A Constitution for Israel

To the Editors:

Daniel Polisar is undoubtedly correct in his assessment of the serious defects that characterize Israel’s present governmental structure and practice (“Israel’s Constitutional Moment,” Azure 20, Spring 2005). An American observer may perhaps be pardoned for making that judgment, however, because many of the flaws he describes are characteristic of the United States as well. Written constitutions are not cure-alls; they can create perils and encourage corruptions of their own. The U.S. Constitution, and its Bill of Rights in particular, has proved over the past fifty years to be the means of a steady erosion of democratic self-government and of judicial imposition, without constitutional warrant, of an ideology of radical personal autonomy and hence of a culture well to the left of that desired by a majority of Americans.  The struggle between legislatures and courts is, of course, a class struggle, one that goes by the name of “the culture war.” The courts everywhere are on the side of the intelligentsia, what Israeli Supreme Court President Aharon Barak calls “the enlightened community in Israel,” while the legislature is, generally speaking, on the side of the general public.

This appears to be the inevitable consequence of undiluted judicial supremacy. For that reason, a few years ago, then-Justice William Rehnquist warned a British audience to think very carefully before adopting a written constitution. Recently, however, the British did just that by incorporating into their domestic law the European Convention for Protection of Human Rights and Fundamental Freedoms and the interpretations of the Convention by the European Court of Human Rights at Strasbourg. The early results are not promising--for democracy or for traditional British values. The experience of other Western democracies that have adopted written constitutions applied by independent judiciaries confirms that when unaccountable power is conferred, it will be abused.

This may not seem to pose a new danger for Israel, since its High Court is already the most activist in the world, even managing the implausible feat of creating a pervasive and intrusive constitutional law without having a constitution. The adoption of a written constitution, however, can either confirm the court in its imperialism or go far to curb its excesses and confer democratic legitimacy upon its work.

Perhaps one reason for Israeli acceptance of an activist court is, as Polisar points out, the perceived inability of the Knesset to “steer the country’s course.” Yet in all Western democracies, activist courts are by far the most popular branch of government. Some of us in the U.S. have criticized government by a Supreme Court that is unelected, unrepresentative, and unaccountable--until it occurred to us that that is precisely the reason for the court’s prestige. Congress and the president are seen as politicians, which means that they are compromisers, practitioners of the expedient, and subservient to various constituencies, whereas robed judges are believed to act on principle, a perception encouraged by the judges in opinions that routinely insist that higher, though usually amorphous, considerations dictate their course.

The distinction between squabbling politicians and (apparently) principled judges is especially sharp in Israel because extreme proportional representation creates a government dependent on coalitions that must be placated with complicated deals. From an American perspective it would appear an improvement to elect legislators from districts geographically defined under a rule of winner-take-all. That would eliminate many splinter parties and make it more likely that the resulting government had the support, or at least the acquiescence, of a majority of Israelis. The Knesset might then rise in prestige sufficiently to counter an overweening court. The American experience suggests that is not enough to preserve democratic rule, so that any constitution should explicitly cabin the High Court’s powers or make it possible for the Knesset to do so.

It is possible to list some of the reforms that ought to be undertaken, some of which Polisar has noted. The United States Constitution prohibits certain interventions by the state into areas of personal freedom. Action by the state, real or threatened, is required before the Constitution comes into play.

Israel’s High Court, however, has decided that state inaction amounts to state action, so that the individual’s freedom may be declared unconstitutional and the state required to act. Individual freedom thus exists at the sufferance of judges. The American court limits its own power by requiring that a complainant have suffered an injury in order to have standing to sue. The Israeli court allows plaintiffs to litigate any question of policy without showing anything more than ideological disagreement. The consequence is a further expansion of judicial power at the expense of democracy. All of this is exacerbated, as Polisar observes, by a method of selecting judges that allows the High Court to choose its own membership.

Finally, though it is highly unpopular to say so, the drafters of a written constitution should be wary of adding any statement of rights. Such a statement will certainly be used, as it has been in the United States, as a warrant for judges to remake politics and culture in line with elite opinion and contrary to public sentiment. The Supreme Court has, among much else, created a right to abortion, whittled away capital punishment, created a right of homosexual sodomy (and is clearly headed to creating a right of homosexual marriage), sanctioned the most blatant pornography, removed almost all traces of religion from the public sphere, permitted discrimination against white males to benefit favored minorities and women, and made the criminal justice system extraordinarily slow and complex. Whatever one thinks of these decisions as matters of policy, not one of them is authorized by the Constitution, and some are directly contrary to it.

The draft constitution prepared by the Israel Democracy Institute invites such judicial activism by enshrining equality as the primary value to be protected, naming also life, liberty, and human dignity. A judge can arrive at almost any result in the name of these grand but undefined aspirations. For most people in Western democracies, it is almost unthinkable that such ideals should not be protected by judges, but those people have not fully realized that these are warrants for remaking the society in which they live without their approval. For almost a century and a half, the American Bill of Rights was not enforced by courts, but the white populace was free and the major injustices--slavery and then racial discrimination--were eliminated primarily by legislation. To grant almost unlimited power to courts is not to enhance freedom but to place the power to diminish freedom in different and uncontrollable hands. A friend must wish that any Israeli constitution contain a mechanism to keep courts within their proper bounds.

Robert H. Bork

The Hudson Institute

Washington, DC