Why Israeli Efforts To Write a Constitution Always Fail
“We won’t stop until there is a constitution!” This slogan, loudly chanted in recent weeks at Israel’s protests against the government’s judicial coup, was not initially heard when the demonstrations first began three months ago. Indeed, talk of a constitution has been almost totally absent from the Israeli public discourse for years. Suddenly, however, the idea has been resurrected.
Shortly after Prime Minister Benjamin Netanyahu announced a “pause” in the legislation for judicial reforms, Yair Lapid, the leader of the Knesset opposition, said that any negotiations with the governing coalition to find a compromise would have to include discussions over the drafting of a constitution, reiterating his demand at a protest outside the Knesset that same day.
Three weeks ago, Shikma Bressler, one of the leaders of the protest movement, similarly called for a constitution from the stage at Kaplan Street — the site of the weekly protests in Tel Aviv against the reform — and more than 100,000 people echoed her call of “Constitution! Constitution!” Numerous prominent figures, including former Attorney General Michael Ben Yair, have published policy papers and articles that promote a demand for a constitution. One of the stipulations of President Isaac Herzog’s proposed compromise, which the government rejected, is to include a “Basic Law: Equality.”
Israelis have begun using the hashtag “#Constitution_Now” on social media; one concerned citizen summed up the popular sentiment when he wrote: “Without a constitution, Israel will be erased.” Prof. Yaniv Roznai, one of the leaders of a forum of legal scholars opposing the judicial assault, wrote that the current crisis is “an opportunity for a constitutional moment.” The Movement for Quality Government in Israel, one of the country’s largest public interest groups, has launched a new project under the name “A Constitution for the Homeland.”
Even the Kohelet Policy Forum — a right-wing think tank that has been regarded as one of the driving forces behind the government’s judicial plans — snuck in its own proposal for a compromise to resolve to the crisis (which is partly of its own making), saying, “Our hope is that the reform will enable the adoption of an agreed-upon constitution for the State of Israel, which would also include a bill of rights.”
Taken together, these developments mark an important shift for the protest movement. The judicial crisis has brought hundreds of thousands of people into the streets and forced them to peer into the abyss; now, perhaps, they are starting to realize that only a constitution can stop them from falling into it. Israelis are finally seeing that a constitution is fundamental to democracy, and a state without one will be perpetually on the brink of demise.
Israelis protest against the government’s planned judicial overhaul, in Haifa, March 27, 2023. Shir Torem/Flash90
I, too, believe in the need for a constitution. And yet, we must keep in mind that the renewed demand is hardly the first of its kind. Throughout Israel’s history, even before independence, there have been multiple powerful attempts at drafting a constitution, and every single one has failed. There are many reasons for these failures, but one stands above all the rest — the opposition to enshrining the principle of equality as a foundational law of the Israeli state.
Citizen or subject?
The absence of equality lies at the heart of every constitutional problem in Israel. To this day, there is no formal right to equality for every individual citizen, nor is there collective equality. A consequence of this is that Haredim (ultra-orthodox Jews), for example, have the privilege of being exempt from society’s burdens such as military service, while Palestinian citizens are excluded from Israel’s social contract and much of its political and economic life. The absence also affects the separation of powers, as the elected branch, the Knesset, is always far stronger than the others (the myth that the Supreme Court reigns unchecked has no basis in reality).
Israel’s refusal to enshrine equality into law is intimately connected with its failure to draft a constitution, especially in the state’s early days. Between 1948 and 1949, for example, Prime Minister David Ben-Gurion argued that a constitution should not be adopted right then, lest the generations of diasporic Jews soon to immigrate to Israel be excluded from shaping the country.
In so doing, Ben-Gurion granted superior status to these theoretical citizens, some of whom may not yet have been born, at the expense of citizens already living in Israel. The prime minister also opposed a constitution on the grounds that it would tie the hands of legislators and the government. In his view, there had to be equality between all laws of the state, with no law having supremacy over another (as, by definition, a constitution does).
In truth, Ben-Gurion was not interested in equality, but rather sought to maintain the superior power of the elected branch, which he controlled at the time. In this respect, he was allied with an unexpected group: the Haredim. From their first incarnations, the ultra-Orthodox political parties — which then, as now, constituted a minority in the Knesset — opposed a constitution out of a desire to maintain their disproportionate power in Israel’s coalition system, and to dictate onto the population their preferred versions of family law, kashrut, Shabbat observance, and other matters that formed what came to be known as the “status quo.” This, too, was a violation of the value of equality.
Nonetheless, a detailed draft constitution that was intended to serve as the basis for political discussion was submitted to the Provisional State Council, the proto-legislative body that played a key role in the state’s formation. The document was created in preparation for Israel’s Declaration of Independence; the UN Partition Plan of 1947, which proposed dividing Palestine into a Jewish and an Arab state, mandated that both societies adopt a fully democratic constitution as a prerequisite for statehood.
Israeli Prime Minister David Ben-Gurion reading a state correspondence, Sep. 20, 1949. (David Eldan/GPO)
The draft constitution was written by Dr. Yehudah (Leo) Pinchas Cohen, and it contained every right an Israeli citizen would want. But at the time of the first Knesset, Israel had yet to define who was even a citizen and what constituted citizenship, finally doing so only in 1952 — four years after its war of independence.
