Can Israel's political strife be solved by a 'thin' constitution? - opinion

Israel is in a trauma center. At the President’s Residence, the political parties are negotiating a possible agreement on a few specific issues to stabilize the patient. But Israel needs more than emergency medicine. To heal, “big ideas” about Israel’s future are required. Three proposals are on the table: comprehensive judicial reform, a full constitution and cantonization.

Each of them is a dangerous illusion. All three demand decisive action in a reality that is not ripe for such sweeping change. A different idea, big but realistic, is needed – one that recognizes the fact that a culture war is underway, which cannot be resolved by any big idea, but nevertheless offers a dramatic improvement of our national life in a time of such stark division. I would like to propose such an idea: a “thin constitution.” 

No one knows how the negotiations will end. It is likely that the prime minister will navigate through the minefield in which he has entrapped himself into a position that will spare him from having to make a tough decision. This way he will preserve his coalition without rekindling the full force of the protest movement that began this past January. 

But anyone who thinks that such avoidance can turn back the clock is mistaken. The Israeli Center, a great bear that hibernated through a long winter, neglecting its post in the Israeli culture war, awoke in a burst of rage after a sharp jab to the ribs by the proposed judicial overhaul.

How the judicial reform tore Israel apart

Now, the bear is more alert than ever, and it is unlikely that it will slip back into slumber in the foreseeable future. And so, even if the prime minister makes it out of the present crisis with no additional damage, things will not go back to the way they were. The attempt to avoid a decision may dampen the weekly protests and create the impression that things have returned to normal, but the depth of the events of the past six months has already been ingrained into an entire generation’s consciousness.

For years we have neglected the fundamental questions of Israeli society – first and foremost the relationship between Jewish particularism and liberal-democratic universalism, and the array of theoretical and practical conclusions that derive from it. Our entire national conversation was swallowed up by a black hole: the question of the territories. Public debate has focused on where the borders should be, not on how the state inside those borders should look. 

At this time, however, when many Israelis on the Right, the Center and even parts of the Left see no chance for a peace process vis-à-vis the Palestinians, the black hole’s gravitational pull has weakened. The main axis around which the political discourse revolved, the future of Judea and Samaria – the debate that defined “Right” versus “Left” – has rusted out in the past decade. Israel has shifted its attention inward.

The introspective impulse has gained momentum in the last decade. Identity politics has occupied a significant place in the national conversation – it has created a new or renewed sphere of controversy around identity groups based on religion, nationality, ethnicity and geographic location. President Reuven Rivlin’s 2015 “four tribes” speech conceptualized the topic and made it accessible to the general public. The rifts that had been revealed within society turned out to be not only chronic, but also partly overlapping – the same identity group on one side of various rifts – making them difficult to bridge. And yet, the Center continued to conduct itself with relative complacency. It did not feel threatened.

This was the case until January 4, 2023, when Justice Minister Yariv Levin announced the first phase of a four-stage reform with no attempt to clarify the next stops along the way, or about what awaits Israel at the final stop. This roused the Center in a game-changing way. It became clear to many that a government unique in Israeli history – a “fully” right-wing government – could decide the culture war in favor of particular identity groups, those constituting the current ruling coalition.

The sheer audacity of the plan, and the aggressive way it was marketed, punched a hole in the fabric of Israeli national life, and through it, poured the boiling lava of identity discord. Even if a way is found to patch over the hole – through a compromise arrangement – it will not provide an infrastructural solution to the identity crisis. It is only a matter of time before the lava erupts again. 

This concern is the driving force behind the creative energies working to devise a broad and principled response to the identity dispute. As mentioned, various proposals have been raised.

Constitution vs cantonization: Two proposed solutions for Israel

Some strive for the enactment of a constitution. They hope to heal the nation through a “new social order” that includes a definitive determination of the state’s identity and its fundamental principles, while also expressing a national commitment to codifying a comprehensive bill of human rights and the protection of minorities. 

That determination, if it is anchored in a binding constitutional document entrenched in a way that makes it very difficult, though not impossible, to change in the future, would shape a new pan-Israeli partnership for generations to come. A constitution would guarantee the Israeli Center that the extremes threatening it – those who wish to strengthen the Jewish (religious and/or national) identity component over the democratic one, or the democratic identity component over the Jewish one (by diluting the particularist character of the nation-state) – would be unable to impose their will. 

A constitution would reduce the appetite of potential revolutionaries by setting limits on their capacity to upend national stability. Once we commit to a constitution, its proponents claim, calm will prevail.

Others aspire for the establishment of a federation. In their view, Israel should be organized as an array of autonomies, each tailored to the desired dimensions of one of the country’s identity groups, which would exist side by side in a federative framework.

The realization of this idea, which has been termed “cantonization,” would enable each group to manage its own affairs as it sees fit in predefined fields, and to bear responsibility for its choices – at its own expense and not at the expense of others. Many flowers would bloom, and no one would impose anything on anyone else. According to this proposal, the Israeli partnership would be reduced to a bare minimum, which would not rely upon points of ideological consensus regarding the state’s identity.

These two proposals take opposite approaches to resolving the Israeli culture war: a constitution would bind us together, while cantonization would recognize the sharp differences between us and grant them legal and practical validity. Yet the two approaches do have something in common: neither is feasible, and any serious attempt to promote either of them would deepen the crisis even beyond what we have experienced this spring.

A constitution is a noble idea. I have dedicated years to the design of a constitution for the State of Israel, and no one would be happier than me to see one enacted. But in the current situation, I must oppose such a move. Today’s identity politics, which is based on differentiation from, and demonization of, the other, is a killing field for constitutional politics, which is based on compromise over fundamental issues. The thought that a broad Israeli consensus on questions of identity and values could be reached at this time is an illusion, and it would be irresponsible to make that idea a political objective. Please note: Even the canonical text of the Declaration of Independence – sacrosanct in the secular sense – is unfortunately becoming a subject of controversy in society.

