A Constitution for Israel: Lessons from the American Experiment

By Ruth Gavison

What Israel can learn from the Philadelphia process.

Although they were painfully aware of the flaws in the Articles of Confederation, the representatives of the American states had little success in altering them. Any amendment had to be approved by the legislatures of all thirteen states, giving each of them effective veto power. Since change invariably harmed the interests of one state or another, unanimous approval was extremely unlikely. The regime’s weakness was well illustrated by the Annapolis Convention in 1786, which was attended by delegates from five states—the only ones that were willing to answer Virginia’s call to convene in order to resolve interstate trade disputes. The participants could not reach agreement on the substantive economic issues on the agenda, but did endorse the initiative of Alexander Hamilton of New York and James Madison of Virginia, who proposed that the conference call on the Continental Congress to re-examine the Articles of Confederation. The congress, accepting the initiative, summoned representatives of all the states to a convention in Philadelphia, at which they were to offer proposed amendments to the Articles of Confederation, amendments that would be considered by the Continental Congress and, ultimately, by the states.
With the exception of Rhode Island, which opposed any initiative that might strengthen the central authority, all the states sent delegations, which included many of their most talented and famous citizens. Of the fifty-five delegates, three-fourths had served in the Continental Congress, many had been state legislators, and seven had experience as governors. Among them were the two most renowned men in America at the time, Benjamin Franklin and George Washington.3
In May 1787, the delegates convened in Philadelphia, committed to holding their deliberations until a successful resolution could be reached, or until it had been demonstrated conclusively that no such resolution was attainable. The differences were profound, and the success of the convention was anything but assured. Despite broad consensus that the Articles of Confederation had failed to meet the states’ needs and that they needed to be strengthened if the states wanted to preserve a common framework, there was no clear indication that anything significant had changed in the constellation of interests that would enable a different outcome this time around. Moreover, there was no consensus on the critical question of whether minor changes would suffice to strengthen the confederation, or whether perhaps the entire notion of confederation ought to be reconsidered. The second option suggested a more radical solution, for the alternative idea of a federal state—one which combined states’ rights with a strong federal government—was at that time a novelty.
In the end, most of the delegates came around to the view that the Articles of Confederation were simply unequal to the central problems facing the states, and would have to be replaced by a substantially stronger central authority. The opening words of the constitution drafted in Philadelphia captured the essence of this change: “We, the people of the United States of America” stood in marked contrast to the parallel phrase in the Articles of Confederation, “We, the undersigned delegates of the states….” These delegates, who had convened in order to protect the honor and interests of their respective states, in the end came to agree on something entirely different: The new constitution would define not merely a group of affiliated states, but a people, possessing common, central institutions of government.
How did it happen? A great deal of thought was invested in maximizing the likelihood of a successful outcome, which expressed itself in the manner of organization and the rules of debate at the convention. First of all, Hamilton and Madison, who stood at the head of those advocating a strong central government, developed their ideas for a constitution only after a close study of political arrangements in other lands, and after arriving at clear and explicit assumptions about human nature and the nature of American society. Second, they understood how important it was to define the convention’s agenda by opening it with a presentation of their own well-developed ideas. Madison and his fellow Virginians submitted the first proposal, which was put forward for discussion on the convention’s fourth day. This proposal, which was moved by the governor of Virginia, Edmund Randolph, called for the creation of a strong central government composed of a legislative, an executive, and a judicial authority. According to the Virginia Plan, the legislative branch would be empowered to annul state laws, to levy taxes, and to regulate interstate commerce. States would be represented in a federal House of Representatives in proportion to their populations, and the House would select from among its members a more select body, the Senate, again in proportion to population. Although important elements of the Virginia Plan were eventually rejected or significantly altered in the course of deliberations, the proposal formed the basis for the constitution that would eventually emerge.4
Moreover, proponents of a constitution went into the convention knowing that the challenge of persuading opponents and fence-straddlers alike would be a daunting one, and they prepared for it carefully. Their foremost goal at Philadelphia was to foster compromises that would enable as many delegates as possible to support the final product, and they set the rules of debate accordingly. To maximize delegates’ room to maneuver and to isolate them from pressure from their constituents or from members of the Continental Congress, the deliberations were heldbehind closed doors, and their content was largely kept out of the press. It was also decided to conduct most of the discussions not as a formal debate, but instead as a “committee of the whole,” a less formal method of decision­making which had its own rules—the most important being that a revote could be called on any subject. A similar spirit motivated the decision not to record the individual votes of delegates, in order to allow delegates greater freedom to change their votes later on.5 The overriding goal was to allow the participants at the convention to examine the options carefully and change their minds as the deliberations progressed and new arguments were presented. Yet there was another benefit to the relatively informal method: It enabled delegates not only to weigh each issue on its own merits, but also to view each point in the context of the totality of the other proposals that were adopted, which was critical in facilitating compromise. Participants could consent to certain ideas on condition that other ideas were also accepted, without fearing that any point that was agreed upon would immediately become the starting point for demands that additional concessions be made.
Matters of procedure thus contributed greatly to the convention’s success. In the end, however, two major issues threatened to bring down the entire effort, and likely would have, had it not been for the delegates’ determination to reach a compromise that would enable the constitution’s broad approval. The first stemmed from the fear of the smaller states that their power, standing, and independence would suffer greatly if repre­sentation in the legislature depended solely on population. These states supported New Jersey’s proposal, which accepted most of the elements of the Virginia Plan but made representation in the legislature equal for all states, as it was in the Continental Congress. In the end, an agreement was reached that came to be known as the Great Compromise: A House of Representatives was established in which representation was determined according to population, while a second, smaller body, the Senate, would be composed of two senators from each state. In order to allay the concerns of smaller states that this arrangement would later be revised to their detriment, it was stipulated in the constitution that equal representation in the Senate would not change without the approval of every state that might suffer from such a step.6
The delegates were also sharply divided on the question of slavery. For the southern states, the effort to abolish slavery or even limit it through heavy taxation on imported slaves posed a real threat to their citizens’ way of life. Southern representatives argued that slavery must be treated as the internal affair of every state, and that the central government should be denied any say. At the same time, they insisted that slaves be taken into account in considering taxation and representation.7 Delegates from the northern states sought to stop what they saw as a transparent effort to inflate the power of the South within the representative bodies, and many forcefully opposed granting constitutional legitimacy to slavery on moral grounds as well.8 Again, the constitutional effort was saved through creative compromise. The constitution makes no mention of the moral problem of slavery; it explicitly declares the import of slaves to be a federal matter, but puts a limit on how much it may be taxed. It further states that no limitations would be placed on the right of the states to import slaves until 1808. As regards taxation and representation, it was resolved to give “other persons”—that is, slaves—the value of three-fifths of a free, taxpaying citizen.9
In addition to these dramatic compromises, an additional factor contributed to the convention’s ultimate success. The constitution drafted in Philadelphia differed from the Articles of Confederation not only in its political arrangements, but also in the method it provided for ratification. While any change in the Articles of Confederation would have required the consent of the legislatures of all thirteen states, the constitution stipulated that ratification by nine states sufficed to bring it into force in those states.10 This meant that an individual state, acting alone, could not hold up the entire process with its specific demands—and therefore it gave every state an added incentive to compromise and to ratify the document in the end, lest it be left out of the federation.

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