When we examine the actual constitutional process in Israel against the background of this analysis, it is easier to identify its weaknesses. In Israel, the debate over a constitution has been conducted as though the contents of the proposed constitution were unimportant. The current constitutional process encourages the institutionalization of the existing system, one that reflects ordinary politics with no compromise, while adding to it a bill of rights and judicial review; the nature of the debate has been to focus far more on whether a constitution is needed, and what the easiest way is to achieve one, than on whether the existing basic laws offer Israel the right constitution for the country. But one cannot really take a position on an abstract constitution; as the American example makes clear, the public must be shown an actual document, so that they can ask whether this is the constitution they want. The debate in America was not over constitutions in general, but over the particular constitution hammered out in Philadelphia.⁵⁴ That constitution was the product of negotiated compromise, creating the checks and balances that made it so much better than the previous situation, for most people and for all states. An Israeli constitution based on the “constitutional revolution” may in fact be, for many groups, a worse outcome than the present state of affairs. The result is likely to be that entire sectors of the population will deny its legitimacy and act to undermine its public support. Such a move may indeed have consequences diametrically opposed to those intended by the constitution’s advocates.

Indeed, the current situation is a source of frustration for anyone who believes that Israel needs a proper constitutional process. Such a process does not seem likely to begin in the immediate future, and once begun it may not yield results in the short term. Nonetheless, this does not mean that we should look for shortcuts. It is not hard to sympathize with those jurists and scholars who would sidestep the process of public negotiation on the major issues and instead adopt a constitution on the basis of the existing basic laws. In their view, the public interest demands the establishment of a supreme and entrenched constitution, with judicial review as a power to check legislative excesses. They think the politicians’ unwillingness to limit their own authority is the principal reason such a constitution has not been adopted. According to this outlook, what is important is that some constitution, even an imperfect one, be adopted; how it is adopted matters little, for the nation is likely to accept it once it is in place.

But any serious look at Israeli society reveals the shortsightedness of such a view. Such a constitution, if adopted, would enjoy the allegiance of its partisans and no one else. Those who opposed it from the start would have no reason to accept the obligations it imposes on them, in whose formulation they had no say. Distrust of and alienation from Israel’s political system would only increase. In the eyes of those who were left out of the process, the difficulty of amending the constitution would be seen not as a welcome safeguard of their interests, but as an attempt by those already in power to entrench themselves and freeze the status quo—a status quo that was attained without discussion and without serious compromises. In terms of the American constitution, such a move would be analogous to the Virginia Plan being imposed on all the states, without the benefit of a Philadelphia convention. Or, more accurately, to the imposition of the Articles of Confederation, with only a few cosmetic changes.

There is a more profound reason to reject such a “constitution from above.” When the people have the final say on a constitution, as they did in the United States, they have the opportunity to choose compromise and solidarity over divisiveness. It is a conscious decision on the part of the people to invest in compromise for the sake of building the nation, a determination by the public that the compromises which the constitution entails are a price worth paying. It is only through negotiation and compromise willingly arrived at that the broader public can come to believe that it is not merely surrendering to political extortion or being forced to abandon its principles, but is making a wise and necessary decision to follow the only safe route to peaceful coexistence. Moreover, such a choice is in itself an important expression of respect for the variety of groups that make up Israeli society.⁵⁵

If the Israeli nation is to take the crucial, unifying step of accepting upon itself a constitution, the process of its adoption will in the long run be at least as important as its contents. Only by following the more difficult path, of consensus-building and painful compromise by all parties, can Israel hope to draft and ratify a constitution that will enjoy the kind of broad legitimacy and enduring supremacy seen in the world’s most successful constitutional systems.

 

For Israel to adopt a constitution that serves the country’s needs and enjoys popular support, it is essential that the process be carried out in its entirety, without shortcuts. The Knesset must take the lead by appointing a body that will represent all the country’s major groups, which will be charged with the duty of drafting a constitution. The draft constitution must create a shared political framework for the nation and draw a clear line between constitutional and ordinary politics. If the framers do their job well, the Knesset will be able to submit the constitution, with minor adjustments, to be ratified by Israeli citizens in a referendum. If the proposed constitution is indeed a good one, the people of Israel will support it overwhelmingly. And then, following its ratification, the constitution will serve as a unifying force, setting the best ground rules that can be achieved for living together in a diverse society.

