In Israel it is now or never for a Constitution

In the 32 weeks since the Netanyahu government took power, English-speaking immigrant opponents of the government's regime change campaign have experienced a cascade of emotions running from disbelief to desolation. One woman in her eighties who arrived here from the UK before the 1967 Six-Day War told me, "This is not the country I moved to."

No matter when olim opponents of Netanyahu came, we took for granted that Israel was a Jewish and democratic state, its many flaws notwithstanding. Before I arrived, I knew there was no constitution or bill of rights though I had not realized Israel's May 14, 1948, Declaration of Independence promised one by October 1, 1948.

Part of why we don't have a constitution is that fate intervened. The Palestinian Arab leadership rejected Israel and a Palestinian state alongside it. The energies of the Zionist leadership were monopolized by the war (and later by the mass absorption of immigrants); one percent of Israel's population had been killed in the fighting, which ended in January 1949. Yet the 1948-49 conflict does not entirely explain why we were left without a constitution.

Israel does not have a constitution because the Orthodox parties stood and stand in the way. The religious parties were never at peace with the liberal democratic tradition. Only political improvisation kept Israel's polity afloat. Historically, the parties on the right, no less than those on the left, upheld the country's democratic ideals of tolerance, civil liberties, and respect for minorities.

However, now Binyamin Netanyahu's fury against the justice system he once championed is destabilizing the country. Bibi's vindictive payback for his lengthy bribery, fraud, and breach of trust trial triggered today's extraordinary crisis. Netanyahu could not have brought us to this nadir if not for the descent of Likud into a post-Jabotinsky illiberal party. It further required him to advance a poisonous unity among ethno-supremacist messianic parties to Likud's right and strengthen his union with non-Zionist haredi parties. Yet the perfect storm was only unleashed by his appointment of Likud's Yariv Levin, a burning judicial critic, as justice minister. He reaped bonus benefits when Simcha Rothman, of Bezalel Smotrich's far-right party and a longstanding intellectual critic of the judicial system, became head of the Knesset's Constitution, Law and Justice Committee.

It is easy to get suckered into a discussion about the downsides of Israel's judiciary, part and parcel of its improvised political system. In 1995, the Supreme Court, under then Chief Justice Aharon Barak, gave itself the power to strike down Knesset laws that did not meet obligations enshrined in Israel's Basic Laws. These Basic Laws are seen to have supra-legal constitutional status. Recall that the US Supreme Court gave itself analogous power in 1803 in the case of Marbury v. Madison.

The gullible will allow themselves to be conned into parroting the terminology of "judicial overhaul" or "judicial reform." But what Netanyahu et al. are doing is not primarily aimed at correcting fundamental deficiencies in our makeshift system regarding legal standing, jurisdiction, the role of the deputy attorney-generals assigned to various ministries, and so on. Its true purpose is to craft a populist, illiberal democracy. As a prerequisite, they must defang the judiciary of its power to check and balance. Once that is done, the government and the Knesset it controls can enjoy unrestricted reign.

Netanyahu, out of malice, and his partners, out of conviction, are trying to engineer an Israel that cleaves to rigorously Orthodox interpretations of Halacha enforced by the state, an Israel that is culturally and socially less tolerant, more Jewishly chauvinistic and majoritarian. The judiciary stands in the way. It is also an obstacle to blatant violations of international law in Judea and Samaria – but that's another story.

Live and let live has never been an option for Israel's Orthodox streams.

At the creation of the state, turning Israel into a theocracy would have been their ideal. Still, in 1949, opposition from across the political spectrum was too strong, and the Orthodox demographic base was too weak. At the same time, Israel's mainstream was never militantly secular and chose a series of hyper-pluralist compromises over thwarting the Orthodox.

Thus, the Compulsory Education Law enacted in September 1949 created two Orthodox school systems, one non-Orthodox public scheme, and a network for the Arabs. This explains why today's haredi youngsters have no English and its secular youth don't know how to hold a siddur.

The Orthodox – Mizrachi and Haredi – demanded no vehicular traffic on Shabbat. The compromise they got was no public transportation on Israel's one-day "weekend."

