Tuesday, November 16, 2004

Israel does not have a constitution. Once upon a time, it was understood that a constitution is meant to express a nation's deepest principles and aspirations and it was precisely with regard to these that Israelis were deeply divided. Hence, no constitution.

Nowadays, many Israelis are agitating for a constitution. It's not that some consensus on principles and aspirations has suddenly emerged. Rather, many Israelis -- following a European trend -- have become unaware of the fact that a nation is even meant to have principles and aspirations. Where once civil rights were thought to serve as a limit on the ways a nation might manifest its will, many people are now in the grip of an ideology in which the will to confer rights is the only legitimate will a nation may have.

There are two groups currently working on writing an Israeli constitution. One is the Knesset's Law Committee. The other is the Israel Democracy Institute, a private political organization with a huge endowment from Bernie Marcus, co-founder of Home Depot. The Knesset process moves rather slowly. So far, the committee has considered only that part of the constitution concerned with structure of government. Several alternatives have been prepared which are meant to serve as the basis for wider discussion at some later date. Now work has begun on rights and values. There are many interesting twists to this story which I hope to get to some day soon.

The IDI is about to finalize its proposed constitution and has already begun a splashy advertising campaign. One unseemly aspect of its PR is that the IDI slyly creates the illusion that the Knesset Law Committee has somehow conferred public legitimacy on the IDI initiative. This is simply not the case. More troubling, however, is the fact that the IDI's proposal is catastrophic. Their proposed constitution -- with minor changes -- could as easily be the constitution of Zimbabwe as of Israel.

Rather than get into the gory details of the two constitutions-in-progress, let me summarize five minimal criteria that must be satisfied by any Israeli constitution for it to be acceptable. Unfortunately, as things look now, this is not the direction in which things are going.

1. The process of appointment to the Supreme Court must be changed to permit greater input by elected officials. (I discussed the current insane system here.)

2. Justiciability (and standards of “reasonableness”) must be satisfactorily defined. If there is to be judicial review at all it must be balanced by a “political question doctrine” that establishes what stuff the court leaves to politicians. (As matters stand, this court happily substitutes its judgement for that of the legislature or executive on pretty much any topic under the sun.)

3. No social right should be conferred which would transfer power of the purse to the court. (Yuli Tamir and a whole gaggle of Marxist groups created and funded by the New Israel Fund are agitating for legislating a smorgasbord of social rights which would give the court entre into the last bastion still held by the Knesset: writing the budget.)

4. The constitution must reflect broad consensus on matters of religion and state and should permit the legislature the widest possible range of compromise on such issues. (The IDI constitution explicitly forbids any law that would constrain behavior on the basis of religion. Laws based on feminism, vegetarianism, Near Eastern culture, astrology or the rules of poker are acceptable until such time as any of these would attain the status of a religion.)

5. The current flawed system of elections -- which burdens MKs with minimal accountability to constituents -- must not be entrenched in a constitution. (Actually changing it is too much to ask; no MK will change the system which earned him his job.)

RG believes the situation is hopeless and all our efforts should be devoted to killing both proposals. She is probably right but this would be a tactical blunder.

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