Looking back on 1787, the success of the American effort to craft a constitution was not necessarily due to the specific arguments of the framers, but ultimately to the collective understanding that an agreement on the constitutional order was deeply needed, coupled with the American tradition of mutual respect. It is hard to imagine framing a constitution in Israel without a similar combination.⁵⁶ But such an understanding is not impossible; indeed, the country has proven itself equal to greater challenges than this.

The American founders set for themselves the awesome challenge of carefully and deliberately founding a new nation, in a way that had never before been attempted. Their success went beyond anyone’s imagination. We in Israel would do well to learn from their accomplishment, and to repeat it, in our own way, in our country.

Ruth Gavison holds the Haim H. Cohn Chair in Human Rights in the Law Faculty of the Hebrew University of Jerusalem, and is a Senior Fellow at the Israel Democracy Institute. A longer version of this essay, which the author wrote together with Allan E. Shapiro, appeared as the introduction to the first Hebrew translation of The Federalist, published in 2001 by Shalem Press.

 

 

1. The new Hebrew edition of The Federalist has begun to play a role in debates over constitutional matters in Israel. Alexander Hamilton, James Madison, and John Jay, The Federalist, ed. Yael Hazony, trans. Aharon Amir (Jerusalem: Shalem, 2001).

2. George Washington, in a letter to Henry Lee, a member of the Continental Congress, on October 31, 1786, cited by Catherine Drinker Bowen, Miracle at Philadelphia: The Story of the Constitutional Convention, May to September 1787 (Boston: Little, Brown, 1986), p. 45.

3. Bowen, Miracle at Philadelphia, p. 4.

4. Hamilton presented the convention with a proposal which, to an even greater extent than that of the Virginians, was intended to strengthen the central government. In light of Hamilton’s plan, the Virginia Plan could be presented as a compromise or moderate solution, rather than as an extreme position.

5. Bowen, Miracle at Philadelphia, pp. 36-37, 40-41.

6. Constitution of the United States, Article V.

7. All the delegates to the Philadelphia convention agreed that the basis for taxation had to be identical to that of representation. This principle was a central part of the legacy of the War of Independence.

8. There were those in the South as well who opposed slavery on moral grounds. This was the position held, for example, by James Madison, yet he recognized that the abolition of slavery was politically impossible at the time.

9. Constitution of the United States, Article I, section 9; Article I, section 2. Additionally, slavery was defined as an internal problem of property laws in the southern states. As regards its “interstate” implications, the compromise on this issue balanced a defense of the status quo with a limitation of this defense to only twenty years. In accordance with this compromise, the constitution also required the return of escaped slaves to their owners. Article IV, section 2(c). For an intriguing discussion of the constitutional significance of this compromise and of the indecision of northern courts regarding this article of the constitution, see R.M. Cover, Justice Accused: Antislavery and the Judicial Process (New Haven: Yale, 1975).

10. There was a disagreement at the convention over the number of states whose votes should be required for ratification. It was clear to all present, however, that a requirement of unanimity would have given each state the right to an absolute veto. Since it was widely recognized that Rhode Island would exercise such a right, requiring unanimity was understood to be tantamount to dooming the constitution from the outset, and this option was therefore rejected out of hand.

11. Hamilton, whose participation in the convention was only intermittent, signed the constitution in the end; but the two other New York delegates (Robert Yates and John Lansing) left in protest, taking with them the vote of New York State. Hamilton therefore signed as a private individual.

12. Washington expressed his thoughts in a letter to the Marquis de Lafayette. Bowen, Miracle at Philadelphia, p. xvii. Madison described his view in a letter to Thomas Jefferson. Jack N. Rakove, ed., James Madison: Writings (New York: Library of America, 1999), p. 144.

