Noah Feldman closes his op-ed on the Iraqi constitution with this thought: “[T]o arrive in a world where courts resolve difficult questions of interpretation in ways the original authors could never have imagined–this would be a tremendous accomplishment for the Iraqis, not to mention the coalition that unleashed at once the powers of democracy and anarchy, as if to see which would prevail. If a future Iraqi Supreme Court ends up declaring Iraq either an Islamic republic or a secular democratic state, it will matter little that neither outcome was intended by the equivocal, beleaguered, brave and human founders. Such a decision would, either way, signal that the constitution had done its crucial work of moving the basic question of who is in charge out of the realm of violence and into the realm of constitutional politics and its handmaiden, constitutional law.”
I’ll set aside the guiding assumption that if the provisions of a written constitution are vague or muddled compromises, it’s up to the judiciary to resolve the ambiguities and undo the compromises.
At one level, Feldman’s point is unchallengeable: Obviously an Iraq where one of the top issues was its high court’s ruling on the words “under Allah” in an Iraqi pledge of allegiance would be a happier Iraq than today’s. A country where people have so little passion for politics that they don’t care much about, or even notice, the fact that they’re being ruled by their courts is a happer country than one where people have so much passion for politics that they will blow themselves up over it. Interesting, though, that this this line of argument could easily be adapted to make the case for a judicial oligarchy–even for a judicially administered soft despotism.