September 5, 2005 | National Review Online

A Not So Sensible Iraqi Constitution

Pace Charles Krauthammer, the proposal's Islamist influence is not mild.

In his Washington Post column last Friday, the invaluable Charles Krauthammer takes to task those of us “knee-jerk critics” who have not been high on the proposed Iraqi constitution–despite admitting to his own doubts about the enterprise. With great respect, it is not his finest hour, particularly when he addresses the role of Islam.

In concluding that the document's “Islamist influence is relatively mild,” Krauthammer relies heavily on its opening article, which proclaims that the “Republic of Iraq is . . . a democratic, federal, representative [parliamentary] republic.” (Alteration in original.) He finds this sentence transformative because “[t]he word Islamic is deliberately and importantly omitted.”

Unfortunately, this cheery inference is a blinkered one. For gliding by without mention by Krauthammer is the proposal's very next article — the one that installs Islam as the official state religion and decrees that it is “a main source for legislation.” To be sure, “a” main source is better than “the” main source. But we are talking about a nominal democracy adopting in its fundamental law a main source of guidance that rejects bedrock democratic principles like equal protection of law. Linguistic subtleties will doubtless be cold comfort to the lower castes of Islamic society: non-Muslims and women.

Krauthammer then strangely lauds the “finesse” with which the document frames in “thou shalt not” terms its prohibition against laws contradictory of Islamic principles — a bar he analogizes to the restrictions on government action found in the U.S. Bill of Rights. This approbation compounds his misreading of the Iraqi constitution with a misconception of the U.S. constitution.

“In America,” Krauthammer writes, “the Constitution proper says what the government can and should do. The Bill of Rights says what the government cannot and must not do — impose religion, force confessions, search and seize. It is the 'thou shalt nots' that are your protection from tyranny.”

Well, no. The checks and balances of the Constitution proper actually protect Americans from tyranny every bit as much as the Bill of Rights does. Quite apart from that, though, we have just seen that Iraq's “thou shalt not” injunction against violating Islam comes only after Islam has been carved into the constitution proper as the state religion. Krauthammer's omission of this inconvenient fact is thus especially curious given that he rightly sees our First Amendment's “thou shalt not” injunction against “impos[ing] religion” as a key “protection from tyranny.”

But let's leave aside that the specific American “thou shalt not” in the matter of religion is the polar opposite of Iraq's. From a broader perspective, our Constitution has nothing comparable to the proposed Iraqi system, in which the dictate not to run afoul of Islam rests atop an expansive Islamic substructure.

In the proposed Iraqi constitution, not only is Islam explicitly made the official state religion and a main source of legislation. The document also: “guarantees the Islamic identity of the majority of the Iraqi people” (so that even if a majority some day wished a secular identity, their Islamic identity would be constitutionally enshrined); stipulates that Iraq's highest court shall include sharia (i.e., Islamic law) experts, who could form a majority of the court if the legislature so decides; and makes that court responsible for “[s]upervising the legitimacy” of all laws, both before and after they are enacted.

In addition, even if all that were not true, and even if the proscription against contra-Islamic legislation were truly analogous to American Bill of Rights restrictions, the fact remains that these constitutional amendments of ours have been grounds for nullifying countless democratically enacted laws. Moreover, when they are written in sweeping, general language, as is Iraq's proviso, the tendency of “thou shalt not” clauses is to expand over time, gradually reducing popular self-determination.

Finally, Krauthammer draws solace from the Iraqi constitution's pairing of the injunction against laws that violate Islam with restrictions that similarly forbid laws contradicting democratic principles and other “essential rights and freedoms.” According to Krauthammer, “This means that there are two gatekeepers for the passing of any law. Insofar as the constitution is adhered to … democratic rights are protected from the imposition of sharia.”

This is rose-tinted prognosticating if ever there was. In fact, there is nothing in the document to indicate that democracy has primacy over Islam as a “gatekeeper.” Thus, it could just as readily be said that sharia principles are protected from the imposition of democratic rights. And, indeed, as Eleana Gordon and the team of Nina Shea and Jack Cullinan have pointed out, the proposed constitution may well sow the seeds for exactly that outcome.

Of course, Krauthammer's optimistic view could end up being right, despite the obstacles. But that we have to guess at all is worrisome. In our war against militant Islam, we are forever talking about the need to empower Muslim moderates. Obviously, authentic moderates would not demand the establishment of Islam as the state religion. They would be content with no official national religion as long as they were guaranteed the freedom to worship — and to be as culturally Islamic — as they chose.

An obsession that all people must submit to the authority of Islam is the beating heart of militancy. Concededly, the proposed constitution is not a militant document — there is much in it that would be anathema to jihadists. Still, the drive to impose Islam formally as the state religion, over the objections of a substantial minority of Iraqis, is hardly an augur of moderation.

Krauthammer's reservations about the constitution project have been based on his keen insight that charting the role of Islam is “more appropriately the work of years as Iraqis learn accommodation and tolerance and the other habits of self-government.” Certainly he is right about that. I fear, however, that they have gotten off to a less auspicious start than he thinks.

Andrew C. McCarthy, a former federal prosecutor, is a senior fellow at the Foundation for the Defense of Democracies.