Constitutional revolutions with no constitution

That Israelis who seek judicial reform have a legitimate point is not the point. They do—but still have the ability to bring everything crashing down while they insist on the rightness of their cause.

Thousands of Israelis rally against the Israeli government's planned judicial reforms, in Tel Aviv on Jan. 21, 2023. Photo by Gili Yaari /Flash90.
Thousands of Israelis rally against the Israeli government's planned judicial reforms, in Tel Aviv on Jan. 21, 2023. Photo by Gili Yaari /Flash90.
Michael Koplow
Michael Koplow

The furious debate over Israeli Justice Minister Yariv Levin’s proposed judicial reforms that is now roiling Israeli state institutions and society—evidenced by shouting matches in the Knesset’s Constitution, Law and Justice Committee, speeches from Supreme Court President Esther Hayut and responding speeches from Levin, and more than 100,000 people protesting in Tel Aviv, Jerusalem and Haifa—is confusing.

To begin with, the details are not easily accessible to those not steeped in constitutional law and political theory, let alone the specific peculiarities of the Israeli system, with its Basic Laws and reasonableness tests. Furthermore, it seems strange that the fundamental rules of the game are still open for debate 75 years after Israel’s founding.

The fight taking place is not over a specific policy—at least not yet—but over whether the Supreme Court should have the ability to deem legislation out of bounds, and whether the Knesset should have the ability to ignore the Supreme Court if it chooses. For Americans in particular, this is unfamiliar terrain, even if we have gone through our own institutional upheaval in recent years.

The heart of Israel’s problem is that it went through what was deemed a constitutional revolution, and is now in the throes of a potential constitutional counterrevolution, all without actually having a constitution.

Constitutions are important not only because they ideally reflect a country’s core principles, serving both as a mission statement and operating manual, but also because they represent a governing philosophy that sits above the messiness of politics. Democracies will have fights over policies that lead to drastic swings depending on changes in power and changes in societal values, but the animating feature of constitutions is that they are supposed to reflect the unchanging nature of the system itself.

This is why constitutions work best when they are written and passed with a wide consensus from across the entire spectrum, and why constitutional changes should be subject to an extremely high barrier, as with the process for amending the U.S. Constitution.

And this is before getting to a lower-level set of issues with regard to U.S. concerns and priorities that are viewed as belonging to Israel’s domestic domain but that implicate shared values and support for democracy, such as the proposed changes to the oversight power of Israel’s Supreme Court or statements from Israeli ministers and coalition MKs threatening the status of minority rights.

Israel has no constitution, the reasons for which would take up far too much space to list here. But it has tried to have things both ways, coming up with a system of “Basic Laws” that is supposed to serve as a quasi-constitution, while also not holding these Basic Laws to any higher standard than normal legislation. A constitution is meant to be shielded from short-term public opinion, but Israel’s Basic Laws are passed with a majority of the MKs who happen to be in the Knesset plenum when they are voted on.

This has created two problems: Basic Laws do not necessarily sit above the messiness of politics or reflect a broad political and societal consensus, and the Israeli Supreme Court’s effort to treat them as such causes its own set of controversies and opposition.

For democracy to work, there has to be confidence on both sides of the political spectrum that they will always have the opportunity to come into power and to set policy that comports with their worldview, and that losing one election or even a series of elections does not mean that things will inalterably change. The way to instill this confidence is counterintuitive: to make political institutions—their structure and the scope of their authority—not actually democratically accountable to the voters and their representatives in office.

What this means in practice are constraints on changing the system that prohibit whoever holds power from undermining political institutions’ unaccountability to them. In other words, enacting constraints on the majority that do not bind their hands on questions of normal policy, but that bind their hands on questions of the system.

In the United States, this means our Constitution, which creates the basic system of checks and balances, sets out which branch has authority over what, and does its best to create a system of institutional barriers that keep the majority from exercising its power directly and completely.

Perhaps the most important principle that emerges from this—one that seems increasingly glossed over and little understood—is that democratic politics is a necessary basis for democratic legitimacy but it is not the only one, nor a sufficient one on its own.

The Israeli system has never fully grasped how this works. From not creating a constitution at the outset, to creating Basic Laws that do not have any greater institutional legitimacy than regular laws, to the Supreme Court creating the authority to review—rather than interpret—legislation arising out of its interpretation of a Basic Law, to the new effort to make the Knesset effectively unaccountable to any other institution by proposing a simple majority in order to override the Supreme Court; all of this is a recipe for a muddied and muddled system that would eventually break down.

The crisis that Israel is now undergoing—and it is absolutely a crisis—is due to the combination of poor institutional design from the outset and radical politicians today. You would not have what is currently taking place without both of these elements.

It is unlikely that Israel will suddenly rectify one of its original errors and write a constitution. In the current political environment, it wouldn’t even be possible. But the various weaknesses of the unbalanced and unchecked system—many pointed out by my colleague Alex Lederman, such as a unicameral legislature, the functional conflation of the executive and legislative branches, and of course the absence of a constitution—make some sort of compromise agreement over the judicial reform proposals even more necessary than it seems at first glance.

A Knesset that is functionally free of all judicial oversight makes no sense, but neither does a Knesset that has zero recourse to address Supreme Court limitations on its legislation. And the idea that this government might allow the Knesset to override the Supreme Court while the next one reverses that decision, and that such a fundamental element of the system depends on who controls the Knesset, should make anyone who cares about the health of Israeli democracy and governance quake in their boots.

Screaming “the will of the voters!” over and over again is not a credible argument when it comes to systemic and institutional changes, and there will be real and long-lasting consequences in the form of damage and crises of confidence in Israel’s political system.

That those who want judicial reform have a legitimate point is not the point. They do, and they still have the ability to bring everything crashing down while they insist on the rightness of their cause. Fixing a broken system isn’t done by breaking it even more, beyond repair. Israel’s attempt to have constitutionalism without a constitution is precisely why the new government needs to proceed with maximum caution, and make sure that their zeal to enforce democratic legitimacy does not actually crater it.

Michael Koplow is Israel Policy Forum’s Chief Policy Officer, based in Washington, D.C. To contact Michael, please email him at mkoplow@ipforum.org.

Originally published by the Jewish Journal.

The opinions and facts presented in this article are those of the author, and neither JNS nor its partners assume any responsibility for them.
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