David Chinitz

Ecclesiastes? The Federalist? Give me a break!

Prime Minister Netanyahu has been busy giving interviews in the foreign media, putting on his display of clever dissemblance and faux congeniality. He snowed Bari Weiss, usually a hard talk type, and Jordan Pederson, who came off as an obsequious school child, into accepting without question his calming words about “the judicial reform that I have in mind is aimed at strengthening Israeli democracy, following Montesque’s vision of “separation of powers.” Of course a strong judicial system is important, he pronounced with false sagacity, but in Israel, the Court has gone too far,” His interlocutors were unequipped to challenge him. Neither Weiss nor Pederson brought up his being indicted on four serious counts of malfeasance and corruption, and what impact that might have on his policies towards the judicial system in Israel. Indeed, their promise not to do so was probably a prerequisite for Netanyahu agreeing to be interviewed.

The latest farce was when usually tough Jake Tapper was caught off guard when Netanyahu began by congratulating Tapper on the success of the Philadelphia Eagles reaching the Super Bowl, It would have taken lightening reflexes for Tapper to respond: “You know what else Philadelphia is known for? The constitutional convention that produced America’s legal framework and bill of rights. That was not a rapid express train railroading the Constitution down the throats of the American people. It was a meticulous, intelligently debated foundational document; a process that held personal and political animosities at bay with civil discourse. When you arrange the same in Israel, I’ll congratulate you too.”

In the period following the writing of the constitution, it was much debated, and defended by Alexander Hamilton and the other authors of the Federalist. Netanyahu’s purported brain trust, the Kohelet Forum has made much of what Israel can learn from the Federalist about separation of powers and checks and balances. Funded by wealthy conservative donors (oh, I thought only the New Israel Fund, which never militated for changing Israel’s whole system of government, was a foreign implant….) the Kohelet Forum has, seen fit to bring the so-called lessons of the Federalist to Israeli Society. As this writer learned long ago as a new oleh, a bit of humility in bringing policy solutions from the outside is called for. But humility has never been the hallmark of the Yoram Hazonys, Gadi Taubs, and their ilk in Israel. The group that translated and published the Federalist in Israel was made up of well considered, moderate and modest scholars such as Prof. Ruth Gavison, who, unfortunately, is not longer alive and able to put the sophomoric would-be reformers in their place.

A few quick, but ignored points, about the Federalist, that expose how the Kohelet Forum, Yariv Levin, Simcha Rotman et al have misappropriated ideas discussed therein to provide intellectual cover for their crude, damaging proposed reform.

1. Anyone who reads the Federalist will be well aware that the preponderance of its concern is with relations between the US States and the Federal Government. Israel does not have a federal system.

2. In the US, the federal and state governments have a true tripartite separation of powers. As every schoolboy knows (unless he attends a Haredi school with no core curriculum), the trio is made up of the legislature, the executive and the courts, all of which act as checks and balances on each other. In Israel there is no separation of the legislature from the executive. The elected representatives of the public do not really represent their voters, but rather the party they belong to. Coalition discipline dictates legislation. In this set-up, only the courts can check and balance the governing coalition.

3. It is a myth that the Israeli Supreme Court intervenes to protects the minority. On the contrary, the Court protects the majority consensus from domination by minority parties that make up the coalition. Moreover, the multi party logrolled coalition agreements prevent the government from acting in a concerted way. Failure to craft legislation intended for the public good broadly construed and protective of individual freedoms being overrun by narrow interests of small minority coalition partners, as well as failure to implement laws and court decisions, is what brings so many claims to the doorstep of the courts. The exception that proves this rule is the National Health Insurance Law which defines and costs a standard basket of health services which obligates health maintenance organizations. The clarity of this law removes most suits regarding health care entitlements from ever getting to court, and the court is more than content with this. But this is sui generis in Israeli public policy. In short, when the executive and the legislature get their policy act together, the courts will be less involved. Judicial activism is not the court’s desire; it is, rather, an unwanted by product of policy paralysis.

4. The whole notion of legislative override is a recipe for more chaos. If citizens and their representatives are unsatisfied with basic laws that are already on the books, there should be an amendment process. In that process, notions such as “reasonableness” can be defined better if that is desired.

5. The Federalist is a carefully crafted argumentation to defend and make workable the US Constitution is a context of a confederacy of states coming together to form a union. It is intended to avoid tyranny of the executive, and to prevent situations in which the leader of the executive subordinates the interests of the polity to those of his own. Notwithstanding the need for judicial reform, the fact that it is being initiated in the context of exactly that, a leader who, according to most reasonable men, is embroiled in a legal defense of his behavior while in office, makes reference to the Federalist as support for the reform absurd. What the Federalist tells us is that if reform is needed, it needs to be done carefully, within a convention of a representative group of leaders from the different political parties, transparent and based on broad consensus that the legal framework that emerges is subject to broad public consensus.

6. I don’t know what verses from Ecclesiastes justify the name Kohelet Forum. But it is certain that the ultra-nationalist religious and haredi parties have no idea about this. Their drive is to limit “modern and foreign” influences that threaten the “Jewish identity” of the State of Israel. What an irony that they throw in their lot with a group intending to do just that: subjugate the country to a western model of government, albeit misconstrued by them. The name Kohelet is associated with not taking yourself too seriously; that most of what you do and have to say is vanity. However they misread the biblical Kohelet, the so called conservatives pushing this reform ought to take a look at Proverbs admonition that haste is a recipe for transgression. When any of them has composed an Israeli analogue to the Federalist, then they can begin trying to overhaul the system. Until then, a little humility on their part would be welcome. Unless their motivation is self serving, in which case they are taking the name Federalist in vain.

About the Author
David Chinitz is Professor of Health Policy and Management at the Braun School of Public Health, Hebrew University-Hadassah
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