The crisis in Israel reminds us why a written constitution matters.
The crisis in Israel reminds us why a written constitution matters.
B e thankful that America has a written Constitution. The Founding Fathers were wise to write down the rules. The ratification of those rules by the people ensures democratic legitimacy for our courts in enforcing them against the political branches. Every American state likewise has a written constitution, ratified directly or indirectly by its people. Our courts are designed to check the periodic excesses of democracy, yet when they do so, they are enforcing the rule of written law made by the people — not overriding it.
Moreover, American courts are products of the elected branches. Federal judges are appointed by the executive and confirmed by the legislature. State judges are typically either appointed by the elected branches or directly elected by the people.
Written rules are especially crucial in times of conflict over power. I hesitate to consider how badly Donald Trump’s contest of the 2020 election would have gone if key actors in our own system (including Congress, Vice President Mike Pence, the courts, and governors and state legislatures) had not been guided by the Twelfth Amendment in understanding their duties and their oaths.
Without a written constitution, we might find ourselves facing the sort of constitutional crisis now wracking Israel. Israel’s elected parliament, the Knesset, is currently trying to stave off an anti-democratic coup by its judiciary. It has been ongoing for a while. Since 1995, Israel’s supreme court has claimed sweeping powers of judicial review unmoored from democratically written rules. The result has been to limit the power of the Israeli people to govern themselves, just as surely as if the country had a king or a theocratic council of clerics with a veto over legislation.
Worse, the Israeli judiciary essentially appoints its own membership through a committee on which the representatives of the Israeli people are outnumbered by the insiders. The nine-member Judicial Selection Committee that appoints the entire judiciary consists of three supreme court justices (including the chief justice, the “president” of the 15-member court), two unelected members of the bar association, the minister of justice, one other cabinet member, and two other members of the Knesset. The judiciary therefore more closely resembles a religious clergy or an academic faculty than it does the government of a democracy. This self-perpetuating oligarchy, closed to popular pressure and immune to infiltration by anyone dissenting from its orthodoxies, is antithetical not only to democracy but also to republicanism.
On behalf of the people, the Knesset is fighting back. Prime Minister Benjamin Netanyahu has proposed a package of new laws to rein in the judiciary. Some of the proposals on the table would fix the problem of a judicial assault on democracy, but they run the risk of creating the opposite problem: a tyranny of the majority unchecked by any limitations on its power to trample individual liberties that deserve more permanent protection.
A shortage of checks on the majority is already one of the inherent flaws of parliamentary systems like Britain’s — a flaw that progressives typically view as a virtue until they don’t like the elected government. Some British-style systems have written constitutions — Canada adopted one in 1982, 125 years into its nationhood — and some parliaments now effectively operate under a superior law by virtue of their countries’ membership in the European Union. Others, such as those in Israel and Britain itself, operate without any formal constraint upon the parliamentary majority, which wields powers unparalleled in America.
In our federal government, the executive power is divided from Congress. Congress itself is divided into two houses. One of those houses requires a 60 percent supermajority to pass new laws. Both houses and the executive are elected by different (though overlapping) constituencies on different schedules. Each of these features makes it much harder for the majority to get its way unless and until it builds broad and durable support and makes enough concessions to obtain it.
In a system such as those in Israel, Britain, and Canada, by contrast, virtually all executive and legislative powers are united in the hands of the executive heading the legislative majority. That majority is often (as in Israel) chosen all at once in a single, national election. Netanyahu currently controls the entire elected government of Israel based upon a single election in November 2022.
The Knesset is, moreover, a unicameral legislature, unlike Canada’s. In Britain, there remain ancient and mostly vestigial checks upon the House of Commons: the House of Lords (which had its last real levers of power broken in 1911 and 1949), the royal veto (which the crown hasn’t used since 1707), and, of much more contemporary importance, the British cultural reverence for tradition for its own sake and the British habit of muddling through without reopening questions of principle. Israel lacks all of these things, because its government was established in 1948, its nation is populated by modern immigrants and forged by nearly constant war for survival along fluid borders, and its political and legal cultures are much more contentious than those of the British. What it means to be an Israeli is very much still a live and disputed question in myriad ways. It would be uncharacteristic of Israelis to leave that question or its underlying premises unexamined or uncontested.
