Our Constitutional Moment: From Crisis to Opportunity
Israeli governments have spent 78 years delaying difficult decisions about how power should be divided between the branches of government. After the judicial reform crisis of 2023, Naftali Bennett wants to finally settle those questions through a constitution. He hopes to make compromise worthwhile for both sides, even though trust between them is low.
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The judicial reform crisis of 2023 was a real low point for national unity in Israel.
The right felt that its mandate to govern was being trampled by anarchists who refused to respect the results of an election. The left felt the government was rewriting the rules of Israeli democracy to remove checks on its own power, without the buy-in of those the checks were meant to protect.
Tensions escalated. Bitterness grew. Israelis talked about leaving the country or refusing to show up for reserve duty, and there were concerns that the confrontation could slide into civil war.
The October 7th attacks stopped the conflict in its tracks, but didn’t resolve the underlying disagreements that brought hundreds of thousands of Israelis into the streets.
Nobody wants to go back to the Israel of October 6th. There’s widespread recognition that the current arrangements are problematic and probably not sustainable, alongside a general exhaustion with the internal strife.
Naftali Bennett sees an opening in that exhaustion: an Israeli constitution.
An Elusive Goal
People are rightly skeptical. Governments have punted on this for 78 years.
From the right: “You expect Yair Golan and the leaders of the Kaplan protests to agree to real limits on the High Court or the attorney general? No way.”
From the left: “You expect a Netanyahu-led opposition to cooperate with a Bennett/Eisenkot government? This is the same opposition that voted against consensus issues like raising salaries for reservists, measures against potential terrorism, and renewing the regulations protecting Israelis in Judea and Samaria, purely to harm the coalition.”
So how does Bennett expect this to work?
His proposal is to establish a constitution rooted in a Basic law: legislation that explicitly draws its values from the Israeli Declaration of Independence, sets the rules for passing Basic Laws, and defines the parameters of relationship between the Knesset and the courts.
Buy-In Through Proper Processes
His approach is to work with the incentives each side already has, while building trust through a process that takes their concerns seriously.
The first move is aimed at the center and left. Bennett has promised to repeal four controversial laws passed by the outgoing coalition, dealing with judicial selection, the attorney general, police investigations, and communications.
He argues that while some of the changes are necessary, others were sloppily written and do more harm than good. Take the judicial selection law. Rather than correcting the existing ideological imbalance, Bennett warns, the double-veto system could produce a judiciary dominated by the ideological extremes of both right and left. In character with much of this government’s approach to judicial reform, it risks replacing one problem with another instead of offering a well-reasoned fix.
Rather than seeking broad agreement, the coalition also pushed ahead despite serious objections from opposition MKs, legal advisers, and civil society organizations.
The committee process exists to hear objections, weigh alternatives, and improve legislation. That doesn’t mean accepting every suggestion, but it does mean taking the process seriously, especially when dealing with the fundamental rules of government.
If the goal is a constitution that survives changes of government, how we reach an agreement matters almost as much as what the agreement contains. As such, to properly legislate a constitution that defines the parameters of power for each branch, Bennett argues that we need to start over with a clear slate.
Still many on the right see this as surrender, except that’s not the whole picture.
Despite (or maybe because of) the government’s aggressive approach to judicial reform, the Supreme Court retains substantial authority to strike down legislation, and all or some of those laws are very likely to appear on the courts chopping block in any event.
Binding His Own Hands
Bennett also intends to pass a law limiting a prime minister’s tenure to eight years or two terms, whichever is longer.
Netanyahu has dominated Israeli politics for decades, and any attempt to establish term limits will be seen by his supporters through that lens. This law would erase Netanyahu’s political prospects by counting all his previous years in office and apply to the new Prime Minister as well.
In the longer term, this could also change the incentives within the right. Future leaders would know that political succession is built into the system. They could concentrate on building their own records and competing for the next opportunity to govern rather than organizing their entire political careers around one leader.
None of this guarantees that Netanyahu’s supporters will become more cooperative. They may well regard the proposal as another attempt to remove him from power. But I do think term limits could encourage a healthier political culture, with less of a focus around a single personality and more on achieving results
Why Both Sides Might Say Yes
President Herzog attempted to broker a constitutional compromise in 2023 and now the timing might be ripe for this kind of compromise. After three years of war, during which Israelis from right and left fought shoulder to shoulder, there’s a strong desire to avoid returning to the internal divisions of 2023.
Then there’s the political calculation each side has to make.
On the left, there’s reluctance to give up the power that Aharon Barak’s judicial revolution handed the court. But the left also has to consider future governments that have little interest in accommodating its concerns.
There will almost certainly be governments in the coming years that don’t need the support of left-wing parties like the Democrats. A constitutional agreement reached while those parties have influence could give them a lasting role in defining the rules, including meaningful protections against abuses of legislative and executive power. Holding out for everything they want could be a politically dangerous overreach.
The right has its own calculation. For decades it has demanded checks on the courts so that an elected majority can actually govern and deliver on its mandate.
Imagine a constitution that preserves the court’s authority to overturn Knesset legislation, but requires a substantial majority of justices to do so. It could also establish clear limits on the reasonableness doctrine and other parameters of judicial power.
A right-wing leader rejecting such an agreement would have to explain why these changes aren’t good enough, and why a lasting settlement with the left’s stamp of approval isn’t worth pursuing. Politicians hoping to lead the right might find that being part of such an achievement serves them better than another round of constitutional warfare.
Neither side will get everything it wants. That’s the point, and that’s what could make the agreement sustainable.
History Is Knocking
None of this will be easy. There are politicians on both sides who would rather keep fighting the battles of 2023 than explain why compromise is necessary. There are genuine disagreements about where the balance of power belongs, and plenty of opportunities for the whole thing to collapse. This will require hard work from serious and determined politicians.
But consider the alternative. Are we prepared to spend the next several decades relitigating the same constitutional questions, each government trying to undo what the last one built? Do we want another generation growing up in a country where the basic rules of democracy are themselves the fight?
Bennett has laid out an ambitious goal, and if he succeeds, it would be an achievement that could outlast his political career by decades.
And that’s a much more worthwhile legacy than scoring another partisan win in yet another round of the seemingly endless and divisive judicial reform fight.
