Cancel the elections and call a constitutional convention

While we may not be standing on the tennis court in Versailles pledging ourselves to bourgeois revolution, we are certainly slouching toward Philadelphia in search of a written constitution.

By AVI BERKOWITZ
July 20, 2019 20:51
4 minute read.
Cancel the elections and call a constitutional convention

The Knesset Education Committee. (photo credit: SHAKED KARABELNICOFF)

Our political system is broken.

While we may not be standing on the tennis court in Versailles pledging ourselves to bourgeois revolution, we are certainly slouching toward Philadelphia in search of a written constitution. Like the US in 1789, we need to replace the patchwork of legal and extra-legal arrangements that currently undergird our national political system – the so-called basic laws and especially the mostly fictitious status quo agreements –  with a formal and detailed binding political document that will order and organize our polity. And we need to do so now.

In April, we learned that our current political arrangements can no longer hold our polity together. When a free and fair democratic election fails to produce a winner and a loser, it is time to change the system. Moreover, the racially tinged violence that recently exploded on our streets and highways suggests that if we don’t make things better quickly, our civil society itself could unravel. Baldly put, if our looming September election produces yet another political stalemate as every public opinion poll currently indicates, this forbidding catastrophe will explode “like a fireball in the night.”

A constitution for Israel – a political book for the people of the book – would first and foremost align the Zionist chapter of territorial sovereignty within our biblical homeland with the rest of our national history. No longer would our right to political sovereignty and national independence derive from the blood of our dead soldiers. No longer would our polity only rise to the level of an implicit democracy, nothing more than an amorphous accommodation among discordant Jewish tribes who first met outside of the ovens of Auschwitz and then met again on the battlefield as soldiers in our national army. In other words, a constitution for Israel would transform the modern Jewish state from a fleeting expression of Zionist bravado sustained mostly by military heroics, into the greatest secular achievement of the Jewish people since the writing of the Talmud.

As a practical matter, a constitution for Israel would separate the powers of our three branches of government. By drawing clear and inviolable vertical lines between the executive, the legislative and the judicial functions of the national government, a constitution would do much more than merely end the long running conflict between our elected politicians and our appointed judges. It would make it all but impossible for the head of the executive branch of government, the prime minister, to turn the legislative branch into a shield protecting him from the rule of law.

In our current political system, there is no separation between the executive and the legislative branches of government whatsoever. In fact, in our current political system, the legislative branch of our government is nothing more than a tool of the executive branch, which makes me wonder why so many of us are disappointed by our current prime minister’s efforts to use this power for his own convenience. The fault here lies neither with the leader nor with the legislators, but with the system.

And systemic problems demand systemic solutions. But the deep structure of our polity prevents such solutions from developing. This deep structure, which locates the sovereignty of the state in the Knesset, means that no sitting prime minister will ever forfeit his seat in the Knesset. This fact doomed our first attempt to separate the executive and legislative functions of our government when the law calling for the direct election of the prime minister was repealed. It renders moot all other stop-gap solutions, such as raising the electoral threshold in order to minimize the number of tribal-based political parties or lowering the electoral threshold in order to maximize the number of such parties.

But a constitution for Israel would resolve this matter as well. After all, transferring our sovereignty from the Knesset to the constitution would be imperative. Indeed, without implementing such a transfer, the document would not be worth the paper it was written on.


IN MANY WAYS, the Knesset itself took a giant step in this direction when it passed the Nation-State law about one year ago. When the Knesset declared that sovereignty within the State of Israel is reserved exclusively for the Jewish people, it placed Israel’s sovereign identity as the nation-state of the Jewish people beyond the reach of popular democratic review. By placing that exclusive right inside of a democratic constitution, Israel’s sovereign identity would also be beyond the reach of legislative review.

With our sovereign identity as a Jewish and democratic state secured by a secular constitution, drawing the vertical lines which separate the institutions of government from each other and balance them so as to maximize individual liberty and personal freedom would be simple. Moreover, those vertical lines would facilitate drawing horizontal lines to further fragment political power. By dividing the power between newly created sub-sovereign juridical domains serving as electoral districts checking and balancing the power of the national government of the sovereign state, our liberty and our freedom would be further enhanced. In very short order, the nation would no longer need the amorphous accommodation between our discordant tribes to forge and maintain our national identity. Tribalism would be rapidly discarded or radically discounted. And just like in the US, our nation would be held together by the interlocking vertical and horizontal lines of our political system. Only thus will the democracy we cherish be explicit, legal and sacrosanct.

The writer is the rabbi of the Minyan HaVatikim in the Rimon section of Efrat. He is writing a book on integrated world/Jewish history.


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