Without formal citizenship, and without a constitution detailing citizens’ rights, it was far easier for the state to govern the Palestinians who remained within its borders under a brutal martial regime, depriving them of their civil and human rights. And so, with the exception of the right to vote — which was vital to maintaining Israel’s international image as a democracy — Palestinian Arabs in Israel did not enjoy democratic rights in any meaningful sense, having been relegated to the status of “subject” until Israel ended its military rule in 1966.
Only partial victory
After the 1950 Harari Decision — in which the Knesset gave up on drafting a full constitution in favor of a piecemeal approach of quasi-constitutional “Basic Laws” — some politicians tried to legislate equality into law.
In his excellent book “The Birth of the Revolution,” former Likud MK Uriel Lynn explained how, in the 1960s, Prof. Yitzhak Hans Klinghoffer, then an MK from the now-defunct Liberal Party, proposed a full bill of rights — but the government, then controlled by Ben Gurion’s Mapai party, blocked it early on in the legislative process. In the 1970s, the retired judge Benyamin Halevi, then an MK from Gahal (a forerunner of the Likud), tried to put forward a scaled back bill of rights, but again was met with opposition from the religious parties.
After some progress in attempts to enshrine fundamental rights in the late 1980s, by the start of the 1990s, the political conditions were ripe for the passage of two of Israel’s best-known Basic Laws — Human Dignity and Liberty, and Freedom of Occupation (Work).
Legislating them was not easy. Facing staunch opposition, the legislators were forced to divide a broad, human rights-focused Basic Law into four pieces; two of them were never passed. Lynn, then the chair of the Knesset’s Constitution, Law, and Justice Committee, worked on these laws with Prof. Amnon Rubinstein, then an MK from the centrist party Shinui, following the efforts of the Justice Minister of the time, Dan Meridor.
Rubinstein later detailed the stubborn rejection of religious parties to the principle of equality in a 2012 article, characterizing their approach as “over our dead body.” Rubinstein explained that their opposition was rooted in multiple concerns: that the Law of Return, enabling any Jew in the world to immigrate and be naturalized in Israel, would be canceled; that Haredi exemption from military service would be revoked; and, above all, that equality would be granted to non-Orthodox denominations of Judaism. As an aside, it seems likely that granting fair recognition and equality to other Jewish denominations in Israel would have dispelled, or even prevented, some of the resentment many secular Jews feel toward religion — which stems in part from the imposition of Orthodox tradition on all Jewish life in Israel.
The MKs who advanced these laws realized that they were poised to achieve a partial victory, but only by giving up on the principle of equality. This painful compromise, among many others, enabled just two of the four quasi-constitutional anchors to be adopted. The result was that Israeli human rights law was incomplete, lacking its most crucial tenet: equality among all its citizens.
A body without a heart
This brief history, of course, does not capture the full picture. Despite the glaring absence of equality in the Basic Laws, Israel has still promoted the value of equality in an alternative way: point by point, and clause by clause. The Knesset adopted, for example, a law mandating gender equality in the early days of the state (1951); a law demanding equal pay for men and women in 1964 (and which was replaced in 1996); and an anti-discrimination law in 2000 — one of the very laws the current government wants to target.
President of the Supreme Court Esther Hayut and other Supreme Court Justices arrive for a court hearing in Jerusalem, January 5, 2023. (Yonatan Sindel/Flash90)
The issue of equality even made its way into Human Dignity and Liberty by way of a 1994 amendment stipulating that the law includes the “spirit of the principles of the Declaration of Independence.” Various rulings by the Supreme Court — like the Ka’adan case of 2000, which ruled that, at least on an individual basis, that the policy of leasing land exclusively to Jews was a form of prohibited discrimination — reinforced the value of equality.
This forward movement, however, was halted in the last decade under Netanyahu’s rule and his populist-right coalitions. The peak of his efforts came with the enactment of the Jewish Nation-State Basic Law in July 2018, one of the most discriminatory laws in the state’s history. Ironically, the passage of this law kicked off a discussion about the importance of equality: a poll by the Peace Index, an arm of the Israel Democracy Institute, found that 64 percent of Israelis thought the Nation-State Law should have addressed a commitment to full equality among all citizens.
Now, with the sudden reemergence of debate over a constitution, and with protesters chanting for equality, that principle must no longer be up for grabs or used as a bargaining chip in political negotiations. Any serious treatment of constitutional questions now must establish, once and for all, that a constitution without equality is like a body without a heart, or a heart pierced by a bullet. Putting metaphors aside: a constitution that is not supreme over other laws is hardly a constitution, and a democracy without equality as a fundamental value is no democracy at all.
This article first appeared in Hebrew on Local Call. Read it here.
Dahlia Scheindlin is a leading international public opinion analyst and strategic consultant specializing in progressive causes, political and social campaigns in over a dozen countries, including new/transitional democracies and peace/conflict research in Israel, with expertise in Eastern Europe and the Balkans. She works for a wide range of local and international organizations dealing with Israeli-Palestinian conflict issues, human rights, peacemaking, democracy, religious identity, and internal social issues. Dahlia holds a PhD in political science from TAU, and she is the co-host of The Tel Aviv Review podcast.
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