An abridged version of this essay was published in The Algemeiner.
Few laws in recent Israeli history have received as much scrutiny as did the “Nation State Law”. The raging debate about the law’s merits and drawbacks has hopefully exhausted itself, at least for now. However, the most important part of the law may well be its constitutional implications, overlooked by the countless opinion and analyses pieces that have focused their attention on the law’s content. Regardless of whether one approves of the Nation State Law or not, a Supreme Court challenge in the coming months will likely reshape Israeli constitutional law for decades to come.
The Israeli Supreme Court, acting as the High Court of Justice, will soon need to rule on numerous petitions against the validity and constitutionality of the new law. While striking down the law has already been suggested and may well be considered by the court, doing so will likely create a political and legal earthquake that will upend and reverse much of existing Israeli jurisprudence. Understanding the background and substance of this delicate dilemma is crucial for anyone attempting to follow the legal aftermath of the Nation State Law. As an Israeli-American attorney, I will offer a few key points to consider, for those readers who are less familiar with the Israeli legal system.
In a nutshell, the Supreme Court has struck down ordinary statutes as unconstitutional in the past, due to their inconsistency with Israel’s Basic Laws. Yet the Nation State Law is a Basic Law. Review of this kind of legislation by the Court raises a slew of legal and constitutional difficulties and risks. Perhaps more importantly, any ruling against the current law or possibly even an attempt to examine its constitutional validity may well trigger a severe public and political backlash.
A quick introduction to Israeli constitutional law is in order. Israel has no “constitution”, in any commonly accepted sense of the word. There is no comprehensive document capturing the “essence” of the State, declaring its most sacred rights and defining the powers and limitations of the various organs of government. Such a document was never finalized by the Israeli parliament, never debated by the Israeli public and was never put to a vote of any kind. Indeed, claiming Israel has a constitution requires logical acrobatics the kind of which only lawyers and judges are capable.
Nonetheless, Israel certainly has a body of constitutional law. Israel has a set of “superior” statutes called “Basic Laws”, which define a considerable amount of Israel’s political and legal backbone. These Basic Laws were legislated and amended sporadically and haltingly throughout the 70 years of Israel’s existence. The Supreme Court considers these Basic Laws as forming a quasi-constitution, and has interpreted them in ways that expanded their effect and significance.
Most notably, the Israeli Supreme Court has ruled that some Basic Laws empower the court to strike down primary legislation, if inconsistent with such Basic Laws, as unconstitutional. Such power is not explicitly defined or granted in any statute – the Court determined it has this power in a controversial landmark ruling. Seeing as Israel has no “constitution” to speak of, the Court maintains that the Basic Laws are akin to a constitution, and thus they can justify striking down a law passed by parliament as invalid and unenforceable.
This point is crucial. The ultimate lawmaking power in a democracy rests with the legislature. The invalidation of a statue passed by a parliament of elected representatives means overruling the will of the people, the sole legitimate sovereign. In most democracies, such a contradiction can only be justified by an unequivocal violation of a tangible constitution.
Following the Court’s reasoning, the Basic Laws are (so far) the sole legal source to invalidate an “ordinary” law as unconstitutional. The Supreme Court has (debatably) used this power sparingly over the years. In many instances of invalidating government action, and indeed in all instances of striking down primary legislation, the Supreme Court did so on the grounds of a violation of a Basic Law. Most often, the “Human Dignity and Liberty” law was the basis for such rulings.
Back to the crux of the matter. The recent Nation State Law was legislated as a Basic Law (the actual name, quite a mouthful, is “Basic Law: Israel as the Nation-State of the Jewish People”). Striking down a Basic Law, however distasteful or disagreeable, would in fact be declaring a part of the constitution to be unconstitutional. Even strong advocates of such a ruling would concede this is problematic at the very least. This would be a radical departure from precedent and indeed the Court has never attempted a ruling of this kind.
Yet such a scenario is not as far-fetched as it may seem. Supreme Court judges have already hinted at their displeasure with the law, and certainly the socio-political establishment to which the judges belong views the law with contempt, if not with horror. Add to this that Supreme Court judges are not appointed by the public or by parliament, and are therefore accountable to neither (the existing judges in fact have veto-power over new nominations, the predictable result being a high level of homogeneity on the bench).
There is no doubt the new law will be challenged, as has been the norm for nearly any controversial legislation over the past two decades. The Supreme Court abolished Israel’s “standing” requirement in another landmark ruling, such that the Court may exercise “abstract review” of laws, without needing to identify a petitioner harmed by such law. The Court also abolished the “justiciability” (“political question”) doctrine, which commonly limits a court’s jurisdiction to legal issues. Thus, current Israeli law has virtually no impediments to Supreme Court review of legislation.
Let us now consider the possible basis, and probable consequences, of the Court striking down the Nation State Law as invalid.
