Israel’s Constitutional Moment

By Daniel Polisar

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srael’s first elections, in January 1949, were called to choose the members of a constituent assembly, whose sole aim was to draft a constitution. Yet the members of that body opted to transform themselves instead into a standing legislature, and to make do with a series of Basic Laws intended, at some future point, to form the basis for a constitution. As Prime Minister David Ben-Gurion, the architect of this decision, explained, “We don’t have time for this matter now. We need to build houses for new immigrants. We can create a constitution when we have some breathing room.” In his view, the citizens of Israel, making up less than 10 percent of the world’s Jewish population, lacked the authority to determine for future generations the character of the Jewish state: “When the Jewish people will come to Israel, it will create for itself a constitution…. When there are five million Jews in Israel, they can break their heads on drafting a constitution.”
In the 56 years since then, Israel has absorbed waves of immigrants, but has remained one of the world’s two democracies (alongside Great Britain) lacking a written constitution. In July 2000, however—less than a year before Israel’s Jewish population reached the five-million mark—the Jerusalem-based Israel Democracy Institute (IDI) launched the most ambitious effort in the country’s history to draft a constitution. Under the chairmanship of former Supreme Court President Meir Shamgar, IDI established a Public Council—approximately 100 legislators, public figures, jurists, and scholars representing a range of social and ideological groups—whose aim was to produce a “Constitution by Consensus.” After fewer than a dozen two-day sessions spread over three years, IDI’s Public Council handed the work over to an eight-member committee, chaired by Shamgar, and consisting entirely of IDI research fellows. Since February 2003, this smaller and far more homogeneous group has succeeded in hammering out a nearly complete text. In February of this year, this draft was formally presented to the Public Council, accompanied by a massive public-relations campaign. The next step, according to the IDI leadership, is to present a final version to the Knesset and ask that body to use it as the basis for creating the nation’s constitution.
People familiar with Israeli legal history might easily conclude that the IDI effort—like the 24 previous draft constitutions that have been prepared in the past by political parties, civic organizations, scholars, and rabbis—has little chance of passing the legislature. Such a dismissal would be wrong. IDI’s Public Council boasts an impressive and influential roster, including 22 current Knesset members and 18 former or current government ministers. More important, perhaps, is the fact that the IDI campaign dovetails with a major constitutional initiative on the part of the Knesset. Since May 2003, the Law, Constitution, and Justice Committee, which has the legal responsibility for developing a constitution, has undertaken the legislature’s first sustained effort in half a century to do so. Under the leadership of committee chairman Michael Eitan (Likud), committee members have held 55 working sessions and, according to Eitan, aim to complete a draft during 2005 and pass it on to the full plenum in advance of the next elections, scheduled for November 2006. Eitan’s goal is for the Knesset to debate, amend, and enact a constitution during the coming term.
Though there is no guarantee that Israel will adopt a constitution in the near future, the continuation of the status quo can no longer be taken for granted. And if a constitution does in fact pass, it will contain crucial provisions shaping the character and regime of the Jewish state for generations. The questions must therefore be asked: Is a constitution good for Israel? Should IDI’s “constitution by consensus” serve as its basis? And if not, what is the best way to develop and ratify a constitution that can provide a sound basis for a Jewish democracy? ...

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