Cantonization is a bad idea. It would provide normative legitimacy and political solidity to the identity dispute. Instead of managing it, it would intensify it. If Israel becomes “a state of all its tribes,” it is likely that the centrifugal forces that drive us apart today would accelerate dramatically. The hope that the tribes would all live side by side in peace, thanks to their autonomy, would be shattered by a reality in which each tribe is organized independently, and with legal backing. The competition that would ensue for control, for influence and for dominance in shaping the public ethos would heighten and fortify the walls that already separate us today, unscalable obstacles that would frustrate any attempt at joint action to achieve national goals. 

RATHER THAN aiming for a unifying constitution or a divisive cantonization, it would be more appropriate to pursue a different kind of solution, one that is relatively modest but reasonably feasible: a “thin” constitution.

Solving Israel's political crisis with a "thin" constitution

While a full constitution comprises three parts – an identity section that lays out the nature of the state, a rights section that includes a bill of human rights, and a section that deals with the branches of government – a thin constitution, sometimes called a “procedural constitution,” only includes the third part. It would regulate the three branches of government (their composition and how it is determined, their powers, their modes of operation and the division of responsibilities between them, including the separation and balance of powers) as well as the institution of the presidency, the state comptroller, the state budget and the military. One could also add to this the regulation of local authorities and municipalities. A thin constitution does not deal with identity-related matters, but it sets the rules of the game for the operation of the state.

Some of the aforementioned issues are not yet regulated by Basic Laws (such as the legislative process), and some indeed are (for better or worse) but stand on shaky ground because a coalition can cancel or amend them without any special procedure (with a few exceptions). A simple Knesset majority can also enact new Basic Laws in a routine legislative proceeding.

This is a flaw that places Israeli democracy on a slippery and dangerous slope. The Basic Laws, which aspire to be part of the constitution, are putty in the hands of the Knesset and easy prey for the whims of the governing coalition, which can advance revolutionary changes of all sorts, such as divesting the Supreme Court of its authority, restricting the voting rights of some citizens, altering the state’s Jewish character or modifying the state’s democratic character. Additionally, if it is decided that the Supreme Court lacks the authority to conduct judicial review of Basic Laws, there would be no legal backstop to a determined majority’s desire to change Israel as it sees fit.

This is not a theoretical concern: all of the country’s recent prime ministers chose to amend Basic Laws in accordance with their immediate political exigencies (e.g., the “rotation government,” whereby the premiership changes hands part way through its term). The judicial reform currently proposed is just another step, albeit an extraordinarily extreme one, along a path already charted by others.

In constitutional democracies, the rules of the game cannot be changed casually – with a simple parliamentary majority. Because of their vital importance, the rules are embedded in an entrenched constitution, meaning that they can only be changed in accordance with strict requirements, such as a parliamentary supermajority, consent of both houses of a bicameral legislature, approval by all or most of the states in a federal framework or by public referendum. Further, in most countries, a constitutional culture prevails that precludes changing the rules to suit momentary convenience. 

The social and ideological divide within Israel makes it impossible to decisively settle the culture war currently underway. But this divide would not prevent us from accepting the authority of a thin constitution – a mutually agreeable framework for managing our conflicts in the future. There is a real likelihood that we can reach a consensus on the rules of the game, as they do not deal with the different value systems that fuel the culture war. 

True, at this moment in time, the Knesset is regarded as a body where sensitivity to the state’s Jewishness is strong, while the Supreme Court is perceived as more acutely sensitive to the state’s liberal character. That is the reason why the current coalition, which is not liberal, wants to transfer power from the judiciary to the political arena. But this is a shortsighted calculation; the present situation is not a law of nature.

Thus, for example, there is no safe bet as to who will win the next election and form a governing coalition. Therefore, everyone has an interest in optimally stabilizing the system, as every party could potentially find itself sitting in the opposition. Entrenched rules would protect them. 

This is also true regarding the composition of the Supreme Court: at one time, a large majority of its justices could be classified as liberals, but today the balance of power is changing; at least a third of the justices are conservatives. If the selection method for the chief justice remains unchanged, a conservative judge will inevitably be appointed to lead that respected institution. 

The Supreme Court of the United States already provides us with an example of a leopard changing its spots: the court has radically changed in recent years, becoming the nation’s bastion of conservatism. There is no way to know whether something similar will or will not happen here as well.

The uncertainty regarding the future composition of the Knesset and the Supreme Court is an excellent basis for conducting a discussion on the rules of the game that will lead to an optimal result. As the political philosopher John Rawls taught us, in negotiations for a fair and just society, a reasonable outcome can be achieved if each negotiator is “behind a veil of ignorance” – that is, they don’t know going into the negotiating process in what social position they will find themselves at its conclusion. 

This ensures that the discussion will be conducted in an impartial and unbiased way. Although the opponents in today’s culture war have well-known ideological preferences, they are superfluous to refiguring the separation of the branches of government and the complex relations between them and offer neither side an escape from the proper position for making fair decisions – behind a veil of ignorance.

Will Israel’s leadership be able to give up the illusion of a decisive win – revolutionary reform, a full constitution or cantonization – and lead us to the safe haven of a mutually-acceptable long-term arrangement for managing the Israeli culture war within the framework of a thin constitution?

The writer is president of the Jewish People Policy Institute (JPPI), a professor emeritus of law, and co-editor of the new book 75 Faces of a Jewish State (published by Yedioth Books and JPPI).