Constitutions
Among the issues brought to the fore by the recent crisis in Israel over ultra-Orthodox (haredi) schools is the unresolved role of the state's judiciary. Israel has no written constitution. To some, the absence invites disaster. To others, it is what holds Israel together as a Jewish and democratic state.
Efforts at constitution-writing in the years immediately prior to and after Israeli statehood came to naught for several reasons, prominently including the inability to find or even imagine formulas for striking a sustainable balance between religion and state. But Israel does have a robust and raucous democratic culture. It also has a series of "Basic Laws" laying out the structure of government and guaranteeing rights and liberties. In the absence of a constitution, the judiciary has used those laws to develop American-style doctrines of judicial review and civil and minority rights.
One Israeli minority, the ultra-Orthodox, has seen things differently, however. Swelling in size and assertiveness, it no longer takes for granted the "status quo" that for decades has governed religion-state relations. Indeed, it has come to view the judiciary, and especially the Supreme Court, as its enemy, both for the liberal values the Court seeks to enforce and for its challenge to the primacy of rabbinic law and da'at Torah, a much-disputed doctrine of rabbinic supremacy in matters of governance and public policy.
There is a history here. Through the many centuries of Jewish statelessness, non-Jewish legal and political systems were accepted and legitimized through a talmudic principle, dina de-malkhuta dina, literally, "the kingdom's law is the law." (To be sure, when it came to religious matters and intra-Jewish civil disputes, having recourse to Gentile courts was severely frowned upon; Jews may not have had sovereign institutions, but they had courts and laws of their own.) But what of secular courts in a Jewish state?
Many haredi Jews regard these courts as singularly illegitimate, grounded as they are in the heresies of Zionism and secular ideologies. The suggestion that in defending minority rights generally, the judiciary defends the ultra-Orthodox as well, is dismissed as meager recompense for the Court's seeking to thwart haredi agendas and prerogatives.
Other currents are at play as well. Religious Zionists, for their part, have historically entertained a positive, not to say romantic, view of the state. For many, however, the romance ended with Ariel Sharon's disengagement from Gaza in 2005. The same occasion sidelined a joint effort by Yaakov Medan, a prominent religious Zionist rabbi, and Ruth Gavison, a leading jurist (and distinguished critic of the Supreme Court's overreaching), to promote a new covenant aimed at calming the roiling waters of religion's relationship to the state.
As for a constitution, several potential versions have been put forth by bodies including the Israel Democracy Institute and the Institute for Zionist Strategies. Proponents and critics of the initiative exist on both sides of the aisle. One key question is whether the benefits of a constitution would be outweighed by the inevitable price to be paid in formalizing the power of the current rabbinic establishment. Another is whether Israeli society can survive the ratification debate, which is bound to bring to the surface the most wrenching questions of national and religious identity.
In the American context, the moral purposes of constitutionalism are deeply linked to procedural values; freedom of speech, association, and religion are corollaries of the rules of the road that enable American democracy to function, thus also serving as a sound basis for judicial review. Israel operates with a much thicker sense of moral purpose and of religious and national identity, but one that is interpreted in radically different ways by different sectors of society. While the arguments over Israel's judiciary may seem to parallel American debates over judicial review, the existential stakes involved and the deep, deep gulfs among the parties make the American debates seem like bean bag.
Even to admirers of the U.S. Constitution, a document that, inadvertently or not, would freeze and institutionalize Israel's entrenched domestic differences might be thought worse than no constitution at all.
Thank you for your interesting and unbiased article. The differences between the two primary draft constitutions you cite-those of the The Institute for Zionist Strategies (IZS) and the Israel Democracy Institute (IDI) - has been summarized as follows:
1. The IZS draft constitution establishes a Jewish state with a Jewish character and mission and with a fully democratic form of government; the IDI draft establishes an egalitarian democracy with a tenuous Jewish tinge likely to dissipate with time.
2. The IZS draft establishes a system of separation of powers wherein the judiciary branch applies the law promulgated by the elected parliament and wherein members of the Supreme court are appointed after confirmation by the Knesset; the IDI draft codifies the Court's predominance over the Knesset and executive, and perpetuates the closed system of appointments whereby the judges themselves in effect determine who is appointed to the Court.
The movement for a constitution has always been the stepchild to the most recent crisis, of which there are and always have been many. The strongest advocate traditionally has been the elite consisting of the intelligentsia, the structured media, and academia. With the emergence of a more representative political system starting in 1977, the elite has steadily lost political power and has mobilized behind the last vestige of its governmental dominance, the judiciary (and in particular, the Supreme Court).
But with the ascendancy of the judicial activists led by former Supreme Court President Barak, the alignment of forces has shifted. Under Barak (whose renown for judicial hyper activity and creativity is now being bandied about in the deliberations concerning Elena Kagan’s nomination to the US Supreme Court), the Israel Supreme Court effectively fashioned a skeletal constitution from its own hyper creative judicial authority. Since, as professor Koppel points out, the court members are cloned, the constitution long sought by the elite is being delivered by the court. There is no need to bother the elected representatives who could upset things with populist concepts such as the balancing of powers, judicial restraint and the primacy of the Knesset in Israel's parliamentary system.
So now, the pressure for a constitution, such as it is, comes from the bottom up and the Israeli public, like in all democracies, tends to be apathetic and easily distracted-particularly when it comes to the more abstract, long term needs, such as a constitution.
Israel, unlike the US, was not blessed with the opportunity to experiment and improvise starting with the Articles of Confederation and ending with the magnificent Constitution. Our war of Independence is still ongoing and has yet to end.
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Thanks for that overview. I must disagree with the main thrust of your argument. First, haredi representatives in the Knesset have been diligent and cooperative participants in the debates concerning a constitution. While they disagree with the consensus on certain issues, never have they argued that the whole idea of a constitution is an affront to the notion that the Torah is the supreme source of values. Second, the question of enshrining the power of the official Rabbinate has so little support that it has scarcely merited a mention in all the constitutional discussions.
What is in fact the nub of the matter is that any constitution is a weapon in the hands of an aggressive court and there is a very broad consensus (from Kadima due right) that the Court has already amassed to much power. In Israel not a single one of the traditional safeguards against judicial over-reaching remains in place. Judges are appointed by a nine-person committee, dominated by sitting justices acting in collusion, with no public accountability. The Court intervenes in administrative matters by selectively hearing petitions by public interest groups with no actual standing. The Court hears petitions in matters involving the budget, national defense, foreign policy and other political questions within the legitimate authority of the elected branches. The Court has invented doctrines of “reasonableness” and “proportionality” that are no more than elegant means of substituting its own judgment for that of the elected branches. The court uses amorphous rights such as that to “dignity” to uphold any imaginable right, including the right to import a spouse from enemy territory, the right of children not to be spanked by their parents and the right to have one’s roof reinforced against rockets. The Attorney General, who is meant to be the government’s appointed lawyer, has become the Court’s representative in the government: he is appointed by a committee headed by a judge himself appointed by the Chief Justice, he is inevitably beholden to the Court if he wishes to be appointed to the Court himself, he has been told by the court that he is not obliged to defend the government and his decisions are now subject to second-guessing by the Court. Finally, the Court has assumed the right to overturn laws without any mechanism in place for determining the conditions under which this is possible.
It is mainly for these reasons that many are wary of a constitution that might enshrine these powers and possibly add to them.