Tuesday, September 25, 2007

DovBear Dialogue: SM & Naftuli (Israel and Constitutionalism )

By Naftuli

Israel and Constitutionalism

Thanks to DB for providing SM and myself [sic] a forum for this conversation.

I’m going to write about whether a country such as Israel would benefit from having a written constitution. Israel, as I’m sure everyone is aware, does not have a written Constitution. The government is structured by a number formal procedures, Basic Laws, and informal conventions. Also unlike the US, Israel does not have a Bill of Rights that enshrines the fundamental rights of its citizens. The Basic Laws cover some of the rights, but the status of the Basic Laws is unclear.

I’d like add to a caveat. The discussion will be content independent, meaning I won’t offer any solutions or constitutional possibilities. This post will not be an exercise in constitution-drafting. Writing specific constitutional provisions requires a level of knowledge I simply have not obtained.

This post will list three problems, two legal/judicial and one political, and will attempt to show how a written constitution would mitigate the extent of these problems.

1) Israel is a diverse country dealing with the same contemporary problems that most Western democracies are facing. The Secular/Religious divide is widening. There are serious legal and political problems with how Israel is dealing with the territories. Israeli Arabs and Ethiopians face discrimination.

Plus, Israel has a large number of groups vying for their share of the political cake: Secular, anti-religious, Chareidim, Religious Zionists, Ethiopians, Arabs, traditional Sefardim, etc. Each group has its own wants and desires and many of the groups are willing to do what’s necessary to get their needs fulfilled.

Unfortunately, the rift between many of these groups is broadening. For example, the Status Quo agreement between the Religious Zionists and the leading Labor Zionists of the early years of the state is slowly crumbling.

Could a written constitution help solve this problem? I believe so. Written constitutions vary from country to country, but two of the most ubiquitous aspects are rigidity and longevity. Constitutions often require a supermajority vote to amend its provisions and the more difficult a document is to amend, the longer it will last.

An important advantage of a rigid constitution is that the framers will be forced to negotiate in good faith. To misappropriate John Rawls’ term, the drafters will be behind a “veil of ignorance” because no group can ever be sure it will have the same political clout in the future. So, for example, the Chareidi sector might support a strong religious influence on the government. But even with the high birthrate they cannot be sure that Orthodox Jews will forever control the Rabbinate. So they might be willing to countenance to some separation between religion and state.

Moreover, the constitution will probably (and should) require a supermajority vote before passing. Since no group could get anything close to that percentage on its own, every group will have to compromise, if only to ensure other groups are willing to consider their needs.

2) Although I don't agree with the conventional wisdom that Israel's Supreme Court is so activist that it practically runs the country, I do believe the Court has way too much power. Israel's highest court has the freedom to design any right, pilfer from any legal system, and hear any case.

Another common aspect of written constitutions is the delineation of powers among the various branches of government. Basically there are a number of ways to write a constitution but the primary feature of a constitution is that it lays out the structure of government clearly by granting the legislative, executive and judicial branches specific powers, but limits it to only those powers. So the U.S. Constitution might vest the judicial power solely in the Supreme Court or other courts as Congress might establish, but the Court does not have legislative or executive powers. This institutional grant of power should, in theory, make it difficult for a court to encroach on the other branches’ terrain.

In reality, of course, courts often step beyond their bounds. But the very nature of a written text limits the judiciary’s ability to go too far. In the U.S. the Supreme Court believes it has leeway to create new rights, but since it is a written document that the Court interprets, it must tether the right to the text. A written text constricts the possible options and constrains a judge by limiting his discretion. A judge cannot credibly claim that "Congress shall make no law" means "Congress shall make any law it likes."

Moreover a constitution would actually bolster the prestige of the court, by linking the court to the respected constitution. A constitution passed by a supermajority will have legitimacy and a court decision expounding on the document will be granted legitimacy as well. For example, years ago Israel's Supreme Court ruled that a Basic Law prohibited the Israel Land Administration from discriminating on the basis of ethnicity when leasing JNF land. This decision, in the famous Kaadan case, has yet to be implemented even for the Kaadans. Can anyone imagine an analog case in the US, where the Court makes a decision and the Executive or Legislative branches refuse to execute the decision for years? Even the most adamant anti-Roe Senator would never dare tell the States to ignore Roe and ban all abortions (South Dakota recently did this, but that wasn't to contravene Roe, but rather to get it overturned).

3) The third problem I wish to identify is the common perception that Israel’s Supreme Court unfairly overprotects some groups while underprotecting others. While I believe it is an oversimplification, a good example was the Court’s general apathy toward the Disengagement. The Court did not stand in the way of the government’s removal of entire Jewish communities from the Gaza Strip. While the Court has allowed transferring certain Palestinians from the West Bank to Gaza in the past, that was only when the government proved the suspects played a definite role in terrorist attacks. Yet, the Court was fully willing to allow the removal of entire groups of people willy-nilly without even the pretext of terror.

As noted above, a primary function of a written constitution is to list specific inalienable rights and to ensure those rights apply universally. While the contours of the right might change depending on the ethnic group (note the US Supreme Court’s treatment of affirmative action), the essential essence of the right would have to be applied fairly, without recourse to religion or political orientation.

Obviously the above problems are not an exhaustive list of all of Israel’s issues. No blog post can cover a complex country such as Israel. But this is just a start, and I’m sure SM will have something very interesting to add.

No comments: