A constitution for Israel: Lessons from the American Experiment

Recent years have seen the emergence in Israel of a public debate over whether to adopt a formal constitution, what values and institutions such a constitution ought to enshrine, and how to go about formulating and ratifying it. While any serious answer to these questions must take Israel’s unique circumstances and political tradition into account, a great deal may be learned from the experience of dozens of democratic countries that have adopted constitutions since the end of the eighteenth century.

In this context, it is tempting to turn first to those Western countries that adopted constitutions after World War II, such as France, Germany, Spain, Greece, and New Zealand—nations which, at the time these constitutions were adopted, shared many of the basic political values and rules of public discourse which characterize Israel today. Likewise, one might look to the fascinating development of constitutions in South Africa and in several of the countries formerly under Soviet dominion.

The best point of departure, however, may well be that of the world’s oldest standing constitution, that of the United States, which has been in force without interruption since 1789. That the United States Constitution has guided American political life over so long a period, and in the face of repeated social upheavals and many wars, testifies to the sagacity of its authors. For this reason, the architects of numerous young democracies have turned to the American example when drafting their own constitutions. For Israel in particular, the American case carries special weight, in light of the tremendous influence that the United States, and particularly the American legal tradition, has had on Israeli life.

In what follows, I will not dwell on the specific political arrangements spelled out in the United States Constitution. These are not particularly relevant to the Israeli case, and in any event have been modified substantially during two centuries of amendment and interpretation. Instead, I will focus on the fundamental principles and assumptions which underlay that document, and which were tailored to the specific needs and traditions of the nascent American nation. In particular, I will focus on those ideas that guided the process of its drafting and ratification—a process in which a clear distinction was drawn between the founding, constitutional principles of government and the pitched battles of ordinary politics. It was this process which enabled Americans to forge a political framework that suited the nation it was meant to serve, assuring the various interests within the population that their vital needs would be protected, and that day-to-day politics could therefore be conducted with moderation and restraint.

The first part of this discussion will therefore revisit the framing and ratification of the American constitution, emphasizing the extent to which those who took the lead in the constitutional effort understood the complexities of the task before them and fashioned a process that would best address them. The second section will focus on the principles which guided the American framers, and show how these contributed to the enduring success of the American experiment. In considering these principles, I will rely in large part on the essays in The Federalist, which was penned by Alexander Hamilton, James Madison, and John Jay, three of the principal proponents of the constitution, between October 1787 and June 1788, as part of the fight over ratification. In light of the recent publication of The Federalist in Hebrew (to which a version of this essay served as the introduction), that source should be seen as a particularly timely reference for any discussion in Israel of the American constitutional process.

The remainder of the essay will draw lessons for the Israeli case. As with America of the 1780s, Israeli society is deeply divided on key issues, but it has guaranteed its citizens levels of political freedom, welfare, and education unknown in the region. While Israel is host to a number of groups seeking to change the country in accordance with their own visions of the good life, they all share an interest that Israel continues to secure their basic rights. By embarking on a constitutional process that draws inspiration from the American model, I will argue, Israel has the best chance of creating the kind of common, consensual framework within which democracy can flourish. Designing and adopting a constitution is not simple, and will require negotiation and painful compromise among different groups. But if a viable and enduring constitution is to be adopted, participants in the debate will not only have to defend their own principles and interests, but also to learn to respect the positions of others. The final document must be constructed on the understanding that a shared political framework, within which every group can act despite disagreements and conflicting interests, is itself an interest essential to all of them.

Israel today, fragmented and strife-ridden, may seem farther than ever from seeing such a process through, and the sense of crisis that has enveloped the country since negotiations with the Palestinians collapsed in October 2000 tends to direct attention to issues that seem more urgent. But it is precisely difficult times such as these that reveal the pressing need for a constitution, and that are most likely to precipitate its creation. Only then is the need most keenly felt to forge one basic document that creates a shared political framework and offers the opportunity for fruitful debate within it. A closer look at the American case can serve to illustrate this essential political truth.

