The Spirit of the Constitutional Law
Edition: 1
Copyright: 2024
Edition: 1
Copyright: 2024
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In "The Spirit of the Constitutional Law," Fakhravar challenges Montesquieu's masterpiece "The Spirit of the Laws," as one of the most influential works of political science ever written. The book underscores the pressing need for universal, ideology-free constitutions firmly rooted in the principles of Natural Rights. Furthermore, it reevaluates Montesquieu's classification of three type of political systems, proposing that there are just two: Republic or Despotic. This examination spans from the birth of the Roman Republic to the Cold War's clash between Western and Eastern bloc, drawing sharp comparisons between despotic states such as Islamic and Marxist regimes and democratic nations like the United States and Japan, all guided by written constitutions that inherently guarantee "equality of rights" within republics and crowned republics. Additionally, the book explores Montesquieu's assertions regarding the suitability of Catholicism for monarchy, Protestantism for republics, and Islam for despotism. Lastly, it serves as a manifesto for a constitutional revolution against despotic regimes, offering a draft constitution as a model for Iran to provide insights into the essential components that should and should not be included in a constitution.
Introduction
CHAPTER 1
Life, Liberty, Equality: The Universal Natural Rights
Challenging the Limitations of Montesquieu’s Political Philosophy
Two Deadly Poisons to the Spirit of Any Constitution
Modern Constitutionalism Based on Natural Rights
God and Constitution: A Glimpse into Mar-a-Lago Dinner Conversation
The Empire of Liberty vs. Japan, Iraq, and Afghanistan
An American General, the Founding Father of New Japan
Suggesting iPhone Strategy for the Universal Constitutional Law
CHAPTER 2
A Binary Choice: Republic or Despotism
Republic: The Mysterious Gold Coin
The Birth of the Roman Republic: A Consequence of a Brutal Rape
The Birth of the Persian Empire: Cultivated from the Seed of a Republic
Counterfeit Republics: The Façade of Despotic Systems
Crowned Republic: The End of Traditional Monarchy
CHAPTER 3
Republics Suitable for Capitalism, Despotic for Marxism-Islamism
Montesquieu’s Perspective: Islamic Governments Are Dictatorships
Adam Smith: The Profit of the Right vs. Karl Marx, The Prophet of the Left
Distinguishing Republic from Despotic: It’s Not God, Statistics vs. Ideology
Korea: Left in the North, Right in the South
We the People: The Core of a Republic and the Spirit of Secularism
Republics Embrace Capitalism, While Marxism-Islamism Finds Comfort in Despotism
CHAPTER 4
Tainted Republics: The Impact of Ideological Prefixes
Republic: Neither a Word More, Nor Less
Philosopher King: From Plato’s Republic to the Republic of Animal Farm
The Myth of the People’s Socialist Republics
China: The People’s Democratic Dictatorship of Mao
North Korea: Distancing from Russian Father, Relying on Chinese Stepdad
Cold War’s Regime Change Chessboard: The Islamic-Marxist Republics
▶ Transforming from UK’s Islamic Kingdoms to Russia’s Islamic Republics
▶ Transforming Iraq: From the Sumerian Civilization, to the Islamic Kingdom by UK, Socialist Republic by Soviet, and Islamic Republic by US
▶ Transforming Syria: From Islamic Kingdom by UK to the Socialist Republic by Soviet
▶ Transforming Egypt: From Egyptian Civilization to the Islamic Kingdom by UK and Socialist Islamic Republic by the Soviet
▶ Transforming Libya: From the Islamic Kingdom by UK to the Socialist Islamic Republic by the Soviet
▶ Iran
CHAPTER 5
Montesquieu: “Islam Destroyed Iran”
Islam: Differing Impacts on Iran and Saudi Arabia
Cyrus’s Empire of Tolerance to the Islamic State Sponsor of Terrorism
Common Flaws in the 1906 and 1979 Iranian Constitutions
Constitutional Journey: Prevailing Absolutism over Separation of Powers
Expanding the Tripartite System: Additional Branches of Government
In the Power Structure of Iran’s Constitution: A Puppet Show of Endless Control
One Place, Two Names: The Dual Façade of Iran’s Constitutions and Palaces