13. Bernard Bailyn, The Debate on the Constitution: Federalist and Antifederalist Speeches, Articles, and Letters During the Struggle Over Ratification (New York: Library of America, 1993), vol. i, pp. 3-4.

14. A debate sprang up over whether the Bill of Rights should be integrated into the constitution proper, or listed separately as ten “amendments.” The decision to adopt the latter course highlights the important distinction between the “rules of the game,” the constitutive parameters of government, on the one hand, and basic rights on the other. The framers believed that the constitution itself should be confined to principles of government. The amendments, on the other hand, sought to enshrine ideals of universal rights in the constitution.

15. According to Article V of the constitution, an amendment can be passed only by a two-thirds vote of the members of the Senate and the House of Representatives in favor of it, followed by ratification by the legislatures (or special constitutional conventions) of three-fourths of the states in the country.

16. Hamilton, Madison, and Jay, The Federalist, No. 49.

17. At times, the desire for rule by a “strong man” is the consequence of the sense of paralysis that chronic factionalism can induce in a democracy. Experience teaches, however, that such a regime is not necessarily more effective in achieving the welfare of the people—though almost always more effective in repressing them.

18. For a survey of the amendments, see Sanford Levinson, “How Many Times Has the U.S. Constitution Been Amended? Accounting for Constitutional Change,” in Sanford Levinson, ed., Responding to Imperfection: The Theory and Practice of Constitutional Amendment (Princeton: Princeton, 1995), pp. 13-36.

19. Cf., for example, Bruce Ackerman, “The New Separation of Powers,” Harvard Law Review 113:3 (2000), pp. 642-725. Popular feeling about governmental power changes as the political landscape changes. Thus, before the Vietnam War and the Watergate scandal it was argued that the executive was too weak. In the wake of these perceived misuses of power by the president, the American people tended to feel much more sympathetic to the constitution’s system of checks and balances. See, for example, Richard Hodder-Williams, “The Constitution (1787) and Modern American Government,” in Vernon Bogdanor, ed., Constitutions in Democratic Politics (Brookfield, Vt.: Gower, 1988), and the many sources that he cites.

20. An outstanding example of this is the confrontation between President Franklin Delano Roosevelt and the Supreme Court during the Great Depression over the constitutionality of Roosevelt’s economic policies. The president eventually prevailed over the court, some of whose members softened their positions, obviating the need for Roosevelt to make good on his threat to “pack” the court by appointing additional justices who would support his position.

21. Even uneducated people, who might have been expected to oppose the constitution and the somewhat aristocratic principles on which it was based, acknowledged these truths at the ratification conventions. The noted historian Charles Beard, however, forcefully attacked the constitution and its framers, accusing them of serving the interests of capitalists and the status quo. Charles A. Beard, An Economic Interpretation of the Constitution of the United States (New York: Macmillan, 1913).

22. This achievement is being brought into question specifically at present, when elected officials are more exposed to populism than ever because, inter alia, many more tools exist for determining the desires of the people, and there are more ways for people to make their preferences known. The changing dynamics of political behavior and the character of the media together contribute to the increasing dependency of political leaders on their ability to fulfill the public’s wishes. The true test of leadership—the ability to lead the nation to what it needs, not what it wants—has become more difficult these days precisely because of the greater facility with which the difference between the two can be discovered and highlighted. In the past, a leader could more easily present what he thought the society needed, and hope that a persuasive argument would carry the public with him.

23. Alexis De Tocqueville acknowledges that this fear is present in all democracies, but he places special emphasis on the factors in American society that mitigate it. De Tocqueville, Democracy in America, pp. 250-264; cf. also his important discussion of the right to free assembly, ibid., pp. 180-186.

24. Hamilton, Madison, and Jay, The Federalist, No. 78; Marbury v. Madison, 5 U.S. 137 (1803). While Hamilton did endorse judicial review, the constitution itself is silent on this issue.