The first unrest against Shabbat desecration occurred on May 28, 1949, in Jerusalem at a movie house that, due to daylight savings, had opened before sundown. The chief rabbis of Israel were outside the cinema protesting. Extremists usurped the demonstration. That led the police to intervene and the rioters to complain of police brutality. There were also Shabbes riots near the Mandelbaum gate to Jordanian-held east Jerusalem over non-Jewish tourist traffic.

It could have been otherwise. In 1949 the First Israelis, Tom Segev, reported that "Yeshayahu Leibowitz expressed the opinion that for Israel to live by the law, the law would have to be adapted to its needs. He also considered the possibility that the religious law would be amended so that the state and the public would be permitted to do what the private individual was forbidden to do — just as, for example, the state is allowed to kill, whereas the individual is commanded not to do so." That might have been sensible public policy, but it never happened. Because toleration is seen as a slippery slope by the Orthodox establishment. The Orthodox Leibowitz presented as a curmudgeon who could have written the book How to Distance People and Make Enemies, yet his intemperate warnings were prophetic.  

Without a constitution, the prime minister had a corner on power. In 1948, David Ben-Gurion exempted a few hundred yeshiva students from army service. By 1968, the number of deferments rose to 4,700. Now, most haredi lads opt out of IDF service. Some even run riot when asked to register for their deferments. On May 14, 1951, the Knesset began debating the conscription of women. It decided that the draft would not be compulsory for Orthodox females. Nonetheless, for years many national-religious women went into the army. Today, as the Mizrachi national-religious world has transitioned to haredi-leumi, few do IDF service.

The Orthodox might have agreed to a God-permeated constitution. Something along the lines of the Iranian constitution with appropriate modifications: "In the Name of Allah, the Compassionate, the Merciful"… In the view of Islam, government does not derive from the interests of a class, nor does it serve the domination of an individual or a group. It represents rather the crystallization of the political ideal of a people who bear a common faith and common outlook, taking an organized form in order to initiate the process of intellectual and ideological evolution towards the final goal, i.e., movement towards Allah…"

Of course, what Israel needed from the get-go was a Jewish and democratic constitution. The Orthodox opposed a constitution in 1949 because it would not have consecrated their hegemony over marriage and divorce. It would likely have forestalled a taxpayer-funded ultra-Orthodox rabbinate. A constitution would not have stipulated that the national airline and public transportation would have to be shut on the Sabbath, that the state should regulate kosher laws, or that autonomous religious and educational systems would create separate and unequal educational outcomes. So the Mizrachi and Haredi parties combined to block a constitution.

Ben-Gurion being an autocrat – the kind who had his security services spy on his political opponents – did not lose sleep over the absence of a constitution and bill of rights. 

So here we are.

Israel still needs that constitution promised by our Declaration of Independence. A draft constitution prepared by a committee led by the late Justice Meir Shamgar awaits Knesset discussion.

But the prospects of adopting a constitution in an Israel where Netanyahu's coalition has such demographic and political clout is doubtful. Where much of the national-religious stream has morphed into a messianic, Jewish supremacist, and apocalyptic force. In an Israel where generations of ultra-Orthodox children have no memories of their fathers ever going off to work or to do IDF reserve duty. In an Israel where "right-wing" has become synonymous with being anti-Arab, intolerant, anti-intellectual, and anti-elitist.  

The oldest English-speaking olim may recall that Eri Jabotinsky (died 1969), son of Ze'ev and a Herut Member of the first Knesset, was a steadfast opponent of religious coercion and pushed for a constitution and an end to military rule over Israel's Arab citizens. Today he'd be denigrated as a "smolan" and a "hater of Israel."

Still, there is no going back to the status quo ante. An unintended consequence of Netanyahu's regime change campaign was that it helped create a cross-party liberal-leaning bloc that knows it is now or never for a constitution. If democratic values are not enshrined, the pure majority that brought Netanyahu back to power 32 weeks ago – with a four-seat Knesset majority – will run roughshod over Israeli society for years to come.