The crisis in Israel is growing ever more acute. After a hiatus of a few weeks, Israel's parliament (the Knesset) passed one part of the judicial reform bill with massive protests nationwide. The United States has expressed reservations about the reform with President Biden urging Prime Minister Benjamin Netanyahu to focus on "pulling people together and finding consensus."
Indeed, it seems clear that no one has a long-term solution to this problem—and if this government falls, the next one can pass legislation overturning this new law, since the Knesset can change both how its Supreme Court Justices are selected and what matters the court can adjudicate at any time.
The answer to all this is in front of us: Israel needs a written constitution that cannot be changed by the Knesset.
Israel's Declaration of Independence makes it clear that this was the plan all along, that the new nation would be a constitutional Jewish democracy with minority rights.
WE DECLARE that...regular authorities of the State in accordance with the Constitution .... shall be the Provisional Government of the Jewish State, to be called "Israel."
It then notes:
THE STATE OF ISRAEL will be open for Jewish immigration and for the Ingathering of the Exiles; it will foster the development of the country for the benefit of all its inhabitants; it will be based on freedom, justice and peace as envisaged by the prophets of Israel; it will ensure complete equality of social and political rights to all its inhabitants irrespective of religion, race or sex; it will guarantee freedom of religion, conscience, language, education and culture...
Israel's loyalty to personal freedom for its citizens has been impressive. In a region of the world where personal liberty is a dirty word, Israel proudly holds (perhaps too many) free and fair elections. It remains a democratic nation in an area of the world with little openness.
Yet, Israel has not adhered to one of the Declaration's promises—Israel never adopted a constitution. The causes for this failure abound. As the late Rabbi Emanuel Rackman, president of Bar Ilan University, noted in his book Israel's Emerging Constitution, Israel's first leader, David Ben-Gurion, opposed the creation of a written constitution to maximize the flexibility of its Knesset; additionally, some religious parties were afraid that it would prove hard to fairly define the role of religion in such a young nation. Finally, Israel was under constant attack by its neighbors and even some Arab citizens in its first 25 years—which created a lack of stability needed to write a constitution.
This is not surprising: America failed in writing its own magnificent Constitution until its Revolutionary War ended.
Instead, Israel adopted the Harari compromise (named after its major advocate, Yitzhar Harari), that parliament codify some basic laws and call it a constitution. Over the course of many years, Israel has adopted 14 basic laws that have slowly developed the status of a quasi-constitution, which the Israeli Supreme Court now uses to overrule other laws passed by Knesset.
The problem with this approach is obvious now: the Knesset can—and does—pass new basic laws any time by simple majority vote, "amending" the "constitution" any time it wishes. Five Basic laws have been passed since 1990. Important questions of structure—such as how judges are appointed—are determined by laws passed by the Knesset, tempered only by mass protests. Imagine if a majority of the U.S. House of Representatives could unilaterally amend the Constitution in America, limited only by popular protest?
Indeed, the basic idea of a constitution is that it comes from the people and binds the legislators, and not that it comes from the legislators and binds the people.
Thus, the current problem in Israel is not that the recent proposals are wrong or not, but much deeper: the Founding Fathers and Mothers of Israel understood when they signed its Declaration of Independence that a constitution was needed to prevent the overreach of power that naturally occurs in a parliamentary system. Majority rule needs to be limited by a written constitution that grants rights and cannot be diminished by a temporary majority in the legislative branch. Legislators and courts need structures and roles that cannot be changed by them.
The current complex situation in Israel is caused exactly by the absence of a constitution, and would be avoided if there were a constitution.
Allow me to suggest, humbly, what Israel's needs to do. Israel needs a constitutional convention which shall be charged with preparing a written constitution to be ratified by the people. This constitution should set out the rights and responsibilities of the government, the rights of the people, the role of courts, the various freedoms all shall have, the role of religion and much more, like constitutions do in all Western democracies. This constitution should be ratified by the people via referendum and would not be susceptible to a mere Knesset vote. Constitutional ground rules are needed for stability.
In this way, Israel can finally—in its 75th year—fulfill the promise of its Declaration of Independence.
Michael Broyde was a Fulbright Scholar at Hebrew University, and is a law professor at Emory University.
The views expressed in this article are the writer's own.
