Tsvi Bisk – ISRAEL’S CONSTITUTION: Searching for Solutions
Searching for solutions on the basis of argument and disagreement but still being together is the essence of constitutionalism. “The dignity of dissent”. Being against some ultimate absolute truth but being satisfied with pragmatic workable solutions is the essence of constitutionalism. The belief that it’s neither 100 to zero nor even 50-50 but that each side gets 80% of most of what it wants is possible is the essence of constitutionalism.
Recent events have raised, once again, the question of a written Constitution for the State of Israel. I stress writing because up until Israel’s present government of crooks, racists, and religious fundamentalists, any objective observer could have honestly claimed that Israel, like the United Kingdom and New Zealand, had an unwritten Constitution guaranteeing both the fundamental constitutionalist rights of its citizens and the institutional independence of its gatekeepers: the courts, the state comptroller, and the attorney general. This was a constitutionalist system that continuously affirmed the interlocking connection between the institutional independence of its gatekeepers and the fundamental constitutional rights of its citizens. A social contract between citizen and state governed by the rules and attitudes of mind known as constitutionalism. That is until this government has made it its mission to destroy all the institutional constraints that limit arbitrary governmental decisions affecting the constitutional rights of individuals, minorities, and other resident persons.
What is this thing we call constitutionalism? Constitutionalism is an “ism”; an ideology that asserts that human beings have certain unalienable rights that no person, monarch, dictator, or majority has any right to negate. Constitutionalism means the limitation of the power of the sovereign vis-à-vis these unalienable rights. The sovereign in England is the monarch – thus the term ‘constitutional monarchy’. The sovereign in the United States is the people (the demos) – thus the term ‘constitutional democracy’. When we use the term democracy, we usually mean constitutional democracy, which we distinguish from majoritarian democracy in which the power of the majority is unlimited; i.e. the majority decides everything, including the rights of minorities and individuals. History shows that the tyranny of the majority can be more vicious than an individual tyrant. Nothing expresses the will of the majority better than a pogrom or a lynch mob. Socrates has put him death for advocating views the majority felt were abhorrent. The Jewish tradition is especially wary of the tyranny of the majority. In Exodus 23:2 it is written, “Thou shalt not follow a multitude to do evil; neither shalt thou bear witness in a cause to turn aside after a multitude to pervert justice.”
The Founding Fathers of the United States feared four things: the tyranny of the majority, mass enthusiasm, abuse of power, and the ignorance of the people – all four being interconnected. They feared that demagogues exploiting the mass enthusiasms of an uneducated majority would ultimately destroy the Republic. Consequently, the American system, over time, constructed a system of government with multiple levels of constraints designed to mitigate the whims and impulses of a transient majority (and majorities in Democracies are always transient).
The American Constitution, especially its Bill of Rights, is the first constraint on a transient majority. It consecrated the Federal System of multiple centers of powers and prerogatives in the various States most exemplified by the Electoral College, which is the second constraint on a nationwide transient majority. (The very size of the United States is its most inherent constraint.) It instituted a two-house legislative system in which Representatives represented the people on a proportional level and were elected every two years, making them sensitive to the transitory whims and impulses of the people, while Senators, elected every six years, represented the interests of the various states, wherein all states had equal representation – two senators per state no matter the size of the state. Wyoming with less than 600,000 citizens has two senators and California with close to 40 million has two senators. By this measure, the Senate is the most undemocratic elected body on the face of the planet and this represents the third constraint. The two-house system itself is the fourth constraint as laws have to be approved by both houses and then signed into law by the President. The president, elected every four years, has veto power over any law approved by both houses and can only be overridden by a two-thirds vote of both Houses which constitutes the fifth constraint. Note also the staggered terms of office: two years for representatives, six years for senators, and four years for the president. This represents the sixth constraint.
Both houses are composed of individuals with independent centers of power – voting districts or states – and thus are not completely dependent on the manipulations and machinations of the leaders or factions of their respective parties for their political careers. They can exercise this independence and vote against the majority of their party if their district or state supports an opposing view. These independent centers of power constitute the seventh constraint on a possible national tyranny of the majority. The election procedure of the Senate is the eighth Constraint. A senator, unlike a congressman, is elected for 6 years, and thus is less likely to be overly impacted by this or that transient public opinion in making decisions. Moreover, only one-third of the Senate is elected every two years, which is the ninth constraint because this makes the Senate, as a body, somewhat protected from transient enthusiasms. The tenth constraint is the principle of Judicial Review, in which the constitutionality of a law or policy is the sole purview of the Supreme Court. And while it is true that the Judges are nominated and confirmed by politicians these politicians themselves are independent actors in the sense that they are directly elected by the people and thus have an independent power base and are a product of all the inherent constraints listed above.
