Yedidia Stern is worried about disturbing the balance of a Jewish and democratic state, as the nation-state law threatens to do. He believes that Israel must be a Jewish state, but without a legal anchor for equality, society is in trouble. Religious life is being dominated by the ultra-orthodox; diaspora Jews, especially Americans, should have a say in public life but not too much. Legal scholar and Vice President of the Israel Democracy Institute speaks to us about the fundamental nature of Israeli society – and how it is changing.
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“A constitution smart enough to maintain differences…”
–the interviewee
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I am a broken record (for those old enough to know that) on Israeli constitutionalism, but the whole point of a broken record is it keeps replaying. I have not the loves or hates of Jew or Palestinian (I use “Arab” below to save space). I am not interested in the miracles of nationhood. I will praise neither deity nor human as sacred in nation’s creation. But Israel, Jews, and Arabs are there; a constitutional dilemma, actually I think crisis, comes. And I am interested in solving crises for lives I can not even envision.
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1. Recapitulating early land Zionism.
The words of a constitution need distance from their creation to sever links to the interests which created them. The words can thereby shift meaning a bit in compromise or refitting to the world, and the interests insisting on their presence also thereby no longer loom as powerfully over present society. We stipulate that constitutions are to be enduring, so beyond the lived interests of their creator, but know that cannot be true. Interests demand their due. Distance in travel and distance in event use to insulate a constitution from its past. The world played in slow motion, a constitution revealing its implication over decades. Instant communication of today threatens immediate implementation, and that means immediate control of the interests involved in wording. The Israeli compromise has been to allow easy alternation of “Basic Laws” surrogating for a constitution. A law of profound significance is proclaimed–but it can be altered by a majority of the Knesset, hardly a strong constitutional check on the legislature. Yet without this promise of ready alteration, Basic Laws would be more difficult to pass. An illusion of foundation is purchased by promise of ready change, throwing the importance of the BL to consensus.
One cannot make hard choices this way. Majorities will not thereby be bound against certain acts to minorities. Rather, BLs will inch toward creating majority consensus which suppresses future or present minorities. This is what the Jewish Nation State Law does. It fuses patriotism with emblems, attaching thereon the beginning of land Zionism–encouraging and promoting the creation of new Jewish “settlements” and their “consolidation.” The vision recurs to the foundation of Israel when that is exactly what regularly happened. Israeli Arabs, however, see that time as land dispossession and their silencing–so they are angry as hell at this law’s passage. For them, this Nation State law is perpetual early Zionism. No matter the nature of equality in individual rights, only Jewish settlements are enshrined as a collective right in Basic Law. Since the State is to promote such settlement, there is no equal access for Arab citizens; failure to found Arab villages is distinct from allowing Arab purchase in a town. The Nation State Law can be read as allowing such purchase only when the Jewish character of the community is secure. To my knowledge, only Arab relocation towns have been created in Israel; no new Arab village as such has ever been founded in 70 years; small clusters have, rather, been torn down, as have long lived rural/desert villages. The Nation State law thus codifies the past into present law: equality is a secondary, maturing trait of a town. Arabs, then, cannot found on their own, or at least have no constitutional protection to do so. There is no way for Arab citizens to request their share of community founding as constitutional imperative, while the State is, in this law, expected to create Jewish settlements. Equality is largesse of prosperity; adequate growth allows Arabs to enter, yet even there the Community Law portends catch 22s to preserve the “character” of the town as defined by a committee of current residents.
Israel is not special here. Explosive national growth is highly exploitative everywhere. Another interview on the Tel Aviv Review pointed out that economic competition among Jews and Arabs began in the land before the foundation of Israel and of course accelerated thereafter. This is no more a condemnation of Zionism than any delineated macro social economic process; American Manifest Destiny against the Native American is another case. What is gained from condemning the desperate who traveled the Atlantic to America for destroying the way of life of a continent? It is done; the question ever is how to live with the consequences. Perhaps the Declaration of Independence can get you there.
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2. The Declaration of Independence as shell game.
