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Volume 7, Issue 34: August 22, 2005

  1. Iraq Constitution Unlikely to Secure an Open Society
  2. U.S. Lower Expectations for Iraq but Is Likely to Stay, Higgs Argues
  3. Supreme Court Offers Little Evidence of New Federalism

1) Iraq Constitution Unlikely to Secure an Open Society

Despite continuing efforts to draft a constitution that Kurds, Shi'ites, and Arab Sunni can live with -- or perhaps because those efforts have been so strained -- Iraq's long-term future probably won't include an open political system, according to Ivan Eland, senior fellow and director of the Center on Peace & Liberty at the Independent Institute.

"Artificially forcing the Iraqis to reach a definitive agreement on fundamental issues -- such as autonomy for Kurdish and Shi'ite areas (federalism), the role of Islam and women in Iraqi society, and the fate of the oil-rich city of Kirkuk -- will likely make any Iraqi Constitution as irrelevant as those of neighboring Arab states," writes Eland in a new op-ed. "On paper, many Arab states have liberal constitutions, but they do not have the political culture or institutions to sustain an open political system."

Not only is Iraq unlikely to become a constitutional republic for the long term, political stability will probably also elude Iraq, argues Eland: "Whether Iraq gets a freshly minted constitution or not . . . it is regrettably most likely on a trajectory toward all-out civil war."

"Although it will be tough for some Democratic activists to swallow," Eland continues, "allowing the administration to save face, declare victory, and begin leaving the Iraqi quagmire would be the best situation for all concerned -- especially for the American soldiers who are being sacrificed in the unnecessary and pointless invasion and occupation of this sovereign country. Believe it or not, the best alternative now is admitting defeat, without publicly acknowledging it, and withdrawing American troops from Iraq before the civil war begins."

See "Will Iraq’s Constitution Be Irrelevant?" by Ivan Eland (8/22/05)
"¿Resultará Irrelevante la Constitución de Irak?"

To purchase THE EMPIRE HAS NO CLOTHES: U.S. Foreign Policy Exposed, by Ivan Eland, see

To purchase PUTTING "DEFENSE" BACK IN U.S. DEFENSE POLICY, by Ivan Eland, see

"The Way Out of Iraq: Decentralizing the Iraqi Government," by Ivan Eland

Center on Peace & Liberty (Ivan Eland, director)


2) U.S. Lower Expectations for Iraq but Is Likely to Stay, Higgs Argues

After previously claiming it would turn Iraq into an oasis of freedom and prosperity in the Middle East, Bush administration officials are now lowering their expectations, according to unnamed government officials quoted recently in a WASHINGTON POST article by Robin Wright and Ellen Kickmeyer ("U.S. Lowers Sights On What Can Be Achieved in Iraq," 8/14/05).

Administration officials may no longer expect Iraq to become a model of democracy, have a well-functioning oil industry, or deliver personal and economic security to the majority of Iraqis, but don't expect them to to withdraw all U.S. troops from Iraq. According to Senior Fellow Robert Higgs, author of AGAINST LEVIATHAN: Government Power and a Free Society, the United States will probably keep troops stationed in Iraq indefinitely.

In a new op-ed, Higgs writes:

"If the administration now admits that its desired transformation of Iraq's political, social, and economic affairs is infeasible and that it cannot defeat the resistance forces that oppose its continued occupation, will the Americans pack up and leave, putting all their propaganda eggs into a basket labeled 'at least we toppled that horrible dictator Saddam Hussein'? Of course not. The program to create a democratic paradise in Iraq may have collided with reality, but that collision does not imply that U.S. forces will proceed to evacuate the venue of the failed experiment. To suppose that it does is to misunderstand why they were sent there in the first place."

Higgs then lists the main reasons the U.S. military presence in Iraq will likely continue.

"By effectively controlling the region, the U.S. government would attain several of its cherished ends. First, it would eliminate or greatly diminish the threats posed to Israel by countries such as Syria and Iran. Second, it would control much of the oil and gas extraction and transportation in a region believed to be richly endowed with untapped deposits of those prized fossil fuels. Third, it would butt up against the Russians and the Chinese, excluding them from hegemony or substantial influence in the lands of the Great Game. Fourth (but merely incidental, you should understand), important supporters of the Bush team would make tons of money: Halliburton, Bechtel, Chevron, Unocal, Shell, and the rest of the good old boys, not to mention the arms suppliers and the mercenaries."

