Israel’s Shadowy Constitution

Thane Rosenbaum

It was just Presidents Day in America, which, for reasons having perhaps something to do with slumbering patriotism, has long been associated with mattress sales. This year, however, there’s a real fear that America’s friend Israel is in danger of putting its democracy to bed.

That’s right: Israel, the only democracy in the Middle East — or anywhere near that region, for that matter — is undergoing a constitutional crisis. The country has been democratic since its inception, commencing with a Declaration of Independence the day before five Arab armies declared war against the fledgling Jewish state. America has a similar origin story — with 13 colonies taking on the British Empire soon after July 4. When these allies of the Enlightenment — America and Israel — speak of shared values, that’s what they mean.

This week, Americans may be reclining, but Israelis will be standing upright in mass protest. The new coalition government, the most conservative in Israel’s history on a range of issues, is moving against its own Supreme Court with a panoply of reforms that opponents believe would undermine the separation of powers and the principle of judicial review.

But let’s not get ahead of ourselves. Israel is still a very young country, nearly 75 years old, and very much a free society in an increasingly less democratic world. In 2012, there were 42 liberal democracies. Today, there are but 34. Poland, Turkey, Hungary and Russia are clearly now off the board, precisely because, among other features of authoritarian rule, none possess the checks and balances of independent judiciaries.

Many Israelis see the overhaul of their Supreme Court as an ominous sign that they are next. It is an especially sensitive subject. Maintaining Israel’s democratic character is a numeric challenge in a nation that intends to remain a Jewish state. Israeli Arabs already comprise 20% of the population. There are other minorities in Israel. With declining Jewish birthrates and loud whispers within the new government of annexing the West Bank and absorbing its Palestinian population, the Jewish majority will dissipate further. A majority-rule voting public could one day take the Star of David out of the Israeli flag.

Suddenly, the conflict with the Palestinians is being subordinated to an internal conflict among Israelis about the contours of their democratic governance.

In principle, the Knesset really should address serious problems with its judiciary that are long overdue. There is no appellate court other than the Supreme Court in Israel. That means that its 15 justices hear everything — the appellate review of trial court decisions, the interpretation of its Basic Laws and the legality of military operations, security fence and building of settlements. There is probably no more overburdened high court, or one with a broader portfolio, on the planet.

Moreover, unlike the American judicial system, Israel largely places the responsibility of selecting judges in the hands of lawyers — not voters, legislators, the cabinet, prime minister or president. Perhaps that’s too much independence, which is why the government is seeking more control over judicial appointments. And the Israeli Supreme Court, unlike most liberal democracies, exercises almost unchecked authority in invalidating legislation. That’s why the new government’s overhaul proposal includes an override that would enable lawmakers to preserve legislation that the court may have just ruled to be unconstitutional.

Speaking of the constitution: Israel does not actually have one. It may be a constitutional democracy, but it’s one of three countries (England and New Zealand are the others) that functions without a written constitution.

Israelis just never got around to drafting one. They have Basic Laws (think of them as an evolving Bill of Rights), which they have enlarged and amended repeatedly. The expectation was that eventually they would all become incorporated into an actual Israeli constitution. Days and years passed, along with wars against its Arab neighbors, the terrorism of Palestinians, startups in high- and biotech, the blooming of barren land and desalinating of the Mediterranean Sea.

Honestly, who had the time for a constitutional convention?
America had its constitutional drafters in James Madison, Alexander Hamilton and The Federalist Papers. Israel became better known for its Mossad and Nobel Prizes. Being surrounded by two major oceans gave America room to operate — to develop a body of law with oversight from three distinct branches of government.

Israel has never had that geographic luxury, is not set up for such governmental interplay and has never known a single day of peace. It has always been a magnificent work in progress, blessed with the agility of a people who know how to improvise and mobilize in a hurry. Like the ancient Hebrews baking bread without yeast in the desert, Israel inherited that same resourcefulness, making do with all deficits with deftness and calm.

All that enterprise came with consequences, however. Some things simply got left undone. Israel developed a shadow constitution on the fly and without a name. It borrowed elements from other democracies — England, Norway, France and Canada — and even some features from the Ottoman Empire and Bahrain. Yet, it even forgot to include freedom of speech as a Basic Law.

Perhaps it’s now time for Israel to finally anoint its Basic Laws with constitutional status. And that same constitution should clarify the powers and limitations of the Supreme Court. Judicial review and independence must be respected, but the Court can’t hold absolute veto power over the actions of the government and legislation of the Knesset.

Americans who were displeased with the Supreme Court’s decision overturning Roe v. Wade knew that individual states were free to enact a woman’s right to choose, the House and Senate could codify a federal right to an abortion and the president could issue an Executive Order doing the same. That’s what Separation of Powers means in practice, and precisely what Israel lacks.

Democracies are messy. But Israel has never shied away from conflict. It might just emerge stronger from this constitutional crisis. Actually, it must. As a beacon of freedom, the light must stay on. Israel knows that its neighbors are despots and theocrats, and that minorities, women and homosexuals around the region all wish they lived in Tel Aviv. That has everything to do with the freedoms that are enjoyed in and the moral authority bestowed on a liberal democracy.

Thane Rosenbaum is a novelist, essayist, law professor and distinguished university professor at Touro University, where he directs the Forum on Life, Culture & Society. He is the legal analyst for CBS News Radio. This was originally published by Jewish Journal.