Time for a constitution

Civil unrest can correct the wrong that caused it.

Beersheba Protest 311 (photo credit: Ben Hartman)
Beersheba Protest 311
(photo credit: Ben Hartman)
Social justice! Welfare! Health! Housing! These are the slogans we hear nowadays from every street corner. But one outcry is missing: Constitution! And this is despite the fact that the absence of a written constitution is at the root of the current crisis.
Indeed, it would be true to say that Israel has a constitution, at least in the substantive sense. The basic laws of the state are its constitution. But that is a partial one, a limited and crippled one. The current situation is unsatisfactory. The protesters are asking to “change the rules of the game,” and this public protest has to be used to promote elections for a constituent assembly that would draft a constitution.

A constitution presupposes the existence of an original constituent power. It is established by the will of this power and is valid because it derives from a constitution-making capacity.
In the modern era, the constitution of a nation is regarded as a creation ex-nihilo, receiving its normative and universal status from the political will of the people to act as a constitutional authority, and through which “the people” manifest themselves as a political and legal unity.
The original constituent power is never exhausted; it remains present, alongside and above every constitution.
However, it only manifests through constitutional events such as declarations of independence, revolutions, constitutional plebiscites, popular initiatives or special constitutional conventions. In order for the original constituent power to be direct, these forms must have a special character – i.e., separate from other public functions – thereby replacing revolution with peaceful means, incorporating actual, deliberate, free choice by society’s members.
The important feature is the collective nature of the original constituent power – the word constituere marks the act of founding together, jointly. The present public outcry can be such a constitutional event: hundreds of thousands of people going out to the streets mark the beginning of the awakening of the public collective, the resurrection of the original constituent power. There is a reason the leaders of the public outcry announced that “there is a feeling of reestablishing the state.”
The process of utilizing this awakening is not as complicated as it seems at first glance. The materials are out there. As of 2003, the Knesset Constitution, Law and Justice Committee has been working on drafting a national constitution. It has held dozens of meetings, received thousands of pages of background papers, all with the participation of academics, organizations and members of the public. Based on the committee’s debates, its staff prepared a detailed draft of a constitution that includes different alternatives and versions for various issues and is accompanied by explanations and proposals for discussion. This is a comfortable base on which to begin.
It has to be clear: A constitution and economic growth are inseparable. Constitutional stability can provide the essential predictability for markets to flourish. Moreover, research shows that constitutional stability is negatively associated with crisis propensity and positively associated with political stability, democracy and GDP per capita.
A new constitution could also explicitly incorporate the social and economic rights neglected so far – the right to health, housing, education, etc. Such a move may help block the expansion of the existing economic inequality and spread an additional protective net for the citizens.
One has to look beyond the immediate demands of the outcry. Any solution that the government would propose would be no more than a cosmetic change – a slight renovation, a rearranging of the furniture. But we need a basic structural change. Therefore, the current momentum has to be utilized to promote the election of a constituent assembly separate from the Knesset. That assembly would have a single mandate: to prepare a constitution. Its work ought to be limited in time, and at the end, the constitution should be brought to the people in a referendum.
The current outcry is an opportunity that will not reappear any time soon. This is the time for a constitution.
The author is a PhD candidate at the London School of Economics and Political Science (LSE).