The Knesset Education Committee recently scheduled a session on “The Stifling of Free Expression in Academia,” in the wake of charges that a lecturer at Ben-Gurion University – and, we may assume (and hope), dozens more at other universities and colleges – gave a class on the Netanyahu-Levin-Rothman “reform” and emphasized that the students would be tested on the concepts he was presenting.
On the one hand, this is just another insane moment in the chain of insane moments we have been experiencing lately. On the other hand, it’s more than that. It is a watershed, the crossing of a red line. It goes far beyond an attack on academic freedom, and far beyond censorship, and far beyond the stench of McCarthyism of which it reeks. This moment embodies the profound crisis in which we are trapped, where the facts no longer matter.
Please note the following undisputed facts: Israel does not have a formal constitution. Most of the Basic Laws are not entrenched in a super majority and can be amended by a simple majority vote in the Knesset. The Knesset is controlled by the coalition, which ipso facto holds a majority. Israel does not have a second legislative chamber that must approve or vote down a constitutional amendment. There is no federal structure that decentralizes power. The President of the State has only symbolic authority and cannot veto or delay legislation. Israel is not bound by any regional or international laws or an international court. All this means that the Supreme Court is the only entity that can review and set limits on legislation enacted by the majority. All the above is true. But the combination of all these points is the current situation in Israel, making it unique when compared with other countries.
Here are several more facts. The Netanyahu-Levin-Rothman reform seeks to strengthen the executive branch at the expense of the judicial branch. This is the meaning of the Override Clause: The Knesset will be able to overrule the Court. This is also the idea behind the proposal to eliminate the Court’s ability to consider the reasonability of government decisions. The reform’s sponsors do not deny this. The reform is aimed at enhancing the coalition’s power on the Judicial Appointments Committee so it will be easier for the reigning coalition to install judges who reflect its coalition’s views, that is, what the majority desires. There is no disagreement about this, either. That is the rationale behind the proposal.
Every student and every citizen needs to know this. These are facts, not interpretations.
So where does the political debate begin? It relates to the following questions: Is the concentration of power in the executive branch good or bad? And will these measures enhance democracy or kill it?
One side asserts that the essence of democracy is the separation of power among the branches of democracy, and that checks and balances are not luxuries but rather are essential for safeguarding democracy against its own basic principle of majority rule, which can deteriorate into tyranny of the majority. In this view, judicial review and the independence of the courts, ensured in part by the composition of the Judicial Appointments Committee, are the only bulwarks against the tyranny of the majority in Israel and the only shield against assaults on the basic freedoms of each and every citizen.
The other side maintains that the judiciary holds too much power and that this situation should be remedied by bolstering the rule of the (Jewish) majority that the coalition represents. Once the majority has been elected, so the argument goes, it is entitled to impose its worldview on the country, with no restraints. It rejects these restraints as anti-democratic because nothing should impede the majority’s control. For supporters of the reform, only those elected by the majority have legitimate and unlimited authority; mere appointees, such as legal advisors and judges, must not impose restrictions on them.
And now, each side must present facts to substantiate its position. One side finds it easy to demonstrate the validity of its ideas about democracy and the concentration of power. There are no examples of countries that were democracies in which the executive gained power, at the expense of all the institutions that could restrain and balance it at one and the same time – as is proposed in Israel today – that became more democratic as a result. But there are many counter-examples, past and present: Russia, Hungary, Poland, and even India. In addition to this real-world comparison, we should recall that political philosophers and thinkers, some of whom, like Alexis de Tocqueville, are acclaimed by both sides in the debate, warned against what de Tocqueville called the “despotism of the majority.”
The other side can find partial support from the situation in several countries. Canada has its override clause, but it also has a Charter of Rights and Freedoms that we can only dream about and excludes some rights a priori from any legislative override. In Germany, where the justices of the Constitutional Court are elected by the legislature (but only with a two-thirds majority, which effectively requires the consent of the parliamentary opposition), there is a constitution that enshrines human dignity as a supreme principle and the Constitutional Court has teeth.
It is possible, and even appropriate, to disagree about Supreme Court rulings and setting limits on its powers, such as apply to every other institution in a democracy. But this is not what is going on now. It is impossible to carry on this debate in the present climate of polarization, of us against them. The proponents of the judicial coup, which they call a “reform,” are like fans who, in reaction to what they see as questionable calls by the referee, want to change the rules of the game and ensure that only referees who make sure their side wins are assigned to future matches.
But who needs facts and rules when they already have power? Teaching this is not about stifling debate, but rather-presenting facts, fulfilling a prime ethical obligation of those affiliated with institutions that promote intellectual freedom, and especially university academics. Take a good look at this moment: it’s not a matter of alternative facts, but rather of an alternative to the facts.