time frame?

Prof. BOBBITT: Well, probably. We all do. We all learn slowly how cumbersome government is and how hard it is to win consensus from different groups. On the other hand, giving a deadline is a way of enforcing consensus. It means that in the last few minutes, if you know that the guillotine's coming down and you've got to make a decision, you usually get some movement on the part of the parties.

BRAND: Philip Bobbitt is a professor of constitutional law at the University of Texas. His most recent book is called "The Shield of Achilles: War, Peace and the Course of History."

And, Professor Bobbitt, thank you for joining us.

Prof. BOBBITT: Thank you so much.

CHADWICK: And thanks to DAY TO DAY'S Madeleine Brand for that interview.

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