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.

 

 

 

 

  

WSJ Columnist William Galston Cites David Ben-Gurion in Defense of Binyamin Netanyahu's 'Judicial Reform'

  

It's not often that a veteran Wall Street Journal columnist cites a departed social democrat to make a point. But William Galston did just that by invoking Israel's first prime minister to demonstrate that, just like Binyamin Netanyahu, David Ben-Gurion favored a weak Supreme Court.

Good enough for Ben-Gurion? Good enough for Netanyahu? Should be good enough for conservative pro-Israel readers of the Journal.

Galston, citing Yeshiva University and Tikvah Fund scholar Neil Rogachevsky, writes that in 1949 Ben-Gurion told a Knesset committee that he opposed enshrining overarching democratic values -- the kind that would not be subject to popular whim. As far as Ben-Gurion was concerned, a simple majority should always get its way. "In a country such as ours, imagine for yourselves that the nation wants something, and seven people designated with the rank of judge cancel something that the nation wants! . . . This, in our country, would lead to revolution. For the people would say: we will do what we want," Ben-Gurion said.

Ben-Gurion then, like Netanyahu's Justice Minister now, Yariv Levin, opposed giving the court the power to "decide whether the laws are kosher or not kosher." That should be up to the Knesset (controlled in his day by Ben-Gurion and by Netanyahu today). Galston concludes that Ben-Gurion was right, and the court under former Chief Justice Aharon Barak should not have given itself expanded powers of judicial review. He says that today's chasm in Israel's body politic only proves that it would have been better if Ben-Gurion's advice had been headed.

Galston, a self-described "phlegmatic Jew," espouses the stance taken by similarly situated American Jewish social, economic, and political conservatives that the last thing Israel needs is an interventionist liberal Supreme Court that will hamper the majority's passions.  Frankly, it surprises me that Galston is one of those conservatives who parts company from James Madisonian.

Telling me that Ben-Gurion would have supported Netanyahu only strengthens my feeling that I should oppose the Israeli government's regime change drive. Ben-Gurion was a strong leader convinced that he could bend the majority to his will. Our first PM did not brook internal party challenges or solicit the policy views of others; he was ruthless in crushing anyone in his way. And he liked to be in control – of the labor unions, the media, and the Jewish Agency.

What comes across from Tom Segev's brilliant A State at Any Cost The Life of David Ben-Gurion is that he was uneasy with political power being concentrated anywhere but in his own hands. When he could, he humiliated Chaim Weizmann offering him Israel's presidency shorn of power. He distrusted Yitzhak Sadeh and the Palmach leadership because they aligned with the Mapam Party. He feared and detested Menachem Begin. He made himself supreme commander of the Haganah and would not rest easy until the fledgling IDF military command was dominated by his Mapai Party.

He could also be cold-hearted. In 1947, he took no steps to discourage the British from hanging Irgun operative Dov Gruner. And in 1948, he authorized an attack on the Irgun arms ship Altalena because he convinced himself Begin was planning a coup.

"The smoke that rose over the Altalena had not dispersed when Ben-Gurion went back to subduing the Palmach," writes Segev. Why look for enemies on your own side during wartime? Because as Segev explains, "Ben-Gurion tended to become addicted to his hatreds."

Galston and the Jewish Americans who think like him (some of whom are funding the movement to change Israel's regime) are unlikely ever to move their families here. For them supporting Bibi's "judicial reform" must seem like a culturally and politically fascinating lab experiment. Let's see what happens when you concentrate power in the hands of one man in a country with no constitution or bill of rights, with a fragmented population and a considerable Arab minority. Where a big chunk of ultra-Orthodox men and women do no national service. And where West Bank settlement policy is now more than ever a seat-of-the-pants affair.

Galston and his amen corner would like to change the subject to talk about judicial philosophy. But here in planet Israel, "judicial reform" is the cornerstone of a regime change scheme driven by Netanyahu's frothing coalition comprised of his own post-Jabotinsky Likud Party, the ultra-Orthodox non-Zionist parties (Shas and UTJ), and the messianic, red-cow, settler ethno-nationalists (Jewish National Front, Religious Zionist Party, and Noam).

Israel's Supreme Court held its first session in September 1948, its five members having been personally selected by Ben-Gurion's Justice Minister. Sure enough, another element of Netanyahu's judicial "reform" is not just giving rabbis and politicians more control over the media, banks, and civil service but over how judges are selected.