II

The story of the adoption of the United States Constitution begins shortly after independence, when in November 1777 the Continental Congress approved the Articles of Confederation. This document, which was meant to establish a common framework for the thirteen newly independent colonies, reflected the prevailing sentiments among Americans during the Revolutionary War and in particular their antipathy to life under foreign rule. The Americans’ most prized asset was their liberty; it was this which they were fighting to defend, and their experience with the British had taught them that the best defense against tyranny was to limit the ability of the government—especially a distant one, insulated from the needs and preferences of the public—to dip its hand into the citizens’ pockets or to send them off to fight for causes with which they do not identify. This hostility to unwarranted government intervention found expression in the Declaration of Independence, which included a list of grievances against the British government and its abusive treatment of the local legislatures. The Americans preferred to be ruled by smaller, local governments, which were subject to the will of the voter at frequent intervals. At the same time, they understood the military and diplomatic advantages that size offered, in both war and peace, and for this reason agreed to the establishment of a common framework that enabled the thirteen states to act as one in foreign affairs.

Given these concerns, it is no surprise that the states insisted on ceding as little power as possible to the central authority. The Articles of Confederation granted almost complete independence to individual states, while the weak central government comprised only a unicameral legislature, the Continental Congress, in which there was equal representation from each of the states without regard to the size of their populations. The congress did not have the authority to compel member states, and was therefore unable to resolve interstate disputes or mobilize resources for its own activities. The union, as a body, had no standing army, and because the central government could not levy taxes on either states or individuals, it was virtually impossible to maintain the army necessary to win the War of Independence. Nor did things go any better in the economic sphere: In their search for solutions to economic hardship, several of the states began to print money, while others vigorously sought to collect wartime debts, a policy that struck particularly hard at farmers in the western frontier areas.

In the years following the war, these problems led to unrest in some states, of which the best-known was Shays’ Rebellion in western Massachusetts in the summer of 1786. Hundreds of farmers, many of them veterans of the Revolutionary War, revolted against the collection of taxes and debts and, in an effort to sabotage the collection process, attacked courthouses and police stations, and even tried to take control of a government arsenal in Springfield. The rebels were defeated only when an army sent from Boston killed several of them, arrested the leaders, and dispersed the rest. Similar revolts took place in North Carolina and Pennsylvania. George Washington, commenting on Shays’ Rebellion, expressed a view that was shared by many at the time. “What a triumph for the advocates of despotism,” he wrote in a letter to Henry Lee, “to find that we are incapable of governing ourselves, and that systems founded on the basis of equal liberty are merely ideal and fallacious.”

Although they were painfully aware of the flaws in the Articles of Confederation, the representatives of the American states had little success in altering them. Any amendment had to be approved by the legislatures of all thirteen states, giving each of them effective veto power. Since change invariably harmed the interests of one state or another, unanimous approval was extremely unlikely. The regime’s weakness was well illustrated by the Annapolis Convention in 1786, which was attended by delegates from five states—the only ones that were willing to answer Virginia’s call to convene in order to resolve interstate trade disputes. The participants could not reach agreement on the substantive economic issues on the agenda, but did endorse the initiative of Alexander Hamilton of New York and James Madison of Virginia, who proposed that the conference call on the Continental Congress to re-examine the Articles of Confederation. The congress, accepting the initiative, summoned representatives of all the states to a convention in Philadelphia, at which they were to offer proposed amendments to the Articles of Confederation, amendments that would be considered by the Continental Congress and, ultimately, by the states.

With the exception of Rhode Island, which opposed any initiative that might strengthen the central authority, all the states sent delegations, which included many of their most talented and famous citizens. Of the fifty-five delegates, three-fourths had served in the Continental Congress, many had been state legislators, and seven had experience as governors. Among them were the two most renowned men in America at the time, Benjamin Franklin and George Washington.