Judicial review and the amendment process are the most powerful constraints to the tyranny of the majority and the temporary enthusiasms of the public (as well as the two houses of Congress). Consider the following thought experiment. A law is suggested by a particular organization. It is so popular that polls suggest that 95% of American support it. It goes to the House of Representatives and is approved by all 435 members; it goes to the Senate and is approved by all 100 members. It is signed into law by the President. But a small group of contrarian citizens object that this law violates their constitutional rights and petition the courts to get the law overturned. It gets to the Supreme Court which decides the law is unconstitutional by a vote of 5 to 4. That law is now dead unless it is revisited in the future by the court (a rare occurrence), or unless an amendment to the constitution is passed. Amendments require two-thirds of both houses and three-fourths of the States in a purposefully slow drawn-out procedure that takes years. (the 27th amendment was first proposed in 1789 and ratified in 1992). This long drawn-out procedure is the method by which the founding fathers hoped would dampen temporary enthusiasm.
By way of analogy, the constitutionalist changes proposed by the present Israeli government would require the approval of at least 80 Knesset members and three-fourths of local councils. The courts are the last, and now the only, constraint on the arbitrary power of the Israeli government. While the United States has nine constraints, Israel, given the overlap between the governing coalition and the Knesset, in effect, has only one constraint– the courts. In his previous government, Bibi castrated the institution of the State Comptroller by appointing a sentient dishrag who has actually instructed his staff not to cooperate with police investigations of corruption and has let whistle-blowers hang out to dry. Moreover, for years the Likud has also been busy trying to castrate the institution of the Attorney General.
Israeli Professor Jacob Talmon, in The Origins of Totalitarian Democracy, demonstrated how in the 20th century, majoritarian democracies became totalitarian. His critique was primarily of the totalitarian (Stalinist) ‘left’ but could also be applied to the totalitarian ‘right’. Adolph Hitler, after all, was elected democratically in a fair election. He formed his coalition according to constitutional norms and terminated democracy according to German values and folk customs. It is generally agreed that when in power over 90% of the German people supported him. He certainly did not come to power against the will of the majority.
And despite the modern mystic faith that “all human beings desire freedom” there can be little doubt that even in fair elections, Stalin, Mao and Castro would have been elected “democratically” by the residents of their respective countries (as was Hitler). Erich Fromm’s Escape from Freedom should disabuse us of this popular idolatry of the ‘human spirit yearning to be free’. So should experience. Recent polling indicates that up to 30% of adult Russians would still vote for Stalin despite his well-documented atrocities. Even critics of Putin’s authoritarian methods acknowledge he is more liberal than 70% of his fellow Russians. And in the United States, large segments of the population view constitutional objections to the “Patriot Act” as un-American – even treasonous.
Human and civil rights have always been the concern of a minority and it has been, and is, the job of the non-democratic courts to preserve and protect these rights against the fears, passions and prejudices of the majority. The courts are not meant to represent the will of the majority of people, they are meant to guarantee democratic access to constitutionalist protections of every individual person and thus as a consequence every minority is composed of individual persons. The Jewish tradition is very adamant about this principle and is reinforced in the Bible well over thirty times in various formulations. For example:
Exodus 22:20 “You shall not wrong or oppress a resident alien; for you were aliens in the land of Egypt.”
Exodus 23:9 ” And a stranger thou shalt not oppress, for ye know the heart of a stranger, seeing ye were strangers in the land of Egypt.
Leviticus 24:22 –Ye shall have one manner of law, as well for the stranger, as for the home-born; for I am the LORD your God.’
Leviticus 19:33
And if a stranger sojourn with thee in your land, ye shall not do him wrong.
Leviticus 19:34 The stranger that sojourneth with you shall be unto you as the home-born among you, and thou shalt love him as thyself; for ye were strangers in the land of Egypt:
Numbers 15:15 … there shall be one statute both for you, and for the stranger that sojourneth with you, ….
Numbers 15-16 One law and one ordinance shall be both for you, and for the stranger that sojourneth with you.
