On the making of Constitutional Arrangements
by Raphael Davidovich
In the latest attempt to quell the ongoing culture wars in Israel, Israeli Justice Minister Tzipi Livni last year gave Law Professor Ruth Gavison a formidable task. Gavison was asked to help prepare “a constitutional arrangement dealing with Israel’s identity” as “a Jewish and Democratic state.” The task is a fascinating one, one I love discussing because it is an area of personal interest for me. But it is a task that should not be fulfilled.
Whenever someone in the Israeli Leadership advocates a new constitutional arrangement, it should be mandatory to reread the history of why Israel presently has no formal constitutional arrangement as most other countries do. The brief history is as follows: The Constituent Assembly charged with the writing of a Constitution for the State of Israel ended its task in 1949, its job undone, and instead became the newborn State’s first Parliament. It would be simple to conclude that the document wasn’t written because of the machinations and political ploys of Ben-Gurion, or this group or that power-hungry faction. It would also be simple to argue that the group couldn’t come to agreement because of the old truism that Jews are argumentative, like that old joke about Ben-Gurion being the Prime Minister of two million prime ministers. But these arguments would be wrong. We need to properly understand what happened, and it says something about Jewry in Israel and throughout the world.
The constituent assembly could not write a constitution because a true constitution can only be a viable document when applied to a group that has certain basic outlooks and principles in common that they wish to codify and establish as axiomatic, virtually unarguable, to future generations of leaders who might be tempted by the need for political expedience to ignore those principles.
To be clear, what Israelis who say they want a Constitutional Arrangement really mean is that they want a two-tier system of laws: One set of Supreme Laws, which usually includes a Bill of Individual Rights, and one set of all other laws passed by the Knesset which would be subservient to that first set. This concept originated in our times with the American Constitution.
The American Constitutional experiment contained a feature that was novel to the world of political realism at the time, even though nowadays it’s so common that it’s taken for granted; that a State should have an upper tier of Law and a lower tier of law. The higher level of law, with fewer words, usually loftier, dominates; it insists that all other laws passed by the legislature conform to it or be declared null and void. This is specifically what is meant nowadays by people when they speak of a country having a Written Constitution. This is actually sloppy wording, as it leads to such sentences as “England does not have a written constitution”, or “Israel does not have a written constitution.”
The reality is that of course, both England and Israel have written constitutions. What they lack is the legal framework that mandates that some laws be subservient to other laws. Their constitutions are in the laws that set up the government. They have laws that provide for various freedoms, civil and political rights and limitations. They do not set up a hierarchy among those laws, one trumping the other. They adhere to the older principle of Parliamentary Sovereignty, rejected by the US Constitution, that one Parliament cannot limit another. For example, one Parliament cannot pass a law that states that it may not be revoked except by unanimous consent. All laws are equal to each other, even the ones that scholars call “constitutional”.
Why do countries, such as the USA, want a two-tier system? The answer, briefly stated earlier, is that the founding people and founding leaders of a nation want certain laws enshrined at a level that later legislatures or leaders will not be allowed to override because of the political expediencies of the moment.
Now in many countries, including Israel, it is well known that different groups of people have different ideals they believe are worth preserving at all costs. If a nation has several groups of people with conflicting ideals, the differences cannot and should not be resolved at the “Constitutional” level at all! Put another way, if one group that does not have behind it the true political will of the vast majority of the people, tries to take advantage of a propitious moment and attempt to enact certain reforms at the constitutional level, trouble will usually ensue for one of several reasons:
- It will either fail in its attempt, at the needless expense of considerable political capital, (Canada), or
- It will succeed for a brief time, until the next election when the opposing side wins and overturns the law, then wasting the entire country’s time in the emotionally exhausting process of constitutional amending, (recent France, Belgium), or
- It will succeed and lead a powerful minority of the nation to do nothing but oppose its country’s constitution as not representative of its true national aspirations (Egypt), or
- The country can go through a farce of constitution-making with a frequency that would embarrass an American. (France 1789-1958.)
This idea that a real Constitution presupposes substantive agreement on cultural fundamentals was stated by John Jay in the Federalist #2. Jay defined the United States as “one united people — a people descended from the same ancestors, speaking the same language, professing the same religion, attached to the same principles of government, very similar in their manners and customs, and who, by their joint counsels, arms, and efforts, fighting side by side throughout a long and bloody war, have nobly established general liberty and independence.”
Even with this form of political and cultural unity as existed in 1788, there were two sides of a seminal disagreement, I speak here of slavery, that could not truly be reconciled by the writing of a Constitution. It would take a “Great Civil War” to test whether a nation so conceived under certain founding principles could long endure at the expense of other ideals. Upper-tier Constitutions do not resolve difficult problems; they either exacerbate them or serve to delay their true resolution.