In May 1787, the delegates convened in Philadelphia, committed to holding their deliberations until a successful resolution could be reached, or until it had been demonstrated conclusively that no such resolution was attainable. The differences were profound, and the success of the convention was anything but assured. Despite broad consensus that the Articles of Confederation had failed to meet the states’ needs and that they needed to be strengthened if the states wanted to preserve a common framework, there was no clear indication that anything significant had changed in the constellation of interests that would enable a different outcome this time around. Moreover, there was no consensus on the critical question of whether minor changes would suffice to strengthen the confederation, or whether perhaps the entire notion of confederation ought to be reconsidered. The second option suggested a more radical solution, for the alternative idea of a federal state—one which combined states’ rights with a strong federal government—was at that time a novelty.

In the end, most of the delegates came around to the view that the Articles of Confederation were simply unequal to the central problems facing the states, and would have to be replaced by a substantially stronger central authority. The opening words of the constitution drafted in Philadelphia captured the essence of this change: “We, the people of the United States of America” stood in marked contrast to the parallel phrase in the Articles of Confederation, “We, the undersigned delegates of the states….” These delegates, who had convened in order to protect the honor and interests of their respective states, in the end came to agree on something entirely different: The new constitution would define not merely a group of affiliated states, but a people, possessing common, central institutions of government.

How did it happen? A great deal of thought was invested in maximizing the likelihood of a successful outcome, which expressed itself in the manner of organization and the rules of debate at the convention. First of all, Hamilton and Madison, who stood at the head of those advocating a strong central government, developed their ideas for a constitution only after a close study of political arrangements in other lands, and after arriving at clear and explicit assumptions about human nature and the nature of American society. Second, they understood how important it was to define the convention’s agenda by opening it with a presentation of their own well-developed ideas. Madison and his fellow Virginians submitted the first proposal, which was put forward for discussion on the convention’s fourth day. This proposal, which was moved by the governor of Virginia, Edmund Randolph, called for the creation of a strong central government composed of a legislative, an executive, and a judicial authority. According to the Virginia Plan, the legislative branch would be empowered to annul state laws, to levy taxes, and to regulate interstate commerce. States would be represented in a federal House of Representatives in proportion to their populations, and the House would select from among its members a more select body, the Senate, again in proportion to population. Although important elements of the Virginia Plan were eventually rejected or significantly altered in the course of deliberations, the proposal formed the basis for the constitution that would eventually emerge. 

Moreover, proponents of a constitution went into the convention knowing that the challenge of persuading opponents and fence-straddlers alike would be a daunting one, and they prepared for it carefully. Their foremost goal at Philadelphia was to foster compromises that would enable as many delegates as possible to support the final product, and they set the rules of debate accordingly. To maximize delegates’ room to maneuver and to isolate them from pressure from their constituents or from members of the Continental Congress, the deliberations were held behind closed doors, and their content was largely kept out of the press. It was also decided to conduct most of the discussions not as a formal debate, but instead as a “committee of the whole,” a less formal method of decision-making which had its own rules—the most important being that a revote could be called on any subject. A similar spirit motivated the decision not to record the individual votes of delegates, in order to allow delegates greater freedom to change their votes later on.  The overriding goal was to allow the participants at the convention to examine the options carefully and change their minds as the deliberations progressed and new arguments were presented. Yet there was another benefit to the relatively informal method: It enabled delegates not only to weigh each issue on its own merits, but also to view each point in the context of the totality of the other proposals that were adopted, which was critical in facilitating compromise. Participants could consent to certain ideas on condition that other ideas were also accepted, without fearing that any point that was agreed upon would immediately become the starting point for demands that additional concessions be made.

Matters of procedure thus contributed greatly to the convention’s success. In the end, however, two major issues threatened to bring down the entire effort, and likely would have, had it not been for the delegates’ determination to reach a compromise that would enable the constitution’s broad approval. The first stemmed from the fear of the smaller states that their power, standing, and independence would suffer greatly if representation in the legislature depended solely on population. These states supported New Jersey’s proposal, which accepted most of the elements of the Virginia Plan but made representation in the legislature equal for all states, as it was in the Continental Congress. In the end, an agreement was reached that came to be known as the Great Compromise: A House of Representatives was established in which representation was determined according to population, while a second, smaller body, the Senate, would be composed of two senators from each state. In order to allay the concerns of smaller states that this arrangement would later be revised to their detriment, it was stipulated in the constitution that equal representation in the Senate would not change without the approval of every state that might suffer from such a step.