25. There is currently a debate in the United States as to the extent to which the Supreme Court, as contrasted with other branches of the government, assisted the blacks in their quest for freedom and equality. See, for example, Girardeau A. Spann, Race Against the Court: The Supreme Court and Minorities in Contemporary America (New York: New York University, 1993); and Gerald A. Rosenberg, The Hollow Hope: Can Courts Bring About Social Change? (Chicago: University of Chicago, 1993).

26. For broader discussions of Israel’s constitutional history, see Gary Jeffrey Jacobsohn, Apple of Gold: Constitutionalism in Israel and the United States (Princeton: Princeton, 1993); Amos Shapira, “Why Israel Has No Constitution,” St. Louis University Law Journal 37:2 (1993), pp. 283-290; and Ran Hirschl, “Israel’s ‘Constitutional’ Revolution,” American Journal of Comparative Law 46:3 (1998), pp. 427-452.

27. For a discussion of the debate over the Harari decision, see, for example, Ruth Gavison, “The Controversy Over Israel’s Bill of Rights,” in Yoram Dinstein, ed., Israel’s Yearbook on Human Rights, vol. xv (Tel Aviv: Tel Aviv University, 1985), pp. 113-154.

28. See, for example, Giora Goldberg, “When Planting Trees, You Do Not Need a Constitution: On State-Building and Constitution-Framing,” State Government and International Relations 38 (1993), pp. 29-48. [Hebrew]

29. See Gavison, “Controversy,” pp. 115, 131-139.

30. Bergman v. Minister of Finance, HCJ 98/69, in Decisions of the Israel Supreme Court, vol. 23(1), 1969, p. 693. Following the decision by the court, the Knesset gave limited financing to new parties as well, but reenacted all the election laws with the required special majority of 61 Knesset members, thereby “immunizing” these laws against any subsequent judicial review.

31. Basic Law: Human Dignity and Freedom (1994), section 8.

32. The use here of the somewhat inaccurate label “justice” to refer to judges sitting on Israel’s Supreme Court is itself a reminder of the complexity of comparative analyses. The unique status of the United States Supreme Court, which is the only court explicitly established by the constitution as a coordinate branch of the federal government, is reflected in the fact that of all American judges, only they are referred to as “justices.” In the Israeli case, however, the Supreme Court is merely the highest court in the judicial system, and the legal status of its judges is equal to that of all other judges in Israel’s civil courts. Furthermore, a large part of its docket consists of mandatory appellate adjudication. Therefore, it would seem that “judge” ought to be the preferred term; nonetheless, for the sake of clarity for the English-language reader, the term “justice” will be used throughout.

33. Cf. Aharon Barak, “The Constitutional Revolution,” Mishpat Umimshal 1 (1992-1993), pp. 9-35.

34. United Mizrahi Bank v. Migdal Cooperative Village, CA 6821/93,in Decisions, vol. 49(4), 1995; for Barak’s opinion, see Aharon Barak, “Judgment: United Mizrahi Bank Ltd., et al., v. Migdal Cooperative Village, et al.,” in A. Gambaro and A.M. Rabello, eds., Towards a New European Ius Commune (Jerusalem: Hebrew University, 1999), pp. 381-516. The volume also contains a summary of the other opinions.

35. These tendencies were given practical expression in two privately sponsored bills that passed a preliminary reading in the Knesset. One, which is concerned with the constitutional process, speaks expressly of the establishment of a constitutional court. The other deals with the constitutional court itself. Supreme Court President Aharon Barak opposes the idea of a constitutional court, and has succeeded in getting support for his position from Justice Minister Meir Shitrit and President Moshe Katzav. It should be noted that support for a constitutional court is not limited to the circles that are totally opposed to a constitution, such as the haredi parties; some advocates of a constitution, too, consider such a court to be important.

36. For details on these issues, see Ruth Gavison, Can Israel Be Both Jewish and Democratic? Tensions and Prospects (Jerusalem: Hakibutz Hame’uhad and Van Leer, 1999). [Hebrew]

37. It is universally agreed that the relationship between the central and local governments in Israel is slanted heavily in favor of the former. Many Israelis favor developing a sort of federalism in Israel and granting a greater degree of independence to local authorities. Apportioning governmental powers among different societal groups might also be beneficial. Since societal groups tend to cluster geographically, both goals could likely be attained by means of a single mechanism.

