Why the deepening judicial crisis could be Israel’s constitutional moment

Israel’s democracy is in imminent danger, hundreds of thousands of protesters have been warning for months now in a dramatic series of protests against the Netanyahu government’s plans to overhaul the judiciary.

Friends of Israel in Europe and the US are sounding similar concerns. They caution that weakening Israel’s Supreme Court in relation to its other governing branches and increasing political control over the judge selection process will fundamentally alter the country’s democratic character.

But the fight over judicial reform could, potentially, bring about progress in a positive direction — if the battle over the role and powers of Israel’s branches of government were to finally bring about a long-delayed pillar of democracy: a written constitution.

Seventy-five years since its founding, Israel still does not have such a document. Though the current row is over the Netanyahu government’s proposed overhaul, some voices on both sides are increasingly recognizing that this could become Israel’s constitutional moment. If — and in the current fevered climate, it is a big “if” —  the crisis does end up leading to the completion of what was meant to be finished in October 1948, hindsight may tell us that we are already deep into that moment.

And if Israel’s decision-makers do decide that the current plight is actually a historic opportunity, then there is much to learn from the oldest written and codified national framework document still in force today — the 1789 United States Constitution.

The sovereign Knesset

Even before Israel was born, a constitution was meant to be one of the first tasks undertaken by the fledgling state. The 1947 UN Partition Plan explicitly called for the Jewish and Arab states in Palestine to draft democratic constitutions.

The vote on the United Nations Partition Plan for Palestine, or United Nations General Assembly Resolution 181 on November 29, 1947. (GPO)

Israel’s founders had similar expectations. The Declaration of Independence demands a constitution, even giving a very clear deadline, speaking in its 12th paragraph of “the Constitution which shall be adopted by the elected Constituent Assembly not later than the 1st October 1948.”

Leo Kohn, a legal officer at the Jewish Agency, produced three drafts of a proposed constitution that year. But instead of adopting one of Kohn’s or writing its own, the Constituent Assembly formed itself into a legislature, the Knesset, without passing a constitution.

In January 1950, David Ben-Gurion, Israel’s first prime minister, addressed the Knesset’s Constitution, Law and Justice Committee and utterly rejected the idea of passing a written constitution. He argued that it was unnecessary: “If a constitution means a ceremonial declaration void of legal power, of certain principles, then we already have such a thing: the Declaration of Independence.”

Israel’s first prime minister David Ben-Gurion stands at attention as the national anthem, Hatikva, is played at the Knesset opening ceremony in 1949. (GPO/Hugo Mendelson)

“If a constitution means a series of laws that establish the country’s regime — we certainly need such laws and they already exist here,” he continued. “There is a president and his authorities are defined. There is a sovereign Knesset. There is a parliamentary government, there is a Supreme Court, etc.”

Then he tore apart the idea of a US-style constitution. “But if a constitution means a law or tractate of laws that have a different legal standing than that given to the other laws, that can’t be changed like other laws are fixed and changed, then we must ask: Why give one law more power than another law?… What authority do we have to tie the hands of those who will be elected to the Knesset in another year or five?”

Ben-Gurion thought an unelected Supreme Court would be a reactionary body of elites, standing in the way of the inevitable march toward increasingly progressive policies. Notably, he looked at the US Supreme Court as the specter he was trying to avoid.

Prime Minister Benjamin Netanyahu (left) and Supreme Court president Aharon Barak at a September 1998 Supreme Court ceremony marking 50 years of the Israeli court system (GPO via Wikipedia)

Instead, the Knesset enacted a compromise between the several small parties that were in favor of a constitution to limit the government’s power, and Ben-Gurion’s Mapai party, which seemed to expect to rule in perpetuity. Under the “Harari Resolution,” the Knesset instructed the Constitution, Law and Justice Committee to prepare a piecemeal constitution based on separate Basic Laws, which would together comprise a pseudo-constitution.

Still, it took lawmakers until 1958 to pass the first one, and by 1992, the Knesset had only passed nine Basic Laws, most of which did not have constitutional supremacy (with the exception of two, which had entrenchment clauses giving them supremacy over other laws). Over that period, the Supreme Court repeatedly rejected the opportunity to declare that it had powers to strike down laws passed by the Knesset.

