"Founding" Iraq:

Allan Bloom once said, "[The Chinese] have Deng Xiaoping to deconstruct their Statute of Liberty. We owe them something better." (Giants and Dwarfs, p. 31) He was referring to the rejection of Enlightenment based notions of rationalism and bourgeois liberalism in favor of postmodern "deconstructionism." In particular, our dominant schools were giving advice to Chinese students that when it came to their educational reforms they should look not to thinkers like "John Locke, the philosopher of liberalism," but rather thinkers like Frantz Fanon, a disciple of Sarte.

I think this is relevant to Iraq in that we owe the people of Iraq something better than an illiberal form of government which they may very well get. What has worked so well in the West is liberal democracy -- the notion of unalienable individual rights, that men are by nature, born free and equal and that no government may by right contradict this Truth.

Where the deconstructionists may have a kernel of Truth is that liberal democracy makes quite a lofty claim -- that it is Truth, accessible to man as man through his Reason, universally applicable everywhere to everyone -- and this claim of Truth, in reality, may be hard if not impossible to substantiate.

This is a question with which Bloom and Strauss grappled. And they concluded that even if, at bottom, Nietzsche was right (and I think they thought he was) that God doesn't exist, that the natural law is a fiction, and that rights aren't grounded in nature, this is not a "solid" place to found a political order (Heidegger's support of Nazi Germany aptly demonstrated this).

We need some sort of solid foundation upon which to build a political order -- not postmodern relativism, not any kind of revealed religion be it Islam, Christianity, or whatever, but a "rights" oriented democracy, if for no other reason than the positive results yielded by this two hundred and some year Enlightenment experiment.

I disagree with Sandefur, however, that it is the job of America to stay in Iraq and make sure we see such a liberal form of government bear fruition, in its fullest form. Rather, I think, what we need to do is what our Founders did. We need to set Iraq up with a formal constitutional structure, one that, in its ideals, is a rights oriented liberal democracy, but also accept realistic compromises with those ideals. In other words, plant the seeds of liberal democracy, of freedom and equality, that will over time grow and transform Iraq in our direction. And we need to get out after planting those seeds.

Let us not forget, the forces of religious orthodoxy had a far greater hold over society during the founding era and Church & State were far more integrated. Yet, the Enlightenment ideals upon which we were founded -- that all men have unalienable free and equal rights of conscience, that such rights belong not only to orthodox Christians, but men who in Jefferson's words, worshipped no God or twenty Gods -- were flatly incompatible with many of the common practices of the day: State Established Churches, all religious tests, violations of the free exercise of and denial of equal government privileges to any religion (Christian or non-Christian), etc.

We could have attempted to remake society all at once, like the French did in their revolution (which was done in the name of the same Enlightenment principles of "liberty & equality," "rights of man," etc.); but we saw where that led.

Instead we allowed for such compromises with our ideals; but at the same time, changes, consistent with our ideals, would occur gradually over time. And over time the US did transform. Slavery, state established Churches, denial of formal religious rights to any religion (orthodox or not), were done away with precisely because of our Founding ideals. We also got formal civil and voting rights for blacks and women, greater "lifestyle" freedoms, etc., again because of our Founders putting liberty, equality and "rights" at the center of political concerns; even though imposing these outcomes all at once in 1789 would have been impossible and some of those outcomes, such as women getting the right to vote, blacks being fully integrated into civil society with whites, the freedom to view pornography or to engage in sodomy, unthinkable.

Iraq should be founded on certain ideals: Ideals of religious equality, gender equality, democracy and rights. But obviously, we shouldn't try to remake Iraq overnight. Instead let the changes occur more gradually. Set up an independent judiciary with the power (hopefully) to strike down legislation inconsistent with the Constitution. And also, like our Founders, make those ideals purposefully brief, vague and flexible. This will allow for the imposition of more specific norms relating to those general ideals at later times when the nation is ready for them.

Finally, the "religious" question. It's very important, if Islam is to be considered a source of legislation at all, it be given a lower level of priority against the natural liberal democratic rights of liberty and equality, just as Christianity was during our Founding.

Neither the Constitution nor the Declaration of Independence state that Christianity is a source of legislation. And, contrary to the claims of the religious right revisionists, the principles contained therein are products of modern Enlightenment philosophy. But such principles, however, are compatible with certain forms of Christianity. Christianity's claim to law during our Founding was, at best, a source of legislation for the common law. Now, this was a contentious claim; Jefferson vehemently rejected it and remonstrated greatly against such a notion calling it a judicial "usurpation." But even if Christianity is part of the common law, there is no question where the common law is in its level of priority as a "source of law": The common law occupies one of the lowest rungs on the latter. The common law can be changed or amended by a state statute. And the common law certainly gets trumped by the various provisions of the state and federal constitutions and the organic law of the US (The Declaration and its natural law/natural rights theory).

As Walter Berns wrote in Making Patriots,

But there is no disagreement about the place of the common law. Indeed one of the first things done by the states after independence was to declare (here in the words of the New Jersey constitution of 1776) that "the common law of England...as [has] been heretofore practiced in this Colony, shall remain in force, until [it] shall be altered by a future law of the Legislature; such parts only excepted, as are repugnant to the rights and privileges contained in this Charter [or constitution]."

But if the "rights and privileges" contained in the various state charters or constitutions included the right of liberty of conscience, and if, in turn, this right required, in Madison's words, "a perfect separation between ecclesiastical and civil matters," what did it mean to say that Christianity was part of the common law? Very little, as it turned out; and it turned out as it had to turn out. p. 33

This is important. Christianity, of course, posits certain norms which are entirely consistent with civil legislation, and therefore are perfectly acceptable sources for the law -- for instance, "thou shalt not murder," "thou shalt not steal...." But other norms, for instance, "thou shalt have no Gods before me" would be repugnant to liberty of conscience if put into the civil law and are thus entirely inappropriate for civil legislation.

Islam too could be an acceptable source for civil legislation in Iraq as long as it's understood that the theory of natural rights ultimately trumps and controls regarding which parts of Islam are appropriate for civil legislation and which parts are properly consigned to the private sphere.