With 64 of the Knesset’s 120 members in his coalition, Netanyahu can pass any law he wants so long as his coalition remains united. The only limitation on his power to pass laws is the tendency of parliamentary coalitions to collapse if they cannot reach agreement. That is less of a danger right now than in prior Netanyahu governments, given the size of the majority.
The Knesset has not been innocent, in the past, of encouraging the court to seize unaccountable power. The 1948 Declaration of Independence called for a written constitution; the first Knesset couldn’t agree on one, so one was never adopted. The 1995 Supreme Court ruling that set Israel on its current path was based in part upon laws passed by the Knesset in 1992 and 1994, under both Likud and Labor governments, that declared that future legislation should conform to some extremely broadly worded criteria such as giving every human being the “protection of his life, body and dignity,” a “right to privacy and to intimacy,” and a right to “engage in any occupation, profession or trade.” These were incorporated into Israel’s “basic law,” which like the British “constitution” is simply a collection of statutes that the parliament can change on its own at any time.
The court took the breadth of these guarantees as a green light to expound whole bodies of law with no textual constraints. It recognized unenumerated rights and unwritten limitations on political decision-making. The result has often been that laws don’t even get passed in the first place, because the Knesset fears offending the uniformly left-leaning activist court. The whole movement was orchestrated by one man, Aharon Barak, the long-serving president of Israel’s supreme court and an admirer of Earl Warren.
The court is drawn from an extremely narrow and secular elite unrepresentative of the nation. When the court was first founded, all of its justices came from the same law school. Because it has the power to choose who joins its ranks, and the people have no power to resist those selections, the court has not grown more intellectually or culturally diverse in succeeding decades. It is the perfect progressive self-licking ice-cream cone, designed to replicate in perpetuity a set of ideological guardrails on one side of the political spectrum. Unsurprisingly, given the issue environment in Israeli politics, many of the flashpoint issues in the 22 cases in which the court has struck down acts of the Knesset have concerned the Israeli–Palestinian conflict, immigration, settlements, and religious Judaism:
For example, the Court struck down a statute that authorized the minister of the interior to detain without trial “infiltrators”—that is, asylum-seekers who have entered the country illegally—for long periods of time (up to three years). The Court also struck down a statute that stipulated that part of the salary paid to asylum-seekers by their employers be held in escrow until they leave the country. The Court further invalidated a statute that provided a lower tax rate for residents of a Jewish town near the northern border but not for residents of a nearby Arab village. Moreover, it struck down the “settlement regularization” law, which authorized the government to expropriate Palestinian privately owned lands if settlement houses were built on it, even if they were built in violation of the applicable planning and zoning law.
There have been other cases in which the Supreme Court invalidated statutes providing specific groups with preferred treatment. For example, the Court invalidated on a number of occasions laws that granted ultra-Orthodox men an exemption from military service, and a law providing a license to a right-wing “pirate radio” without a proper public tender. Other instances of invalidation involved . . . the right to personal liberty (striking down a law that allowed the detention of soldiers for 96 hours without judicial review), the right to minimal conditions of life (striking down a law that deprived income support from persons using a motor vehicle), the right to due process (striking down a law allowing for detention hearings in absentia), and the right to human dignity and liberty (striking down a law regulating the operations of private prisons).
Three things have prevented, until now, a direct collision between the Knesset and the court. First, the nation has frequently been consumed with the defense of its existence, precluding or postponing divisive internal political battles. Second, the court’s accretions of authority came gradually. And third, the governing coalitions of the right were often too unstable to sustain a major political battle, while the coalitions of the center-left had fewer incentives to battle the court.
