On the making of Constitutional Arrangements

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7 Responses

  1. Yehoshua Friedman says:

    In my over forty years living here in Israel I have never seen a better explanation of why Israel has no constitution and should have none. There are, however, a handful of Basic Laws which, though enacted by a bare majority of the Knessset, require a super-majority to repeal, and the problem of the Supreme Court is left for yet another generation to deal with. But I agree with Rabbi Davidovitch that with an American-style constitution it would be much worse. What will happen to the governance of the country in another generation or two with changes in the country’s demographic balance is anybody’s guess.

  2. Bob Miller says:

    Why should we be satisfied with anything less than Torah as our constitution?

  3. DF says:

    Brilliant exposition. The article prompts the question of how the Knesset (or better, the Prime Minister, in his executive role of enforcing the Court) ever allowed Barak to arrogate for himself judicial review, since there is no Constitution that allows for it. (The U.S. Constitution doesn’t explicitly provide for Judicial review either, but at least when Marshall invented it in Marbury v. Madison, he had good grounds for doing it, for all the reasons you describe here.)

  4. dr. bill says:

    there is a lecture given in Europe by prof. halbertal (on u-tube) that discusses this topic coherently, consistently, and humorously.

  5. Raphael Davidovich says:

    Yehoshua Friedman and DF, thank you. It is clear that the Israeli Supreme Court is acting as if there is an Israeli Constitutional Bill of Rights. The short version of what happened is that the Supreme Court took a Basic Law on Human Dignity, an embryonic bill of rights, passed in 1992 with fewer than 55 MK’s voting pro and con, and made a Marbury v Madison of it. Given that the Meretz party was the philosophical brain of the Government that passed that law, it is not that far-fetched to suppose that they had this outcome in mind all along. But I won’t bother guessing more than that.

    It would seem logical at first to correct the problems that resulted with an actual constitution whose interpretation might undo what has been done. I have been told that one major Dati Israeli constitutional scholar is of that opinion. The main reason I don’t this could work is what I stated at length in the piece: Real constitutional consensus is impossible; therefore, faking it is undesirable.

    A second reason, born of experience more than theory, is that you can’t squeeze the toothpaste of Judicial assertiveness back in the tube. And in all likelihood, any Israeli constitutional draft would contain an explicit reference to Judicial Review.

    The third reason is that the Supreme Court has made it clear that it will interpret anything to achieve its stated goals. Most of the rulings of the past fifteen years are built on the word “Dignity”. The Talmud never used an extra “Vav” to such comparative effect. Even if the new constitution would say “Israel is a Jewish and Democratic State”, the courts would darshen every drop of juice out of the word “Democratic” and leave the word Jewish as a truism. That is how the Supreme Court ignored the rights of Blacks in the south for a century; they just ignored the relevant wording of the Fourteenth Amendment. (Slaughterhouse Cases) They’ve been trying to make up for it ever since by creating new doctrines that invent meaning in other words, like “Due Process”.

    One Constitutional solution that is real, probably feasible, and therefore frightening to some, is to have the members of the Supreme Court nominated by the Government, as is done in most democracies, instead of a committee stacked with the existing Court’s own members. DF, the reason even this is not the desire of the Government or the Knesset is that, in their heart of hearts, even the politicians who often seem more amenable to Orthodox interests like having their hands tied when it comes to Orthodox demands. But that is just the Conspiracy Theorist in me talking.

    Bob Miller, I am talking about the current political situation, not “Hilchesa L’meshicha” messianic pondering. Bismark said, “Politics is the Art of the Possible.”

    dr Bill, Prof. Halbertal seems to be of the view that any law with pro-Jewish legal or administrative decision could or would actually be anti-democratic. As I wrote, only the entirely non-ethnic standards of the USA and Commonwealth frame it in that way. Most countries came into existence with a sense that they were nation-states there to promote the thriving of a particular ethnic group. France is for the French. Poland is for the Poles. As long as there is no mistreatment of the type Jews endured for centuries, that national identity attitude need not be perceived as anti-democratic at all. It is difficult to strike the balance. But the numbers and demographic shifts make a constitutional balance unattainable for now.

  6. Bob Miller says:

    “Bob Miller, I am talking about the current political situation, not ‘Hilchesa L’meshicha’ messianic pondering. Bismarck said, “Politics is the Art of the Possible.”

    OK then, to what degree do Jewish citizens of Israel have an obligation right now to maximize the application of Torah law in the Israeli political system, including its formal use to judge the admissibility of Israeli court decisions and Knesset legislative acts??

  7. Raphael Davidovich says:

    In a Jewish population that is vast majority non-observant, I believe the obligation “to maximize the application of Torah law in the Israeli political system” resides in 1)non-coercive persuasion, 2) securing the rights and privileges of the Observant population to observe Halacha and Minhag Yisrael to the greatest extent possible, and 3) generally lobbying to foster a political culture that considers the furthering of Jewishness a priority. But I phrase this third point in a deliberately vague manner. To practically contemplate the application of Torah Law in its golus fullness to a non-observant populace is in my opinion unwise. The Chazon Ish made this very point in another context.

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