Time’s Up for Israel’s Permanent Constitutional Crisis

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June 28, 2024
By Dahlia Scheindlin

Time’s Up for Israel’s Permanent Constitutional Crisis

As part of the joint CJH-Brandeis University initiative on the history of Israeli democracy, we are happy to present a selection of blog posts from members of the inaugural cohort of fellows from the Schusterman Center’s Institute for Advanced Israel Studies. Especially in the current period of acute crisis, CJH is committed to promoting scholarly research on all aspects of the Jewish historical experience, both in the Diaspora and the State of Israel. This post comes from Tel Aviv-based scholar and political analyst Dahlia Scheindlin, author of The Crooked Timber of Democracy in Israel, published in September 2023.

For most of the last 20 years, Israel’s constitution-writing efforts lay fallow. The Knesset had long since ceased to debate drafts of a constitution as it had at the start of statehood. After debating drafts of a bill of rights each decade since its founding, two piecemeal Basic Laws were passed in 1992; since then, legislative efforts to complete the bill of rights have ceased. Even civil society efforts, such as the Constitution by Consensus at the Israel Democracy Institute, or the Future Vision Documents produced by Arab leaders, had faded by the late 2000s. Perhaps Israeli society concluded that after seven decades without one, the constitutional crisis could be managed.

In 2023, Israelis had a rude awakening, realizing that the constitutional vacuum had been filled by political leaders seeking a more theocratic society, a less equal society, territorial maximalism, and legitimizing corruption – deeply undemocratic policies. The lack of formal constitutional limits that might have discouraged or limited such aims made the gatekeepers of democracy vulnerable to attack. Israeli society was shocked when the elected leadership sought to undermine the most important such gatekeeper, the judiciary. 2023 was the year Israeli society began to internalize that the constitutional crisis cannot be permanently managed; it must be resolved. This in itself could have been a milestone, had it kicked off a renewed and more committed effort at writing and adopting a constitution; while no such document is a panacea, the dangers of such profound ambiguities were apparent.

But even had October 7th never happened, efforts to revive a constitutional debate would have been dogged by the same fundamental failures of the first 75 years. How to reconcile a Jewish national identity with true democracy, with recognition of the equality and existence of non-Jewish national groups? This problem had stymied earlier efforts, and without a substantively different approach, would have encountered the same pitfalls.

A change of approaches means de-exceptionalizing Israel; drawing on the relevant comparisons to nation-states rather than civic-national identity-based liberal democracies; and learning from constitution-making in conflict or post-conflict societies.

A comparison of constitutions helps de-exceptionalize Israel’s challenges. Which countries to compare requires acknowledging that emulating the liberal constitutional order and civic national countries such as the US, the UK, or Canada has not helped resolve Israel’s fundamental tension between Jewish identity and democracy.

Instead, Israel should consider the constitutions of traditional nation-states, to learn how they have reconciled national identity with democratic institutions, values, and individual rights and liberties. Moreover, ideally Israel should look to countries with common historic circumstances, such as having a national identity of the majority group, emerging or reconstituting itself after war, decolonization, transition, or conflict; roughly within the same historic phase from the second half of the 20th century onward. Such examples can include Germany, India, France’s Fifth Republic, Spain, Slovakia and the former Yugoslavia countries, as a sampling.

How these states have tackled identity, nation, and democratic values is often found in the preambles of constitutions seeking to define the people of the land, with homage to both the dominant or majority national culture, as well as commitments to both individual citizen equality alongside recognition of collective minority identities. These countries have all adopted robust constitutional statements of civic equality; some accept a generic category of minorities, while others name them in the constitution itself.

Constitutions in these countries, particularly those emerging from ethno-national conflict, sometimes establish power-sharing mechanisms within the governing institutions, to reflect the need for ownership over the state by the different groups. This can help channel competition into institutions, rather than into violence. And policies regarding daily life, such as official languages or provisions for freedom of and from religion, can be far-reaching in establishing equal ownership over the state, so that all sides feel invested.

These are not foolproof methods; but the striking comparative lesson is that such power-sharing constitutions have often emerged when constitutions are written as part of a conflict-resolution process to end a war, or to preserve a newfound, tenuous peace. In Bosnia, such a constitution was the very means of stopping the war, through major international intervention. The arrangement in Bosnia has been fraught and full of difficulties, but nearly 30 years later the country has not yet descended into a resurgent, deadly ethnonationalist bloodletting like the 1990s. Neither has Kosovo, even as the constitution mandates power-sharing among a minority community of Serbs who oppose its very independence, backed by a patron state that has and will not recognize it, often actively undermining Kosovo’s sovereignty. In Macedonia, a brief resurgence of violence led to constitutional amendments seeking to find the critically important balance of identity as defined in the country’s constitution in a way that reflected its diverse minority communities.

These comparisons open rich avenues for comparative learning about the opportunities of constitution-making as a conflict resolution mechanism. In Israel, this would imply that constitution-making alone would be ineffective unless paired with resolving the Israeli-Palestinian conflict, probably including a constitution-making among Palestinians. Far from a radical idea, this merely revives what the international community knew in 1947 upon adoption of UN Resolution 181. Despite being known commonly as the Partition Plan, the resolution’s authors knew that for two sides to live in peaceful relations, they would not be completely separate. And democratic constitutional orders would be essential for a peaceful, cooperative relationship between them.

Image: Knesset Commemorative Medal, 1975. Gift of Charles Feingersh. Collection of Yeshiva University Museum.

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