The interviewee calls the Declaration of Independence an “amazing document,” perhaps why it has been implemented only as the Law of Return, equality embraced distantly second. The Declaration is a direct appeal for international approval of the founding of Israel by embracing UN General Assembly Resolution 181, which sought the creation of two States, one Jewish, the other Arab, with some ethnic overlap across them. Constituent Assemblies of both proto-States were to affirm by declaration intent to create written constitutions which would insure completely equality in rights across sex, race, and religion. The declarations were meant to be pledged restrictions on the character of later drafted constitutions; the respective constitutional assemblies were not to have unfettered power of creation. The Israeli Declaration of Independence makes this oath. It promised to proclaim a constitution within a specific month. And failed to do so. While the promised drafting Constituent Assembly was duly called, it soon transformed itself into the first Knesset, self promising to piecemeal a constitution later. An Assembly with plenipotentiary powers, powers dedicated in the Declaration to insure a checking on State power as stipulated by UN 181, instead preserved unchecked power by itself becoming a legislature.
A constitutional assembly cannot be a legislature; the power of the former a priori outstrips the latter. Indeed, such an assembly can have no check but its own permanent disbandment. It is, otherwise, even beyond touch of the judiciary. This conversion into Knesset was a shell game which today bears fruit of constitutional crisis, for the Knesset can not only make any law at political whim, it may annul any decision of the judiciary. We see a modern example of this in Venezuela, where a plebiscite call for a constitutional convention trumped the judiciary, legislature and, of course, all restrictions in the prior constitution. In the Israeli case, the newly minted Nation State Basic Law is, by its strongest advocates, preemptory against High Court decisions which might mandate equality at admission into new settlements. The Knesset, having passed this Basic Law, may now craft enabling legislation as to how the State should “promote” new Jewish settlements–the constitutional convention becomes later legislator, the only check political fear external (Jewish Americans, say) or internal (elections). Neither of these fears is considered implementation of constitutional thought by those dedicating their lives to judicial decisions.
Why the Constituent Assembly transformed into the Knesset is unclear. A war was under way. The Assembly was composed of groupings needed for mobilization in that war. In war coalitions, cooperation is garnered by honoring areas of control within each group. A constitution would create strife between groups of differing belief and ideology and perhaps contention within some of them; such could only aid the enemy. Postpone, then, the hard compromises–and losses–for a more stable time.
But once the check of necessary disbandment is removed, plenipotentiary power is a drug with unending benefits. Basic Laws are so weakly secured for two reasons: as noted, prospect of later removal makes a majority easier to achieve; but, beyond that, the promise of full power later is never thereby abandoned. No Knesset wants true check on the nature of the Knesset, save those needed for stable elections. Often the United Kingdom’s House of Commons is seen as a direct analogue for the Knesset. But the Commons lived with an independent judiciary for centuries, a judiciary evolving a common law arcane yet useful to MPs and their networks. There is no easy majority to overturn the courts because overall these networks get too much out of them in various contexts. At least in the slow frenzy of settlement expansion and nationalism fanned by perpetual threat from the outside (now including BDS, true or not, as well as other States), Knesset Supremacy seems rightly unbound; no “traditional constitution” of centuries exists as cultural check. The Nation State Basic Law can be read as a recursion of past Israeli history to prepare full Supremacy against the judiciary, recursion to a time when expansion and stability were identical, recursion to the human structural power of war. This temptation, this delivered certainty of legislative power, is quite tempting when aspects of war ever surround, as they do in Israel.
There is, however, a way forward, for the shell game which was the Declaration was needed to create the Knesset. Ironically, that game could allow Israel to enter post-Zionism.
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3. The Declaration of Independence as meta-constitution.
The Knesset was created as whim of the Constituent Assembly, but the Assembly was explicitly called by the Declaration. The Declaration, enabling the Assembly, dominates it in authority, so too its look alike sister the Knesset. The Declaration’s substantive clauses are found near the document’s end:
“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; it will safeguard the Holy Places of all religions; and it will be faithful to the principles of the Charter of the United Nations.”
