Prof. Kim Lane Scheppele of the University of Pennsylvania Law School is an expert on new constitutions. She’s not very happy about the new Afghan effort:
An English translation of the proposed constitution of Afghanistan is available [Word .doc].This constitution will be debated and ratified, if all goes according to plan, in a Constitutional Loya Jirga to be convened in December.
If you want to know more about the process through which it was drafted, the Constitutional Commission’s English language website is very informative. It can be found [here] .
International expert opinions (organized under UN auspices but which, so far as I can tell, were mostly ignored on the larger questions) can be found[here].
In my first reactions, it seems to me that the draft constitution is a substantial step backwards from the 1964 Constitution that brought Afghanistan its first representative democracy. Many of the rights provisions are subject to the qualification that the details will be regulated by law (which makes many basic rights subject to legislative limitation). There is a general equality clause but no specific equality clause for women. The constitution nationalizes natural resources and forbids foreigners from owning land.
The President has sweeping powers. The Parliament’s role is limited to approval or disapproval of state policy that originates with the President. The President appoints the vice president, all of the ministers (though these may be subject to no confidence votes), one-third of the upper house and all of the judges of the Supreme Court (with the latter subject to the approval of the upper house). There is no Constitutional Court, though there is a Human Rights Commission. Constitutional questions can only be taken up by the Supreme Court upon a petition from the government or the courts. There is no public access to constitutional review.
But by far the biggest change in the new constitution is in the role of Islam. In the 1964 constitution, Islamic law was to be used by judges only where there was no positive law on point, as a kind of common law that could be used when statutes and the constitution ran out. Now Islam is a central organizing basis of constitutional life at an equal or perhaps even higher level than the Constitution itself. Political parties may not be formed that conflict with Islam. The educational system shall be designed to be in accord with Islam. The section on the family requires the state to eliminate traditions contrary to Islam. The new constitution does not specify which branch of Islamic law shall be considered authoritative (the old one did), but one can imagine in a country whose most recent government was the Taliban that the view of Islam on offer throughout the political system may not be particularly friendly to international standards of human rights.
While the current president of Afghanistan is a moderate, the current Supreme Court is left over from the Taliban time and they have quite radical views of what Islamic law requires. In fact, in the present legal system, there are almost no judges educated in secular law because all of the universities have been closed since the start of the civil war. Those who are literate (and far less than half of the male population and less than 20% of the female population are literate these days) learned what they know in madrassas which operated in the tribal lands of Pakistan, and this includes the present judges on the Supreme Court.
I must admit to being both disappointed and wary of the draft constitution. It is a constitution that would be easy to abuse. I’d love to hear others’ thoughts on this.
(reprinted from Conlaw list with permission; minor reformatting)
Sets a great precedent for Iraq, right?
Since it looks as if there may be an impasse on the Senate Select Committee on Intelligence’s access to White House documents, and the UK’s Daily Telegraph is reporting that Senator Richard Durbin is threatening to invoke a committee rule allowing the Democrats to run a parallel inquiry, I thought I’d try to figure out whether this is possible under the Committee’s Rules of Procedure.
Amazingly, the answer is more or less, ‘Yes, this is possible.’ Technically, though, it’s not a parallel process — just a committee activity organized by interested Senators. Any five members can call a committee meeting even if the Chair doesn’t want them to (Rule 1.5). There are eight Democrats on the committee — including John Edwards (hey, any reporters reading this? Can you ask Edwards whether he’d support Sen. Durban in an effort to hold an independent inquiry? Or do I have to wait until Edwards guests at Lessig’s blog?) And, it only takes five members to initiate an investigation, which gets the staff up and running on the problem. (Rule 6).
More importantly, the Vice Chair — that’s Sen. John D. Rockefeller IV (D-W.Va.) — has the power to issue a subpoena. (Rule 7)
The Committe does have the power, however, to amend its own rules. (Rule 14) Although it’s split 8-8 between Democrats and Republicans, the Chair is a Republican, and I presume he’d have the tie-breaking vote. So if the Democrats really got going on this, the Republicans could stop it — if they could maintain party unity. (Senator Olympia Snowe is one of the committee Republicans.)
Here are the key paragraphs from the Rules of Procedure:
1.3. A special meeting of the Committee may be called at any time upon the written request of five or more members of the Committee filed with the Clerk of the Committee.1.4. In the case of any meeting of the Committee, other than a regularly scheduled meeting, the Clerk of the Committee shall notify every member of the Committee of the time and place of the meeting and shall give reasonable notice which, except in extraordinary circumstances, shall be at least 24 hours in advance of any meeting held in Washington, D.C. and at least 48 hours in the case of any meeting held outside Washington, D.C.