Things began to change in 1992, when the Knesset passed the first Basic Laws dealing with human rights — Freedom of Occupation, and Human Dignity and Freedom — both of which included entrenchment clauses.

While Knesset members seemed largely unaware that they were creating elements of a constitution or granting powers of judicial review to the justices, Supreme Court President Aharon Barak decided otherwise.

Supreme Court justices arrive for a hearing at the Supreme Court in Jerusalem, October 6, 2022. (Yonatan Sindel/Flash90)

He ruled in 1995, in the case of United Mizrahi Bank v. Migdal Cooperative Village, that the Basic Laws enjoyed constitutional status, and therefore the Supreme Court could invalidate laws passed by the Knesset if they did not comport with the Basic Laws.

Known as Barak’s “constitutional revolution,” the case was akin to the 1803 Marbury v. Madison ruling by chief justice John Marshall that established the principle of judicial review in the US.

Since then, the Knesset has passed only three more Basic Laws (while amending the existing ones repeatedly), including controversial 2018 legislation that defines Israel as the nation-state of the Jewish people.

President Reuven Rivlin (L) and retired Supreme Court chief justice Meir Shamgar. (Mark Neiman/GPO)

There have been also abortive attempts to create a written constitution — most notably a 2007 Israel Democracy Institute draft spearheaded by former chief justice Meir Shamgar — but none gained purchase.

Seventy-five years after its founding, Israel finds itself in a full-blown crisis about its national identity, structure, and legal system, the very issues a constitution is meant to settle.

“Israel doesn’t have a structure for resolving governing disputes,” Yuval Levin, senior fellow at the American Enterprise Institute, told The Times of Israel. “The basic question of who decides — when authorities disagree — has to be resolved in advance and not in a crisis.”

Compromise in Philadelphia

When the United States found itself in its own political crisis in its first years — as the new states pushed wildly differing views on the proper structure and authority of the national government — it took a constitution to set the country on firm footing and bring the sides to difficult compromises.

As 55 delegates gathered in Philadelphia in 1787 to revise the Articles of Confederation, the United States faced multiple threats. With a weak central government, Indian wars on its borders, Barbary pirates preying on US vessels, and virtually no standing army, American leaders had no shortage of pressing issues to handle.

Scene at the Signing of the Constitution of the United States, a painting by Howard Chandler Christy (public domain)

The debates focused on three issues in particular, said Patrick Coby, professor emeritus at Smith College: the nature of representation in the legislature; the strength of the executive against the legislative branch; and slavery.

Many of the delegates didn’t even intend to create a constitution, but to simply amend the Articles of Confederation. But James Madison and his cohort of nationalists took control of the convention from the outset and steered it toward the creation of a constitution.

They fought over representation in June, finally settling the issue on July 16 with a compromise acceptable to both small and large states — a bicameral legislature with different representations in each house. “Once that was finished, everybody realized the convention was going to succeed,” said Coby.

Detail of the Preamble to the Constitution of the United States (Public Domain)

They then solved the executive branch, and moved on to the even more visceral issue of slavery.

“They compromised, obviously,” said Coby. “They bundled it with trade, commerce and representation and put something together that allowed slavery to continue, and even slave importation to continue.”

Even after compromises were hammered out in Philadelphia, the work wasn’t done. It still had to be ratified by 9 of the 13 states, and opponents fought hard against it in places like New York and Virginia.

“It was a close vote, but in the end, the losers all applauded the event and were happy to agree to a constitution that they had assisted drafting,” Coby explained.

Despite the early hurdles, the constitution proved a vital and durable foundation for the US to grow steadily into a world power, and to navigate bitter domestic strife

But a constitution didn’t mean an end to the fighting. Quite the opposite.

“It got off to a rocky start,” said Coby. “The political debates of the 1790s were more vitriolic than anything that occurred in the country since, and probably possibly even including the Civil War, and I think easily eclipsing the divisions that occur in America today. It was incredibly nasty what people were saying to each other, and largely because Alexander Hamilton, the secretary of treasury, was imposing upon the constitution an understanding that others did not think was there in the text itself.”

