The Right Coast

March 07, 2004
Supermajority Rules in Iraq
By Mike Rappaport

Last week, five shiite council members refused to sign a temporary constitution for Iraq. They did so because of a provision that would have required a supermajority of the nation’s provinces to ratify the permanent Constitution. As the New York Times stated,
    The article in the temporary constitution now in dispute deals with the ratification of the permanent constitution, which is supposed to be written sometime next year.

    According to language agreed on this week, the permanent constitution would be written by a popularly elected national assembly and put to voters in a nationwide referendum. If a majority of Iraqis approved the document, then it would be permanent. But there is an additional provision that if two-thirds of the voters in 3 of the nation's 18 governorates, or provinces, reject it, the constitution will fail.

    The language was inserted in large part to reassure the Kurds, who are fearful of losing control of their affairs to the Shiite majority.
The refusal of five shiite council members to sign the temporary Constitution raises an important issue about the possibility of establishing a workable, limited government in Iraq. It is extremely important that a supermajority be required to ratify a constitution. As John McGinnis and I have argued, the American Constitution would have been a far inferior product had it not been required to secure a supermajority for its establishment. The excellence of the American Constitution is a byproduct of that supermajority rule.

Most importantly, a supermajority rule is needed to secure widespread consent and support for the constitution. If a simple majority could ratify it, a majority could impose a constitution on a large minority that harmed its interests. A large minority might then oppose the constitution and be alienated from the nation.

Due to the difficulty in securing adequate support for the proposed Constitution in 1787, the nationalists at the Convention were forced to compromise with the advocates of states’ rights, and to produce a document which employed federalism and imposed real limits on the powers of the federal government. Even more significantly, during the contest over ratification, the Federalists were often faced with states that might reject the Constitution and with the possibility that the requisite nine states would not ratify. Consequently, the Federalists were led to promise to adopt a Bill of Rights in order to secure the support of the Framers. Thus, the supermajoritarian process for ratification may have been responsible for two of the most innovative features of the Constitution—federalism and the Bill of Rights.

We can only hope that the Iraqi Constitution will also require a supermajority for ratification and that the supermajority rule will produce similar beneficial institutions.