The delegates were also sharply divided on the question of slavery. For the southern states, the effort to abolish slavery or even limit it through heavy taxation on imported slaves posed a real threat to their citizens’ way of life. Southern representatives argued that slavery must be treated as the internal affair of every state, and that the central government should be denied any say. At the same time, they insisted that slaves be taken into account in considering taxation and representation.  Delegates from the northern states sought to stop what they saw as a transparent effort to inflate the power of the South within the representative bodies, and many forcefully opposed granting constitutional legitimacy to slavery on moral grounds as well.  Again, the constitutional effort was saved through creative compromise. The constitution makes no mention of the moral problem of slavery; it explicitly declares the import of slaves to be a federal matter, but puts a limit on how much it may be taxed. It further states that no limitations would be placed on the right of the states to import slaves until 1808. As regards taxation and representation, it was resolved to give “other persons”—that is, slaves—the value of three-fifths of a free, taxpaying citizen.

In addition to these dramatic compromises, an additional factor contributed to the convention’s ultimate success. The constitution drafted in Philadelphia differed from the Articles of Confederation not only in its political arrangements, but also in the method it provided for ratification. While any change in the Articles of Confederation would have required the consent of the legislatures of all thirteen states, the constitution stipulated that ratification by nine states sufficed to bring it into force in those states.  This meant that an individual state, acting alone, could not hold up the entire process with its specific demands—and therefore it gave every state an added incentive to compromise and to ratify the document in the end, lest it be left out of the federation.

Moreover, the delegates determined that the constitution would have to be ratified not by the existing state legislatures, but by special constitutional conventions in every state. These conventions, elected directly by the public for this purpose, were preferred to the other two means of ratification that had been suggested: Approval by state legislatures, and referenda within each state. Both principled and pragmatic considerations were behind this decision. The proposed constitution called for a considerable reduction in the power of the state legislatures, and it was clear that the latter would be biased against such a change. Another reason not to turn to the legislatures had to do with the delegates’ desire to win the broadest possible public support for the constitution. This appeal to the people was rooted in the well-established political tradition of the Puritan revolution: That the people are the supreme source of authority, and government must be based on their consent. It seemed that the natural way to ratify the constitution was through popular, statewide referenda; at the same time, the framers understood the danger in entrusting the nation’s destiny to the unmediated judgment of the masses, vulnerable as it was to passions and manipulations. The idea of special constitutional conventions clearly reflected the tension between the delegates’ desire for broad popular support and their fear of unchecked populism.

As the convention in Philadelphia drew to a close, on September 17, 1787, the proposed constitution was signed by 39 of the 55 delegates who had attended. Still, the adoption of the proposal to ratify the constitution was presented as unanimous, because all the state delegations gave the document their support.  Many, including Washington and Madison, described this outcome as a “miracle.”  In the wake of the decision, most of the delegates put aside their criticisms and adopted a firm public stance in favor of the finished constitution. The document did not entirely reflect the wishes of any one group, but the great majority of the delegates were convinced that the best possible compromise had been attained, and that it was highly preferable to the status quo. Franklin succinctly expressed this feeling immediately before the vote, when he said: “I confess that I do not entirely approve of this constitution at present…. I consent, Sir, to this constitution because I expect no better, and because I am not sure that it is not the best.” 

The constitution cleared its first hurdle within a few days, when the Continental Congress agreed to pass it on to the states for ratification in the manner spelled out in the document, despite the complaints of some members that the Philadelphia convention had exceeded its mandate. The second challenge, the ratification process itself, was much more complex and protracted; it included the appointment of a special constitutional convention by the legislature of each state, the convening of that body, lengthy deliberations, voting, and the reporting of the outcome of each convention to the Continental Congress. In most states, the debates at the conventions were heated, and in some the vote was very close. Virginia and New York, two states vital to the success of the union, voted to ratify only after New Hampshire, the ninth and decisive state, ratified the constitution in June 1788. In Virginia, the state with the largest population, Madison had to parry the vigorous oratory of Patrick Henry—who had boycotted the Philadelphia convention on the grounds that he “smelled a rat” in its very convocation. The constitution was ratified there only at the end of June, after its supporters agreed to endorse a formal demand by the convention to add a Bill of Rights. In New York, Hamilton, with the help of John Jay, had to mobilize all his rhetorical and political abilities—it was in the context of convincing the New York public to support the constitution that Jay, Hamilton, and Madison collaborated on the series of essays known as The Federalist—and it may well be that only the reports from New Hampshire and Virginia tipped the scales in favor of ratification in that state at the end of July.

