Madison’s Principle and Yariv Levin’s Reforms

[W]e may define a republic to be . . . a government which derives all powers directly or indirectly from the great body of the people, and is administered by persons holding their offices during pleasure, for a limited period, or during good behavior. — James Madison, Federalist #39.

Wednesday night the Minister of Justice, Yariv Levin, announced the first stage of his reform of Israel’s legal system.  Most commentators, particularly Levin’s critics, do not appreciate how much Levin’s reform owes to, of all people, former Chief Justice Aharon Barak, the author of Israel’s “constitutional revolution.”

When Madison defined a republican form of government to be one in which all powers derived directly or indirectly from the people, he thought he was distinguishing the American form of government from Britain’s, but in fact both governments fit his description.  Even in 1787, when Madison wrote, the British Parliament was sovereign.  It made the laws and would soon acquire the power to make governments.  The British judiciary has a long tradition of respecting Parliament’s right to define the law.  It would never occur to British judges to place their own personal judgment above Parliament’s.

The main difference between the British and the American form of government is the American constitution.  In America, no one part of the government is sovereign in the sense that Parliament is.  All branches of government derive their authority from a written Constitution.  When American judges engage in judicial review, examining the validity of Congress’ laws, they weigh those laws against the Constitution.

Israel at its founding was more similar to Britain than to the United States.  The first Knesset was elected as a convention to write a constitution, but it could not agree on one and never did.  Instead, since there had to be legal rules for conducting elections, forming governments, etc. it passed what it termed “basic laws,” which were basic in the sense of setting forth rules of procedure.  The Knesset that passed them never intended them at that time to serve as a constitution; in fact, they were passed in order not to be one.  In theory the Knesset, like Parliament, was sovereign, in the sense that it had the authority to make whatever rules it saw fit.

The first hint of Constitutional legislation in Israel came with the passage of the Basic Law:  Human Dignity and Freedom in 1992.  For the first time, it implied that a law the Knesset passed might be disqualified if it contradicted certain values.  The law was not adopted with any of the fanfare or gravitas one might associate with genuine constitutional legislation; only 32 of 120 Knesset members voted for it in its final reading.  Hard upon its adoption, Aharon Barak and the students and intellectual followers with whom he packed the Supreme Court initiated a series of activist decisions to turn the law’s guarantee of human “dignity” into grounds to challenge almost any Knesset law or government decision.  Not for them deference to the judgment of the people’s elected representatives.

Barak’s next step in singlehandedly creating an Israeli constitution came in the “Herut” case of 2002.  In this case Barak unilaterally declared all of Israel’s Basic Laws to be constitutional legislation and used this doctrine, too, to invalidate the Knesset’s legislation.  Barak also established, by inference, a distinction between constitutional and other legislation in Israel:  A Basic Law, to be considered such, must be passed not by a simple majority of the Knesset but by a majority of 61. By this criterion, of course, Barak’s favorite Basic Law, “Human Dignity and Freedom,” was not constitutional, but Barak never let this inconsistency get in the way of his exercise of power from the bench.

When the Knesset passed the “Basic Law:  Israel as the Nation-State of the Jewish People,” it observed Barak’s definition of constitutional legislation, and underscored this by establishing a precedent:  the law passed with a majority of over 61 in all three readings.  Nonetheless the Supreme Court undertook to review the law and pass on – on what?  The law’s constitutional validity?  But the law itself was supposed to part of the legal canon the court had declared constitutional.  The Court’s decision to judge the law demonstrated, if any further demonstration were needed, that it conceived its authority to be derived from no act of the people but from its own ambition.

In his address Wednesday night Yariv Levin accepted the principle, advanced by Barak, that Israel is to be a constitutional republic.  He accepted the principle that Basic Laws are, in fact, Israel’s constitution.  But he insisted that all parts of the Israeli government be subject to that constitution, the Supreme Court included.  If the court is to engage in judicial review, it must do so not because the judges themselves merely assert the power to do so, but because the power is granted them in a Basic Law, passed according to the principles established for passing such laws.  No longer will the judges appoint themselves, perpetuating their personal judicial, aye, and social and political convictions on the bench and then legislating them from the bench.  From now on appointments to the court will follow the principle Madison proclaimed: Judges will derive their authority indirectly from the people themselves through their elected representatives.  This, too, will be enshrined in constitutional legislation, adopted in the manner the Knesset authorizes such legislation.  From now on no person or body in Israel is to exercise authority without the sanction of duly adopted law.

It appears that few commentators on Levin’s proposal have noted that what he in fact intends to do is to expand the Judicial Selection Committee from nine members to eleven.  Three are to be drawn from the members of each of the three branches of government.  Another two will be public representatives nominated by the Justice Minister.  Allowing the opposition one Knesset member, as is traditional, this will give the coalition of the day seven votes with which to appoint Supreme Court judges.  This is entirely consonant with the American example.  The Committee will be dissolved and reappointed after each election.

The great problem with Levin’s proposal is his inclusion of an override clause.  This author joins with many others in thinking that this is a bad idea and a threat to civil liberties.  There are grounds for believing that Levin himself understands the problem and shares this opinion.  His hand is being forced by political expectations within his own political camp.

The philosopher Eric Voegelin writes that few things are as irritating to people as discovering the actual origin of ideas, and the override clause is a good example.  For the person who introduced this idea into public discussion in Israel was none other than Aharon Barak himself.  Barak, a consummate politician, understood that the key to the Supreme Court’s ability to enforce its members’ private social and political convictions on all of Israeli society was to maintain the right of appointing members to the supreme court firmly in his own hands.  To this end he included a limited override clause in one of his legislative proposals, hoping it would appeal, as an alternative, to the hoi polloi whom, in his view, the Israeli right elects to the Knesset.  He appears to have succeeded beyond his wildest dreams and worst fears.  It should be noted that the override clause, as Yariv Levin proposes it, will be entirely consistent with Barak’s doctrine of Basic Laws:  If the Knesset has the right to pass Basic Legislation with a majority of 61, it should have the right to reinstate ordinary legislation that the Court strikes down in the same manner.

Israeli politics continues to be divided between right and left with little room for compromise.  One small light at the end of the tunnel is MK Benny Gantz’s call for the establishment of a committee to discuss the issue of judicial reform.  There is no need to establish such a committee, because it already exists:  The Knesset’s Constitution and Law Committee, where Levin’s proposals will be debated and voted on.  If there is to be compromise, however, it must be founded on acceptance, by the opposition as well as the present government, of Madison’s principle of republican government: One of the inviolable rules of democracy is that all authority must be derived, directly or indirectly, from the people voting at the polls.  I for one would be willing to give up the override clause if the Israeli political system were to accept Madison’s principle as a national consensus.