In this vein, it is crucial to remember that any constitutional process must engender broad popular support for the final product. One of the main goals of a constitution is to provide a stable basis of legitimacy for the fundamental structure of the branches of government. Such a shared political framework, representing the commitment of the state to the welfare of all its citizens and to some of their most deeply held values, is needed in order to permit the groups within the country to promote their separate visions of the good life within the framework of ordinary politics. Of course, we cannot know for sure whether such a framework can be reached—whether Jewish and Muslim religious groups, for example, will ever be able to live with the rule of secular authorities without constantly attempting to undermine the constitutional system; or whether Arab citizens will ever accept the legitimacy of a constitution which defines Israel as a Jewish nation-state. These are questions we cannot answer now. At the same time, we assuredly will not be able to answer them before we have made a serious effort. To that end, it is worth taking a look at the basic needs a constitution for Israel will have to fulfill.

The first is that regardless of the specific forms of government adopted, the constitution itself must be the supreme law of the land. All other laws that were enacted in the past, or may be passed in the future, must be acknowledged as subordinate to its authority. Moreover, the constitution must be clearly differentiated from regular lawmaking. It must be very stable; and it must provide for its own maintenance and security. It must surely allow for its own amendment, but only with great difficulty. Only in this way will the constitution be protected against majorities that may someday try to alter it in a way that harms those who are not in power. Groups that expect to be in the minority will probably demand heavy “entrenchment” of the supreme law as a condition of their consent to a complete constitution. Otherwise, minorities may fear, and with justice, that a day will come when the constitution is taken for granted, and the majority may not recall the reasons behind the concessions they had made, and be tempted to “improve” the constitution according to their own interests. Plainly, such fears, especially among the religious sector, have contributed to the delay in adopting a constitution for Israel. Only by convincing them that the painful compromises that others will be making on their behalf will not be easy to reverse later on is there any chance that such groups will consent to compromising in the first place. Unless the new constitution is both supreme and firmly protected against changes in the political winds, no such agreement will ever be reached. For similar reasons, the constitution should be comprehensive, finding some sort of resolution for all the major issues of dispute, so that no element of the whole system can be altered or renegotiated once others have already been sealed into law, thus upsetting the delicate balance that has been achieved. 

Finally, there is the question of what should go into the constitution. If the constitution is to serve as a unifying document, it should avoid declarations that are blatantly divisive. At the same time, if there is no basic agreement on commitments and values, what is the identity of the society constituted by the constitution? The American framers in Philadelphia had a very general, neutral preamble, as well as a “thin” institutional constitution, which did not include a bill of rights. In their mind, a bill of rights was not necessary for the creation of a successful constitution, since the protection of rights was ultimately in the hands of the individual states, and the federal government lacked the power to infringe on them in any case. But a bill of rights was added during the ratification process, because the American people, and particularly their representatives at the constitutional conventions, feared a strong central government. The dangers of counter­majoritarianism and judicial review seemed to them far less significant than the danger of tyranny coming from the central government.

In Israel, however, the circumstances are different. Ideally, a constitution for Israel should in fact proclaim the shared values of the Israeli polity and provide for their enforcement. In Israel, as in every open society, these values include democracy, the rule of law, just and consistent administration, and the probity and transparency of the conduct of government. To this we may add a general sense of civic solidarity, and a general commitment to values such as human dignity and freedom. These are universal civilized values, shared by all the major civilizations. Such a declaration, which would have the unified backing of the major segments of Israeli society, would make the constitution into an important vehicle for instilling these values among Israeli citizens.

These values are by nature vague, in that they do not dictate any particular solution to the problems facing society. But this ambiguity is their strength: They serve to unite the citizens around important value commitments, while giving the political branches the power to make specific decisions fitting the changing needs of society. If we were to incorporate into the constitution one of the competing visions of the good life (say, the belief in the superiority of Western liberalism), the constitution would become a source of alienation of those for whom such a determination would be unacceptable.⁴⁸

The same applies to a bill of rights. In principle, all groups could, and should, accept a commitment to universal human rights. However, the universality of human rights depends on their ambiguity and open-endedness. Constitutionalizing human rights, and especially giving the power to interpret their implications in an authoritative manner to a court, means that the power to adapt human rights to the structure and needs of the particular society is transferred from the public to the court. Unlike the political branches, courts are not fully representative, and they are not directly accountable to the constituent parts of the public and to their competing visions of the good life. There may be a real danger that courts will act as a power base for a particular segment of the population, undermining the interpretations of public interest and the good life held by large groups of the population. Indeed, this is the danger that has precipitated the opposition of large segments of Israeli society to granting the Supreme Court the power of judicial review over Knesset legislation. Supporters of the constitutional revolution, on the other hand, argue that the court is the right body to exercise review precisely because of its professional and countermajoritarian nature.

These issues are by no means unique to Israel. They exist in all democratic societies. What is unique to Israel, however, is that the debate is taking place in the absence of a clear prior constitutional arrangement. Although the question of the judiciary’s role has been high on the public agenda, the real debate in Israel is a deeper one: Not whether an established Supreme Court under a clear constitutional regime should enjoy the powers of judicial review and to what extent, but what should be the very nature of our judiciary, and of the constitutional arrangements themselves. I believe that Israelis have every right to ask these more profound questions, and that any other approach would be both undesirable and unwise.

All of this ties into the last and central point. The constitution, especially in divided societies, should be based on real and painful compromises made by allparties to the negotiations. The details of the constitution should emerge from a real process of negotiations. But at the outset it seems quite clear that the question of judicial review, and the identity and structure of the body to which such powers will be entrusted, should be seen as an important subject of these compromises. On the other hand, Israel is coming to drafting a constitution after more than fifty years of “ordinary politics.” It cannot design its institutions in a vacuum. It must start from what there is, and make whatever adjustments are necessary to reflect the new agreements. This will be one of the main challenges of the Israeli constitutional process. 

 

How could such a framework be achieved?

The first thing to remember is that any draft constitution that does not take sufficient account of the interests of all important groups is unlikely to be ratified, and if it were ratified, it would be unlikely to survive. In America, the major groups eventually threw their support behind ratification because they were convinced that the constitution on the table was the best comprehensive agreement they could achieve. In reaching this point, the specific process of writing and ratifying the constitution—the means employed and not just the abstract ideals—proved to be crucial. The chances of actually implementing a constitution that fulfills the minimal needs of the major groups in society and offers a good system of checks and balances depend on the method of its drafting and ratification. The American method may not be the only way to make a good constitution, but there is much sense in it, and Israel will do well to create a constitutional process which draws upon the American model.