Islam as State Religion: The Exterminator of the Constitutional Spirit
Key Components of an Effective Constitution
▶ First: Tripartite System and the Separation of Powers
▶ Second: Simplicity, Brevity, Clarity, and Accessibility
▶ Third: Safeguarding Constitutional Rights and Ensuring Equality before the Law
▶ Fourth: We the People, the Best Preamble, by the People, for the People
Potential Pitfalls to Avoid in Any Constitution
▶ First: Rejecting State Religion and Official Ideology—Constitutional Principles
▶ Second: Rejecting Absolute Power—A Constitutional Principle
▶ Third: Rejecting Additional Branches—Preserving the Tripartite System
▶ Fourth: Avoiding Personalization and Historical References in the Constitution
▶ Fifth: Exclusion of Excessive Detail, Avoiding Religious, Cultural, or Ethnic Bias
▶ Sixth: Exclusion of Ambiguity
Navigating Constitutional Gray Areas: The Dilemma of Immunity for Public Officials
The Pros of Limited Immunity for Public Officials
The Cons of Limited Immunity for Public Officials
Balancing Immunity and Accountability for Public Officials
CHAPTER 6
Typologies and Models of Constitutions
Classification According to How It Appears: Written/Codified and Unwritten/Uncodified Constitutions
Classification According to the Mode of Amendment: Flexible v. Rigid Constitution
Classification According to the Form of Government
▶ Federal and Unitary Constitutions
▶ Presidential and Parliamentary Constitutions
▶ Monarchical and Republican Constitutions
Classification According to the Political System of the State: Liberal and Socialist/Religious Constitutions
Mixed Constitutions
CHAPTER 7
Proposed Draft Constitution of Iran
CHAPTER 8
Comparative Analysis of Socialist and Communist Examples: How Ideologies Can Kill the Spirit of Constitutions
Introduction
Key Elements of Communist Ideology in Constitutions
▶ Equality and Social Justice
▶ Collective Ownership and Control of Resources
▶ Workers’ Rights and Labor Protection
▶ Socioeconomic and Cultural Rights
▶ Centralized Power and Party Dominance
▶ Suppression of Political Dissent and Individual Rights
Democracy in the Constitution of the Soviet Union
▶ Lenin’s Constitution: A Revolutionary Framework for Soviet Governance
▶ The Historical Context and Objectives of Lenin’s Constitution
▶ Key Features of Lenin’s Constitution
▶ The Impact and Legacy of Lenin’s Constitution
Stalin’s Constitution: Consolidation of Power and Socialist Transformation
▶ The Historical Context and Objectives of Stalin’s Constitution
▶ Key Features of Stalin’s Constitution
▶ The Impact and Legacy of Stalin’s Constitution
Evolution of the Soviet Union’s Constitutions Post-Stalin: A Chronological Overview
▶ Khrushchev Era
▶ Brezhnev Era: Stability and Stagnation in the Soviet Constitution
▶ Gorbachev’s Perestroika and the Dissolution of the Soviet Union
Democracy in China’s Constitution or Marxism-Leninism-Maoism Constitutions
Contemporary Socialist Constitutions: A Comparative Analysis of Socialist Countries
▶ Cuba: The Constitution of the Republic of Cuba (2019)
▶ Venezuela: The Constitution of the Bolivarian Republic of Venezuela (1999)
▶ Bolivia: The Political Constitution of the Plurinational State of Bolivia (2009)
▶ China: The Constitution of the People’s Republic of China (1982)
▶ Vietnam: The Constitution of the Socialist Republic of Vietnam (2013)
Evolution and Disappearance of Ideology in the Constitutions
▶ The Union of the Soviet Socialist Republics (USSR)
▶ Eastern Europe
▶ The People’s Republic of China (PRC)
CHAPTER 9
The Chapter of My Life, The Constitutional Journey of Amir Fakhravar
The Manifesto of the Second Constitutional Revolution
A Legacy That Began before My Birth and Persisted throughout My Life
The Student Uprising, July 9, 1999
The Iranian Green Revolution
The Historical Journey to Israel: Breaking the Taboo
Proposed Draft Constitution for Iran and Comrade Ayatollah
Day 96 Uprising, End of JCPOA, and Oil Sanctions
Aban 98, Bloody Crackdown by Mullahs and the Killing of Qassem Soleimani
FBI’s Ongoing Efforts to Protect Fakhravar from IRGC Assassination Attempts
