Constitutional Compromise

The perfect, it is said, is the enemy of the good. Striving for unobtainable perfection can leave us empty-handed when very good solutions were within easy reach. On the other hand, no religious person can, with a clear conscience, either falsify or compromise his deepest beliefs.

The tension between these two principles is currently playing itself out in a fascinating fashion in the deliberations of the Knesset Law Committee, which is involved in drafting a constitution for Israel. Constitutions are by their very nature compromise documents. They are almost always drafted by a committee, not by a single individual, and reflect that multiplicity of authorship. More important, they are efforts to reconcile a variety of interests in order to command the widest possible support.

The proposed constitution of the Institute for Zionist Strategies reflects the fundamental compromise between the desire to preserve something of the Jewish character of the State, on the one hand, and the desire to command wide support, on the other. In several places the proposed constitution can be seen as a response to particular Supreme Court decisions. Paragraph 27 states, “The State shall act to ingather the Diaspora of Israel and to establish Jewish settlement in Israel,” a clear effort to reverse the Kaadan decision barring the State from allocating to the Jewish Agency land for exclusively Jewish communities. Another provision stating that “Jewish Law shall serve as a source of inspiration for legislation,” responds to several decisions by Justice Aharon Barak, in which he implied that legislation having its basis in Jewish law and tradition might be democratically infirm because Israel is not a “theocracy.”

In many places the seams of the compromises hammered out are clearly visible. For example, in the paragraph devoted to Shabbos and days of rest, the document specifies that no worker may be employed on these days of rest, except as determined by statute. In other words, the default position is that no one may be employed on Shabbos (though the status of the self-employed and their family members is left unclear). On the other hand, the next sentence specifies that activities prohibited on these days of rest shall be determined by statute. In other words, the default position is that activities are permitted, unless otherwise specified. The bottom line, however, is an attempt to dramatically reduce the current level of commercial activity.

Similarly, on the Law of Return, the proposed constitution appears to recognize Reform conversion (“a person who has joined a Jewish community and has a demonstrable link to the Jewish people and its heritage”), though such a person is not called a “Jew.” At the same time, the redrafted Law of Return would dramatically limit the numbers of those eligible for citizenship under the Law of Return. Only children and spouses of either a halachic Jew or one who has joined a Jewish community (referred to as Olim) are eligible, and only if they immigrate simultaneously with their parent or spouse. Such a provision would have greatly reduced the number of non-Jewish immigrants from the FSU, including most of the open anti-Semites.

How should a religious MK respond to these various compromises? To some extent that will depend on whether these provisions are viewed as compromising basic religious beliefs. And that, in turn, will often depend on the theological significance that one attributes to the State of Israel. Indeed responses to the constitution function as something of a Rorschach test of two different positions within the national religious community.

That internal debate essentially centers on whether one views oneself as a religious-Zionist with a hyphen or without. Religious-Zionists invest the state with its own theological significance, and have no doubts of the role of the State of Israel in the Redemptive process. Their faith is expressed in the description of the State as “the first flowering of the Redemption.”

Plain religious Zionists believe, on the whole, that it is better for Jews to live in a state where they constitute the majority of the population, where the public square reflects the Jewishness of most of the population, and which can, in time of need, serve as a haven for Jews. That for them is quite sufficient, without attributing theological weight to the State of Israel.

The differences between these two positions have been on clear display in the deliberations over a constitution. The constitution drafted by the Institute for Zionist Strategies very much reflects the approach of unhyphenated religious Zionists. By severing the definition of who is entitled to automatic citizenship under the Law of Return from the question of “Who Is a Jew?”, they are stating that the State of Israel has no status as a halachic, Jewish legal, authority. On the practical level, however, their goal is reducing the influx of non-halachic Jews into the country.

That position, however, is unacceptable to religious-Zionists for whom there is a fundamental link between the real world State of Israel and the virtual Torah state in the process of being born. They cannot reconcile themselves to separating the Law of Return from the issue of “Who is a Jew?”

Similarly, the constitution of the Institute for Zionist Strategies is replete with clauses about how the State of Israel will strengthen the link to Jewish history and culture. Yet, at least one NRP representative on the committee — someone from the traditional religious-Zionist/Kookian school — expressed sympathy for the argument of Professor Yedidya Stern in favor of the Israel Democracy Institute’s proposal to simply repeat that language from the Basic Laws that Israel is a “Jewish and democratic state.”

The latter is more pro-Jewish, Stern argued, because it treats Jewish as the essence of the state. Listing a series of Jewish attributes of the State of Israel, he said, would be limiting. That argument ignores, as a practical matter, the fact that the phrase “Jewish and democratic” already carries with it a considerable amount of interpretive baggage courtesy of former Supreme Court President Aharon Barak, who insisted that Jewish and democratic are synonyms, and that the term “Jewish” must always be understood at a level of generality to conform to his conception of democracy. Those Court precedents fairly cried out for explicit language describing the Jewish elements of the State.

A classic example of the choice between the good and the perfect was posed by the debate on the constitutional provision on days of rest. Two of the three proposals were clearly drafted to dramatically reduce the current level of commercial activity. One would permit anyone from being employed, except as provided by law, and another would prohibit commercial or productive activity, except as permitted by law. Neither of these proposals carried an explicit provision permitting other forms of Shabbos desecration.

Yet the religious representatives on the committee were unable to clearly state their support for a provision that at least implicitly acknowledged the possibility of subsequent legislation being enacted contrary to Jewish law. As a result, the committee chairman claimed that there was a consensus in favor of the IDI proposal that does nothing more than say that Shabbos and Jewish holidays are governmental days of rest, while leaving the present situation of widespread commercial activity untouched.

Appeared in Mishpacha magazine.