The Court may argue that the law contradicts existing Basic Laws. Perhaps, one could conclude that the new law is inconsistent with the “Human Dignity and Liberty” law. Yet this would be a stretch. First, faced with two competing Basic Laws, who is to say which law is superior to the other? There is a logical flaw to declaring that a constitution (or amendment) is “unconstitutional” – surely a contradiction in terms. One can scarcely imagine the United States Supreme Court proclaiming the Thirteenth Amendment as invalid due to being inconsistent with the Fifth Amendment. There is also a standard rule in legal interpretation, that if two contradictory rules have equal standing, then the judge is to prefer the later and more specific rule – and the Nation State Law likely prevails on both these counts.
Further, as Basic Laws go, the Nation State Law has by far the most “constitutional” character of all those passed to date. It has been a point of thorough public debate for the past six years. It received widespread media, academic and political attention, and was consciously regarded as a constitutional amendment from the outset (for better and for worse). Importantly, it was legislated in a major political “event” with an absolute majority of Knesset members in a stable coalition government – 62 out of 120 members.
Compare this with the highly influential “Basic Law: Human Dignity and Liberty”. It was legislated in a political twilight, received no media attention and was not perceived as a constitutional act – most of the public were hardly aware it existed. It gained a minor majority of 32 vs. 21 Knesset members (out of 120 members), with the majority of those voting in favor being opposition members (demonstrating quite how little significance was attributed to this bill). The legislators who voted in favor explicitly stated that this was not a constitutional law, and that it did not grant the Supreme Court the power of judicial review. In a contest with other Basic Laws as to which commands greater constitutional authority, the Nation State Law wins easily.
Two other options have been suggested, including by former Supreme Court judges, to justify striking down the Nation State Law. The first is to elevate the Israeli Declaration of Independence to super-constitutional status, and to declare the new law as incompatible with the Declaration. In the past, the Supreme Court ruled plainly that the Declaration does not possess constitutional authority, for obvious reasons: it was drafted by a group of unelected statesmen for the purpose of declaring the foundation of the State of Israel. It never reflected any tangible will of the people, and it was never intended as a legislative text, much less so a constitutional document. Thus, such a decision would not only be illogical, it would also contradict existing Supreme Court precedent.
The second option relies on “fundamental principles” of democracy. This is a vaguely defined list of values and rules, which one might consider so essential to democracy that they form an “unwritten” constitution that cannot be violated. The notion that a court can strike down laws, amend a constitution, or in fact reach any decision at all, based on abstract “principles” is rather unconventional.
The Supreme Court in fact employed a similar argument in a 1953 ruling. Citing the fundamental principle of free speech, the Court cancelled the decision of a government official to temporarily revoke the license of a communist newspaper. However, regardless of the merit of the argument itself, the ruling related to governmental action – not primary legislation and nothing approaching a constitutional amendment.
Both the Declaration of Independence and the “principles” suggestions share some common flaws. Who determines the “correct” interpretation of the highly abstract and obscure Declaration? Who defines these unwritten principles and their application to real life controversies? How can a “fundamental” principle of democracy, solely as perceived and interpreted by a judge at her complete discretion, prevail over a specific law (or constitution) desired by a free people and enacted by their democratically elected representatives?
Better yet, how can the legislature go about amending such a “super-constitution”? There is no existing mechanism for amendment of the Declaration (excluding time-travel), not to mention the “fundamental principles” of democracy. And why would such an amendment prevail, while a Basic Law is invalid? Indeed, how can a lawmaker or even the public know what these obscure “constitutions” entail, in the first place? Not to put too fine of a point on it, but one can scarcely imagine a UK or US court striking down a law, due to its ostensible inconsistency with “democracy”.
So much for the legal hurdles to vitiating a constitutional amendment (or a Basic Law) as unconstitutional. Though perhaps more important are the public and political repercussions of such a ruling. Striking down the Nation State Law for any one of the reasons above, would irretrievably shatter the Court’s credibility.
A common criticism against the Court’s judicial activism is that the judges seem less interested in the letter of the law (including Basic Laws), and more engaged in selective interpretation such that the outcome suits their personal values and agenda. In other words, that these judges rule according to what they feel is right, and not what they know is legal – a cardinal sin for unelected officials in democratic society. On the other hand, the Court has always maintained that they are merely applying the Basic Laws in their most natural and inevitable way.
The Nation State Law was created as a conscious extension of the above debate. Those in favor of the law consider it a good faith attempt to guide future rulings on key issues. The natural expectation would be for the Court to acquiesce to the will of the people. If the Court is genuinely applying Basic Laws, it can have no legitimate objection.
A ruling against the new law in this context would be catastrophic for the Court. It would serve as evidence that only those Basic Laws the Court finds convenient are honored while those the Court finds distasteful are discarded. It would severely undermine the Court’s assertion of faithful application of Basic Laws, while utterly vindicating the claims of the Court’s critics. It would solidify the public impression that the Court has little regard for an actual and indisputable constitutional statute.
As it stands, public confidence and support for the Supreme Court has deteriorated in tandem with the rise of judicial activism, and is now at an all-time low. Striking down the Nation State Law will likely provide the public and political justification for redoubled measures curtailing the Court’s authority, for all the reasons detailed above. Some might say this constitutional crisis in unavoidable, and has been a long time in the making. Either way, it will mark a watershed moment in Israeli society beyond the boundaries of constitutional law.