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Israelis Love ‘the West Wing’: is a U.s.-style Constitution Next?

December 2, 2002
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Israelis love all things American — from McDonald’s and SUVs to Starbucks and the television show “The West Wing.”

But it is no coincidence that sabras love a show about the inner workings of the American political system.

Israeli fascination with American society extends to academic and political circles as well, where thinkers have long debated the concept of an American-style constitution for the Jewish state — particularly these days, as Israeli society is increasingly separated by political, religious and national divides, and lacks a governmental system that can play a uniting function.

The question is, will a constitution offer a solution?

Some thinkers say yes, others say no.

“We have something to gain from a constitution,” said Ruth Gavison, a law professor at the Hebrew University of Jerusalem and a senior fellow at the Israel Democracy Institute, a left-leaning think tank. “We have a very split society. Can a constitution help a society with different views and approaches live together and advance its welfare?”

Not in current Israeli society, according to Avraham Brichta, a political scientist from the University of Haifa, who has served as a consultant to the Knesset’s Law, Constitution and Justice Committee.

“We would have to make very far-reaching compromises,” said Brichta. “You can’t do that in Israeli society in which there are deeply divided ideological elements.”

Gavison and Brichta were two of the more than two dozen academics who presented talks at a recent conference in Jerusalem that debated an Israeli Constitution. “The Federalist Papers,” the series of groundbreaking late 18th-century essays that laid out the arguments supporting the American Constitution, served as the basis for the conference.

The political scientists, philosophers and historians at the conference were from the United States and Israel, and had been gathered by the Shalem Center, a Jerusalem research institute, which jointly sponsored the conference with Hebrew University and Tel Aviv University.

“The Federalist Papers” were recently translated into Hebrew by the Shalem Center, and included an introduction by Gavison and Allen Shapiro that discussed the importance of the work for the State of Israel.

When Alexander Hamilton, James Madison and John Jay — three of the leaders of the American Revolution — collaborated on “The Federalist Papers” in 1787 and 1788, they created what is considered a lucid interpretation of the principles of American government.

The papers were hastily written during a period of crisis — when it was unclear whether enough states would ratify the constitution — yet became a classic of political theory.

Perhaps that is why the essays resonate with Israelis, who are accustomed to making far-reaching decisions during moments of crisis.

It is possible to have constitution-making in urgent times, said Jack Rakove, a Stanford University professor who has written extensively about the American Constitution. The writers of “The Federalist Papers” did not have an indefinite period of time to pool their thoughts.

“If they didn’t solve certain issues right then, they were on a potentially slippery slope,” Rakove pointed out. “It’s similar to Israel.”

When it comes to creating a country’s charter, its code of law, it might be important to “do it once, indoctrinate it and pray and hope you get it right,” Rakove added.

Nevertheless, when the first leaders of the Jewish state were faced with their own declaration of independence, they chose not to create a constitution.

This was an unfortunate decision, according to Uriel Reichman, president of the Interdisciplinary Center in Herzliya, a private university.

“The early years of statehood were a time of great tolerance,” he said. “We could have had a liberal constitution if one had been drafted at the time.”

The first Knesset spent a considerable amount of time debating whether or not to write a constitution. The elected body was deadlocked in the discussion the religious parties favored the Torah as the constitution, while the left-leaning secularists were opposed to any constitution that wouldn’t embrace their concept of a socialist state.

Instead, David Ben-Gurion, Israel’s first prime minister, proposed the piecemeal development of a constitution. Since then, the Knesset has enacted Basic Laws regarding Israel’s legislative, executive and judicial organs, the presidency, human rights, the state’s economy and lands, civil-military relations and the status of Jerusalem.

There are now 11 Basic Laws that “constitute a constitution by most standards,” wrote the late Daniel Elazar, a well-regarded political scientist who founded the Jerusalem Center for Public Affairs. But what is lacking is a certain formalization, ratification and “a sense on the part of the Israeli public that all of this adds up to a ‘real’ constitution.”

For the last 30 years, Israelis have been, for the most part, unsatisfied with the legislative mechanism that enables decision-making in Israel, Gavison said. While a constitution wouldn’t necessarily solve all of the nation’s problems, it could help resolve some difficulties.

There are tremendous issues at hand in Israeli society, ranging from the religious-secular divide to the status of Arab citizens in a Jewish land. Given these potentially explosive matters, Israel needs a governmental system that will attempt to do what is good for society.

“Every Israeli citizen must realize that given these problems, we can’t go on like this much longer,” Gavison said.

A constitution, she proposed, would help. It would require societal leaders not just Knesset members or academics to sit together and make concessions.

Such a group would have to incorporate representatives from every sector of Israeli society, including religious men and women, secular Israelis, Israeli Arabs, Labor-leaning Ashkenazim and Shas-voting Sephardim.

Israeli Arabs, for example, could offer much with regard to issues of equality, but would have to concede to being free citizens of a Jewish state, rather than free citizens of a binational state, she suggested. The fervently Orthodox would have to concede to the separation of religion and state.

“We live in a society where there is no clear majority,” said Reichman, who has gathered a team for a proposed constitution. “Every group feels like a threatened minority,” and “every group feels marginalized. A constitution would protect everyone.”

For Brichta, such a concept isn’t possible in today’s Israel.

“We’ll end up enslaving ourselves to the religious parties,” he said. “It’s akin to the American Constitution and slavery.” Brichta refers to compromises in that document, made after Southern states in the United States refused to sign off on the Constitution. Most historians believe these compromises perpetuated slavery for a hundred years and contributed to the start of the Civil War.

For Gavison, however, who co-authored a new social compact between the religious and secular communities with Rabbi Ya’akov Medan, a spiritual leader in the Orthodox community, there must be at least an attempt to bridge the gaps in Israelis governance and society.

“If Israel wants to have a constitution, it had better learn from the American experience about how to do it,” Gavison told JTA. “I think Israel would be better off if it had one.”

“It’s not clear that we have the kind of leadership that can make courageous concessions,” she added. “So most prefer to muddle along in the political system that we have now, despite the situation that it creates.”

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