For Israel, the alternative to a Constitution in the American mold is not as elegant, yet it is honest, and truly representative. It is what the State of Israel has been doing for the past 65 years, yet not as a sorry second-best method, but as something to be cherished. We can say, “We are Am Echad, one Nation, yet we have been “Mefuzar U’meforad,” scattered far and wide and separated by differing socio-political ideals for so long that resolving our fundamental differences constitutionally is just absurd. It’s hard enough to horse-trade when you only need a simple majority. The effort required to get a suitable supermajority required for more will just exhaust the country to no advantage. [One can look to Canada as an example. It spent six years (1986-1992) debating and putting together two different major constitutional amendment packages, each of which was rejected, leading to enormous frustration, and leading the country to avoid the topic at all costs in the over twenty years since. The language barriers they face are only a fraction of the factionalism that is present in modern Israel.]
History has turned us into a political salad of ideas and ideals that are often contradictory and mutually exclusive. Yet we recognize a sense of brotherhood among ourselves, and we have come together to live in one nation-state. Every side thus tries its best to get its way and make it work. But this is done by sitting around a table, or in a Knesset Chamber, and working out our problems. After sixty-five years, we are no closer to the kind of consensus required for Constitution-making than we were in 1949. The Jewish People are descended from the same ancestors, and share a language, and profess the same religion in name, but we know that the one word “Judaism” does not really mean the same thing to all the people. We are not all attached to the same principles of government, and we are often as dissimilar as can be in our manners and customs. In such circumstances, overreaching could be the greatest political sin imaginable.
As for the issues that drive our collective consciousness crazy:
The Tension between the State of Israel’s identities as Jewish and Democratic State: Is this a contradiction? Honestly, yes it is a contradiction. But it is a contradiction only when we use the First Amendment Ideal to which we in the United States are so accustomed. Zionism was never, could never be a political philosophy that depended on a First Amendment view of Politics. Putting all personal dilemmas aside, I think it is intuitively obvious that the State of Israel should indeed “respect an establishment of Religion” on some level. The only argument remains is how to define the word “some”. And it will be impossible to make everyone happy on this count. To remove religion from any form of government authority is unthinkable in a place called “The Jewish State”. Imposing Orthodox standards in public places and public events can often be intrusive to the unobservant. At least one side can be unhappy at any given moment. Is there an obvious unified resolution? No. But it’s not a matter of Judaism vs. Democracy. It’s about two competing definitions of Jewishness. One is more restrictive of public activities. But one excludes a major segment of Israeli society whose norms predate the State and give the State its historical legitimacy. Now which constitution will resolve that?
How should services be led at the Western Wall? The bottom line is that a Zoning Decision was made in June 1967. The official Plaza in front of the Western Wall was designated as an Orthodox Synagogue, with its own Rabbi. This was a Utilitarian decision, made to accommodate the needs of the many, the most, who pray at that location, and care about the rules kept there. Again, not everybody can be happy with this, but the State leaders are not dealing with rights there. They are dealing with zoning.
Former Israeli Supreme Court President Aharon Barak was certainly not alone among the world’s Chief Justices in being enamored of the example set by the Warren Court of the 50s and 60s declaring laws and government acts as unconstitutional. He brought the doctrine of Judicial Review to a country whose political system was based on the British one that does not recognize Judicial Review. He did all of this without a formal Constitution. One need not imagine what the Israeli Supreme Court, which heretofore has been practically self-perpetuating with virtually no political connections to any Government or Knesset, would do with such power. The answer is clear: The Court would rule in accordance with the worldview of most of its members, with virtually no concern for the complex case-by-case deliberations that need to be handled with delicacy in a tense multi-faceted society.
The recent Chareidi Draft deliberations in Israel are a perfect case in point. Twice already in this Knesset’s term, the Supreme Court issued decisions that scuttled the ongoing negotiations between government coalition members and the Interest groups involved. A constitution would only make things worse. Professor Gavison was kept off the Supreme Court precisely because she understands this problem. I don’t have to tell her the dangers of expanding the problem.
The dangers of formalizing matters that should remain informal applies to the second task assigned to Professor Gavison, concerning Israel-Diaspora relations. These relationships are obviously important. They are so important that they should remain unofficial. Why should a State be constitutionally tied to people or organizations that are here and meaningful today and gone or irrelevant tomorrow? The bonds of influence and concern will remain meaningful in relation to how unofficial they remain. Every year or decade will introduce a new generation of American (or Canadian) Jewish leadership to Israeli Political leaders. The two groups will find each other.
Raphael Davidovich is the Rabbi of the Heights Jewish Center Synagogue in Cleveland, OH.
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.
Why should we be satisfied with anything less than Torah as our constitution?
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.)
there is a lecture given in Europe by prof. halbertal (on u-tube) that discusses this topic coherently, consistently, and humorously.
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.
“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??
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.