In early 1789, the Senate and the House of Representatives were established in accordance with the constitution, and in April George Washington was sworn in as the first President of the United States. In the meantime, Madison, who now served in the House of Representatives, introduced a series of amendments to the constitution, including guarantees of the freedom of speech, press, assembly, and religion. In September of that year, Congress voted in favor of ten of these amendments, known as the Bill of Rights. Ratification by the state legislatures—the approval of three-fourths of the states was needed for the amendments to take effect—was a lengthy process, and the Bill of Rights was incorporated as the first amendments to the constitution only in December 1791. 

The ratification of the Bill of Rights was the final act in the process of adopting the United States Constitution, and it took place more than four years after the Philadelphia convention, and a full decade and a half after independence. With hindsight, we now know that this was a watershed in the history of democratic government. It is doubtful whether it would have happened if not for the group of men who convened at Philadelphia, whose insight and careful planning helped produce the most enduring constitution in effect today.

III

To what does the United States Constitution owe its longevity? A great deal has been written about the constitutional arrangements as they appear in the final document—concerning the balance achieved among branches of government, the relations between the federal government and the states, the complex mechanism for effecting amendments, and the guarantees of fundamental rights and freedoms. Prior to all these, however, was a single guiding assumption, one which underlay the entire process of drafting and ratifying the constitution, and which finds expression throughout the writings of its framers, and especially in The Federalist: That a successful constitutional arrangement must clearly, explicitly, and enduringly distinguish between what we may call “constitutional politics” and “ordinary politics.” This distinction is possibly the most important contribution of the American constitutional undertaking.

The constitution is based on the belief that the activity of the regular political arena, in all its complexity, must be kept separate from the parameters—the “rules of the game”—within which this activity takes place. Establishing and maintaining such a distinction is no simple matter, and even an enduring constitution of the American type cannot draw the line clearly in all cases. The framers understood this, yet they insisted that constitutional authority must be seen as essentially different from “ordinary” authority, and that this distinction is the source of the stability of every form of government based on the consent of the governed. The people are the source of authority for the constitution and the values and institutions it affirms, while it is their representatives who engage in ordinary politics. Although this principle lies at the heart of many of the constitution’s arrangements, its boldest expression is the supremacy of the constitution over all branches of government, and its ability to distinguish between the manner of its own adoption and amendment, on the one hand, and the decision-making mechanisms of ordinary politics, on the other.

In order to maintain the stability of the constitution, the founders insisted on a difficult mechanism for amendment.  In this respect, their views echo those of David Hume, and perhaps even more so those of their contemporary Edmund Burke: It was important to them that amendments to the constitution be rare.  Amendment implies defect, and frequent change is a signal to the public that the system of governance is deeply flawed. Healthy government is based, to a great degree, on the trust of the public. This trust is most firm when the governmental system is stable, not when there are incessant battles over the system’s very nature. A wise regime needs to be supported not only by the laws, but also by the tacit assumptions—the “prejudices,” to use a Burkean phrase—held by the public. Without such support, even the best-designed form of government cannot stand.

