For all its good intentions, the process of gradual passage of basic laws, augmented by a “constitutional revolution” led by the Supreme Court, has done little to fill the most important role of a constitution, which is the establishment of permanent, stable arrangements that are the product of genuine compromise, assuring each of the country’s factions that its vital interests will be protected, and that ordinary politics can therefore be conducted without the fundamental framework coming under constant review. On the contrary, the process has only deepened the suspicions in certain sectors that the power of the judiciary is being used by their opponents to make gains that could not have been secured through the political process. It seems that the only serious alternative to the current constitutional process is the adoption of a comprehensive written constitution, through a process in which all major matters of controversy are put on the table and all the sectors of society are encouraged to take part. The American experience is useful in showing us whether such a project is really feasible—and what would be required to carry it through.

 

The American constitutional process succeeded for three basic reasons: First, it was a matter of consensus that the fledgling United States required some sort of constitution, and that the extant arrangement was inadequate; second, a compromise was found that established a new, shared framework while at the same time protecting the vital interests of those groups who were most fearful of what change might mean for them; third, the particular process of drafting the constitution and ratifying it was one that facilitated the necessary compromises, secured robust public debate, and bestowed upon the new constitution a broad sense of legitimacy.

Given the current state of affairs, it is tempting to conclude that any effort to replicate the American success in the Israeli context is doomed from the start. Indeed, there is no shortage of voices in Israel claiming that real negotiation among the major groups of society is simply impossible. Instead of quixotic bids for a comprehensive constitution based on consensus, some of these skeptics argue, why not repair the current system through legislation and other tools of ordinary politics? Others propose to complete Israel’s constitution in a way that avoids the stormy and protracted public debate which would precede any agreement by consensus, and would therefore cast doubt upon the success of any such effort. This latter view, it seems, is the primary motivation for the judicial “constitutional revolution” and its supporters in the Knesset.

My reading of the Israeli situation and the American experience suggests that the process is of the essence, and that shortcuts will be neither effective nor desirable. Of course, the success of such a process is far from guaranteed. But the same may be said for the American effort in 1787—otherwise, no one would have spoken of a “miracle at Philadelphia.” There can be no guarantee of success, but this in no way absolves us of the responsibility to try. To understand why this is so, it is worth taking a closer look at the arguments that have been made in opposing such an effort. 

The most popular version of the skeptical argument runs as follows: When the first Knesset accepted the Harari decision, Israel effectively passed up its only real opportunity to forge a constitution. Constitutions are usually adopted in times of crisis, at watershed moments in a nation’s history, and especially in the period immediately following war or revolution. Alternatively, nations may adopt constitutions when it is clear to everyone that their system of government is unworkable, and that only a fundamental overhaul can preserve the state. Such was the case, for example, in the United States on the eve of the Philadelphia convention: The failings of the Articles of Confederation were serious, clear, and agreed upon.⁴⁰ It follows, according to this argument, that Israel missed the historical boat when it failed to adopt a constitution at its founding—and if it failed then, could it possibly succeed now, in the course of ordinary politics? And even if a constitution could cure the ills of Israeli political life, the argument continues, entrenched political interests would never allow one to be adopted.

In considering this claim, we should not forget that in 1787, the Articles of Confederation still had many strong supporters in America. Over the course of more than a century, each of the colonies had developed its own identity and a sense of being different from its neighbors. In each colony, an independent government had arisen that was dominated by a few dozen politicians, who enjoyed the power and prestige associated with controlling that colony’s resources. After the War of Independence, widespread opposition to centralized power gave an ideological basis to their claims for continuing to exercise power, while the Articles of Confederation institutionalized their stature and that of the governments they controlled. In every state there were great men, such as Patrick Henry of Virginia and Samuel Adams of Massachusetts, who could eloquently defend the status quo as a matter of principle. If we did not have the benefit of hindsight, we would have to agree that the odds in 1787 were heavily against any effort to enhance dramatically the role of the central gov­ernment, such as that entailed in the constitution. Yet it succeeded all the same.

Furthermore, while it is true that there are many in Israel today who oppose the adoption of a formal constitution, the idea also has numerous supporters both within the political echelons and outside of them. In recent years, the belief that the drafting and adoption of a constitution is necessary in order to help contain the divisions in Israeli society has gained in popularity. Already in 1988, two-thirds of the Israeli public supported the adoption of a formal constitution.⁴¹ In August 2000, on the eve of the current outbreak of violence, the percentage of supporters had risen to three-fourths of the population.⁴² Today, after more than a full year of conflict within the territories and terrorist attacks on Israel’s cities, which have heightened the sense of crisis and solidarity among Israelis, support may be even greater.⁴³ For this reason, many leaders from across the political spectrum have endorsed the adoption of a constitution, provided that it is devised in a way that takes into account the views of the great majority of Israelis.

A further claim against an effort to draft a constitution has to do with the quality of leadership evident in Israel today. No constitutional process can succeed without the benefit of imaginative and decisive leaders, who are capable of advancing creative compromises and agreeing to painful ones. Without such leaders, the proponents of a constitution cannot prevail—neither in America then, nor in Israel now. According to this view, the prospects of finding in Israel leaders of the caliber of Hamilton, Madison, Washington, and Franklin are slim. And some will go so far as to see a similar crisis in leadership throughout the entire modern world.

What can one say to this? The fact is that around the world, the right individuals have often somehow emerged at the crucial moment, to provide their people with the leadership needed to adopt a constitutional solution in the face of great difficulties. Examples of this from just the past quarter-century include Adolfo Suarez in Spain after Franco’s death, Pierre Trudeau in Canada in the early 1980s, and Nelson Mandela and F.W. de Klerk in South Africa during the transition to majority rule there. It is said that no man is a prophet in his own city, and Israelis find it difficult to imagine who among them would be capable of leading the constitutional charge. But Israel does have men and women who are capable of statesmanship and elevated public debate, and political entrepreneurship of the kind needed to succeed in the successful adoption of a constitution. To bring them together will not be easy, but Israel has made extraordinary efforts in the face of far more daunting challenges in waging war and making peace, and it seems unduly pessimistic to assume that the nation’s leaders are incapable of making a similar effort to draft a constitution that will bring a sense of partnership within Israeli society and provide a greater measure of political security to all its constituent groups.

But what if Israeli society is so divided that no constitutional package will be acceptable to all the major factions? For all that disunity is a powerful incentive for adopting a constitution, it is also a major obstacle. What if a constitution just is not seen as being worth the price that one faction or another will be asked to pay?

In answer to this concern, it must be recalled that the fledgling United States, too, was a profoundly divided society. Tensions ran high between farmers and city dwellers, between easterners and settlers on the western frontier, between the North and the South. These divides were often cultural as much as ideological, and held the potential of tearing the union asunder. Nevertheless, the various groups were able to come to agreement on the constitution, because they came to appreciate its many advantages. In Israel as well, a constitution is demonstrably in the interests of all the major groups, and enlightened self-interest can bring them together regardless of how divided they appear to be.