There are many similarities between Israel and early America. Both split off from the British Empire to become independent nations. Both were engaged in wars at their birth. Both sought to create a democracy in which the people voted for their government, and both had an abundance of intelligent lawyers and jurists to construct and execute a form of government that would meet these ideals.
However, in America, James Madison, Alexander Hamilton and the other delegates to a Constitutional Convention applied themselves to shaping a unique form of government that would protect the young nation from tyranny or domination by any individual, party, or branch of government.
Separating power by clearly delineating and dividing rights and responsibilities to ensure that the Executive, Legislative, and Judicial branches would check and balance each other to limit overreach, the delegates placed the final power of government absolutely in the “people” as individual citizens. Finally, they planned to avoid the anger of the existing various states’ legislatures at their potential loss of power. They set forth a plan to avoid the legislatures by having the “people/citizens” vote in separate conventions determining whether or not to adopt the new Constitution. Even at that, it was touch and go from receiving Convention delegates’ approval in September of 1787 until the ninth state signed the new Constitution in June, 1788.
In Israel, The Declaration of Independence in May 1948 charged the newly Elected Constituent Assembly with preparing a constitution to be adopted by October 1, 1948. Instead, the government’s first act was to disband and reform itself as the first Knesset. After debate, the first Knesset decided to put aside writing a constitution, citing immediate and pressing threats to Israel’s existence, along with a seeming inability to bridge the religious-secular divide. Today, 74 years later, although Israel has grown from 1.3 million people to 9 million people and has become a world economic and military powerhouse, it still has no constitution and has exhibited an electoral instability shared by some of the Western world’s most fragile nations.
An even greater shock is that Israel has maintained an electoral system that was abandoned by every Western democratic nation – although today it is still used effectively by Russia, China and Iran – the party-vote system. The framework of the Israeli electoral system is currently defined in Article 4 of the Basic Law, “The Knesset: Proportional: The 120 Knesset seats are assigned in proportion to each party’s percentage of the total national vote, unless the number of votes a party received falls short of the qualifying threshold.”
All other Western democracies have adopted some type of representative democracy, where the country is divided into electoral districts and the voters elect their specific delegate to represent them in the legislature. In most nations, once the representatives are assembled the party with the most members as representatives is tasked with organizing the government. But in all these countries, the citizens vote for an individual to represent them and to whom they can address their problems, policy views, and complaints. Their representative is responsive to the constituent’s complaints and policy views as he or she depends entirely on constituents’ votes to either place or maintain them in office.
In contrast, Israel has outlawed a citizen’s direct vote for a representative, instead enshrining in its Basic Law the restriction that the Israeli citizen can only vote for a political party – giving citizens no choice as to who will represent them or who will sit in the Knesset. This process changes the essential nature of the democracy. Instead of the people voting for their direct representatives, the party leaders select Knesset members and ministers. The political parties are awarded all governmental powers. Where does sovereignty reside in Israel? Israeli sovereignty lies with the political party – and in reality, with only a handful of party leaders! This situation is exactly what the American founders sought to avoid.
In the young United States, the creators of the Constitution believed “Who is Sovereign” to be the first and most important question facing the new Nation, or facing any nation. They answered that question with a revolutionary and bold opening statement, defining sovereignty as: “We the people of the United States in order to form a more perfect union…” This was the first example in history of “the people” declaring their sovereignty and not the Crown or other representative of the state.
This question of “who is sovereign” was one of two great debates threatening to break up the Constitutional Convention and send the delegates home without adopting a new governing law. The manner in which the Convention delegates in 1787 arrived at their two great compromises, ensuring the enactment of this great revolutionary document, may provide a roadmap for the adoption of a written Constitution by the State of Israel, finally ending the Era of Fractured and Ineffectual Government.
The history of Israel’s attempts at constitution writing lies afoul of many problems, including the desire of the founders to maintain their party’s dominance and their personal powers. The domination of a single political party, with its revolutionary socialist doctrines, was familiar to many of Israel’s early leaders. By restricting the citizens to voting only for parties, Israel’s founders were able to maintain their management and control of Israel’s political and social system. With votes allowed only for the party, the party managers maintained total control of who would be advanced and who would be denied. Charismatic leaders, reformers, and visionaries were denied any opportunity to go directly to the citizens and appeal for their votes. Party leadership was safe and secure.
Of course, there were two other problems at Israel’s founding that presented difficulties to writing a constitution. One was the War of Independence that began with the declaration of the State, absorbing the attention and manpower needed to write the document. But that distraction lasted only months before a return to peace made it imperative to establish the State on a firm political footing.
The other problem still remains with the State: The Religious Problem. This is the problem that has baffled all the great minds attempting to create a constitution since Israel’s first Knesset. Israel is a Jewish state, but what that means is under constant debate by every group across the political spectrum from secularists to ultra-Orthodox. When the State was founded, Ben Gurion decreed, with Rabbi Goren’s advice, that the Army would follow the laws of kashrut, additionally declaring religious holidays and the Shabbat as national holidays. Also, to avoid having Israel split into religious and secular cultures unwilling to marry or interact with each other over personal status issues, control over personal status (as it relates to governmental issues) was to follow religious requirements. However, to this day, a segment of the Israeli population is still vigorously protesting this arrangement, pledging to overturn it.
This “Religious Problem” is the source of Israel’s governmental instability. Some political parties in the Knesset vow to remove the religious control and restrictions on personal status issues, as well as in other areas where the State and religious leaders had previously reached an understanding. This has forced the religious to form their own political parties to defend their position in the State. Because many religious citizens vote as a disciplined block, they have enough seats in the Knesset to block attacks by other parties on their role in key government ministries and to forestall relinquishing their control over personal status issues. This religious problem is the critical issue preventing both representative government and the people’s sovereignty. Defensive, and feeling their backs are against the wall, a large number of religious citizens and the religious parties are fearful of giving an inch in the formation of governing coalitions or in approving any new form of electoral representation that would dilute their ability to defend themselves, their current agreements, Israel’s relationship to Shabbat and holidays, and their way of life.
