But in a country such as ours, imagine for yourselves that the nation wants something, and seven people designated with the rank of judge cancel something that the nation wants!…This, in our country, would lead to revolution. For the people will say: we will do what we want. I think giving this kind of authority to judges is a reactionary thing. With us this can’t exist. The community wouldn’t accept it. The Knesset, or, if we have in the future, a different kind of parliament, will pass a law which will rely on the will of the majority—and the Supreme Court will throw it out because in its opinion it doesn’t fit some line in the constitution! Only the nation determines the constitution. A constitution is what the nation wants after free debate and judgment and after a vote.
These are the words of Israel’s prime minister, though not the one you think. They are an extract from a speech delivered by David Ben-Gurion on July 13, 1949. He spoke at the first incarnation of the Knesset’s Constitution, Law, and Justice committee. This is the same committee in the news today pushing through a series of judicial reforms that are reminiscent of Ben-Gurion’s sentiments. Back in 1949, the first elections in the State of Israel actually established not a government but a constitutional assembly. This asssembly was charged with the task of creating a constitution for the state. With the typical Israeli attitude of yihye beseder (“it’ll be fine”), the assembly decided to transform itself into a legislative body. It started governing the country without any clear definition of how the government was composed or how it was to function. Thus, the Knesset was born. In his speech, Ben-Gurion laid out his reasons for supporting this move. He examines what the term “constitution” might mean in Israel’s case.
Ben-Gurion considers three options:
A “constitution” may mean a set of laws outlining the way the state runs. This includes how many seats are in the Knesset, how long a Knesset term is, whether the president has veto power over laws, etc,. If this is what was meant by “constitution”, then there was no need to set aside resources to create one. By the summer of 1949 the Knesset was already engaged in passing laws that defined this type of rule.
A “constitution” may also mean a ceremonial declaration of values without binding legal status, such as the French constitution’s declaration of equality and fraternity. Or it may include the assertion of certain rights such as freedom of speech and assembly. Ben-Gurion dismisses this kind of declaration as irrelevant to the Israeli reality. Declarations of values are useless if they can’t be enforced. And besides, Israel’s Declaration of Independence already describes our society’s values. The assertion of rights is only necessary when there’s some reason to believe that those rights aren’t assured. But in Israel “it’s permitted to do anything unless it’s forbidden. And if it’s forbidden, it’s forbidden.” There’s no need to declare things as inalienable rights. At the practical level, getting involved in these philosophical issues would be distracting. The Knesset was already overwhelmed by the work of setting up and maintaining a new state. Or, in Ben-Gurion’s words, “this state now requires laws [halachah] rather than legend [aggadah], which is not necessary.”
Finally, a “constitution” may mean a set of laws that take precedence over others. These are laws that require a large majority to pass and amend. The courts, as mentioned above, can use these laws to strike down second tier laws that contradict them. Ben-Gurion rejects this kind of “constitution” on several grounds. First, he doesn’t understand why any parliamentary minority would vote for a law that would limit its own power should it become the majority in the future. Why would Ben-Gurion’s opponents in the Knesset ever accept such laws? Second, Ben-Gurion doesn’t see why his generation should tie the hands of future Israeli legislators. His generation may have unique moral standing as the founder of the State. But this does not give it the right to impose its perspective on future generations.
Ben-Gurion’s pragmatic arguments made sense in their time. The nascent State of Israel could not afford to philosophize. It had existential wars to fight, overwhelming waves of immigrants to absorb, and mouths to feed. A country whose people line up to buy food rations and live under constant fear of invasion does not have the luxury of dreaming about its future. But this doesn’t mean that those dreams, in their proper time and place, are less crucial than bread and security.
Times have changed. The State of Israel is like an unwieldy flying machine; made of ancient parts, shoved off a cliff, and constructed during free-fall. It’s survival is a miracle. Today’s Israelis owe a debt of gratitude to Ben-Gurion and his generation for their courage and determination. Our little state is thriving. Things aren’t perfect, but Israel has become a viable, secure, and economically stable country. The flying machine, against all odds, has pulled out of its nose dive and achieved a relatively stable cruising altitude. But this means we’re forced to answer a question that Ben-Gurion and his generation avoided. Where are we going?
Ben-Gurion argues for the irrelevance of aggadah in the face of halachah and for the facile nature of declarations of values. These arguments are valid for a state whose existence is motivated from without by threats from enemies. In that case, the enterprise is justified a priori and the main question is how to run the state most effectively. The Declaration of Independence reflects this state of affairs. Most of its text justifies the existence of Israel in external terms. We deserve a state because we were exiled from the land, because of the Balfour Declaration, and because of the Holocaust. The declaration includes a few sentences about freedom, justice, peace, and equality. But these brief statements hardly count as the vision for a nation in its state. If we believe that the State of Israel is justified for reasons other than the Holocaust, then we should make those reasons clear. If we believe that our nation has a purpose more ambitious than dealing with our constant existential threats, then we should set that purpose as our polestar and commit to following it. That is the function of what Ben-Gurion calls aggadah. It’s the story we tell ourselves about who we are and what the point of this country is. Without this story, our mountains of halachah are emptied of meaning. We are then at the mercy of external forces, like our enemies, to both justify our existence and dictate the goals of our national striving.
The values underpinning our national story become the constitutional laws. Ben-Gurion asked a good question. Why would an opposition ever agree to a law that would limit its power when it becomes the majority? Perhaps it could agree to a law that once violated would leave us unable to recognize ourselves as the same state or people. Constitutional laws are the covenant we make with each other about the kind of country we commit to living in, come what may. These laws enshrine these values and protect them from the will of a transient popular majority. Governments of one type or another come and go, but all commit to a common vision.
Today the political blocs in Israel are at each others throats. Each side seeks to champion “democracy” while working with a vastly different definition of that term. One thing is clear. This state cannot endure if huge parts of the population feel they are living under the coercion of a government institution that’s out to get them. It doesn’t matter if that institution is the Supreme Court or the Knesset. To survive we need to balance the will of the majority against the higher-level values and vision of the nation. Commitment to these values constrains the majority from exercising unbridled power. Confidence in these values is the reason why the minority consents to the rule of the majority. This only works if these values are accepted freely, and only if we can trust each other to uphold them. This is why these kinds of decisions must have broad consensus.
President Herzog’s outline for dialogue is laudable and we must pursue it or something like it. However, this is still like trying to live in a marriage using a contract. Without a common purpose the center will not hold. What we’re really waiting for is the day described by the prophets: “After that, I will pour out My spirit on all flesh; your sons and daughters will prophesy; your old men will dream dreams, and your young men will see visions.” (Yoel, 3:1) To the extent that we can dream together, we can live together.
The political norms that have kept our state functioning since the ragtag days of Ben-Gurion’s first government have dissolved. We could allow inertia to pull us into chaos, civil disfunction, and other terrible things. Or we can look at this moment as a beckoning to start answering the questions that Ben-Gurion set aside for later. Why does the State of Israel exist? What does it stand for? Where is it going?