Frederick Schauer
The recent process of constitution-making in Iraq has focused the world on an important but rarely analyzed topic: How, if at all, is constitutionalism to be created and entrenched in severely divided societies, and how are constitutions to be created (and approved) in such societies? In Iraq the vastly divergent interests of the Sunnis, the Shiites, and the Kurds made it clear that a truly successful constitution must both involve and respect all of the major constituent groups in a severely divided and pluralistic society, and it is too soon to know whether the process will succeed. But it is not too soon to recognize that the problem is a recurring one, and thus not too soon to try to draw lessons from previous examples of constitution-making under such conditions of pluralism, as in Canada, South Africa, and many other nations. In doing so we will not only increase our understanding of what has gone on before, but will also be able to extract valuable lessons from past successes and failures, lessons that may facilitate future exercises of constitution-making under increasingly common conditions of profound cultural diversity. Moreover, there is an important question to be addressed about the relationship between constitutions and cultural division: Are constitutions the solution, even if only a part, to cultural division, as many people believe, and as the American experience may suggest? Or are constitutions likely to entrench with relatively permanency some cultural divisions, making it harder over time to transcend them? Or does a successful constitution presuppose and require antecedent social agreement, as Russell Hardin and others have argued, suggesting that viewing constitutions as a solution to cultural division may in the final analysis be futile.