But it provided a framework in which the fight could occur in a constructive fashion. Despite the early hurdles, the constitution proved a vital and durable foundation for the US to grow steadily into a world power, and to navigate bitter domestic strife.

Israel’s time

Even before the fight over judicial reform, some experts in Israel were calling for a constitution as the best result to emerge from political crises. In March 2020, amid a series of indecisive national elections, law professor Yaniv Roznai wrote (Hebrew link) that “this constitutional crisis must become an opportunity to create a constitutional moment.”

No one heeded the calls then, but with deep fissures appearing throughout Israeli society over the implications of the judicial fight, calls are now intensifying for a written constitution.

Protest leader Shikma Bressler tweeted in April, “A constitution. There is nothing more pressing these days.”

חוקה. אין דבר נחוץ מזה בימים האלה. pic.twitter.com/vEeh8JdLiA

— שקמה ברסלר Shikma Bressler (@ShikmaBressler) April 22, 2023

“I think that this is an important and not only a constitutional moment, but even a decisive one in all respects,” said Irwin Cotler, former Canadian justice minister.

President Isaac Herzog has also recognized the opportunity offered by the domestic turmoil. “It’s a potential for a constitutional moment,” he told The New York Times. “We can direct Israel into a stronger and more resilient structure.”

President Isaac Herzog gives a primetime speech pleading for compromise on the judicial overhaul plan, on March 9, 2023. (Haim Zach/GPO)

In April, Opposition Leader Yair Lapid called explicitly for a constitution based on the Declaration of Independence and the Basic Laws. “The old Israeli contract is no longer valid,” he said. “The system is no longer in balance.”

“In order to set of on a new path, we must write a new Israeli contract… In other words, we must write a constitution.”

Levin, the American political theorist, agreed that the current political crisis has sparked at least a degree of recognition of the need for a written constitution.

“There’s more of an openness and acknowledgement than I’ve seen before,” he said, “but it’s still very much an elite idea.”

Creating a constitution, Levin argued, is a necessary measure to address the divisions laid bare in recent months. “It’s not only peripheral. It’s at the core of the problem.”

But not everyone agrees a constitution is the solution to Israel’s deepening domestic strife.

Pointing to the power of the Supreme Court “is a convenient bogeyman that the right can blame for not getting its policies through,” said Gideon Rahat of the Israel Democracy Institute.

Prof. Gideon Rahat, senior fellow at the Israel Democracy Institute’s Political Reform Program (Courtesy IDI)

But formulating a constitution “won’t solve any problem,” he continued. “Who would interpret the constitution? The court. There is no one else that can interpret a constitution.

“In the end you always return to the court.”

Israelis lean on two arguments today to justify their lack of a constitution — that the parties are so far apart that no compromise is possible, and that Israel is too busy fighting existential wars to be bothered with the nuances of political structure.

But the arguments don’t hold up to even moderate scrutiny. It’s been 50 years since the Yom Kippur War, the last time Arab armies rolled into Israeli territory. In that sense, Israel is as secure as it’s ever been.

Right-wing Israelis attend a rally in support of plans by Prime Minister Benjamin Netanyahu’s government to overhaul the judicial system, outside the Knesset on Thursday, April 27, 2023. (AP Photo/Ohad Zwigenberg)

And internal strife isn’t a reason to eschew a constitution. On the contrary, “constitution building only happens in a divided society,” said Levin. “Division is not an argument against, it’s an argument for.”

What’s more, the United States under the Articles of Confederation — which produced the longest-lasting national constitution in the world — was far less secure and far more fractured domestically than Israel is today.

“Israel has much more solidarity and unity as a nation than America did in 1787,” said Levin. For all the divisions currently laid bare, he said, “It has tremendous stores of patriotism and solidarity.”

But even with that solidarity, the best chance the warring sides have to engage in serious talks on creating a constitution may have passed. The talks hosted by Herzog at the President’s Residence broke down, and if pieces of the judicial reform are passed this week, the chances the talks will ever restart become slimmer.

Without a framework for fighting over deep political disagreements, Israel will find it ever harder to reach the kind of difficult compromises that allowed the fledgling United States to slowly become a superpower.