No one will accuse Ben-Gurion of changing his mind to stay out of prison. But they will remember what Netanyahu said in more honorable days about the judiciary:

"I believe that a strong, independent court allows for the existence of all other institutions in a democracy…

"I ask that you show me one dictatorship, one undemocratic society, where a strong independent court system exists. There's no such thing…

"In places with no strong and independent court system, rights cannot be protected…

 

How Trump Purposefully Ignited the Jan. 6 Insurrection Against the American Political System - Read the Indictment

Here is the link 

Here is the link 

Golda Meir's Dilemma & Ours

Newly released [Hebrew link] Israel government protocols [English link] reveal that on October 9, 1970, Yom Kippur Eve, in Tel Aviv, Prime Minister Golda Meir called in her top advisers to talk about establishing a Palestinian state in Judea, Samaria (the West Bank) and possibly Gaza. 

About a month earlier, the Palestine Liberation Organization had come close to overthrowing the Hashemite Kingdom in Jordan, where Palestinians are a majority. Jordan (with the behind-the-scenes help of Israel and the US) expelled the defeated PLO leaders to Lebanon.

Maybe King Hussein's close call got her thinking about the resiliency of the Palestinian struggle. Meir told the group that her mind was open. "I am willing to hear if there is a shred of hope of some independent Arab state in Samaria and Judea, and perhaps Gaza." She seemed to have been thinking aloud about the consequences of a semi-sovereign Arab state that could later develop and give the Palestinians full self-determination. 

This notional partition of Western Palestine would not necessarily have to be Israeli-initiated. It most certainly would not be along the lines envisioned by the 1947 UN Partition Plan – which the Arabs had rejected. She mused that the new entity might be confederated with Jordan, Israel, or both. It would have to be within the framework of a peace treaty. It could not involve giving up Jerusalem.

She had evidently reflected on the chance that PLO leader Yasser Arafat could have defeated King Hussein and become prime minister of Jordan. Israel would not deal with Arafat in his terrorist capacity, but if he already had a country… she pondered the scenario.

The problem was that Meir was convinced then – and Israelis like me remain persuaded now – that a Palestinian Arab state would sooner or later serve as a staging ground for a final attack on the Jewish state. Meir was trying to figure out how to create a Palestinian state while the Palestinians were engaged in a zero-sum struggle with Israel, while they still did not reconcile themselves to a Jewish national home anywhere in Palestine.

Publicly, Israeli leaders like Meir and Yigal Allon denied that the Palestinian Arabs were a "people" distinct from the surrounding Arab world. Privately, they accepted that "Palestine" and the "Palestinians" would not disappear. They seemed to have reconciled themselves to the concept that the Palestinians saw themselves as holding a unique identity. They also evidently recognized that Israel was ethically culpable in the Palestinian conundrum-- even if overwhelming responsibility lay with the intransigent and self-defeating Palestinian Arab leadership.  

"My mind is open to it. It was closed immediately after the Six-Day War, but I'm willing to open and listen, and if there's a shred of hope, some independent Arab state in Samaria and Judea, and maybe Gaza as well, will be confederate ... I don't care what idea it has," she said. [my loose Hebrew translation].

Fast forward to 2023, when there are some 3 million Palestinians in Judea, Samaria, and Jerusalem. Another 2 million in the Gaza Strip. Add in nearly two million Palestinians who are Israeli citizens within the Green Line, and you have 7 million Arabs living between the Jordan River and the Mediterranean Sea. 

On the other side of the ledger, there are approximately 7 million Jews in Israel.  Seven million and Seven million.

The dilemma Golda Meir faced in 1970 and that we face in 2023 is how to separate our two peoples while ensuring a viable and secure national homeland for the Jewish people. Meir was surveying these matters whilst Israel was riding a crest of military and societal confidence in the heady days after the Six-Day War. (The War of Attrition ended in August 1970.)  

And, still, no solution was within Meir's grasp.

Today, under Binyamin Netanyahu, Israel's polity is fragmented, with many of us trying to block his putsch for regime change in the guise of judicial "reform." His government is comprised in no small measure of apocalyptic messianics who believe there is no such thing as a Palestinian. 

Meanwhile, even the most moderate Palestinian Arab official can't bring themselves to call Israel a "Jewish State" or acknowledge that the Jewish people also have a right to a national homeland and self-determination.

Golda's dilemma remains ours, only more so. 

 

 

'Protesters are wrong when they claim that this judicial reform will end Israeli democracy,' says Trump apologist Alan Dershowitz

 Last Night's Weekly Demonstration in Jerusalem Opposite the President's House

Q & A

The government's judicial overhaul putsch has elicited militant opposition.

For good reason. The Netanyahu government's goal is to enervate the judiciary and make the attorney general and state prosecutor stooges of the cabinet. It wants to drain the Supreme Court of its judicial review powers. Since Israel has no constitution or bill of rights, removing the only institution that checks the government's power would transform Israel into an illiberal democracy. Read up on judicial reform here:

The Israel Democracy Institute

Axios

Israel Hayom

Netanyahu refuses to be interviewed in the Hebrew press, but he has told foreign media outlets that "judicial reform" will improve Israel's democracy. The winner of the Pinocchio Prize told Fox News that he doesn't understand why there is so much interest in Israel's internal affairs. After all, he's "never commented about the internal debates in other democracies." And Trump apologist Alan Dershowitz writes in the JC, "Protesters are wrong when they claim that this judicial reform will end Israeli democracy." 