The Journey of Life: Our Unending Quest for Freedom and Democracy
Amir Abbas Fakhravar, also known as Siavash, is an esteemed Iranian-American writer and scholar of constitutional law. Amir's life took a dramatic turn when, at the young age of sixteen while excelling as a senior high school student in mathematics and physics, he was arrested by the authorities of the Islamic regime of Iran. This marked the beginning of a series of arrests during his time in medical school and law school, all stemming from his student activities, writings, and speeches. Amir's unwavering commitment to his principles led to him being sentenced to prison twice by the Islamic Revolutionary Court in Iran. Remarkably, while serving an eight-year prison term as a political prisoner in Evin Prison, he authored a novel which was shortlisted for the prestigious Paulo Coelho Literature Award. In November 2004, International PEN recognized Amir Fakhravar on "the Day of the Imprisoned Writer," a testament to his resilience and dedication to freedom of expression. English PEN and PEN Canada also bestowed honorary awards upon him in the same year. During his harrowing imprisonment in the notorious Evin and Qasr prisons, Amir was subjected to brutal torture, a form of cruelty condemned by Amnesty International as the first documented instance of "white torture" in Iran's history. In a remarkable turn of events in 2006, Amir Fakhravar managed to escape Evin Prison with the assistance of the George W. Bush administration. His courage and insights led him to testify before both the Senate Homeland Security Committee and the House Foreign Affairs Committee, where he illuminated critical aspects of U.S.-Iran relations. In 2010, Amir began teaching "Democratic Transition" at the Institute of World Politics in Washington, D.C., as a research fellow and visiting lecturer. Since December 2013, he has been instructing courses in "Comparative Constitutional Law," "Political Crime," and "Interpol" at the Texas State University System as an adjunct professor. Amir Fakhravar's fourth book, "Comrade Ayatollah," has not only achieved best-seller status in the Iranian underground book market since 2016 but has also served as a catalyst for the constitutional revolution in Iran against the oppressive Islamic dictatorship. Amir is aptly recognized as "The Persian Thomas Jefferson" for his pivotal role in crafting a proposed constitution for a future Iran. His unyielding dedication to constitutional reform and Iran's Constitutional Revolution has afforded him the privilege of addressing both the United States Congress and the UK Parliament on multiple occasions. Amir Fakhravar's enduring contributions and tireless advocacy for positive change solidify his standing as a significant figure in the realms of international relations and constitutional law.
In "The Spirit of the Constitutional Law," Fakhravar challenges Montesquieu's masterpiece "The Spirit of the Laws," as one of the most influential works of political science ever written. The book underscores the pressing need for universal, ideology-free constitutions firmly rooted in the principles of Natural Rights. Furthermore, it reevaluates Montesquieu's classification of three type of political systems, proposing that there are just two: Republic or Despotic. This examination spans from the birth of the Roman Republic to the Cold War's clash between Western and Eastern bloc, drawing sharp comparisons between despotic states such as Islamic and Marxist regimes and democratic nations like the United States and Japan, all guided by written constitutions that inherently guarantee "equality of rights" within republics and crowned republics. Additionally, the book explores Montesquieu's assertions regarding the suitability of Catholicism for monarchy, Protestantism for republics, and Islam for despotism. Lastly, it serves as a manifesto for a constitutional revolution against despotic regimes, offering a draft constitution as a model for Iran to provide insights into the essential components that should and should not be included in a constitution.