1.5. If five members of the Committee have made a request in writing to the Chairman to call a meeting of the Committee, and the Chairman fails to call such a meeting within seven calendar days thereafter, including the day on which the written notice is submitted, these members may call a meeting by filing a written notice with the Clerk of the committee who shall promptly notify each member of the Committee in writing of the date and time of the meeting.
Rule 3. Subcommittees
Creation of subcommittees shall be by majority vote of the Committee. Subcommittees shall deal with such legislation and oversight of programs and policies as the Committee may direct. The subcommittees shall be governed by the Rules of the Committee and by such other rules they may adopt which are consistent with the Rules of the Committee.
Rule 4. Reporting of Measures or Recommendations
4.1. No measures or recommendations shall be reported, favorably or unfavorably, from the Committee unless a majority of the Committee is actually present and a majority concur.
4.2. In any case in which the Committee is unable to reach a unanimous decision, separate views or reports may be presented by any member or members of the Committee.
Rule 6. Investigations
No investigation shall be initiated by the Committee unless at least five members of the Committee have specifically requested the Chairman or the Vice Chairman to authorize such an investigation. Authorized investigations may be conducted by members of the Committee and/or designated Committee staff members.
Rule 7. Subpoenas
Subpoenas authorized by the Committee for the attendance of witnesses or the production of memoranda, documents, records or any other material may be issued by the Chairman, the Vice Chairman, …
rule 14. changes in rules
These Rules may be modified, amended, or repealed by the Committee, provided that a notice in writing of the proposed change has been given to each member at least 48 hours prior to the meeting at which action thereon is to be taken.
Yesterday I wrote up an item asking whether there was a connection between Democrats on the Senate Intelligence Committee saying they might run their own 9/11 inquiry (with, apparently subpoena power under an obscure Intel committee rule), and an AP report of the White House’s sudden willingness to turn over documents to the committee.
As the story about the Democrats came from a British paper, I noted there was a greater than average chance it might be wrong. British papers don’t always get the details right in US political stories, and are anyway less obsessive about details than US papers. Now, however, it seems as if maybe it was the AP story that is missing part of the picture. Or rather, that the White House had a change of heart (or can’t get its story straight, or has hung a Senator out to dry — either of which is the sign of a sinking ship…).
Today’s AP story, by William C. Mann, says, Senator, U.S. Disagree on Iraq Inquiry says,
The chairman of the Senate Intelligence Committee expects the White House to give the panel access to all materials it sought for its inquiry into prewar information on Iraq. A spokesman for President Bush indicates he shouldn’t be so sure.Both Sen. Pat Roberts, R-Kan., and White House spokesman Trent Duffy spoke Sunday of “a spirit of cooperation” regarding the documents. That’s where agreement seemed to end.
Roberts said White House aides told committee staff members late Friday of acquiescence, on behalf of the National Security Council, to the committee’s demands. The Pentagon also said it would cooperate, Roberts said on CNN’s “Late Edition.”
The committee had set a deadline of noon last Friday.
While agreeing on a new spirit in relations with the committee, Duffy, with Bush in Crawford, Texas, said he could offer no concrete promises and refused to confirm Roberts’ assertion of agreement on a turnover.
“We’ve had productive conversations about ways we can work with and assist the committee,” Duffy said. “While the committee’s jurisdiction does not cover the White House, we want to be helpful and we will continue to talk to and work with the committee in a spirit of cooperation.”
…
Looks like this one will run for a while.
The blogosphere is getting very distracted by the Lochner tangent to the Janice Brown confirmation battle. Eric Muller injects some sense into that debate.
But forget about Lochner for a minute. The technical merits and demerits of that decision are the wrong debate. Read the whole speech in which the Lochner passage is only a small part. Jon Roland has HTMLized it: “A Whiter Shade of Pale”: Sense and Nonsense—The Pursuit of Perfection in Law and Politics, delivered to the The Federalist Society at University of Chicago Law School (April 20, 2000).You should read the whole thing to get its true flavor. Justice Brown believed that the United States in 2000 was on the brink of collectivism, in the grips of a slave mentality in which the unthinking (led by Marxist academicians, of course) are just itching to surrender their liberty for the opiate of socialism exemplified by the New Deal—the great error in our history. And, oh yes, the family is being destroyed by bureaucrats, or by feminine reliance on the state [please note that Justice Brown clearly doesn’t just mean AFDC, where there might be something to the claim…she means a substantial proportion of the women who voted for Clinton].
But fear not, “it is too soon to despair. … We must get a grip on what we can and hold on. Hold on with all the energy and imagination and ferocity we possess. Hold on even while we accept the darkness. We know not what miracles may happen; what heroic possibilities exist. We may be only moments away from a new dawn.” That would be a new ultra-libertarian, anti-collectivist (defined as “regulation”) dawn, apparently. Which is of course why some folks fixated on the Lochner point.