That very much depends on how you define "democracy." If you mean "pure majority rule" with no structural or constitutional protections for the minority, Israel will be more democratic like the UN General Assembly, where the raw majority rules. It's also a matter of aesthetics -- if you are comfortable shilling for Trump, Julian Assange, and Jeffrey Epstein, you might also feel Netanyahu's regime change putsch doesn't stink.

I don't get why things are so visceral?

Start by looking at who we are battling. The main component of the Netanyahu government is the post-Jabotinsky Likud; many of its MKs have floated into the party from the Haredi-Leumi planet or are garden-variety demagogues and ethno-pyromaniacs. 

Next come the Haredi-Leumi parties led by Ben-Gvir (Jewish National Front), Smotrich (Religious Zionist Party), and Maoz (Noam). All are messianic, apocalyptic, and blinkered. 

Rounding out the government are the ultra-Orthodox UTJ and Shas parties. They are benighted, reflect draft dodgers' interests, and are infamously intolerant. 

Together these radical political parties are trying to create an Israel in their own image.

So this is left versus right?

You're really not getting me. Most Israelis no longer see the political map that way. This is a struggle between liberalism and intolerance, middle-class values against authoritarianism, and cosmopolitanism versus parochialism. If you lived here, which vision would you prefer?

Granted, the "reasonableness" amendment to Israel's Basic Judiciary Law was passed by the Knesset 64-0, but you make it seem like the sky is falling...

"Judicial reform" is an amorphous bundle of proposed bills that elements in the government aim to pass into law. The ultimate outcome would be an Israel in which ultra-Orthodox rabbis (haredi and haredi- Leumi) have more power beyond their current control over "who is a Jew," kashrut, divorce, marriage, and burial.

Political power would be ever more concentrated in the extremist government, which anyway controls the Knesset.

When all is said and done, Israel's media (Kol Yisroel/Kan and Army Radio as well as Channel 11, 12, & 13) ) will be hamstrung, patronage appointees will upstage the professional civil service, budgetary resources will be redistributed to the kollel world, the Bank of Israel and the Bureau of Statistics will cater to the political whims of the government. So, too, the National Library. 

Already, West Bank settlement expansion no longer requires the approval of the political echelon, only a green light from "the Minister in the Ministry of Defense," Bezalel Smotrich, also Finance Minister.

And put aside the brain drain that will ensue if Netanyahu gets his way. Elite IDF units will be short on service personnel and training instructors. Doctors studying abroad or on foreign fellowships may not return. The high-tech sector will be depleted. Longterm, Washington and Western Europe will dissociate from us economically and diplomatically. 

Without a strong Supreme Court, our enemies will exploit their lawfare tools at The Hague and elsewhere. Until now, Israel's High Court of Justice has factored international law into its rulings. If the court is sidelined,  Israeli assertions that we honor international law are fatally undermined.

I just feel it will all work out in the end. The good news, at least, is that Likud ministers are saying they will not pursue any further legislation without a consensus.

Pleeeezzz! Insinuating that they will henceforth curb their rapacious appetites might just be a way to lull the opposition into sluggishness. I will take your sanguinity as naivete, not disingenuousness. 

My response is: "You're either part of the solution or part of the problem."  I mean you.

Or, put another way – "If You Can Keep Your Head When Everybody Round You Is Losing Theirs, Then Maybe You Don't Understand the Severity of the Situation."  

Wake up, for God's sake.

OK. OK. Maybe now is a good time for all sides to compromise?

Do you mean maybe we can settle for a semi-undemocratic Israel? Like Poland or Hungary.  Yair Lapid outlined the singular possible road to compromise in this Knesset speech. There needs to be an 18-month moratorium on regime change while talks to rebuild Israel's polity are conducted.

You have to acknowledge that the courts do have too much power…?

There is no question that Israel's political system needs reengineering – from how we elect the Knesset and the lack of genuine representation for everyone living between the Mediterranean and the River Jordan to restructuring numerous state institutions. 

Doing so calls for a constitutional assembly (like the one envisaged by our Declaration of Independence). You might say we need a Strategic Plan.

Fixing what's wrong should be done systematically, prudently, and by broad consensus, not by a bunch of extremists with a four-seat majority-riding shotgun over the rest of us.

Any further reading suggestions for this weekend?

Yes. These two...

BRET STEPHENS

Israel's Self-Inflicted Wound

YOSSI KLEIN HALEVI

The wounded Jewish psyche and the divided Israeli soul