Attempts by the courts to solve the problem of chronic minorities, both in the constitution and in its interpretation, have generally not improved the situation appreciably. The Bill of Rights was rarely applied to blacks until after the Civil War, seventy-five years after it was adopted; even then, the enactment of the Thirteenth and Fifteenth Amendments, which banned slavery and guaranteed blacks the right to vote, did not protect blacks from a high level of systematic discrimination and segregation.Similarly ineffective was the institution of judicial review, which had been promoted by Alexander Hamilton in The Federalist and first asserted in practice by the Supreme Court in 1803, in Marbury v. Madison.²⁴ Although the courts succeeded on occasion in standing up against the widespread discrimination against blacks, they did so only rarely and at a very late stage, addressing the challenge of equal protection for blacks beginning in the 1950s—eighty years after the constitution had granted them formal equality, and nearly two centuries after the founders had declared that “all men are created equal.” In the final analysis, the power of the courts to effect social change has been quite limited.²⁵

Yet for all that, it is difficult to deny the success of the American constitutional experiment. The founders of the United States forged a coherent and enduring supreme law, most of whose components have won broad consensus that has only increased with the passage of time. The distinction between constitutional and ordinary politics has been maintained throughout, and with it, the unparalleled stability of the American regime.

 

In considering how to draft and adopt a constitution, what lessons can Israel draw from the American example?

A basic insight of the American constitutional process is that a constitution must provide good answers to the most trenchant problems facing the particular society which is to be governed by it. Moreover, the constitution must reflect that society’s political tradition and culture. Any discussion on the adoption of a constitution for Israel, therefore, must begin with a look at the unique problems arising from the country’s social and constitutional history.²⁶

Israel’s Declaration of Independence, which was adopted unanimously by all the representatives of the nascent Jewish state on May 14, 1948, expressly stated that the form of government in Israel would be based on a constitution. The declaration also provided for temporary institutions, meant to serve until an elected Constituent Assembly adopted a constitution that would establish the permanent institutions of government. The declaration stated that Israel was a Jewish state, and promised equal civil, political, and social rights to all its citizens. Several draft constitutions for the Jewish state were prepared prior to independence. One of them, composed by Leo Kohn, had even been selected as the starting point for deliberations.

But a great deal changed with the War of Independence, and when elections for the Constituent Assembly were finally held in February 1949, the provisional People’s Council, which had served until then as the country’s legislature, transferred ordinary legislative responsibilities to the newly elected body, which it was supposed to exercise while simultaneously carrying out its mandate for crafting a constitution. In early 1950, the assembly, which had renamed itself the “First Knesset,” conducted a lengthy and exhaustive debate on the subject of the constitution, which ended with an agreement that became known as the “Harari decision”: The process of creating a unified, supreme constitution would be postponed, and the Knesset would pass a number of “basic laws,” which would ultimately be brought together into a constitution at some point in the future. The task of crafting the basic laws and creating a constitution out of them was given to a standing committee of the Knesset, the Committee on Constitution, Law, and Justice.²⁷

The Harari decision was the product of the first attempt by Israel to govern itself by means of a constitution serving as the supreme law of the land. Scholars may argue over whether it was the best decision to make under the circumstances, but the fact remains that no formal constitution has yet emerged from the process it started, and it is worth recalling what led the country’s leaders to refrain from decisive action at Israel’s original, constitutive moment.