In many ways, this is identical to the problem and crises that almost caused the American Constitutional Convention to adjourn without any agreement on a new governing Constitution. In America, the problem was not over religious law and personal status, but it was over two other principled and moral issues: citizen sovereignty and slavery. Both issues tore the Convention apart with opposing factions even threatening bodily harm when provoked by the opposition.
The first issue, sovereignty, came down to “who was to be sovereign” in the new form of government, the people or the states. James Madison led the large states in insisting that the people must be sovereign and, therefore, representation in the Congress must be by population – as population represents the people. He demanded the Convention do away with sovereignty where it resided — with the individual states. Madison stated that a truly national government must be based on the citizens as a whole, not on the agreement of established state governments. The large states’ proposal required a Congress apportioned by population with the result that the small states would easily be outvoted by the large states.
The smaller states, who each had the same single vote as the large states in their current government, saw this as a tyranny to deny them any power in the proposed government. They threatened to walk out if their demand that every state still maintains only one vote was rejected. At risk of losing the gains of all their labors, the delegates argued and fought, but at the last minute agreed to what became known as “The Great Compromise:” one house of the legislature would be determined by population and the other house would be determined by states with two representatives and two votes for every state. Both sides were assured and relieved, even if many doubted the compromise would work.
The other problem threatening the Convention was personal and moral. The Northern states demanded the end of slavery and the freeing of all men and women in bondage, saying it was a moral affront to the new Nation. The Southern states, although many were also bothered by the moral issue, claimed that this was the bedrock of their economies, and they would walk out before allowing the new Constitution to restrict slavery in the South. Speeches and arguments were heated on both sides.
In the heat of the debates, realizing what was at stake, both sides began to modify their positions. The South said it would agree to stop the importation of slaves after 1809, believing its states were moving away from the institution, as some Southern states had already made the importation of new slaves illegal. The North saw this as a positive step. However, the South insisted that the new Constitution clearly articulate that Congress would not interfere with slavery where it existed in the South. This was a hard pill for the anti-slavery Northerners to swallow. On this issue the Southern states were ready to walk out and the Convention was poised to break up. Both sides thought deeply about what the Convention had already accomplished in framing a revolutionary form of representative government, and what it would mean to the citizens and to history if they failed at this late date. With the survival of the United States in the balance, the Southern states stayed in, and the Northern states gave acceptance — although with intense moral disagreement. The Constitution was adopted and signed by the Convention on September 17, 1787 and became the law of the land in June, 1788.
Could this dramatic episode, aptly named, “The Miracle at Philadelphia,” contains the seeds of solution to Israel’s constitutional and electoral crisis? Are the solutions to these seemingly impassible gaps something Israel can learn from — a path to reaching goals acceptable to two warring sides? Can the process of reaching compromises in America’s Constitution work in Israel by giving each side just enough to overcome its fears, but not enough to claim total victory? Or will intense Israeli partisanship mean a continuing weak and fractured government, unable to maintain itself in office, constantly beset by coalition demands and compromise and left with the inability to take definitive actions?
In order to write a constitution that will shift the form of government from party sovereignty to citizen sovereignty, creating a truly representative democracy, Israel will first have to reassure the religious parties and other concerned religious citizens that their rights will finally be beyond the power of any later Knesset to overturn. Rights so critical to them will have to be enshrined in the new Israeli Constitution – this means enshrining many of the rights and powers they currently hold, which include regulating personal status. In return, the religious will have to think hard about where they may liberalize restrictions. This will indeed be a painful compromise for both sides. The secular and the anti-religious parties have made these issues a central part of their platforms. But painful compromise is the only way Israel will ever mature to a representative democracy!
Only when the religious feel protected by the basic law of the land will their parties agree to direct election of representatives over the current control by political parties. The religious parties are aware that representative election will surely dilute their power in the Knesset. Since the religious already exercise these powers today, what is at stake is the anti-religious belief in a dream — that they can eliminate these powers at some time in the future. That day may never come, — and as in America, it is TODAY that is crying for solution and resolution. Can Israel go on with every self-believing charismatic politician thinking he or she can lead a revolution and become Israel’s Prime Minister, forever splitting the electorate into ever-smaller parts — making the formation of a government majority — or effectively governing impossible? Can Israelis give up victory — for solution?
The American experience is also instructive in a second way. The delegates at the Constitutional Convention were fully aware what they produced would be hotly debated all across the nation. They were also aware that this new government went beyond the expectation and instructions given to the delegates — in fact, they had abolished their current system of government and offered in its place a new and revolutionary form of national government never thought of or attempted before. They knew that no sitting state legislature would agree to give up its privileges to this new idea and would reject the Constitution if it were offered to them for approval.
The delegates now moved to a second revolutionary idea — putting acceptance of the new Constitution directly before the people — avoiding the sitting government officials. They recommended each state appoint or elect special delegates to a state convention specifically established to affirm or deny acceptance of the new Constitution. This move bypassed the state legislatures, and at the same time made ratification by “the people” over ratification by the state governments the basis of “sovereignty residing in the people,” and not sovereignty residing in the states. This was to become of critical legal importance when the Southern states later claimed the right to secede from the Union.
Perhaps, if Israel’s leading politicians and lawyers can finally agree to the compromises necessary to move beyond today’s disastrous gridlock, the American process could be instructive as a model for gaining approval, while finally granting Israeli citizens their right of sovereignty!