Higgs predicts that Iraq's new leaders -- under strong pressure from the United States -- "will promptly negotiate a Status of Forces Agreement to maintain a U.S. military presence in the country."

"The United States began its occupation of Germany and Japan sixty years ago," Higgs continues, "yet large U.S. military bases remain in those countries today. Does anyone really believe the Americans will walk away from their mega-bases in Iraq just because the Iraqis want the Yankees to go home? Why, that would spoil the big plan, wouldn't it? The pretext, it now appears, is dispensable, but the plan most likely is not."

See "What Does the Administration's Leaked Mea Culpa on Iraq Portend?" by Robert Higgs (8/18/05)
¿Qué Indica el Mea Culpa Revelado por la Administración Respecto de Irak?

Also see, "Global Struggle against Violent Extremism: Marketing Gimmick or Ominous Turn?" by Robert Higgs (8/8/05)
"La Lucha Global contra el Extremismo Violento: ¿Un Truco de Marketing o un Giro Lamentable?"

AGAINST LEVIATHAN: Government Power and a Free Society, by Robert Higgs


3) Supreme Court Offers Little Evidence of New Federalism

Recent discussions about the U.S. Supreme Court have often spoken of its alleged return to a jurisprudence that favors states' rights over the federal government -- what some have called New Federalism. The Court's June 2005 decision in Gonzales v. Raich, however, shows the Court still strongly favors the federal government, even in matters where the Constitution suggests that the states, rather than the feds, should determine policy, as Research Fellow William J. Watkins, Jr. notes in his recent article, "Raiching the Constitution over the Coals" (CHRONICLES, 8/2/05).

In Raich, the Court upheld the federal convictions of Angel Raich and Diane Monson, who had cultivated marijuana for their own medicinal use as allowed by California's Compassionate Use Act of 1996. (Raich has an inoperable brain tumor, seizures, chronic pain, and life-threatening weight loss; Monson has chronic back pain and muscle spasms caused by a degenerative disease of the spine. Their physicians had concluded that their symptoms could not be relieved with ordinary medication and thus prescribed marijuana.)

In addition to robbing Raich and Monson of their treatment and returning them to a life of pain, the Court's decision was a huge blow to the cause of states' rights. Especially strange was the Court's claim that the U.S. Constitution's Interstate Commerce Clause gave the feds the authority to prohibit Raich's and Monson's marijuana cultivation, despite the uncontested fact that the cultivation was for their personal use within the state of California.

The Commerce Clause gives Congress the power to "regulate Commerce with foreign Nations, and among the several States, and with the Indian tribes" (Article 1, Section 8). In THE FEDERALIST PAPERS, however, James Madison and Alexander Hamilton made it clear that the clause did not pertain to local agriculture. Rather, it was written to enable Congress to strike down trade barriers between the states.

The early Supreme Court recognized this intent in such cases as Gibbons v. Ogden (1824), when Chief Justice John Marshall denied that Congress could regulate "that commerce...which is completely internal" to a state. Over time, however, various Court decisions expanded the definition of commerce. Finally, in Wickard v. Filburn (1942), the Court reasoned that even local agriculture, grown solely for a farmer's own use, could affect interstate commerce because if several farmers grew for home use, this would alter crop prices. Thus, the Raich decision builds on the precedent set in Wickard and clearly disproves the claim that the Court in the past decade has moved closer toward New Federalism.

"The myth of our ultra-conservative Supreme Court and its alleged evisceration of federal power can now be interred" -- Watkins concludes -- "right beside the old Constitution of enumerated powers."

See “Raiching the Constitution over the Coals,” by William J. Watkins Jr. (CHRONICLES MAGAZINE, 8/2/05)

"Echando a la Constitución a las Brasas"

Also see, "John G. Roberts and the New Federalism," by William J. Watkins Jr. (7/25/05)


To purchase RECLAIMING THE AMERICAN REVOLUTION: The Kentucky and Virginia Resolutions and Their Legacy, by William J. Watkins, Jr., see


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