WHEN FIVE SHIA members of the Iraqi Governing Council dramatically (if temporarily) refused to sign the provisional Iraqi constitution last week, a senior American official dutifully told The Washington Post they walkout was no big deal. After all, the objections raised by the five council members had nothing to do with the laboriously negotiated provisions for individual rights enshrined in the provisional constitution, technically known as the Transitional Administrative Law. Rather, the Shia were trying to redraw the composition of Iraq’s future presidency to increase Shia influence and protesting a clause giving the Kurds an effective veto over the country’s yet- to-be-written permanent constitution. But, the official explained, the United States wasn’t worried: These sectarian disputes didn’t relate to any of our red lines.”

What is most scary about this response is that it is probably true. Although the United States worked hard to guarantee the provisional constitution would bring liberalism to the Tigris—for example, by ensuring that Islamic law would not be the sole basis of legislation—it seems to have devoted shockingly little effort to mediating Iraq’s deep ethnic and religious fissures. The results of this approach were on display this week when the constitution was finally signed: While it offers Iraqis sweeping guarantees for their individual liberties, it entrenches their bitter factionalism into the very architecture of government. And, as this weekend’s walkout indicated, that factionalism is the greatest threat not only to the individual liberties the United States has worked so hard to enshrine, but to any hope of a stable, democratic Iraq.

The challenge faced in the provisional constitution was to create a form of federalism that could preserve Iraq as a unitary state (in particular, by averting Kurdish secession) while simultaneously preventing any ethnic faction from dominating the others. But the document utterly fails to strike this balance, offering instead a formula for the creation of large, quasi- independent ethnic blocs. Specifically, Article 53(A) recognizes the Kurdistan Regional Government—the autonomous authority the Kurds established after the 1991 Gulf war—as the "official government” in the Kurdish north. It will have “regional control over police forces and internal security”—which is to say, the Kurdish peshmerga militia. What’s more, as long as the Kurdish authority doesn’t intrude on national policy—e.g., foreign relations or oil policy—it “shall be permitted to amend the application of any [federal] law within the Kurdistan region.” The Kurds, in other words, can effectively decide for themselves which national laws they will enforce and which they will disregard. This is called nullification, and in nineteenth-century America it was the precursor to Southern secession.

And it’s not just the Kurds. As the Post reported on March 2, when Shia members of the Governing Council heard the Kurdish proposal for autonomy, they decide7U88d that they wanted the same. As a result, Article 53(C) extends the Kurdistan model to the rest of the country: “Any group of no more than three governorates outside the Kurdistan region, with the exception of Baghdad and Kirkuk, shall have the right to form regions from amongst themselves.” There is nothing else in the constitution about what powers those super-governorates, sure to be established on ethnic grounds, will possess.

But they are implicitly offered the same terms as the Kurds: legitimized internal militias and nullification authority. (Indeed, while militias per se are declared illegal by Article 27, that same provision explicitly allows for regional armed forces “as provided by federal law.”) As a senior coalition official explains, the ability of ethnic blocs to consolidate into regional ministates was intended to “arrive at a more symmetrical federalism,” in which Iraq’s other factions could match the power of the Kurds. But there’s more than one way to create symmetry. Before the war, the Democratic Principles Working Group of the State Department’s Future of Iraq Project conceived of an “administrative federalism" that would have redrawn the boundaries of Iraq’s provinces in an effort to diminish the impact of ethnic or religious factionalism.” The future all-Iraqi federation should not be one of competing nationalities," the Working Group wrote. "A federal arrangement ... actively seeks in the drawing up of boundaries a mixture of national[ities], ethnicities and religions in each region, not their separation one from the other." The provisional constitution’s formula is precisely the opposite: It opens the door to competing armed, ethnically based mini-states with the ability to reject federal law when they please. Is this what we went to war to create?

 This article appeared in the March 22, 2004 issue of the magazine.