A Constitution for Israel: Lessons from the American Experiment

By Ruth Gavison

What Israel can learn from the Philadelphia process.

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Recent years have seen the emergence in Israel of a public debate over whether to adopt a formal constitution, what values and institutions such a constitution ought to enshrine, and how to go about formulating and ratifying it. While any serious answer to these questions must take Israel’s unique circumstances and political tradition into account, a great deal may be learned from the experience of dozens of democratic countries that have adopted constitutions since the end of the eighteenth century. In this context, it is tempting to turn first to those Western countries that adopted constitutions after World War II, such as France, Germany, Spain, Greece, and New Zealand—nations which, at the time these constitutions were adopted, shared many of the basic political val­ues and rules of public discourse which characterize Israel today. Like­wise, one might look to the fascinating development of constitutions in South Africa and in several of the countries formerly under Soviet dominion.
The best point of departure, however, may well be that of the world’s oldest standing constitution, that of the United States, which has been in force without interruption since 1789. That the United States Constitution has guided American political life over so long a period, and in the face of repeated social upheavals and many wars, testifies to the sagacity of its authors. For this reason, the architects of numerous young democracies have turned to the American example when drafting their own constitutions. For Israel in particular, the American case carries special weight, in light of the tremendous influence that the United States, and particularly the American legal tradition, has had on Israeli life.
In what follows, I will not dwell on the specific political arrangements spelled out in the United States Constitution. These are not particularly relevant to the Israeli case, and in any event have been modified substantially during two centuries of amendment and interpretation. Instead, I will focus on the fundamental principles and assumptions which underlay that document, and which were tailored to the specific needs and traditions of the nascent American nation. In particular, I will focus on those ideas that guided the process of its drafting and ratification—a process in which a clear distinction was drawn between the founding, constitutional principles of government and the pitched battles of ordinary politics. It was this process which enabled Americans to forge a political framework that suited the nation it was meant to serve, assuring the various interests within the population that their vital needs would be protected, and that day-to-day politics could therefore be conducted with moderation and restraint.
The first part of this discussion will therefore revisit the framing and ratification of the American constitution, emphasizing the extent to which those who took the lead in the constitutional effort understood the complexities of the task before them and fashioned a process that would best address them. The second section will focus on the principles which guided the American framers, and show how these contributed to the enduring success of the American experiment. In considering these principles, I will rely in large part on the essays in The Federalist, which was penned by Alexander Hamilton, James Madison, and John Jay, three of the principal proponents of the constitution, between October 1787 and June 1788, as part of the fight over ratification. In light of the recent publication of The Federalist in Hebrew (to which a version of this essay served as the introduction), that source should be seen as a particularly timely reference for any discussion in Israel of the American constitutional process.1
The remainder of the essay will draw lessons for the Israeli case. As with America of the 1780s, Israeli society is deeply divided on key issues, but it has guaranteed its citizens levels of political freedom, welfare, and education unknown in the region. While Israel is host to a number of groups seeking to change the country in accordance with their own visions of the good life, they all share an interest that Israel continue to secure their basic rights. By embarking on a constitutional process that draws inspiration from the American model, I will argue, Israel has the best chance of creating the kind of common, consensual framework within which democracy can flourish. Designing and adopting a constitution is not simple, and will require negotiation and painful compromise among different groups. But if a viable and enduring constitution is to be adopted, participants in the debate will not only have to defend their own principles and interests, but also to learn to respect the positions of others. The final document must be constructed on the understanding that a shared political framework, within which every group can act despite disagreements and conflicting interests, is itself an interest essential to all of them.
Israel today, fragmented and strife-ridden, may seem farther than ever from seeing such a process through, and the sense of crisis that has enveloped the country since negotiations with the Palestinians collapsed in October 2000 tends to direct attention to issues that seem more urgent. But it is precisely difficult times such as these that reveal the pressing need for a constitution, and that are most likely to precipitate its creation. Only then is the need most keenly felt to forge one basic document that creates a shared political framework and offers the opportunity for fruitful debate within it. A closer look at the American case can serve to illustrate this essential political truth.

The story of the adoption of the United States Constitution begins shortly after independence, when in November 1777 the Continental Congress approved the Articles of Confederation. This document, which was meant to establish a common framework for the thirteen newly independent colonies, reflected the prevailing sentiments among Americans during the Revolutionary War, and in particular their antipathy to life under foreign rule. The Americans’ most prized asset was their liberty; it was this which they were fighting to defend, and their experience with the British had taught them that the best defense against tyranny was to limit the ability of the government—especially a distant one, insulated from the needs and preferences of the public—to dip its hand into the citizens’ pockets or to send them off to fight for causes with which they do not identify. This hostility to unwarranted government intervention found expression in the Declaration of Independence, which included a list of grievances against the British government and its abusive treatment of the local legislatures. The Americans preferred to be ruled by smaller, local governments, which were subject to the will of the voter at frequent intervals. At the same time, they understood the military and diplomatic advantages that size offered, in both war and peace, and for this reason agreed to the establishment of a common framework that enabled the thirteen states to act as one in foreign affairs.
Given these concerns, it is no surprise that the states insisted on ceding as little power as possible to the central authority. The Articles of Confederation granted almost complete independence to individual states, while the weak central government comprised only a unicameral legislature, the Continental Congress, in which there was equal representation from each of the states without regard to the size of their populations. The congress did not have the authority to compel member states, and was therefore unable to resolve interstate disputes or mobilize resources for its own activities. The union, as a body, had no standing army, and because the central government could not levy taxes on either states or individuals, it was virtually impossible to maintain the army necessary to win the War of Independence. Nor did things go any better in the economic sphere: In their search for solutions to economic hardship, several of the states began to print money, while others vigorously sought to collect wartime debts, a policy that struck particularly hard at farmers in the western frontier areas.
In the years following the war, these problems led to unrest in some states, of which the best-known was Shays’ Rebellion in western Massachusetts in the summer of 1786. Hundreds of farmers, many of them veterans of the Revolutionary War, revolted against the collection of taxes and debts and, in an effort to sabotage the collection process, attacked courthouses and police stations, and even tried to take control of a government arsenal in Springfield. The rebels were defeated only when an army sent from Boston killed several of them, arrested the leaders, and dispersed the rest. Similar revolts took place in North Carolina and Pennsylvania. George Washington, commenting on Shays’ Rebellion, expressed a view that was shared by many at the time. “What a triumph for the advocates of despotism,” he wrote in a letter to Henry Lee, “to find that we are incapable of governing ourselves, and that systems founded on the basis of equal liberty are merely ideal and fallacious.”2

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