Monday, October 08, 2007

DovBear Dialogue SM vs Naftuli Part 3

Part 1
Part 2

This letter was written by Naftuli

Dear SM,

Thank you for your response. It is clear, as Tzipporah pointed out in the comments, that both you and I are influenced by our legal and political environments. I want to focus on the major issue at hand, the usefulness of a written constitution, and then make a few points about some collateral matters identified in your post.

You clearly believe that a written constitution would not help Israel. But you don’t stop there. You go on to argue that “written constitutions do not work.” In other words, a written constitution is structurally incapable of working in every single instance (if I’m over-reading, please correct me). I believe this stronger claim is patently incorrect.

You identify a number of flaws of written constitutions, all of which revolve around the “rigidity” of the document. A number of constitutions are rigid, but a constitution does not need to difficult to amend. While the U.S. Constitution is notoriously difficult to amend because it requires an extraordinarily high rate of agreement to make changes, there is nothing endemic to written constitutions that require them to be rigid. Perhaps we could then agree on the value of a written constitution, but disagree on the amount of rigidity required.

However, I argued in my first post that rigidity is valuable. You responded that a rigid constitution is flawed for a number of reasons:

- It takes away important societal disputes from the political branches and places their resolution in the hands of unelected judges.
- The courts are emboldened to make political arguments precisely because their decisions are tethered to an important document.
- “….huge swathes of most written constitutions become redundant the moment they are signed”
Constitutions often contain contradictory clauses and are therefore incapable of resolving disputes.
It allows small groups to hijack the political system (e.g., “gun nuts”)

Ironically, I agree with you on 1, which is a classic problem in constitutional law in the U.S. and the topic of much philosophical debate. Alexander Bickel captured the problem best with his “contramajoritarian difficulty,” noting that allowing unelected judges to co-opt the political system runs contrary to democracy. There are all types of responses to Bickel’s problem, but the one I find the most appealing is that a written constitution is supposed to lock in rights that should not be subject to the whims of the majority. Judicial review is only relevant (with the exception of political market failures) when the majority is trying to take away rights that properly belong to minorities. What you consider a vice, I consider a virtue.

Now, if you’ve read anything I’ve written in the past, you know I do not believe that judges should be given unlimited reign to interpret the Constitution as they see fit. One of the most prominent (although not by any means the primary) defenses of Originalism is that it constrains judicial discretion by tying the text to the understanding of a certain era (by the way the existence of judicial methodologies belies your argument that judges will inevitably interpret the constitution based on their prejudices and mores). And there are other means of limiting judicial discretion, including precedent. Basically, a written constitution is a tightrope between allowing judges too much power and denying minorities the protections the founders believed they deserved. Your argument would have us subject the rights of minorities to the capricious whims of the majority.

Your second argument seems counterintuitive. Because there is a written text, judges are less constrained. But that argument seems to get it backward. Text constrains interpretation by its very nature. A statute that states “vehicles cannot enter the park” will unequivocally outlaw cars in the park if the statute means anything at all. If there was no such statute, however, judges would have a much easier time allowing cars to enter the park. Clearly the existence of a text makes judicial interpretation more limited, not less.

Are judges less likely to be activist in a country like England, which lacks a written constitution? I’ll defer to your greater knowledge of the English system and agree that they are. But England is a unique country, with a millennium of political and legal experiences, a strong adherence to custom (for example, the Queen will still not approach the House of Commons because of the actions of Charles I), and well-settled institutional roles. Very few countries can match England in that regard and certainly not a country like Israel.

3 and 4 are mistaken or at the very least overexaggerated. Again, I only have experience with the U.S. Constitution, but the vast majority of the Constitution is entirely relevant and is subject to massive amounts of litigation even in the 21st Century. Yes, the 3rd Amendment is inapposite given our current political climate, but I fail to see the problem with having clauses that are no longer litigated. And Constitutions are not contradictory per se, but all rights have limitations and those limitations are usually created by the courts and sometimes the political branches. But certainly having limited rights is better than no rights at all.

I don’t really see how 5 is relevant, certainly not in the U.S. The courts have interpreted the 2nd Amendment to be a collective right (every state and the federal government has gun restrictions), so the power of the gun lobby is not based on judicial fiat, but rather strong opinions in favor of gun ownership among a large percentage of the population and a well-organized lobby, headlined by the National Rifle Association. While religious and liberal groups (the ACLU is a good example) use the Constitution as support for their policy preferences, the courts are usually successful at sorting out good from bad claims over time (while Roe v. Wade was a horrible constitutional decision, it has slowly been chipped away). So while there are some negatives to enshrining rights, the positives overwhelm the negatives.

Now onto some collateral matters relating to Israel. You argued that Israel does not have enough respect for the rule of law. On that I wholeheartedly agree. But that’s precisely why a constitution will be useful. Constitutions generally necessitate the agreement of broad swathes of the population and a supermajority requirement will force the inclusion of even unpopular marginalized groups. And rather than allowing every group to force acquiescence to their every demand, it forces compromise on the small things in order to ensure that serious demands are taken seriously.

Later on you identify the problem not as the status of the law, but rather “the definition of ‘Israel’, ‘Jew’ and so forth.” But isn’t agreement on these fundamental terms most likely to take place as part of a comprehensive plan that resolves all the important problems in one fell swoop? A Basic Law that attempts to define “Jew” is going to fail because each side is going to further entrench itself as it has no reason to compromise. But if all the issues are put on the table, each side will be forced to engage in give-and-take, especially if the party is a minority. So the Religious Zionist community might support defining Israel more broadly than the Green Line, but they will have no chance of seeing that happen unless they compromise on other fundamentals. Basically, they’ll have to choose what really are the most important parts of their doctrine.

On the Supreme Court and Disengagement: I never read the opinion of the Supreme Court, but as far as I’m aware the Court has never even ruled that settlements on public property are a violation of international law (in the famous Elon Moreh case it ruled settlements on lands expropriated from Palestinians did violate international law). It has certainly never declared the occupation of Gaza illegal, although it did consider Israel’s presence there (rather than Israel’s rights to the area) to be an occupation, despite the government’s contention that the territory is disputed. So I doubt the illegality of the occupation was the official basis for the Court’s reluctance to deem the Disengagement a violation of national and international law.

One last point: throughout your response you invoke international law. I’d prefer to not have this debate devolve into an argument about the efficiency or justness of international law, but suffice it to say that I have serious qualms with the usefulness of international law given its non-democratic origins (customary law in particular) and the unjustified weight it gives to small non-governmental organizations. Frankly I’m not even sure international law is “law” in the philosophical sense.

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