The decision not to enact a constitution shortly after statehood has generally been attributed to the principled opposition by the religious parties to any constitution that might be seen as competing with the supremacy of the Tora. Such an explanation falls short, however. Although at no time did they give their in-principle support to adoption of a constitution for Israel, the religious parties did, in the first years of statehood when a constitution appeared inevitable, cooperate in the process in order to ensure that their interests would be protected. Rather, there were other factors behind the decision to postpone the framing and ratification of a constitution. The most effective opposition came from key leaders of government, particularly Prime Minister David Ben-Gurion. Ben-Gurion was of the opinion that the proportional election system, which was copied from the institutions of the yishuv, would not allow sufficiently effective rule, since it guaranteed that a large number of small parties would succeed in electing representatives to the legislature; he therefore did not want to enshrine it in a constitution that would subsequently be difficult to amend. He also was concerned that any constitution adopted by Israel would set up an extensive system of checks and balances that would limit the power of the government. He therefore preferred to rely on the pure parliamentary system that Israel had inherited from the Mandatory period, which gave substantial leeway to the party that dominated the government coalition—which for the foreseeable future seemed likely to be Ben-Gurion’s Mapai. Ben-Gurion consistently opposed a constitution, limitations on the legislative ability of the parliament, and judicial review of Knesset legislation that would be based on the principles of a constitution and a bill of rights. In his eyes, a young nation that was literally fighting for its life against external enemies and had, at the same time, to contend with economic hardship and massive immigrant absorption could not allow itself the luxury of severe structural limitations on the power of the government. In its first years, Israel was therefore a highly centralized state, with a limited civil society and strong governmental control over all spheres of life.²⁸ In other words, Ben-Gurion saw the prospect of adopting a permanent constitution not merely as unessential for the welfare of Israel, but as an obstacle to the governance of the country.

Moreover, many Israeli leaders were reluctant to open up the painful ideological debates that would have accompanied any serious constitutional effort, particularly in light of the other pressing matters at hand. Two such debates were central at the time: The controversy over whether the Jewish­ness of the state was essentially national and cultural, or religious in nature; and the question of whether the nation’s economy should be conducted according to socialist or market-based principles. It is very telling that a third issue was scarcely ever mentioned: The status of non-Jews, especially Arabs, in the new state.²⁹ The first controversy was dealt with through a compromise known as the “status quo agreement,” under which secular and religious groups reached a modus vivendi to which both sides adhered for some time. The second was addressed through arrangements that struck some measure of balance between a strong welfare state and private initiatives. Both sets of arrangements were not very consistent or coherent, and would not have coexisted well with enforceable constitutional declarations.

The consequence of the Harari decision was that Israel established a parliamentary democracy along the Westminster lines, including the principle of parliamentary sovereignty, according to which the legislature was considered the supreme authority. But although the general question of what system of government would obtain in Israel was resolved rather quickly, the process of enacting a written constitution through basic laws proved to be a long one, with the first such law not passing until 1958, and with a total of only nine being enacted over the state’s first four decades. Moreover, these laws did not offer the kind of long-term stability one might expect from the pillars of a national constitution: Eight of the nine were enacted through ordinary parliamentary procedures and could be similarly changed. The key exception was the first such law, Basic Law: The Knesset. One of its clauses stipulated that elections to the legislature would be national (instead of regional), that they would be based on proportional representation, and that they would reflect principles of equal opportunity for all parties and voters. This clause reflected the existing situation: Ben-Gurion had failed in his attempts to move away from the system of proportional representation, and the opposition parties and small coalition partners, fearing future attempts to change the system, insisted on anchoring the status quo in the law, such that it could be changed only by a special majority of 61 members of Knesset (out of 120).

This “entrenchment” of the first basic law led to the beginnings of judicial review of Knesset statutes: In 1969, the Supreme Court, in the case of Bergman v. the Minister of Finance, overturned the Party Financing Law, which denied financing to new parties, on the basis that this law violated the principle of equality as established in the basic law.³⁰ A few commentators sympathetic to the expansion of judicial power hailed the decision as the harbinger of a new era and the end of parliamentary sovereignty; but most others, and the courts themselves, saw Bergman as the very rare exception. Basic laws which were not entrenched by a requirement of a special majority were seen as regular laws for all practical purposes. According to this view, their status as “basic laws” did not in itself give them superiority over other laws, and certainly did not form a basis for the judicial review of Knesset legislation.

For the first three decades of the state, there was no strong demand for a constitution. The reasons against having one were still valid, and the political framework, while not perfect, seemed adequate to the challenges facing Israel. During this time, no serious attempts were made to alter radically the political structure of the state or the protections it offered to individuals and groups within it.