Deuteronomy 1:16 – And I charged your judges at that time, saying: ‘Hear the causes between your brethren, and judge righteously between a man and his brother, and the stranger that is with him.
Deuteronomy 10:18-19 –He doth execute justice for the fatherless and widow, and loveth the stranger, in giving him food and raiment. Love ye therefore the stranger; for ye were strangers in the land of Egypt.
Deuteronomy 24:14 Thou shalt not oppress a hired servant that is poor and needy, whether he be of thy brethren, or of thy strangers that are in thy land within thy gates.
Deuteronomy 24:17 Thou shalt not pervert the justice due to the stranger, or to the fatherless; nor take the widow’s raiment to pledge.
Deuteronomy 27:19 – Cursed be he that perverts justice due to the stranger, fatherless, and widow.
Jeremiah 7:6-7 if ye oppress not the stranger, the fatherless, and the widow, and shed not innocent blood in this place, …then will I cause you to dwell in this place, in the land that I gave to your fathers, for ever and ever.
Jeremiah 22:3+5 Execute ye justice and righteousness … and do no wrong, do no violence, to the stranger, the fatherless, nor the widow, neither shed innocent blood in this place…if ye will not hear these words, I swear by Myself, saith the LORD, that this house shall become a desolation.
Zechariah 7:10 –Oppress not the widow, nor the fatherless, the stranger, nor the poor; and let none of you devise evil against his brother in your heart.
Malachi 3:5 – And I will come near to you to judgment; and I will be a swift witness … against those that oppress the hireling in his wages, the widow, and the fatherless, and that turn aside the stranger from his right, and fear not Me, saith the LORD of hosts.
A constitution for a state created by and for the Jewish people MUST include the equal rights standards encapsulated in these biblical prescriptions. We have no need to wander in the constitutionalist traditions of other people, especially as many of these “foreign” traditions are rooted in our own biblical, Talmudic, and philosophical traditions.
Orthodox rabbis are fond of telling us that God is not a democrat, that he is an absolute ruler. But considering the above, God certainly appears to be a bit of a constitutionalist. For example, if every human being is descended from Adam and Eve and thus equal in the eyes of God, then certainly every human being must be equal in the eyes of human law. In fact, if carried to its logical conclusion the Adam and Eve story intimates that all human beings are brothers and sisters. Over the years, non-Jews fighting for justice have often employed this argument. Anyone tracing the evolution of Constitutionalism in England is particularly struck by this biblical motif. The leaders of the Peasants Revolt in 14th century England used it when demanding equal rights. John Ball’s famous statement exemplifies this:
When Adam delved and Eve span Who was then the gentleman? From the beginning, all men by nature were created alike, and our bondage or servitude came in by the unjust oppression of naughty men. For if God would have had any bondmen from the beginning, He would have appointed who should be bonded, and who free. And therefore I exhort you to consider that now the time is come, appointed to us by God, in which ye may (if ye will) cast off the yoke of bondage, and recover liberty.
Subsequent English literature speculated that ‘in the beginning’ every man was a gentlemen, anticipating Jabotinsky’s famous maxim “Every man a King”.
The sages asked themselves why God gave the covenant to Abraham and not to Noah. Their answer was: God comes to Noah and tells him he is about to exterminate the entire human race except for his own family. Noah does not argue with God and goes and builds the Ark. God tells Abraham he is going to destroy two debauched cities and Abraham argues with God. By daring to argue with God, Abraham demonstrates he has accepted full responsibility as an autonomous human being. This argument is the first historical example of an individual challenging supreme authority. Indeed as Chief Rabbi Sachs z’l has written, argument with accepted authority is the essence of Jewish tradition. Needless to say the freedom to challenge authority is the very essence of democratic constitutionalism. In the same vein, Moses disputes with God regarding his threat to exterminate the Israelites because of the Golden Calf episode and persuades God to give the Israelites a second chance.
This principle of limiting the power of the supreme sovereign finds wonderful expression in the Talmudic tale of Bat Kol (a divine voice from heaven), when a rabbinic quorum rejects God’s interference in their deliberations saying: “As the Torah has been given from Mount Sinai, we take no heed of a Bat Kol“. In the Midrash, God chastises the angels for celebrating the drowning of the Egyptians: “My creations are drowning and you are singing before me?'”