The unpacking of these clauses has powerful import. For example, the “Ingathering of the Exiles” is absolute, making the Knesset Law of Return a secondary form of implementation, subject to examination in fulfilling the Declaration’s demand. Taking this clause as restrictive both to the Constituent Assembly and any legislature, the Ingathering can never be abrogated, which means that Israel could enter no Federation transferring power over Jewish immigration to a greater entity. Nor, I think, could Israel dissolve itself, for that would destroy the Ingathering. Only an entity with an unalterable constitutional clause identical to this one be compatible to the Declaration; since all power comes from the Declaration as creator of the Assembly, with stipulations on what that Assembly must do, any joined greater entity would have to have the same unalterable commitment to Return as does Israel. This I think impossible by the very notion of a greater entity. The Declaration then sustains the core of Zionism–Return.
But the Declaration was also an attempt to cajole the States within the UN to support Israel in its Independence war or at least remain neutral, so included the UN 181 stipulation that Israel
“will ensure complete equality of social and political rights to all its inhabitants irrespective of religion, race or sex,”
this decidedly post-Zionist. Post-Zionism does not abjure land expansion and independence war; it does not even abjure the taking of territory for occupation in 67. But it asserts that those days cannot bar complete equality of social and political rights to inhabitants, not citizens, of the State, restricted to the overlays of religion, race, and sex. The Clause was unsustainable in all States in 1948. It was a fantasy, a laughable absurdity of the day. Equal social and political rights among Arabs in a Palestine by sex? UN 181 was foolhardy, crafted by idealists in their libraries; how could Israeli founders expect the plan to work? Yet, in shell game, they acceded. Why not? Soon everyone will forget.
Yet the words remain and expansion now only creeps along. Constitutions often contain provisions which politics and judicial minds of days refuse to see. US equal protection was such, imagined into existence as separate but equal in Plessy v. Ferguson, 163 U.S. 537 (1896), struggled into hoped future in Brown v. Board of Education of Topeka, 347 U.S. 483 (1954). Minds outside of raw political battles see further than they can be. It is the responsibility of future judiciaries to recover that sight into implementation. And that is another reason why a constitutional assembly should not be a legislature: an assembly must envision a world somewhat beyond the tools of the day’s politics, recognizing that fiat in a clause will not create in itself reality. The Declaration’s Equality Clause, if repeatedly implemented through judicial decision, offers reconciliation after the joys and tortures of expansion. It cannot recover the lost of the past, but it can offer better lives for descendants purged of both master and minion. That is post-Zionism.
But this equality could not override the Ingathering: only Jews would have the right to enter without other legislative condition. Whether political and social equality are long term compatible with this race restricted Ingathering I do not know; it would be an experiment, but the words for both are there in the document. (I suspect at some point the fusion might break; words are only words. The national right will pounce on this–indeed, I think they in a sense already have, again with the Jewish Nation State Basic Law. But I would not forbid an experiment enabled by these words which might endure for two or more generations. As Keynes, pass forward the dilemma to the future. Constitutions are experiments of process, not chemical structures.)
The Declaration, enabling the Assembly, so Knesset, checks the Knesset. But the Knesset cannot perform check by self restraint; that would leave the Knesset as it now is–coalitions of members hungry for political will and election. The Knesset alters social structure for political and electoral gain; what checks the Knesset must be outside of these games–which is what an independent judiciary is for. The enabling power of the Declaration thus also implies Judicial over Knesset Supremacy–full review of laws beyond the legislature’s power to override. The Knesset does not grant judicial review to the Court; the Declaration demands it for implementation. Since the Knesset cannot grant the power, the Court must declare the power. Judicial independence and Declaration Supremacy are thus coextensive. But the power so taken is not unbound; it is limited to the words of the Declaration, just as court implementation of laws is limited to legal text. True, this implies the very self-restraint of judges denied for the Knesset as self regulator of the Declaration. There is, however, a mild check: judges are not solely appointed by themselves, and judges can do nothing at the highest level to further their tenure; there is a break between social structure and judicial life. External appointment can lead to ideological changes on the court, but no direct feedback such as that between Knesset and elections exist. Since law implementation is constructive, shifts in court ideology may reflect changes in social reality–or resist such changes for a time.
