31 July 2007 - Constitutional deliberations

This morning, I headed back to the Knesset to attend the deliberations of the Constitution, Law, and Justice Committee, which is discussing Israel’s long-overdue constitution-writing project. The meeting was sparsely attended—only about five or six Members of Knesset (MKs) showed up—and there were fewer fireworks than last time, when the issue of Hebron was on the agenda.

There have been many discussions—notably, in the pages of Azure—about how Israel should actually go about writing a constitution. Some have recommended something along the lines of an American model, with a special elected assembly meeting for a specified amount to time. Other have suggested that the Knesset itself, reflecting the political diversity of the country, should write the constitution.

Others have objected to this idea, suggesting instead that the constitution be written by a small panel of expert representatives, which would then submit the product of its efforts to the Knesset for comment and amendment. Several non-governmental organizations have already submitted constitutional proposals, indicating that there is some desire for deeper public participation in the process.

At the moment, the process is being managed by a Knesset committee which also has responsibility for other issues. Theoretically, anyone can come and observe, or even participate in, the discussions. But the lack of formal representation and procedural urgency suggests that the constitution-writing project is not yet being taken that seriously. Perhaps there is too little—or too much—at stake.

Today’s discussions revolved around proposed changes to the way the Knesset conducts its budgetary process. The first speaker was a rabbi, an MK from one of the religious parties, to whom most of those present showed deference—that is, until the discussion got into the details of facts and procedures. At that point the professional staff—the legal advisors and so on—started chiming in as well.

There were other speakers, including advocates for one point of view or another. One fellow, for example, was a well-known advocate for a constitutional structure that gives the judiciary strong powers in relation to the legislature and the executive. Overall, however, the debate was rather boring. (I am reminded that even during the American constitutional convention the delegates often fell asleep.)

In my view, a constitution has three functions. One is to establish the structure of government. Another--perhaps more important—is to limit the power of the government by establishing the rights of the citizens. Finally, a constitution must provide the means for it to be changed by the people. All the rest is commentary—and the less of it, the better. Longer constitutions are harder to enforce.

A constitution is essentially a conservative document. It can be ambitious in defining the scope of individual (and even group) rights; however, to the extent that it attempts to force the government to create rights, it is less likely to succeed. In other words, negative liberties such as freedom of conscience and expression should trump positive liberties such as health and education and social security.

There are three outstanding issues that Israel needs its constitution to resolve: the relationship between religion and the state, the rights of the Arab minority, and the scope of judicial powers. There are other issues that it might also try to deal with, though these could also be left out: the relationship of Israel to the Jewish Diaspora, the relationship to Arab Palestine; and the identity and symbols of the state.

Above all, however, what the Israeli constitution needs to do is set itself above the government. I don’t think I’ve met anyone yet in Israel who understands this. The discussions today revolved around the structural details of the legislative process. These are important, but not necessarily of constitutional importance. The U.S. House and Senate, for example, create and amend their own procedural rules.

Whether the final document is written by the Knesset or a specially appointed committee, it clearly needs to leave the confines of this building—and the insular ideological realm of Israeli politics. The committee chair, for example, opened the meeting by discussing a few relevant texts from Maimonedes. On the one hand, it was quite unique. On the other, Maimonides was not exactly a political philosopher.

Israel doesn’t need less Maimonides, but it might (as Michael Oren says) need more Machiavelli. Right now the constitution-writing project is rather ad hoc. Over the past decade or two, Israel has created, then revoked, direct elections for Prime Minister. It’s now trying to pass a law that would require MKs who are elevated to Cabinet to give up their seats. Fine—but what is needed is something more focused and yet more inclusive, something that establishes and defines Israel’s sovereignty.