To begin with, a small body, with representatives from all the major sectors of Israeli society, should draft a constitution. The Knesset cannot be this body, for the simple reason that all its members attained their positions via ordinary politics, and almost all of them plan on staying there by the same means. It would make no sense for members of Knesset to be the ones to decide the rules governing ordinary politics—including the powers vested in the legislature and the method and timing of elections. However, the Knesset should be charged with appointing the members of the constitutional committee, filling it not only with scholars from different fields, but also with leaders from the entire political spectrum who will bring to the deliberations their political stature, prestige, and experience in making compromises. This body, a sort of “Constituent Assembly,” will draw its legitimacy from the imprimatur of the Knesset. Ideally, it will conduct itself in accordance with the standard that Alexander Hamilton set out in The Federalist: The adoption of a constitution, not as a result of arbitrariness, chance, and power, but out of rational discussion and decision.⁴⁹ At the same time, we must recall that the relative strengths of the different forces represented in Philadelphia dictated to a great degree the final results, such that power and not only ideas came into play. This is no secret, and it did not invalidate the finished constitution. On the contrary, it strengthened it.

Moreover, it is worth bearing in mind that the deliberations in Philadelphia were not detached from the American political tradition. The delegates to the convention realized that respect for this tradition—such as the American predilection for local government and property rights—was critical, both in order to adapt the constitution to society, and to ensure that the constitution would win broad legitimacy. In Israel, too, it will be necessary to take account of the Israeli political tradition, so that the document that emerges will be acceptable to the great majority of the public. Some kind of balance between the Jewish and the democratic nature of the state will have to be found. The role of religion in public life will have to be addressed, and the American solution of a “wall of separation” between church and state is not likely to succeed in Israel. Israel needs to strike a balance between the need to grant different communities autonomy, and the strengthening of civic bonds between all Israelis. Finally, Israel does not have the luxury of ignoring questions of social and economic solidarity in an era of globalization. A viable constitution will have to address all these issues. 

From the American use of the “committee of the whole,” we can learn the importance of allowing delegates to reevaluate their positions continually, during all stages of deliberation, since every element of the constitutional system will be influenced by every other element. For instance, delegates are not likely to give their consent to a bill of rights as long as a final decision has not been reached on the question of judicial review. Supporters of judicial review will not be willing to consider limiting the jurisdiction of the Supreme Court unless they have reason to believe that they are paving the way for the inclusion of a bill of rights as a part of the constitution. Thus it must be decided from the outset that none of the tentative agreements reached in the course of negotiation will be binding until agreement is reached on the entire document.

The participants in this constitutional process will require not only the qualities of leadership and wisdom, but the greatest possible detachment from the pressures of ordinary politics and public opinion. When leaders are on the brink of great compromises, they must be able to negotiate without constantly reporting on their progress to the public. Otherwise, opponents of the process will exploit every opportunity to kill the negotiations in their infancy. To avoid this danger, careful measures will have to be taken, such as providing the delegates with alternative proposals ahead of time, and holding deliberations with absolutely minimal publicity.

In the second stage, after a constitution has been formulated in its entirety, it will have to go to the Knesset for approval. This will place a heavy burden of responsibility on the legislature. The constitution that the Knesset will be asked to consider will be, virtually by definition, one that could not have been produced within the context of ordinary politics. In Israel today, it seems unlikely that the Knesset would follow the Continental Congress’ example and send the draft constitution on to the stage of ratification without introducing any changes. Nevertheless, we might hope that legislators will show restraint, with the understanding that the central decisions in the constitutional process are not theirs to make. If the Knesset were to make fundamental changes in the package it received, it would likely upset the delicate balance of compromises that have been made in the constitutional committee, thereby robbing that body’s recommendations of their special legitimacy.⁵⁰

The trust that the Continental Congress placed in the constitutional convention in Philadelphia played an indispensable role in the constitution’s ultimate success. But it cannot reasonably be expected that the Knesset will willingly forgo a more central role in the constitution-making process than that which the Continental Congress played. At any rate, the organization of the Israeli process is bound to differ from the American model. We may have to satisfy ourselves with the procedure followed in most of the Central and Eastern European countries that emerged as democracies after the fall of the Soviet Union. There, the parliaments reserved the right to draft the constitutions, but in most cases accepted the recommendations of external round-table committees; as a result, what reached the desks of legislators was invariably the result of compromises reached outside of ordinary politics.⁵¹ Put another way, it is the extraparliamentary formulation of the constitution as a whole which is essential to any constitutional process, even if the precise role of the Israeli legislature is negotiable. In any event, the constitution must be passed by the Knesset by at least as great a majority as that which is required by the constitution in order to amend it. This condition is essential in order to maintain the document’s abiding legitimacy.

In the third phase, the constitution must be ratified, in its entirety, by the public. Despite the American founders’ ambivalence toward “the people,” they insisted that the privilege of constitutional ratification be given to representatives elected directly by the public for this purpose.⁵² They did not go so far as to advocate a referendum, but in the modern period, governments in many different countries, states, and provinces have in fact succeeded in placing critical decisions, such as constitutional amendments, border changes, or divisions of sovereignty, directly in the hands of the public via referenda.⁵³ The issue is still controversial, and there is still plenty of support for the framers’ caution toward such referenda, but a referendum has one major advantage: It emphatically reminds us that in constitutional matters, the people are the supreme authority. A constitution that wins the support of a clear majority of the Israeli public will garner correspondingly broad legitimacy. Moreover, the prospect of a referendum will impress on both the constitutional committee and the Knesset the importance of crafting a document that all segments of the public are likely to support. Thus the very existence of a referendum as part of the constitutional process may have a moderating influence on parties who might otherwise be reluctant to compromise. A referendum will also sharpen the distinction between constitutional and ordinary politics in the eyes of the public, leading the people to demand that their legislators rise above narrow interests and act for the public good.

In the phase of Knesset deliberations, and especially during the preparations for the referendum, the quality of public debate will be of crucial importance. A thorough, open debate should raise the important questions rather than avoiding them, and will encourage a careful weighing of issues on the part of politicians and common citizens alike. And a debate of this sort must be founded on mutual respect: The American constitutional debate, of which The Federalist was part, was rarely framed in terms of good and evil, of saints and sinners. Advocates of either side did not generally label their opponents “interested parties” or “corrupt,” and certainly did not make use of the preferred Israeli political epithet, “idiot.” All sides realized that the struggle over the constitution was not the last political battle America would see, and that it was but a single moment in the life of a nation. All sides would have to live with each other afterwards. The participants in the constitutional convention understood this well, and so the debate, even when highly spirited, was generally respectful.

Israel’s leaders, too, must understand this principle, for the constitution will not bring an end to disagreement, but only provide a stable framework in which to disagree. Acceptance of a constitution will signify that all parties are aware of these disagreements; that they seek not to vanquish their opponents, but to settle their disputes in a peaceable, orderly manner. Respect and an understanding of what a constitution can and cannot do are a part of the constitutional process itself. Without these, the trust and mutual goodwill that the constitution is supposed to reflect are likely to seem superficial or naive.