Of course, this answer only goes so far. While in all constitutional efforts, stability and support are likely to be the fruit of painful compromise, in some countries the dividing issues seem deeper than in others, and it may be commensurately more difficult to persuade groups of what they stand to gain, particularly in light of each group’s fear that its concessions will be tangible and permanent, while those of other groups will be only apparent or temporary. This is indeed the case in Israel today. And yet, it is still the case that a constitution for Israel would hold great promise for all major groups, including the Arabs and the haredim, who are the most reluctant to join in the effort. If careful attention is paid to the design of the constitution and the process of its adoption, success may yet be in the offing.

Furthermore, the concern that some groups might take advantage of the process to make unreasonable demands, rather than compromises—a fear which could persuade some not to take part in the process at all—could be addressed in part by adopting another of the American founders’ principles: No single faction should be granted veto power over the formulation, acceptance, or amendment of the constitution. The requirement of unanimous consent of all the states for every amendment or significant decision was what eventually sank the Articles of Confederation. It was in response to this weakness that the Philadelphia convention gave any nine states the power to render the constitution operative. When powerful factions in a number of states understood that they would not be able to prevent the adoption of the constitution by the majority of their neighbors, they were far more willing to negotiate the conditions of their own entry into the union. At the same time, on the issue which was most important to the smaller states—namely, the question of equal representation in the Senate—these states were given a kind of veto power over future changes in the method of representation. Israel is not a federation of states but a single, unified country, and does not have the luxury of leaving any group completely outside the state’s jurisdiction. But the idea of not granting veto power to individual factions can have its application in the Israeli context as well; once a way is found to address the fears of all constituent parts of Israeli society (including the possibility of giving them veto power on specific issues), it may be decided that the process of adopting and amending the constitution need not require the agreement of all of them. Such an approach, in turn, may create the proper incentive for participation and negotiation by the major groups.

In Israel, certain groups are bound to oppose the constitutional process out of fear that the result might incorporate principles which are unacceptable to them—such as religious pluralism in the case of the haredim, or an acknowledgment of Israel’s Jewish-national character in the case of the Arabs. If, however, these groups’ representatives see that a large majority of Israeli society supports the constitution and is prepared to pass it without waiting for unanimous support, and that this majority is willing to enter into good-faith negotiations with them in order to address their concerns, they will have little choice but to take part in the negotiations in order to work out the best conditions their political standing allows them to achieve.

Once again, while it is important that no group be given veto power, it is nonetheless highly desirable that all major groups take part in the constitutional process. It is, of course, possible to pass a constitution defining Israel as a Jewish state without the consent of Israeli Arabs. After the fact, Israel’s Arab citizens might even come to conclude that Israel with such a constitution is better for them than Israel without one. Even so, their nonparticipation in the drafting stage would open the door for claims that the Jewish-state clauses alienate Arab citizens and undermine the constitution’s democratic validity. In such a case, the Arabs would probably intensify their efforts to strip Israel of its Jewish character, and the divide between Arabs and Jews in Israel would only deepen. For this reason, it is important that the Arabs be kept in the constitutional circle, and that they be persuaded that taking part in drafting the new constitution protects their vital interests far more than maintaining the current system.⁴⁴ Their participation will lend the Jewish character of the state an added legitimacy, while at the same time requiring Arabs and Jews to see how this Jewishness can be squared with the full civil and political equality of citizenship which democracy requires.

This is no less true for the haredim. It might be possible to pass a constitution against their will, but it is far better to include them in the process—even if for symbolic reasons they give only a low-profile sort of approval, in the form of an agreement not to oppose the constitution. The haredim have a great deal to gain from the confirmation of Israel as a Jewish state. The constitution would establish their right to public support of their schools, their communal autonomy, and their religious freedom. Obviously, from their viewpoint the constitution will carry a price. They will have to give their (perhaps tacit) approval to secular institutions, including the Supreme Court, and to accept the fact that the law of the land is not identical to the halacha. They might have to accept some redistribution of the national resources from which they currently benefit. And they will have to accept that Israel must strengthen its universal civic affiliations, and that all residents must shoulder part of the burden of public service. But some of these concessions have already begun to be made. If a way can be found to reassure the haredim that they will have a real say in the constitutional process, they may well find that the advantages of a constitution outweigh the disadvantages.⁴⁵

Naturally, the most ardent supporters of a liberal, Western-style constitution for Israel will also have to pay a stiff price for a stable and successful outcome. Some of those groups seem to regard a constitution as a way of maintaining their own elite status and restraining various minority groups whose power seems to be on the rise. But a constitution that is seen as permanently institutionalizing the Western, secular-liberal vision of the good life would indeed be counterproductive, and is highly unlikely to be adopted. Both the declaration of values and the institutional framework, including the handling of judicial review and the structure of the judiciary, would have to be the subject of negotiation.

But it is a mistake to think that a constitution, by itself, can resolve the disagreements of Israeli society in favor of one faction or another. Adopting a constitution cannot excuse us from ongoing efforts to resolve the painful issues on the public agenda. On the contrary: The successful constitutional enterprise is one that secures a shared political framework within which all factions may try even harder to win support for their visions of the good life. For example, even if the constitution defines the state as Jewish, a long and difficult discussion will have to take place over what such a definition entails. The Law of Return and matters of religion and state may continue to vex the nation for years or even decades. On some issues, tentative first steps may be taken during the constitutional process, but most progress will have to wait for the debates over primary and secondary legislation that will follow. As long as there is no consensus in Israel on the good life, its constitution must be, in Oliver Wendell Holmes’ words, “made for people of fundamentally differing views.”⁴⁶ The adoption of a constitution is an important phase in the strengthening of the Israeli political system and in preparing the people of Israel to confront the most difficult questions facing its public life—but it will not be a cure-all for the nation’s ills.

At the end of the day, we cannot be certain that any constitutional process will end in success. For that to happen, all sides will have to prepare themselves for the serious reconsideration of their vital interests that real compromise will undoubtedly entail. Israelis will have to work hard to keep an eye on the larger picture of the good of the country, or else the entire effort might end in failure, and we may even wonder whether we were not better off without it. But the chances of success are higher than many Israelis are inclined to think—surely too high for us to throw up our hands in despair before we have even begun.⁴⁷

 

If any such constitutional effort is to succeed, however, two things must become clear in our minds before we begin. First, we must develop a clear understanding of what problems a constitution is or is not supposed to address; otherwise, we may well find ourselves solving problems that do not require constitutional resolution, while leaving more crucial issues unaddressed. Second, we must develop a process of drafting, ratifying, and amending the constitution that will maximize the likelihood of producing the kind of constitution that can indeed fulfill its proper role.