This Country Is Unconstitutional. Perhaps for the Best.

Gershom Gorenberg

My new article on whether Israel needs a constitution is up at the Hadassah magazine site. The short version of my answer: In principle, yes, we need one. In practice, enacting one could be more dangerous than going without. The longer version:

As Israel’s justice minister, Daniel Friedmann made virtually no progress in pushing his signature reforms of the justice system. But during two years in office, the 72-year-old law professor succeeded, quite unintentionally, in teaching two lessons: The first is that Israel really does need a constitution to protect its democratic foundation. The second, ironically, is that trying to enact a constitution is a risky business. Done wrong, it could endanger the delicate structure of Israeli democracy.

Friedmann was appointed to the cabinet by Prime Minister Ehud Olmert in February 2007, after his predecessor, Haim Ramon, was convicted of indecent behavior for forcing a kiss on a woman soldier. Friedmann was a surprise choice. He was a Tel-Aviv University professor rather than a politician. While the justice minister normally acts as the guardian of the courts within government debates, Friedmann was a vocal critic of the judiciary. From the moment he took office, his declared goal was to reduce the power of the judges, and especially to limit the Supreme Court’s authority to review and overturn laws.

A brief trip through Israeli history will explain why that matters so much. When the first Knesset was elected in 1949, it was supposed to be a constitutional congress, in accordance with the United Nations’ 1947 decision to partition Palestine and with Israel’s own Declaration of Independence. Instead, acceding to founding Prime Minister David Ben-Gurion’s wishes, the Knesset chose not to frame a constitution. Israel became a rarity: a modern state without a fundamental charter that delineates the structure of government and puts limits on its powers.

There are two standard tellings of why Ben-Gurion did not want a constitution, explains Yedidia Stern, a law professor at Bar-Ilan University in Ramat Gan and vice president of the Israel Democracy Institute. “The first story is that there was secular-religious disagreement on the issues of religion and state, and they couldn’t reach a consensus,” he says. Orthodox parties, say some histories, felt that the constitution of a Jewish state must necessarily be based on Torah, which secularists predictably rejected.

“A stronger explanation,” says Stern, is that “Ben-Gurion didn’t want a constitution.”…

Read the full article here. Come back to South Jerusalem to comment.

Hadassah Magazine, by the way, has taken a small step toward the Seattle Solution: Hit by the economic downturn and the Madoff scam, Hadassah has decided to cut the print magazine to a bimonthly, while putting some content online without printing it in hard copy. So this piece is online only. One day, will you tell your children that you once read news on paper? And will they believe you?

4 thoughts on “This Country Is Unconstitutional. Perhaps for the Best.”

  1. Ben Gurion seems to have gotten this one right. A written constitution was premature then and would be premature now because the fundamental questions are nowhere near being resolved. At this stage, a written constitution, rather than resolving the conflicts, would only intensify them; just as, analogously, a peace agreement scribbled on a scrap of paper at this stage would only intensify the Israeli-Palestinian conflict.

    And the idea that a strong judiciary would be a check on government power is really quaint. Has anyone taken a look at what the US Supreme Court has been doing for the last half century or so? Like it or hate it, the courts in modern mass democracies are strong agents of the expansion of state power, not of constitutional restraint.

    Once again, in this article, we see the lofty phrase “the state is democratic and Jewish.” It’s amazing how many lies and misdirections can be packed into the three words “democratic Jewish state.” Yes, Israel is democratic in a superficial, formal sense: it has universal suffrage, etc. But that’s not what “democracy” has traditionally meant to modern political thinkers, including Bodin, Hobbes, Rousseau, et al. Democracy has meant, substantially, either popular sovereignty; or (almost the same thing) the identity of governing and governed.

    Substantively, Israel has never been a democracy. There is no “popular sovereignty” of its citizenry, because there is no single public opinion, because there is no single public. There are two distinct and permanent Israeli publics: Jewish and Arab. On the fundamental constitution, the identity, of the state, these two publics are in complete disagreement. Israeli “democracy” is the imposition of the Jewish will against the will of the Arab citizenry, by means of the ballot box. Israel is, substantively, a democratic state only in the sense that it’s a democracy for the Jews.

    I know this distinction between form and substance sounds pedantic and irrelevant, but it’s not. The contemporary rhetoric of democracy always relies on a sleight of hand where democracy is defined formally in terms of universal suffrage etc., and then implicitly – always implicitly – associated with the substantive meaning of identity of governing and governed. That’s why it should be emphasized that Israel is a democracy in form only.

    That said, here’s my recommendation for a written Israeli constitution. One sentence, short and sweet: “The State of Israel is a Jewish state.” The rest is commentary.

  2. I note that the article contained the following myth that the Left , i.e. those who like the idea of the court overriding the Knesset when the Knesset is in the hands of a right-wing majority:

    But already, says leading legal commentator Moshe Negbi, the attacks on the Supreme Court have reduced public trust in the institution. Friedmann’s efforts have also underlined the vulnerability of the court and the rights that it protects. A momentary majority in the Knesset could vote to reduce the court’s powers. It would take a constitution to prevent that.

    It is true that the Supreme Court, which once had something like a 90% approval record has now fallen into the 30’s. So the Left blames “Friedman’s attacks”. Perish the thought that it has anything to do with the Court’s behavior, in its biased rulings, its overturning of laws passed by the people’s representatives in the Knesset, its arrogating of powers to itself that it is not fit to exercise, its tying the hands of the security forces and the IDF in the ongoing war against terrorism, its banning the right-wing Kach party while allowing extremist Arab parties to run for the Knesset, its support for selective prosecution of people who always are on the “wrong” side of the political spectrum (i.e. the “Right).

    It should be noted that one of the “Basic Laws” passed in the 1990’s that the Court uses as its excuse to expand its powers was passed on a vote of something like 24 to 23 (out of a Knesset of 120 members) in which there was little debate. The US demanded a huge, wide majority and conducted extensive discussions in order to ratify its Constitution, and amendments still require the same thing. Here in Israel, a small group of elitists have used stealth measures to ram these Basic Laws down the public’s throat without discussion.
    In the future, they will not be able to do the same. A constitution (which I, as an Orthodox/religious Right-winger support, particularly a badly needed Bill of Rights) will have to be adopted only by a wide consensus, and not the way the Left has been doing it up until which is to preserve their values and the powers of their institutions at the expense of those of the general public.

  3. Very interesting piece.

    Regarding the short-lived disaster that was direct election of the PM (who, crucially, remained dependent on confidence of the Knesset), it is true that the reform’s advocates claimed it would “bring stability and free the prime minister from the pressures of small parties.” However, those advocates were all constitutional lawyers. The political scientists at the time universally argued it would do the opposite.

    That the political scientists beat the constitutional lawyers on this point may say something about the value of a constitution, or it may not. But the most important point in the article, for this political scientist is: “in both the British parliament and the Knesset, a much wider political spectrum, from radical left to far right, has representation.”

    And for that, one can thank the much-maligned proportional representation system, constitution or no.

  4. … for that IN ISRAEL, I meant to say.

    Of course, the British parliament is not elected by proportional representation. It certainly has a narrower range of political opinion represented within it than the Knesset. (Arguably still broader than the US Congress, but also arguably not: there are relatively ‘extreme’ parties in Britain that the first-past-the-post system leaves with no representation–the Greens and the British Nationals, to name two.)

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