Introduction
CHAPTER 1
Life, Liberty, Equality: The Universal Natural Rights
Challenging the Limitations of Montesquieu’s Political Philosophy
Two Deadly Poisons to the Spirit of Any Constitution
Modern Constitutionalism Based on Natural Rights
God and Constitution: A Glimpse into Mar-a-Lago Dinner Conversation
The Empire of Liberty vs. Japan, Iraq, and Afghanistan
An American General, the Founding Father of New Japan
Suggesting iPhone Strategy for the Universal Constitutional Law
CHAPTER 2
A Binary Choice: Republic or Despotism
Republic: The Mysterious Gold Coin
The Birth of the Roman Republic: A Consequence of a Brutal Rape
The Birth of the Persian Empire: Cultivated from the Seed of a Republic
Counterfeit Republics: The Façade of Despotic Systems
Crowned Republic: The End of Traditional Monarchy
CHAPTER 3
Republics Suitable for Capitalism, Despotic for Marxism-Islamism
Montesquieu’s Perspective: Islamic Governments Are Dictatorships
Adam Smith: The Profit of the Right vs. Karl Marx, The Prophet of the Left
Distinguishing Republic from Despotic: It’s Not God, Statistics vs. Ideology
Korea: Left in the North, Right in the South
We the People: The Core of a Republic and the Spirit of Secularism
Republics Embrace Capitalism, While Marxism-Islamism Finds Comfort in Despotism
CHAPTER 4
Tainted Republics: The Impact of Ideological Prefixes
Republic: Neither a Word More, Nor Less
Philosopher King: From Plato’s Republic to the Republic of Animal Farm
The Myth of the People’s Socialist Republics
China: The People’s Democratic Dictatorship of Mao
North Korea: Distancing from Russian Father, Relying on Chinese Stepdad
Cold War’s Regime Change Chessboard: The Islamic-Marxist Republics
▶ Transforming from UK’s Islamic Kingdoms to Russia’s Islamic Republics
▶ Transforming Iraq: From the Sumerian Civilization, to the Islamic Kingdom by UK, Socialist Republic by Soviet, and Islamic Republic by US
▶ Transforming Syria: From Islamic Kingdom by UK to the Socialist Republic by Soviet
▶ Transforming Egypt: From Egyptian Civilization to the Islamic Kingdom by UK and Socialist Islamic Republic by the Soviet
▶ Transforming Libya: From the Islamic Kingdom by UK to the Socialist Islamic Republic by the Soviet
▶ Iran
CHAPTER 5
Montesquieu: “Islam Destroyed Iran”
Islam: Differing Impacts on Iran and Saudi Arabia
Cyrus’s Empire of Tolerance to the Islamic State Sponsor of Terrorism
Common Flaws in the 1906 and 1979 Iranian Constitutions
Constitutional Journey: Prevailing Absolutism over Separation of Powers
Expanding the Tripartite System: Additional Branches of Government
In the Power Structure of Iran’s Constitution: A Puppet Show of Endless Control
One Place, Two Names: The Dual Façade of Iran’s Constitutions and Palaces
Islam as State Religion: The Exterminator of the Constitutional Spirit
Key Components of an Effective Constitution
▶ First: Tripartite System and the Separation of Powers
▶ Second: Simplicity, Brevity, Clarity, and Accessibility
▶ Third: Safeguarding Constitutional Rights and Ensuring Equality before the Law
▶ Fourth: We the People, the Best Preamble, by the People, for the People
Potential Pitfalls to Avoid in Any Constitution
▶ First: Rejecting State Religion and Official Ideology—Constitutional Principles
▶ Second: Rejecting Absolute Power—A Constitutional Principle
▶ Third: Rejecting Additional Branches—Preserving the Tripartite System
▶ Fourth: Avoiding Personalization and Historical References in the Constitution
▶ Fifth: Exclusion of Excessive Detail, Avoiding Religious, Cultural, or Ethnic Bias
▶ Sixth: Exclusion of Ambiguity
Navigating Constitutional Gray Areas: The Dilemma of Immunity for Public Officials
The Pros of Limited Immunity for Public Officials
The Cons of Limited Immunity for Public Officials
Balancing Immunity and Accountability for Public Officials
CHAPTER 6
Typologies and Models of Constitutions
Classification According to How It Appears: Written/Codified and Unwritten/Uncodified Constitutions
Classification According to the Mode of Amendment: Flexible v. Rigid Constitution
Classification According to the Form of Government
▶ Federal and Unitary Constitutions
▶ Presidential and Parliamentary Constitutions
▶ Monarchical and Republican Constitutions
Classification According to the Political System of the State: Liberal and Socialist/Religious Constitutions
Mixed Constitutions
CHAPTER 7
Proposed Draft Constitution of Iran
CHAPTER 8
Comparative Analysis of Socialist and Communist Examples: How Ideologies Can Kill the Spirit of Constitutions
Introduction
Key Elements of Communist Ideology in Constitutions
▶ Equality and Social Justice
▶ Collective Ownership and Control of Resources
▶ Workers’ Rights and Labor Protection
▶ Socioeconomic and Cultural Rights
▶ Centralized Power and Party Dominance
▶ Suppression of Political Dissent and Individual Rights