38. One striking example is populist economic legislation. The Israeli system allows the Knesset to pass laws with far-ranging budgetary consequences, without there being any possibility of government control or even oversight.

39. Scholars differ in their assessment of the expanded involvement of the High Court of Justice. See Ruth Gavison, Mordechai Kremnitzer, and Yoav Dotan, Judicial Activism: For and Against: The Role of the High Court of Justice in Israeli Society (Jerusalem: Magnes, 2000). [Hebrew]

40. This was also the case in France, which adopted the constitution of the Fifth Republic in reaction to the Fourth Republic’s failure to bring to a successful resolution the war in Algeria. Charles de Gaulle made his return to head the government conditional upon a constitutional change that would allow him to take the steps required by the emergency situation that had arisen.

41. Guy Bechor, A Constitution for Israel (Tel Aviv: Ma’ariv, 1996), p. 114. [Hebrew]

42. Sever Plotzker, “Support for the Policy, Not the Politician,” Yedi’ot Aharonot, Shabbat supplement, August 25, 2000.

43. The recent conflagration has heightened solidarity among Jews in Israel, but created mixed responses among Arab citizens of Israel. While some are still interested in strengthening their civic ties to the country, struggling with the complexity of maintaining their sense of citizenship in the midst of armed conflict between their people and their country, others feel inclined to intensify the tendency to break away from the state, and emphasize the tension between its existence and their own national aspirations. It is not easy to predict how they would vote on a constitution for Israel.

44. From this perspective, it would have been easier for Israel to adopt a constitution in 1948. In this respect the Americans enjoyed a great historical advantage. Possibly, if the blacks had been represented in Philadelphia, they would have preferred the compromise that was accepted over no constitution at all. They might have seen that the abolition of slavery was just a matter of time, and that the advantages of a constitution justified patience. It was not by chance, however, that they were not represented, nor is it obvious that their delegates would have agreed to the Great Compromise. In 1948, there were some voices that could have spoken in the name of the Arab Israelis, but it is quite clear that they did not carry any significant weight. At present, however, the Arabs are a large segment of the Israeli populace, and are well aware of their standing. For this very reason, however, a constitution passed in the first years of the state possibly might not have been capable of enduring today. Similarly, the religious status quo adopted close to the founding of the state has collapsed in the meantime.

45. As noted earlier, all of the institutional arrangements and provisions of the constitution must be planned, and ultimately judged, as a whole. The principles set forth in this article do not by themselves dictate any specific institutional arrangements. Clearly, however, the principles will have to apply to all parts of a single system. This is one of the points that will require painful compromises.

46. Lochner v. New York, 198 U.S. 45 (1905).

47. There is one difference between the United States then and the State of Israel now that is decidedly in Israel’s favor. In the late eighteenth century, the very idea of creating a constitution out of whole cloth for a country of some four million people was considered audacious, even impossible. The basic assumptions today are the reverse. Dozens of democratic countries have adopted constitutions in the past two centuries; in most of them, despite ideological and other divisions, these constitutions have contributed to stability. Israel stands almost alone in the democratic world as a state without a written constitution. Great Britain is the only other member of this lonely club, and there, too, voices can be heard calling for a change. Israel can hardly be so exceptional that it must necessarily fail where many countries with regimes less stable and less efficient than its own have already succeeded. At the same time, the fact that Israel does have a system already in place, one which is far from perfect but also not totally inadequate, is a factor which weighs against any effort to adopt a new constitution in Israel.