Implicit in this distinction between constitutional and ordinary politics was the belief, which underlies many of the framers’ arguments in favor of a constitution, that certain problems are endemic to representative government, and must therefore be addressed on a constitutional level. One example concerns the twin dangers involving the degree to which power is concentrated in the hands of government: On the one hand, power concentrated in the hands of too few people has a corrupting influence; on the other hand, paralysis or unchecked factionalism can easily result from excessive limitations on government power. Moreover, overzealous attempts to defend liberty and prevent one-man despotism, far from fostering governmental sensitivity to the needs of the public, can easily lead to tyranny backed by the masses.  It was in response to these perennial dangers to effective government that the framers sought redress on a constitutional level, rather than through ordinary politics. This took three forms in practice: First, republican institutions such as the judiciary, the electoral college, and the Senate as a solution to the threats of populism and despotism; second, the institution of checks and balances among the separate branches of government and between the federal and state levels; and third, the creation of a strong, “energetic” executive branch that is capable of acting despite these checks and balances. It was these considerations which led to most of the governmental arrangements which appear in the constitution drafted in Philadelphia.

These institutions, which all flow from the framers’ understanding that constitutional politics should be separate from ordinary politics and should concern itself with the structural problems inherent in representative government, have a great deal to do with the remarkable stability that the constitution has been able to achieve. Throughout the constitution’s long and uninterrupted reign as the governing document of the American polity, the vast majority of the political debates in the United States have been conducted within the constitutional structure, not about it. Since 1791, when the Bill of Rights was adopted as the completion of the constitution’s ratification process, only seventeen additional amendments have been accepted, an average of less than one per decade.  To be sure, some scholars have argued that the amendment mechanism makes change so difficult that it harms democracy and the efficacy of government. But it is unclear how democracy and governmental efficacy in the United States would have looked with a different mechanism, especially when one takes into account the fundamental instability that might have resulted from frequent change. At any rate, the problem is less severe than it may seem, because a subtler method of amendment has been employed in America, one that allows gradual change without requiring amendments in the formal document—namely, de facto change through judicial interpretation. Similarly, permanent institutions have been created and modified without being given constitutional expression, such as the system of political parties and the presidential cabinet. Finally, by allowing the possibility of later constitutional conventions with wide powers, the constitution offered an additional means of change, at least in principle, in cases where amendment seemed either undesirable or unlikely.

At the same time, as the founders foresaw, most of the central changes in American politics have taken place within the context of ordinary politics—in legislation, the shifting of emphases in the programs of the executive branch, and the like. The test of a well-designed constitution consists in its leaving to the public and its leaders a variety of means to effect social change, and the American constitution has passed this test with flying colors. The stability of the constitution, combined with its ability to facilitate necessary changes, has resulted in a profound loyalty among the great majority of Americans to the constitutional structure. Americans are almost universally committed to effecting change within the system, while leaving the system itself essentially unchallenged.

On this point, of course, it is impossible to ignore the Civil War. Some regard its outbreak and conclusion as the exception that proves the rule: The American constitution created an arrangement that failed only once, when some of the states decided to leave the Union rather than engage in prolonged conflicts within it. The constitution’s failure, according to this view, lay in its lack of mechanisms flexible enough to contain the disagreement within its framework. However, it can as easily be argued that in the Civil War, the constitution did not “fail” the way the Articles of Confederation or the various French constitutions failed, but rather that the rupture between the sides reflected something more fundamental and inevitable. The war arose at a juncture when political visions in the North and South were so distant that they could no longer coexist within a shared framework, and so ordinary politics was simply no longer suitable. In other words, what failed may not have been the constitution, but the very idea of the Union. Eventually, after the decision on the battlefield, both sides continued to work jointly within the context of the same constitution, as amended to reflect the ban on slavery that was one of the war’s principal outcomes.

The balance achieved between an “energetic” government capable of fulfilling its role and the limitation of this government by checks and balances was an additional reason for the constitution’s success. The legislative branch was to keep watch on the president, preventing the possibility of authoritarian rule. At the same time, a counterbalance had to be instituted that would limit the danger of populist rule by an overly powerful legislature. The internal division of Congress into two separately elected houses, along with the active participation of the president in the legislative process through the right of veto, served this goal well. While it could be argued that this structure is too restrictive, stunting the legislative process, there are good reasons to think that such restraint has been a good thing. The American version of separation of powers, according to which full, effective power rests only with a party that controls the presidency and both houses of Congress, is very different from the situation in parliamentary democracies, where the ruling government always has, by definition, control over parliament.  The American system offers a far more structured system of checks and balances than the parliamentary system, which tends to become dependent on features such as the professional civil service and coalition politics. The American system of a strong president, balanced by the two houses of the legislature and by an independent Supreme Court, has proven capable of enabling forceful action when necessary, but without resorting to authoritarian rule. The belief of the founders as expressed in The Federalist, that only the strength and ambition of politicians in one branch are capable of consistently restraining the tendency of other branches to amass excessive power, has proven correct.

