Israel’s boiling political crisis as it turns 75 brings to the forefront the lack of a binding political and legal framework in Israel, and a comparison to the role of the US Constitution in enabling an enduring democracy in America. While the US Constitution can be a suitable reference, in an historical context it could foreshadow serious consequences for Israel.
Israel’s current political crisis stems from a set of radical legal changes pushed through by Bibi Netanyahu’s government. Amongst other changes, these laws will enable the government to easily overturn decisions made by the Israeli Supreme Court, shield laws from judicial reviews, and control appointments to the Court.
As Israel has no formal constitution, over the years the Israeli Supreme Court assumed the role of enforcing Israel’s quasi-constitution Basic Laws and of serving a checks and balances role in Israel’s political and legal system. Bibi’s right-wing governing coalition is particularly incensed by several of the Court’s recent decisions, including striking down Israel’s blanket military service exemptions for Orthodox Jews, returning land taken by West Bank settlers to their Palestinian owners, and blocking a criminally-convicted minister from serving in Bibi’s government.
The protest against Bibi’s legislation has been fierce. Since January, hundreds of thousands of Israelis have been demonstrating in opposition to these changes both in Israel and abroad; military reserve soldiers and officers are refusing to serve if these changes go into effect; Tech-industry leaders are threatening to divert investments from Israel; and economists are warning that these moves will bring economic decline.
Referencing the US Constitution can be deeply problematic for Israel because the laws that are most consequential to the Israeli debate were added to the US Constitution approximately 75 years after it was adopted, and only following the bloodiest of civil wars.
The US Constitution, which was originally ratified on June 21, 1788, established an enduring legal framework of checks and balances for a working democracy. However, it made no references to equality and very little reference to individual rights. The issue of slavery, which was contested fiercely between the Northern and Southern states before the Constitution was ratified, was kicked down the road. It was resolved only by civil war.
The main purpose of the Israel’s Declaration of Independence, which was broadcasted live by David Ben-Gurion, Israel’s first prime-minister on the day Israel became independent, was to justify Jews’ historic claim to the land of Israel and to announce the formation of an independent Jewish state on this land. The Declaration also conferred equal rights for all citizens without regard to religion, race or gender, and freedom of religion.
While Israel’s Declaration of Independence was not intended as a legal document, since its adoption these fundamental statements have served as the anchor for Israel’s Basic Laws of universal rights and for key Israeli Supreme Court decisions.
When today’s protesters demand “Democracy” they mean “Jewish Democracy” in accordance with and in the spirit of the Declaration. However, these views of the Declaration are not universally accepted in Israel. Many in Bibi’s coalition are demanding “Jewish rights” laws instead of universal right laws and are objecting to Supreme Court decisions that are based on universal rights. Others, particularly in the Jewish Orthodox parties, reject the Declaration altogether on anti-Zionist grounds.
Regardless, the concept of “Jewish Democracy” requires a Jewish majority, as realistically, the Jewish nature of Israel can only be preserved by a majority comprised of Jewish voters. However, the political reality in Israel over the past 55 years has been nothing but an escalating affront to this concept.
Israel’s Six-Day War in 1967 added millions of Palestinians to Israel. Israel hasn’t annexed the West Bank partially because doing so would have demographically jeopardized the very concept of a Jewish Democracy. Instead, Israel unleashed a state sponsored Jewish settlement movement onto West Bank lands, supported by both right- and left-wing Israeli governments. While Jewish West Bank settlers can vote in Israeli elections, Palestinians, many living for generations in the West Bank, can’t.
The protesters’ demands that Bibi’s government’s legal changes be rolled back to ensure an independent Supreme Court, guarantee checks and balances, and protect individual rights necessary for Jewish Democracy. To date, they have largely ignored the crucial question of how to square millions of non-voting Palestinians residing within Israel’s borders with the concept of Jewish Democracy.
Anti-slavery and civil rights laws became part of the US Constitution only following the American Civil War, 76 years after US independence, because the American founding fathers intentionally left these issues unresolved in the framers Constitution.
Similarly, Israel’s framers made the Jewish nature of the state unequivocally clear in Israel’s Declaration of Independence, but left the meaning of a Jewish democracy ambiguous. Is Israel a Jewish democracy because Jews are a majority or because Jews are constitutionally favored?
As Bibi’s coalition acts to legislate Jewish rights over universal rights, the opposition must accept that Jewish Democracy will fail with millions of non-citizens Palestinians under occupation.
And, in referencing the US Constitution as a guide for resolving its biggest political crisis, Israelis must remember the price that America paid for achieving A More Perfect Union.