48. Throughout this discussion I have assumed that Israel’s constitution will have at least one non-universal value commitment: That Israel is the nation-state of the Jews. While this description is indeed difficult for non-Jews to accept, we should recall that the right to national self-determination is itself a universal right. Moreover, there are many constitutions which contain an affirmation of the nation’s ethnic and cultural distinctiveness. While this element in the constitution will no doubt detract from its attractiveness to non-Jews, the fact that it contains a more effective promise of democracy and civic equality may well make this a price worth paying. After all, Israel is already a Jewish state in many senses, even without a constitution. With a constitution, including a bill of rights, Israel may be on the whole more hospitable to its minorities than it has been without one.

49. With all due respect to Hamilton, deliberative decisionmaking is not necessary for the creation of a constitution. There are many countries whose constitutional arrangements developed out of long historical processes, and were unquestionably not the result of a rational and conscious choice at a certain point in time. England, which was the source of inspiration to many of the fathers of republicanism (Montesquieu and Hume are only two of them), is a prime example.

50. If the Continental Congress, for instance, were to have tampered with the principles of representation in the Senate, or attempted to weaken the presidency, the ratification campaign might well have failed.

51. On the round-table talks, see, for example, Stephen Holmes and Cass R. Sunstein, “The Politics of Constitutional Revision in Eastern Europe,” in Levinson, Responding to Imperfection, p. 288; Jon Elster, ed., The Round-Table Talks and the Breakdown of Communism (Chicago: University of Chicago, 1996); Jon Elster, Claus Offe, and Ulrich K. Preuss, Institutional Design in Post-Communist Societies: Rebuilding the Ship at Sea (Cambridge: Cambridge, 1998), pp. 63-108.

52. Ratification conventions, such as were used in America, are not suitable for Israel, because Israel is not a federal country. It is also a very small country (although its population is greater than that of all thirteen founding American states together).

53. For a detailed discussion of referenda, see David Butler and Austin Ranney, eds., Referendums: A Comparative Study in Practice and Theory (Washington: American Enterprise Institute, 1978); David Butler and Austin Ranney, eds., Referendums Around the World: The Growing Use of Direct Diplomacy (Washington: American Enterprise Institute, 1994); and Thomas E. Cronin, Direct Democracy: The Politics of Initiative, Referendum, and Recall (Cambridge, Ma.: Harvard, 1989).

54. Even so, the deliberations that took place at the state constitutional conventions made additional compromises possible. For example, the idea of adopting a bill of rights made headway at the conventions, and the ten amendments which constituted the Bill of Rights were indeed passed within four years. Without the prospect of adding amendments, the constitution that emerged from Philadelphia would never have been ratified.

55. These arguments are likewise valid against a shortcut of another type: The “private” formulation of proposals for a complete constitution, or of parts of such a constitution, and the attempt to then get them passed via the political system. Some proposals of this type in Israel have been quite well formulated, and have successfully responded to the need for the constitution to be of one piece, with checks and balances. They also have the advantage of arising from outside the sphere of ordinary, Knesset politics. Such efforts, however, are bound to fail because they do not involve negotiations, and they lack any substantive public support. In America, promising formulations like the Virginia Plan did not survive in the crucible of substantive negotiations intact, yet served as fine starting points for the debates that followed. For two proposals on which an Israeli discussion could profitably be based, see Binyamin Akzin, Proposal for a Constitution for the State of Israel (Tel Aviv: B’nai B’rith, 1965) [Hebrew]; and the constitution of the Constitution for Israel movement, carried in full in Bechor, Constitution for Israel, pp. 209-256.

56. At times one feels that we knew this truth in the first years of the state, and that it slipped out of our grasp. Thus it was in the debate concerning Israel’s Declaration of Independence. It was obvious that this was a solemn document, and it was not fitting that its final form should be the subject of disagreement. Therefore, several important compromises were made in its text. (The most striking of these is the phrase tzur yisrael (“the Rock of Israel,” translated in the English-language version of the Declaration as “the Almighty”), which was a compromise between those who sought to omit any reference to God and those who wanted to acknowledge the sanctity of the occasion.) In recognition of the need to compromise, the voting was divided into two stages. In the first stage, a “real” vote was taken, in which some of the participants opposed the proposed text in the hopes of getting a better one. When the document finally received a majority, a second vote was conducted in order to confirm it unanimously.