Democracy in the Constitution of the Soviet Union
▶ Lenin’s Constitution: A Revolutionary Framework for Soviet Governance
▶ The Historical Context and Objectives of Lenin’s Constitution
▶ Key Features of Lenin’s Constitution
▶ The Impact and Legacy of Lenin’s Constitution
Stalin’s Constitution: Consolidation of Power and Socialist Transformation
▶ The Historical Context and Objectives of Stalin’s Constitution
▶ Key Features of Stalin’s Constitution
▶ The Impact and Legacy of Stalin’s Constitution
Evolution of the Soviet Union’s Constitutions Post-Stalin: A Chronological Overview
▶ Khrushchev Era
▶ Brezhnev Era: Stability and Stagnation in the Soviet Constitution
▶ Gorbachev’s Perestroika and the Dissolution of the Soviet Union
Democracy in China’s Constitution or Marxism-Leninism-Maoism Constitutions
Contemporary Socialist Constitutions: A Comparative Analysis of Socialist Countries
▶ Cuba: The Constitution of the Republic of Cuba (2019)
▶ Venezuela: The Constitution of the Bolivarian Republic of Venezuela (1999)
▶ Bolivia: The Political Constitution of the Plurinational State of Bolivia (2009)
▶ China: The Constitution of the People’s Republic of China (1982)
▶ Vietnam: The Constitution of the Socialist Republic of Vietnam (2013)
Evolution and Disappearance of Ideology in the Constitutions
▶ The Union of the Soviet Socialist Republics (USSR)
▶ Eastern Europe
▶ The People’s Republic of China (PRC)
CHAPTER 9
The Chapter of My Life, The Constitutional Journey of Amir Fakhravar
The Manifesto of the Second Constitutional Revolution
A Legacy That Began before My Birth and Persisted throughout My Life
The Student Uprising, July 9, 1999
The Iranian Green Revolution
The Historical Journey to Israel: Breaking the Taboo
Proposed Draft Constitution for Iran and Comrade Ayatollah
Day 96 Uprising, End of JCPOA, and Oil Sanctions
Aban 98, Bloody Crackdown by Mullahs and the Killing of Qassem Soleimani
FBI’s Ongoing Efforts to Protect Fakhravar from IRGC Assassination Attempts
The Journey of Life: Our Unending Quest for Freedom and Democracy
Amir Abbas Fakhravar, also known as Siavash, is an esteemed Iranian-American writer and scholar of constitutional law. Amir's life took a dramatic turn when, at the young age of sixteen while excelling as a senior high school student in mathematics and physics, he was arrested by the authorities of the Islamic regime of Iran. This marked the beginning of a series of arrests during his time in medical school and law school, all stemming from his student activities, writings, and speeches. Amir's unwavering commitment to his principles led to him being sentenced to prison twice by the Islamic Revolutionary Court in Iran. Remarkably, while serving an eight-year prison term as a political prisoner in Evin Prison, he authored a novel which was shortlisted for the prestigious Paulo Coelho Literature Award. In November 2004, International PEN recognized Amir Fakhravar on "the Day of the Imprisoned Writer," a testament to his resilience and dedication to freedom of expression. English PEN and PEN Canada also bestowed honorary awards upon him in the same year. During his harrowing imprisonment in the notorious Evin and Qasr prisons, Amir was subjected to brutal torture, a form of cruelty condemned by Amnesty International as the first documented instance of "white torture" in Iran's history. In a remarkable turn of events in 2006, Amir Fakhravar managed to escape Evin Prison with the assistance of the George W. Bush administration. His courage and insights led him to testify before both the Senate Homeland Security Committee and the House Foreign Affairs Committee, where he illuminated critical aspects of U.S.-Iran relations. In 2010, Amir began teaching "Democratic Transition" at the Institute of World Politics in Washington, D.C., as a research fellow and visiting lecturer. Since December 2013, he has been instructing courses in "Comparative Constitutional Law," "Political Crime," and "Interpol" at the Texas State University System as an adjunct professor. Amir Fakhravar's fourth book, "Comrade Ayatollah," has not only achieved best-seller status in the Iranian underground book market since 2016 but has also served as a catalyst for the constitutional revolution in Iran against the oppressive Islamic dictatorship. Amir is aptly recognized as "The Persian Thomas Jefferson" for his pivotal role in crafting a proposed constitution for a future Iran. His unyielding dedication to constitutional reform and Iran's Constitutional Revolution has afforded him the privilege of addressing both the United States Congress and the UK Parliament on multiple occasions. Amir Fakhravar's enduring contributions and tireless advocacy for positive change solidify his standing as a significant figure in the realms of international relations and constitutional law.