Israel's Constitutional Dilemma
In Israel the protesting against the government’s proposed judicial reforms continues. This morning I spoke with a good friend in Israel, a self-styled secular leftist. He informed me that he and his wife continue to protest religiously, that is, every Saturday they are on the March. Saturday is a great day for the Left to protest in Israel because that is the day that religious Jews are attending services at their shuls so they can’t mount a counter-protest.
Why was he opposed to the judicial reforms which, if instituted, would basically just realign Israel’s judiciary with that of the rest of the democratic world? His answer is that the Haredi, the ultra-orthodox Jews who sport long beards and dress in black, are in favor of them. This may be true but it is not the truth. The fact of the matter is that the entire governing coalition is in favor of these reforms and openly campaigned for them in the last election. Though it is true that the Haredi community is represented in that coalition, it also includes the Mizrachi Jews. The Mizrachis are the descendants of the Jews who were expelled from Arab countries after Israel won its War of Independence. Unlike the Ashkenazy Jews who preceded them from Europe from the late nineteenth century onward, the Mizrachi arrived in great numbers only after 1948, mostly penniless and uneducated. It was a huge challenge for the nascent Jewish state to absorb them and there was culture clash and friction right from the get-go. Large parts of the Mizrachi community in Israel are still working-class but by now many have risen to the highest echelons of Israeli society. Moreover, as a demographic they tend to be younger than their Ashkenazy counterparts and, when they demonstrate in favor of the judicial reforms, their numbers are considerably greater. As fully contributing and participating members of Israeli society, it is easy to see why they, as opposed to the Haredi, are impossible to marginalize and demonize and therefore my friend is duly silent about their role in supporting Bibi Netanyahu.
But back to the ultra-orthodox. When pressed, my leftist friend says that he is not worried so much about their influence right now but what it will be ten or twenty years from now because they are having so many children. I ask him if he is opposed to Jews having children and he emphatically and somewhat defensively answers, of course not. No decent Jew is unequivocally opposed to his co-religionists having children because the world Jewish population has yet to reach the size that it was before the six million were murdered in the Holocaust. His problem is more abstract. He fears that eventually they will be the majority and that they will then turn Israel into a theocracy. This fear is like the irrational anxiety of catastrophic climate change and because it is irrational there is no talking him out of it.
Many pundits are now arguing that the answer to all the problems that are tearing the country apart is that Israel, which does not have a written constitution, needs to form a constituent assembly and get itself one pronto. Great idea, but in practical terms, given the present turmoil and the intransigent positions mainly from the Left, how is that to be accomplished? When the governing coalition sits down to forge a consensus with the opposition with respect to the judicial reforms, leftists won’t budge and so the sit-downs keep on going nowhere. So how are they supposed to get together to hammer out a constitution which, under the present circumstances, would be orders of magnitude more difficult than agreeing about judicial reforms?
Netanyahu should drop his judicial reform package and instead propose that Israel adopt the American Constitution and Bill of Rights as its own, perhaps tweaking it a little to satisfy the needs of Israel’s exceptionalism. It happens that the American Constitution already has baked into it most of Netanyahu’s judicial reforms. Moreover, the Israeli Declaration of Independence, which strongly and categorically defines Israel as a Jewish state, could act as a unique and perfect spiritual adjunct to the Constitution as does the American Declaration of Independence to the American Constitution. Biden has denounced Israel’s proposed judicial reforms claiming, without explanation, that they are somehow undemocratic. It would be amusing to see Biden try to find a way to denounce such a proposal and would expose the hypocrisy of the leftist opposition in both countries to Israel’s judicial reforms.
Hannah Arendt has argued that the U.S. Constitution is the best in the world because it was hammered out in lively open debate by a historically unique group of brilliant, worldly-wise statesmen. It lies in stark contrast to the copy-cat mealy-mouthed constitutions adopted by the many nations that won independence after World War II. These modern constitutions tend to expand the nanny state and sometimes entrench privileges to certain interest groups. In 1982, when Canada’s constitution was repatriated by Pierre Trudeau his stated goal was to give the federal government more power over the nation’s economy as well as to institute a so-called “people’s part” which is basically a bill of rights based on the UN’s Universal Declaration of Human Rights. At the last moment before it was adopted, because of vigorous lobbying, women and indigenous people were given special status in it. One imagines that if it were done now, that the trans and environmental lobbies would similarly be entrenched. In the event Pierre and his son Justin have both abused the economic power appropriated by the federal government while Justin trashed the Canadian Bill of Rights during the pandemic lockdowns.
Of course, this proposal will never be taken up. And even if Israel were to adopt a somewhat modified American constitution, it would then be in the same position as America is now to its own Constitution, of having to defend and abide by its principles.