There does come a point where, however smart they may be, a person is so far outside of the mainstream that they really shouldn’t be a federal judge. This speech persuaded me that Justice Brown is out there, well past that point. And this despite the cool Procol Harum references.
Here are some quotes (minus footnotes)
There are so few true conservatives left in America that we probably should be included on the endangered species list.…
Writing 50 years ago, F.A. Hayek warned us that a centrally planned economy is “The Road to Serfdom.” He was right, of course; but the intervening years have shown us that there are many other roads to serfdom. In fact, it now appears that human nature is so constituted that, as in the days of empire all roads led to Rome; in the heyday of liberal democracy, all roads lead to slavery. And we no longer find slavery abhorrent. We embrace it. We demand more. Big government is not just the opiate of the masses. It is the opiate. The drug of choice for multinational corporations and single moms; for regulated industries and rugged Midwestern farmers and militant senior citizens.
It is my thesis today that the sheer tenacity of the collectivist impulse — whether you call it socialism or communism or altruism — has changed not only the meaning of our words, but the meaning of the Constitution, and the character of our people.
…
Ayn Rand similarly attributes the collectivist impulse to what she calls the “tribal view of man.” She notes, “[t]he American philosophy of the Rights of Man was never fully grasped by European intellectuals. Europe’s predominant idea of emancipation consisted of changing the concept of man as a slave to the absolute state embodied by the king, to the concept of man as the slave of the absolute state as embodied by ‘the people’ — i.e., switching from slavery to a tribal chieftain into slavery to the tribe.”
Democracy and capitalism seem to have triumphed. But, appearances can be deceiving. Instead of celebrating capitalism’s virtues, we offer it grudging acceptance, contemptuous tolerance but only for its capacity to feed the insatiable maw of socialism. We do not conclude that socialism suffers from a fundamental and profound flaw. We conclude instead that its ends are worthy of any sacrifice — including our freedom. Revel notes that Marxism has been “shamed and ridiculed everywhere except American universities” but only after totalitarian systems “reached the limits of their wickedness.”
“Socialism concentrated all the wealth in the hands of an oligarchy in the name of social justice, reduced peoples to misery in the name of shar[ed] resources, to ignorance in the name of science. It created the modern world’s most inegalitarian societies in the name of equality, the most vast network of concentration camps ever built [for] the defense of liberty.”
Revel warns: “The totalitarian mind can reappear in some new and unexpected and seemingly innocuous and indeed virtuous form. [¶]… [I]t … will [probably] put itself forward under the cover of a generous doctrine, humanitarian, inspired by a concern for giving the disadvantaged their fair share, against corruption, and pollution, and ‘exclusion.’”
Of course, given the vision of the American Revolution just outlined, you might think none of that can happen here. I have news for you. It already has. The revolution is over. What started in the 1920’s; became manifest in 1937; was consolidated in the 1960’s; is now either building to a crescendo or getting ready to end with a whimper.
…
Lionel Tiger, in a provocative new book called The Decline of Males, posits a brilliant and disturbing new paradigm. He notes we used to think of a family as a man, a woman, and a child. Now, a remarkable new family pattern has emerged which he labels “bureaugamy.” A new trinity: a woman, a child, and a bureaucrat.” Professor Tiger contends that most, if not all, of the gender gap that elected Bill Clinton to a second term in 1996 is explained by this phenomenon. According to Tiger, women moved in overwhelming numbers to the Democratic party as the party most likely to implement policies and programs which will support these new reproductive strategies.
…
We find ourselves … in a situation that is hopeless but not yet desperate. The arcs of history, culture, philosophy, and science all seem to be converging on this temporal instant. Familiar arrangements are coming apart; valuable things are torn from our hands, snatched away by the decompression of our fragile ark of culture. But, it is too soon to despair. The collapse of the old system may be the crucible of a new vision. We must get a grip on what we can and hold on. Hold on with all the energy and imagination and ferocity we possess. Hold on even while we accept the darkness. We know not what miracles may happen; what heroic possibilities exist. We may be only moments away from a new dawn.
You can also read her tamer — by comparison — Commencement Address to the Columbus School of Law at Catholic University, Keepers of the Faith; Defenders of the Light (May 24, 2003).
The question for you will be whether the regime of freedom which they founded can survive the relentless enmity of the slave mentality.
…
The American Creed has not been forgotten; it has been repudiated. “Historically, American identity has had two primary components: culture and creed.” The former is defined by our heritage from Western Civilization; the latter consists of a set of universal ideas and principles articulated in our founding documents: liberty, equality, democracy, constitutionalism, limited government, and private property. On these principles there once was wide agreement. Indeed, the Creed was hailed by foreign observers, ranging from Alexis de Tocqueville to Gunnar Myrdal, as the “cement in the structure of this great and disparate nation.” As Richard Hofstader notes: “It has been our fate as a nation not to have ideologies but to be one.”