A Constitution for Israel: Lessons from the American Experiment

By Ruth Gavison

What Israel can learn from the Philadelphia process.

Moreover, the delegates determined that the constitution would have to be ratified not by the existing state legislatures, but by special constitutional conventions in every state. These conventions, elected directly by the public for this purpose, were preferred to the other two means of ratification that had been suggested: Approval by state legislatures, and referenda within each state. Both principled and pragmatic considerations were behind this decision. The proposed constitution called for a considerable reduction in the power of the state legislatures, and it was clear that the latter would be biased against such a change. Another reason not to turn to the legislatures had to do with the delegates’ desire to win the broadest possible public support for the constitution. This appeal to the people was rooted in the well-established political tradition of the Puritan revolution: That the people are the supreme source of authority, and government must be based on their consent. It seemed that the natural way to ratify the constitution was through popular, statewide referenda; at the same time, the framers understood the danger in entrusting the nation’s destiny to the unmediated judgment of the masses, vulnerable as it was to passions and manipulations. The idea of special constitutional conventions clearly reflected the tension between the delegates’ desire for broad popular support and their fear of unchecked populism.
As the convention in Philadelphia drew to a close, on September 17, 1787, the proposed constitution was signed by 39 of the 55 delegates who had attended. Still, the adoption of the proposal to ratify the constitution was presented as unanimous, because all the state delegations gave the document their support.11 Many, including Washington and Madison, described this outcome as a “miracle.”12 In the wake of the decision, most of the delegates put aside their criticisms and adopted a firm public stance in favor of the finished constitution. The document did not entirely reflect the wishes of any one group, but the great majority of the delegates were convinced that the best possible compromise had been attained, and that it was highly preferable to the status quo. Franklin succinctly expressed this feeling immediately before the vote, when he said: “I confess that I do not entirely approve of this constitution at present…. I consent, Sir, to this constitution because I expect no better, and because I am not sure that it is not the best.”13
The constitution cleared its first hurdle within a few days, when the Continental Congress agreed to pass it on to the states for ratification in the manner spelled out in the document, despite the complaints of some members that the Philadelphia convention had exceeded its mandate. The second challenge, the ratification process itself, was much more complex and protracted; it included the appointment of a special constitutional convention by the legislature of each state, the convening of that body, lengthy deliberations, voting, and the reporting of the outcome of each convention to the Continental Congress. In most states, the debates at the conventions were heated, and in some the vote was very close. Virginia and New York, two states vital to the success of the union, voted to ratify only after New Hampshire, the ninth and decisive state, ratified the constitution in June 1788. In Virginia, the state with the largest population, Madison had to parry the vigorous oratory of Patrick Henry—who had boycotted the Philadelphia convention on the grounds that he “smelled a rat” in its very convocation. The constitution was ratified there only at the end of June, after its supporters agreed to endorse a formal demand by the con­vention to add a Bill of Rights. In New York, Hamilton, with the help of John Jay, had to mobilize all his rhetorical and political abilities—it was in the context of convincing the New York public to support the constitution that Jay, Hamilton, and Madison collaborated on the series of essays known as The Federalist—and it may well be that only the reports from New Hampshire and Virginia tipped the scales in favor of ratification in that state at the end of July.
In early 1789, the Senate and the House of Representatives were established in accordance with the constitution, and in April George Washington was sworn in as the first President of the United States. In the meantime, Madison, who now served in the House of Representatives, introduced a series of amendments to the constitution, including guarantees of the freedom of speech, press, assembly, and religion. In September of that year, Congress voted in favor of ten of these amendments, known as the Bill of Rights. Ratification by the state legislatures—the approval of three-fourths of the states was needed for the amendments to take effect—was a lengthy process, and the Bill of Rights was incorporated as the first amendments to the constitution only in December 1791.14
The ratification of the Bill of Rights was the final act in the process of adopting the United States Constitution, and it took place more than four years after the Philadelphia convention, and a full decade and a half after independence. With hindsight, we now know that this was a watershed in the history of democratic government. It is doubtful whether it would have happened if not for the group of men who convened at Philadelphia, whose insight and careful planning helped produce the most enduring constitution in effect today.

To what does the United States Constitution owe its longevity? A great deal has been written about the constitutional arrangements as they appear in the final document—concerning the balance achieved among branches of government, the relations between the federal government and the states, the complex mechanism for effecting amendments, and the guarantees of fundamental rights and freedoms. Prior to all these, however, was a single guiding assumption, one which underlay the entire process of drafting and ratifying the constitution, and which finds expression throughout the writings of its framers, and especially in The Federalist: That a successful constitutional arrangement must clearly, explicitly, and enduringly distinguish between what we may call “constitutional politics” and “ordinary politics.” This distinction is possibly the most important contribution of the American constitutional undertaking.
The constitution is based on the belief that the activity of the regular political arena, in all its complexity, must be kept separate from the parameters—the “rules of the game”—within which this activity takes place. Establishing and maintaining such a distinction is no simple matter, and even an enduring constitution of the American type cannot draw the line clearly in all cases. The framers understood this, yet they insisted that constitutional authority must be seen as essentially different from “ordinary” authority, and that this distinction is the source of the stability of every form of government based on the consent of the governed. The people are the source of authority for the constitution and the values and institutions it affirms, while it is their representatives who engage in ordinary politics. Although this principle lies at the heart of many of the constitution’s arrangements, its boldest expression is the supremacy of the constitution over all branches of government, and its ability to distinguish between the manner of its own adoption and amendment, on the one hand, and the decisionmaking mechanisms of ordinary politics, on the other.
In order to maintain the stability of the constitution, the founders insisted on a difficult mechanism for amendment.15 In this respect, their views echo those of David Hume, and perhaps even more so those of their contemporary Edmund Burke: It was important to them that amendments to the constitution be rare.16 Amendment implies defect, and frequent change is a signal to the public that the system of governance is deeply flawed. Healthy government is based, to a great degree, on the trust of the public. This trust is most firm when the governmental system is stable, not when there are incessant battles over the system’s very nature. A wise regime needs to be supported not only by the laws, but also by the tacit assumptions—the “prejudices,” to use a Burkean phrase—held by the public. Without such support, even the best-designed form of government cannot stand.
Implicit in this distinction between constitutional and ordinary politics was the belief, which underlies many of the framers’ arguments in favor of a constitution, that certain problems are endemic to representative government, and must therefore be addressed on a constitutional level. One example concerns the twin dangers involving the degree to which power is concentrated in the hands of government: On the one hand, power concentrated in the hands of too few people has a corrupting influence; on the other hand, paralysis or unchecked factionalism can easily result from excessive limitations on government power. Moreover, overzealous attempts to defend liberty and prevent one-man despotism, far from fostering governmental sensitivity to the needs of the public, can easily lead to tyranny backed by the masses.17 It was in response to these perennial dangers to effective government that the framers sought redress on a constitutional level, rather than through ordinary politics. This took three forms in practice: First, republican institutions such as the judiciary, the electoral college, and the Senate as a solution to the threats of populism and despotism; second, the institution of checks and balances among the separate branches of government and between the federal and state levels; and third, the creation of a strong, “energetic” executive branch that is capable of acting despite these checks and balances. It was these considerations which led to most of the governmental arrangements which appear in the constitution drafted in Philadelphia.

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