Sebastián J. Delgado
James Madison, the American statesman known as the “Father of the Constitution,” wrote that “the first and most natural attachment of the people will be to the government of their respective states.”
Madison’s maxim resonates deeply with the experience of Kurdistan and Puerto Rico, two polities separated by thousands of miles but joined by their relationships with their federal governments.
They are not states as we tend to think of them: they do not have the powerful sovereignty wielded by a state like California, nor are they severed from their central governments.
Yet they enjoy (at least in theory) a degree of sovereignty unlike anything in history. For example, they both have their regional governments, composed of legislatures, chief executives, and judiciaries. Likewise, they both have undertaken constitution-making processes that have allowed them (again, at least in theory) to stake their claim to sovereignty and to define what their relationship with their central governments will look like.
They have been able to turn themselves into “laboratories of democracy,” an experience traditionally reserved for states within the archetypal federal systems, such as the United States and its fifty sovereign states.
To understand and empower these new relationships in democratic theory, we must look both east and west and determine the advantages and disadvantages of the current arrangements.
The Kurds have long sought to define their relationship with Iraq, a task that became more urgent upon the official recognition of the Kurdish Regional Government as the Iraq War wound down.
Both Kurdistan and Iraq, with US support, undertook a constitution-making process that allowed each not only to leave behind the brutal regime of Saddam Hussein. It also let both embark on a federalist system based loosely on that of the United States.
The federalism between Kurdistan and Iraq, however, is ostensibly more robust than that present in the United States. Consider Article 13 of the Iraq Constitution. The first section holds that the constitution serves as “the preeminent and supreme law in Iraq and shall be binding in all parts of Iraq without exception.”
But the second section centralizes the concept of federalism in robust terms: “no law that contradicts this Constitution shall be enacted. Any text in any regional constitutions or any other legal text that contradicts this Constitution shall be considered void.”
Here is where regional constitutions like Kurdistan’s can achieve greater degrees of sovereignty because “to the extent that the Iraqi constitution is silent on a matter, regional constitutions adopted under it may control a given issue or area of authority,” according to professor of law Michael J. Kelly.
Powers not reserved to the federal government are left to Kurdistan to exercise. This is something that President Barzani and the new constitution-writing convention should capitalize on as they embark on a renewed constitution-making process.
What is most unique about this arrangement is that decisions made by the federal government in Iraq need not always trump regional laws. In this scheme, priority is assigned to regional laws.
Compare this arrangement with that between the US federal government and the states. Because of the US Constitution’s Supremacy Clause, when state laws conflict with federal laws, federal laws (except in certain areas) come out on top.
In the current arrangement between the Kurdistan Region and the Iraqi federal government, however, there is a new phenomenon in legal theory: a “reverse supremacy clause” that is meant to play out in the Kurdish courts. When Iraqi and Kurdish law clash, Kurdish courts must follow Kurdish law.
A notable departure from the US model is evinced by the Kurdish government’s ability to make treaties with foreign nations. In the United States, no state may enter treaties with foreign nations, a practice put in place after the failure of pre-Constitution times under the Articles of Confederation. (Under this arrangement, states acted as uber-sovereigns; the central government had little power).
This does not mean that Kurdistan’s design is destined to fail. There, unlike in the United States, regional-government foreign policy is practical, especially in view of Kurdistan’s oil resources, and workable.
Yet Baghdad has overridden these expressions of sovereignty, which is why the current system reflects a “coming-together” rather than a “holding-together” model of federalism. The former more reflects something like what the United States has; the latter involves individualizing levels of self-government, with a polity like Kurdistan receiving heightened self-rule.
Contrary to what some have asserted, that the Kurdish Constitution was from the outset a “coming-together” arrangement, it reflects the “holding-together” model. Recall the above examples, which show a regional constitution that goes far beyond what any state — or any territory — of the United States could ever implement.
And though the Kurdish and Iraqi Constitutions at first came together under the “holding-together” model (say, through Article 13 and the reverse Supremacy Clause), granting Kurdistan great latitude in governing its affairs, Baghdad reneged on those promises by failing to put them into practice. Thus, the current arrangement slants sharply toward the “coming-together” model.
At this point, we need to look at the dynamic arrangement between Puerto Rico (a territory) and the US central government. From 1898, the US Congress governed Puerto Rico unilaterally, though the US President could make certain appointments.
Beginning in 1950, however, that all changed when Congress gave Puerto Rico’s political leaders the ability to define their relationship with the central government. For two years, island politicians engaged in a constitution-making process which resulted in a “compact” with the United States.
This constitution was a novelty in governance because its compromises balanced the urge for full independence with the circumstances of a dependent partnership. In this way, it resembles the Kurdistan Region’s.
Unlike the Kurdish Constitution, however, Puerto Rico’s fits more with the United States’ fifty-states model ( “coming-together”). Puerto Rico may not, for instance, conduct its own foreign policy, nor can its laws supersede US federal laws.
Based on this arrangement, someone unfamiliar with the matter may glean from it that Kurdistan’s current constitutional design outpaces Puerto Rico’s in sovereignty. On paper, they would be right: Congress holds plenary powers over Puerto Rico, meaning it can decide or undecide what it does with the territory.
But on-the-ground conditions, notwithstanding the fiscal control board overseeing the island’s finances, alter the dynamics. Recently, for example, Puerto Rico triumphed at the Supreme Court when seeking to enforce licensing requirements for gun ownership (Puerto Rico v. Rodriguez López).
This decision came after the US Supreme Court’s decision in New York State Rifle & Pistol Assn., Inc. v. Bruen this past term, where a majority found that New York’s similar regulations violated the Second Amendment to the US Constitution. Illustrative of the territories’ dependent status, the Supreme Court of Puerto Rico’s decision is subject to the US Supreme Court’s review. On top of that, in 2016, the US Supreme Court held that Puerto Rico’s prosecutorial powers derive not from its people but from the federal government (Puerto Rico v. Sanchez Valle).
As Kurdistan undertakes a new constitution-making process, it can look to other stateless constitutions for viable recipes for federalism. Puerto Rico struck a compromise: it created a “partnership” between the island and the United States.
As Kurdistan and Puerto Rico seek to articulate greater degrees of sovereignty, Kurdistan can look to Puerto Rico as a model to follow for asserting legislative sovereignty and budgetary self-rule. Puerto Rico, on the other hand, can look to Kurdistan to assert greater jurisprudential sovereignty and an elevated level of federalism.
Sebastián J. Delgado works with litigation regarding the United States Territories, including litigation currently being considered by the United States Supreme Court.[1]