This Country Is Unconstitutional (Perhaps for the Best)

Gershom Gorenberg

Prof. Yedidia Stern came to my shul yesterday to give a lecture in honor of Independence Day on creating a constitution for Israel. Stern teaches law at Bar-Ilan University and is a fellow at the Israel Democracy Institute, a think-tank that has been assiduously pushing the idea that Israel needs a written constitution. Stern is brilliant,articulate and – at a congregation made up largely of American immigrants – should have been preaching to the choir. As often happens to me, I found myself listening to the sermon agnostically.

Years ago, another brilliant law prof, David Kretzmer, punched a large hole in my American 5th-grade-civics-lesson faith in written constitution. A constitution is worth no more than the judges interpreting it, he said. The Soviet constitution looked gorgeous, but was irrelevant to how the Soviet Union was governed. Bolivia has had more constitutions than anyone seems able to count. It hasn’t made the country a mecca of democracy. Meanwhile England refined parliamentary democracy without ever writing a a constitution.

A few weeks after I had that conversation with David Kretzmer, my wife and I happened to be in Florida. Very bored, we grabbed the chance to interview a former U.S. soldier who’d just lost a Supreme Court case. He needed the Court’s permission to sue the U.S. Army, which had used him as an unwitting and involuntargy guinea pig in a medical experiment over 20 years earlier. To find out whether LSD could be used as a weapon, the army fed him large doses. The after-effects destroyed his military career and his marriage. But in a five-four decision, the highest court of the best known constitutional democracy ruled that civil rights did not apply to soldiers. Though I hope there will never be a test case, I’m fairly confident that the Israeli Supreme Court – more sensitive to the precedent of Nazi medical experiments – would have made the opposite ruling. As we wrote up the news story, it seemed to me that a constitution might be worth less than the paper it is written on: Before it was written, that paper could still have been used for a grocery list.

Without a constitution, the Israeli Supreme Court daringly created the right to a free press in the 1953 Kol Ha’am case. As Yedidia Stern pointed out, in Israel someone can still be jailed by administrative order – and thousands of people, mostly Palestinians, have been imprisoned that way. I’d find that argument convincing were it not for Guantánamo today and Executive Order 9066 , under which 120,000 people of Japanese ancestry were jailed without trial in the US during World War II.

Still, Stern had one very powerful argument: Liberal Israelis have largely put their faith in the Supreme Court to protect civil liberties. But the attacks on the Court have become much stronger. In part, I’d argue, that’s because former chief justice Aharon Barak spoke loudly and carried a small stick: He vociferously promoted the Court’s powers, especially its ‘constitutional’ authority to overturn laws. In practice, the Barak Court was usually timid on the critical issues of human rights in the occupied territories and of state-established religion. If Barak had done things the other way around, he might have accomplished more and produced fewer enemies.

The greatest enemy of the Court – and therefore of civil liberties – is the current minister of (in)justice, Daniel Friedman. In the past Friedman has sought legislation that would bar the Supreme Court from dealing with budgetary or security matters. Last week the Court heard a suit against the Citizenship Law, which blocks the path to citizenship for a Palestinian who marries an Israeli citizen. Though purportedly aimed at protecting security, the law’s real point is ‘demographic’ – to prevent an increase in the number of Arab citizens of Israel. Two years ago, the Court barely refrained from overturning a previous version of the law. Afraid that the Court might finally intervene, Friedman’s solution is to propose that citizenship matters be placed outside the justices’ purview.

So perhaps a written constitution, with a written bill of rights, would protect us. Still, I have qualms. Any constitution that could win a wide majority in the Knesset today would be likely to contain compromises that would enshrine current injustices. In the past, I recall, there’s been discussion of winning the approval of religious parties by protecting state-established religion. Can a constitution be anti-democratic? Well, yes. The US constitution includes the anti-democratic electoral college and the Senate. Both institutions were born of late-eighteenth century political compromises, and today insure that residents of Alaska have far more power than residents of California.

As we walked out, I questioned Stern about the religion and state issue. Since it was Shabbat, I wasn’t taking notes. Any inaccuracies here are my fault. But as I understood his suggestion, he proposes that the realm of religion and state simply be left out of an Israeli constitution. For the moment, that would prevent the Supreme Court from intervening in the gross injustices of the rabbinic courts. But it would also prevent enshrining those injustices in a constitution. We’ll all be free to keep fighting. I’m not entirely convinced, but I’m considering the idea that three-quarters of a constitution might be worth more than a whole one, or none at all.

3 thoughts on “This Country Is Unconstitutional (Perhaps for the Best)”

  1. To me, the issue is less whether or not there is an actual constitution per se and more the lack of a set of common political precepts within Israeli society. The are some fundamental ideological tensions at work here that need to be sorted out, and in this sense it is the process of ratifying a constitution that would be the real benefit. … The absence of a constitution is more the symptom than the disease.

  2. I think your examples of why the United States failing to uphold the true values of the Constitution through our Supreme Court interpreting a written Constitution are inherent problems to democracy and government. The fact that a nation has to have some core principles (as well as obscure laws) means that interpretations, even controversial ones, even wrong ones have to be made. As an American, I think that our written Constitution has advanced the cause of equal rights and democracy much more often than it has impeded them. Decisions like Brown vs. Kansas Board of Education and Loving vs. Virginia or Hamdan vs. Rumsfeld and Miranda vs. Arizona were landmark cases that extended the rights of people at times when legislatively it would have been difficult or impossible to achieve the same reforms.

  3. Well, if you don’t mind your govt only performing as well as the UK’s, rightswise, then it’s fine. You really do have more human rights in the US than in the UK. Some rights that’ve gone away in the UK or are decidedly weaker, on the evidence I’ve seen:

    Privacy (London is a Panopticon now)
    Free, political speech (hate speech legislation which gets struck down by
    our Court, and effectively is used against conservatives)
    Habeas corpus and trial by jury
    (an increasing list of types of prisoners are exempted,
    more CITIZENS by %pop than we have at Gitmo)
    Torture (citizens can be tortured in the UK during interrogation)

    The US has its own holes in these, but they seem narrower to me. I do give the credit to the framers of our constitution.

    The Bill of Rights IS important, but as important is the fact that the fact that they succeeded in setting things up so that each branch thinks of itself as equally important and working in tension with the rest. Judges tend to end up being properly suspicious of the Congress (the executive is more of a problem). And that’s why much of the Bill of Rights is still in force.

    By contrast, the UK’s PM is also head of Parliament, and the Law Lords are also a part of Parliament. Not much tension there…. That’s why rights are weaker there.

    People who live in sparse states still look at the Senate as their protection from having things with their land by more numerous city slickers who don’t understand their land issues or farming. The Senate has also worked out luckily for us – because its seats can’t be gerrymandered, it’s currently the moderate side of the Congress. The House is full of extremists of both sides that can’t get things done to save their political lives.

    The lesson here is that it’s good to raise barriers to half-thought-out measures.

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