Not only our Jewish heritage but also our Zionist heritage affirms these constitutionalist principles. Jabotinsky declared “every man a king”; every man, not only the Jewish man. He advocated full equality for Arabs: for every Jewish Minister an Arab vice minister – and vice versa. He championed parity for Arabic with Hebrew: every governmental document was to be written in both languages. He would have been appalled by the nation-state law. Herzl’s futurist novel, The Old-New Land, (Tel Aviv in Hebrew), depicted equal rights for Arab citizens. The Balfour Declaration conditioned its support for a Jewish homeland on equal rights for the Arabs. Chaim Weizmann declared that the world would judge the Zionist enterprise by the way we treat the Arabs of Palestine. And although Ben Gurion did not write the Declaration of Independence he surely approved every word which included:
…ISRAEL…will foster the development of the country for the benefit of all its inhabitants…it will ensure complete equality of social and political rights to all its inhabitants irrespective of religion, race or sex…
The demagogic false claim of ignoramuses that the demonstrators are anti-Zionist and anti-Jewish is so patently ridiculous it beggars the imagination. The simple fact is that Israel cannot be Jewish or Zionist unless it is a democracy governed by constitutionalist principles and institutions limiting the arbitrary use of the powers and prerogatives of government and resisting the tyranny of the majority.
To be clear Constitutionality and Constitutionalism are not synonymous. Constitutionality refers to what is legitimate according to a constitution. Constitutions per se do not have to reflect the principles of constitutionalism. If the constitution of Nazi Germany stated it was permissible (even a duty) to kill Jews, then killing Jews was in conformance with constitutionality and was by definition constitutional. In common usage in the West, however, constitutional refers to the prerogatives and powers of governments, the rights and behaviors of individuals in regard to those prerogatives and powers, and the laws of society that conform to the principles of constitutionalism. Democracy, therefore, is only a positive cultural value when it expands constitutional protections; it has no value in and of itself. Fair elections are only positive when they take place within a democratic tradition dedicated to expanding constitutionalist protections; they have no value in and of themselves. One can have constitutionalism without a written constitution – as in Britain, and New Zealand (and until recently Israel)– just as one can have a constitution and be totally devoid of any pretense to constitutionalism: e.g. the Soviet Union (now Russia) etc.
Fair elections do not oblige us to respect ‘the will of the people’ if the consequences are the reduction of constitutionalist protections. In the Gaza Strip, Hamas was elected in fair, democratic elections. However, the consequences of that election were the lessening of constitutionalist protections for women as well as religious and political minorities. Must we really “respect” these results? Should we have respected the will of the German people in electing Hitler? A majoritarian strain in American history respected Jim Crow because it was “the will of the people”. History has shown that majorities can be as vicious, ruthless, and indifferent to human suffering as any psychopathic dictator. Constitutionalism endeavors to create a governmental structure geared to neutralizing the evils of the tyranny of the majority.
Israel is not Jewish and Democratic. It is democratic because it is Jewish, and it is Jewish because it is a constitutionalist democracy. If Israel becomes a majoritarian state it will no longer be Jewish – it simply will become just another idolatry, a political golden calf, a Hilul Ha’shem. The true moral chronicle of human civilization is the ongoing democratization of constitutionalist protections as they are afforded to an ever-widening range of human populations. This has been the past history of Western Civilization and I believe must also be the future history of all of humanity if we are to rise to an entirely new level of human civilization we require in order to survive. Whatever halts the march of constitutional protections – either dictator or a democratic majority – is evil.
Constitutions have a better chance of success when they reflect the historical narratives and values of a people rather than being a foreign import. The American Constitution succeeded because it was England 2.0! It reflected the English traditions of Common Law, Magna Carta, the Peasants Revolt, the Protestant Reformation, the English Civil War, the Glorious Revolution, The Bill of Rights, the Toleration Act (religious freedom), and English Enlightenment Philosophy. These constituted the background music to the writing of the American Constitution and what made it so acceptable to the American people– the majority of whom at the time were of Anglo-Saxon identity.
The more we can base our cause in Jewish and Zionist sources the more likely we are to succeed in eventually getting a written constitution accepted by the People of Israel. In the same vein, I believe that a constitution that presumes to have resonance with a great mass of people must be compact enough and clear enough to enable any citizen with an 11th-grade reading level to read in a leisurely afternoon (The American constitution contains 7,591words). Israel’s constitution must enumerate general principles with clarity and avoid tedious legalese.
More articles from Tsvi Bisk can be found here
