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.