But at this point, Netanyahu has been under a criminal indictment for three years — it is hotly debated how trumped-up the charges are — and the court’s potential to use that as an excuse to unseat him from office has focused his attention and that of his supporters on the menace of a legal body unaccountable to the public deciding to arrogate to itself the right to choose the head of state without an election. The current coalition also includes a number of fringe right-wing groups traditionally excluded from Israeli governments, and these groups are more willing to challenge the governing institutions than the constituent groups of previous right-wing coalitions were. It’s a perfect storm that has encouraged Netanyahu to abandon his own longstanding unwillingness to rock the boat. Netanyahu, the Israeli ambassador to the U.N. in the late 1980s, is fundamentally a figure out of 1990s American politics, a canny triangulator and survivor with much in common with Bill Clinton, Newt Gingrich, or Al D’Amato. But circumstances have made a confrontation with the court a matter of his self-interest.
At the same time, even though Netanyahu has followed his attorney general’s advice not to involve himself directly in the judicial overhaul, the debate within Israel has naturally polarized around the person of the prime minister. This is yet another reason why constitutions are easier to write when founding a government than in the midst of personalized partisan debates. American media and political observers have been even more prone to interpret the entire thing not only through the lens of what they think of Netanyahu, but how they analogize him (mostly inaptly) to Donald Trump.
The Biden administration, which never misses an opportunity to attack judicial review by independent courts in the United States or treat foreign policy as a proxy war against domestic enemies, has taken sides against the judicial overhaul. Secretary of State Antony Blinken lectured Netanyahu in January about the importance of consensus and “core democratic principles and institutions, including respect for human rights, the equal administration of justice for all, the equal rights of minority groups, the rule of law, free press, [and] a robust civil society.” (This, to a man who has been a party leader in a vibrant democracy for three decades and is serving his third term as an elected head of state.) Blinken’s words were understood in the Israeli press as “a reprimand,” never mind that they came from the administration of a man who has regularly been reprimanded by our own Supreme Court for seizing the personal right to make laws and spend money without Congress’ approval.
In mid February, President Biden himself delivered a statement on the matter through authorized spokesman Tom Friedman of the New York Times:
The genius of American democracy and Israeli democracy is that they are both built on strong institutions, on checks and balances, on an independent judiciary. Building consensus for fundamental changes is really important to ensure that the people buy into them so they can be sustained.
The careful reader will notice that Biden, a longtime advocate of judicial minting of new unenumerated rights, makes no mention of written constitutions as an element of those “checks and balances.” As Friedman noted, “This is the first time I can recall a U.S. president has ever weighed in on an internal Israeli debate about the very character of the country’s democracy,” and Biden’s words appeared to support critics in Israel who “would move Israel into the camp of countries that have been drifting away from democracy, like Turkey, Hungary and Poland. . . . I also suspect that Biden taking a stand on this issue in this measured but unmistakable fashion will encourage other Western democratic leaders, business leaders and U.S. senators and representatives to do so, too, which will also energize the opposition.”
The Israeli crisis spilled into the streets in mid February, as left-wing street protesters, joined by members of Israel’s professional upper-middle class, began paralyzing the country. As Friedman observed, it was not accidental that Biden timed his statement to coincide with the commencement of the protests and encourage them with outside support. The crisis came to a head when the Israeli defense minister called on Netanyahu to pause the judicial-overhaul proposal on Saturday, and Netanyahu fired him on Sunday. Amid backlash to the firing, Netanyahu announced on Monday that he was, at least for now, suspending the judicial-overhaul initiative.
All of the various proposals by the Netanyahu government are just Band-Aids on a deeper wound in the design of the system. Israel deserves a written constitution that places limits on both its democratically elected government and its rogue judiciary. It also deserves better “friends” than Joe Biden and Antony Blinken. But if the foundation of the current crisis is the lack of a written constitution, the stakes in the dispute between Netanyahu’s government and the court place Netanyahu firmly on the side of democracy — and his opponents against it.