Judicial Supremacy arising from the Declaration does not require a written constitution for implementation. Since the Declaration promises any constitution must meet its clauses, the court can, absent a written constitution, rule directly from these clauses. This should induce calls for a written document, for while the court can always review that document based on the clauses, first implementation would be by an extent written constitution and laws made thereby, distancing the court from how the clauses are conceptualized. A Constitutional Assembly would then create some power for people outside the court; indeed, most strongly so on procedures of court appointment and tenure. Still, the meta-constitutional nature of the Declaration, allowing many variants of constitutional structure compatible with it, always gives final say to the court.
Clearly the Jewish Nation State Law would not survive the Equality Clause of the Declaration, for equality is guaranteed across race for social rights, and surely establishing a new community is a social right. (Another route striking down the Jewish Nation State Law lies in the Declaration: that the State must “foster the development of the country for the benefit of all its inhabitants” would preclude preference for Jewish natal communities outside of racial population frequencies.) This would not, however, interfere with the Ingathering, nor to benefits given to those making Aliyah. What it would do, however, is prohibit communities limited to Aliyah. There are ways around this in part. One could provide a land bonus (in money) which made the Aliyah much more likely of be able to congregate at a location. Such bonus, however, would be a legislative act which an empowered Arab minority might resist. (This is why I wonder if the Ingathering and Equality provisions cannot but ultimately enter prolonged conflict.) In any case, no such preference would be possible for resident Jews relative to resident Arabs.
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4. Excursion into rights.
The Equality Clause stipulates no right, only that legislative created rights must be shared across race, sex, and religion. There are some rights stipulated: “freedom of religion, conscience, language, education and culture.” These would require both legislative and judicial construction and, being so general, would undoubtedly ignite much political conflict. There is no direct freedom of speech or press, although the above general rights might be constructed to imply them. I close by suggesting an oddity which would be quite Jewish. Israel is to be “based on freedom, justice and peace as envisaged by the prophets of Israel.” Because Biblical texts so often pit Prophet against Crown, I take this Clause as implying that freedom of speech against the State is absolute, for prophets cried out against the King, so had to be heard. In implication, no BDS suppressive law could stand, including the present tort law. This would not restrict libel law to that as say found in the US; such law could be far more restrictive than allowed under the US First Amendment, yet only when targets are civilian, not governmental parties. The Clause would also mean that leaking State information could not be punished so long as the leaks have clear political implications critiquing the government. There would be constitutional “whistle blower” protection directed against the State but not private industry.
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As it stands, the Jewish Nation State Law is a slight trumping of the Knesset over the judiciary. I have heard one national right commentator say so directly: the High Court has taken over primary “constitutional” determination which rightly rests with the omnipotent Knesset. Why I think this incorrect I have detailed above. But the only way to assert this a wrong is for the Court to affirm its independency through supremacy in judicial review. The Declaration provides a clear path to that end. But it requires a degree of courage among Justices which may already have been lost if ever was. It is more a fantasy of mine that potential reality. But, if so, further encroachments into Knesset review seem inevitable. At days end, the Court will become a helpmeet, a good other era wife who knows she can only suggest, never entering the realm of contested thought. That roads leads to a loss of the concept of invariant right. You can see this, I think, in the present exclusion of BDS “advocates” among would be visiting Jews, in bills to ban videoing of soldiers in duty, and a bill to ban Breaking the Silence in school lecture. (All of these would fail by the Prophet Clause noted above). At best, national fear created by and transferred to MKs will mediate what a right is. This can happen under Judicial Supremacy as well, but structural distance should enable more resistance.
And that is as good as it will ever get, methinks.
“I’m against the separation [of religion and the state] because it will dilute the Jewish nature of the state.” Spoken by a self declared orthodox liberal. Religious coercion cannot be expressed more openly than that, and that’s from someone who we are told to believe is a moderate voice in the religious community. Interesting to contrast that with the words of Dov Halbertal recently