Beware of rushing into a US-style constitution - opinion

The current clamor for a constitution was sparked by Benjamin Netanyahu’s proposed judicial reform, including, in particular, an intention to curtail the power of the Israel Supreme Court to declare Knesset legislation unconstitutional.

But where did the Supreme Court’s power come from in the first place? And how can a court declare a law unconstitutional when there is no constitution?

This power is certainly nowhere to be found in the Basic Law: Supreme Court, enacted in 1984, nor in any other of Israel’s basic laws. It is a straight power grab on the part of the Supreme Court (by a majority) in United Hamizrahi Bank v Migdal Kfar Shitufi (1995), based on two fallacious arguments. 

Since the addition of two new basic laws in 1992, Basic Law: Human Dignity and Liberty and Basic Law: Freedom of Occupation, human rights “have turned into constitutional rights. They have been given supra-legal constitutional status,” according to Supreme Court President Aharon Barak.

Wrong. Human rights do not automatically have higher-law status. In Britain, for example, the Human Rights Law enjoys no higher a status than the Dangerous Dogs Act 1991, and can be repealed at any time by a simple majority in both houses of Parliament and with the King’s assent – which he is obligated to give. (See my Anglo-American Law: A Comparison, 2020).

The anti-democratic powers of the court

Having elevated the Basic Laws to constitutional higher law status, the Supreme Court arrogated to itself the right to strike down any legislation it deems “unconstitutional.”

This is undemocratic, or even anti-democratic. It is a usurpation of the democratically elected Knesset’s right to decide what laws to pass, by a group of unelected, unaccountable and virtually irremovable judges. It is a purely subjective power, as can be seen from the fact that the court is rarely unanimous.

So the cries of “democracy” by those championing the cause of the Supreme Court power are misguided. It is those supporting the Netanyahu reforms who are the true upholders of democracy. The reforms do not deprive the Court of any legitimate power but seek only to limit a power to which they were not entitled in the first place.

A typical example of the subjective nature of judicial review decisions is Adalah v. The Knesset (2021). The Israel Supreme Court, by a 5-4 majority, declared unconstitutional a Knesset law denying benefit payments to the parents of a minor imprisoned for a serious security offense. However, this stoppage applied only during the child’s imprisonment, and, as Yitzhak Amit, the dissenting judge held, the financial savings to the parents while the child was in custody outweighed the amount of benefit denied them, so the harm caused was negligible and did not justify revocation of the law. Is this split decision in keeping with democracy in a highly sensitive area of law involving the convergence of human rights and national security?

The Supreme Court has even become involved with deciding the legality of laws laying down rules for the eligibility of candidates for election to the Knesset. In Mofaz v Chairman of the Central Elections Committee for the Sixteenth Knesset (2003) the issue was whether a former chief of staff of the IDF was eligible to stand for election to the Knesset. 

The law laid down a “cooling off period” between discharge from the army and civil service. The question was whether the law in question was valid and, if it was, whether it had been complied with. A majority of the Court held that, though the law was valid, the person concerned was not eligible to stand for election. This indecisive outcome only underlines the need for the court, in the interests of justice and democracy, to have declined jurisdiction, leaving the matter to the Knesset itself.

The power of judicial review exercised by the US Supreme Court had an equally illegitimate origin.

US Supreme Court review powers are also illegitimate 

It is not mentioned anywhere in the US Constitution but owes its origin to the dishonest judgment by chief justice John Marshall in Marbury v. Madison (1803). Not only were Marshall’s arguments fallacious, but, owing to a serious conflict of interest, he was actually disqualified from hearing the case at all.

William Marbury, one of the “Midnight Judges” appointed at the last minute by outgoing President John Adams, did not receive his commission. So Marbury asked the US Supreme Court to order the incoming secretary of state to issue his commission. In was, in fact, the outgoing secretary of state whose duty it was to deliver Marbury’s commission, and who had failed to do so. That outgoing secretary of state was none other than John Marshall himself.

Thomas Jefferson deplored Marshall’s “twistifications” and his “usurpation” of the legislative power of Congress:  “The constitution, on this hypothesis, is a mere thing of wax in the hands of the judiciary, which they may twist and shape into any form they please.”

Yet the US Supreme Court still exercises the power of judicial review, resulting in a huge split between two factions of the court and a rewriting of the Constitution, bypassing the proper legislative procedure for doing so, as laid down in the Constitution itself. (See my US Constitution for Dummies, 2nd ed., 2018). 

David Ben-Gurion warned against this from the outset – which is one of the main reasons why Israel never received a formal written constitution. Here is what he said in a 1949 speech to the Knesset. He started out by remarking that “by now we already more or less have a constitution, though maybe not a complete one” – which is even truer today after the passing of 14 basic laws.

Ben Gurion then launched into a frontal attack on a formal constitution:

Supermajority: Pointing out that most constitutions have higher law status requiring a supermajority for any amendment, Ben-Gurion commented: “Just as I am against special privileges [in politics], so am I also against privileged laws.” The majority of today must have the right to determine the laws, but no authority “to tie the hands of those who will be elected in a year, or in five years.”

Kosher laws: “We chose a parliamentary form of government. The nation decides on the laws, and their representatives implement them. I don’t think it’s possible to delegate authority to the court to decide whether the laws are kosher or not kosher.” 

The British system: “The English have no constitution, and their progress was not arrested because of this. On the contrary, in England it’s possible to pass a law by a simple majority, provided the king signs it. But he has to sign it... And there, the same class of law that determines whether or not the king is allowed to marry a woman he loves, also determines the price of cigarettes.”

Ben-Gurion and Netanyahu are at opposite ends of the political spectrum, and yet both, for their own reasons, stand for democratic decision-making against the arbitrary and inevitably subjective power of unelected and unaccountable judges. 

The writer is a practicing London barrister; former professor and head of the Dept of Classics at Witwatersrand University, South Africa; Sometime Fellow of St John’s College, Cambridge; and author of 24 published books to date, including Anglo-American Law: A Comparison (2020) and US Constitution for Dummies (2nd ed., 2018).