Not only have the institutions of American government succeeded in living in balance with one another, but that balance has proven itself able to shift as circumstances in the country required, without necessitating a change in the constitution. All three branches have succeeded, as the need arose, in asserting powers not explicitly granted them from the outset. Although the tendency of the branches to broaden their powers has caused problems on occasion, the branches have generally succeeded in expanding only into the realms in which they possess a real comparative advantage over the others. The Supreme Court has expanded its authority in the defense of civil rights; Congress in the determination of priorities in socioeconomic matters; and the president in the preservation of order and the use of concentrated force in the face of civil strife or foreign aggression. The constitutional system may go too far in limiting the executive branch, but in times of crisis the United States has been led by presidents who did what was necessary to address the problems facing the country.  In the final analysis, the first modern democracy has managed to survive since its inception without suffering a single military coup or other suspension of the constitution’s authority. This in itself is no small feat, and the checks and balances in the constitution have contributed greatly to it.

Moreover, the constitution has succeeded in striking the proper balance between the threat of populism, on the one hand, and the danger posed by politicians’ private ambitions, on the other. The main answer of the American constitution to this eternal dilemma is the republican structure. It was the founders’ assumption that a certain amount of faith in the wisest and most experienced members of society is in the common interest of all members of society.  The best process of decision-making, it was believed, was not through popular referenda, but through the careful decisions of the people’s elected representatives, or, as in the case of federal judges, through individuals appointed by those representatives. It was in this context that the founders also emphasized the importance of fostering good character among the citizenry, and, especially, of reinforcing the tendency of voters and their representatives to elect people of upstanding character to positions of leadership. While the American system has of course had its failings, particularly in the realm of civic equality for minorities, it is still the case that the republican principle has on the whole functioned very well throughout most of the history of the United States and succeeded in bringing into office good leaders, particularly in times of crisis: Leaders such as Abraham Lincoln, who was able to preserve the Union in its most trying hour; and Franklin Delano Roosevelt, who led the country through the Great Depression and the Second World War.

The republican principle is also at work in the houses of Congress, despite the fourfold expansion of the Senate from 26 members at its inception to the current 100 senators, and the sevenfold rise in the number of Representatives from 65 to 435. These two bodies make most of their important decisions in smaller committees, which preserve the republican element while streamlining the functioning of government. Thanks to these arrangements, the populist danger that was of such concern to the founding fathers, especially the authors of The Federalist, has not appeared, and, except for very limited periods, the dictates of the masses have not led to irresponsible economic policy, the outbreak of wars, systematic persecution, or the election of demagogical leaders.

The most important test that the constitution seems to have failed, at least for most of American history, is the preservation of the rights of minorities. These rights were, according to the founders, supposed to be guaranteed by political structures that would neutralize the dangers of factionalism or arbitrariness by preventing any one group from exercising dominance over the others. The outstanding example brought by the Federalist authors of such a right is the free exercise of religion, which they contended would be protected by the abundance of religious groups in the United States. In their view, the sheer size and diversity of a country is also the most effective guarantee of the other rights of individuals or groups. A multiplicity of private interests will result in a general willingness to defend the rights of minorities, since each group will know that in certain matters it is liable to find itself in the minority. The problem with this reasoning is that the tolerance achieved is due to each group’s fear of dominance by the others, and so it in fact exists only among groups that belong to the national mainstream, whose members could belong to the majority regarding certain issues, and the minority regarding others. The situation of groups that are “chronic minorities” is more difficult, because injury to them does not raise such fears among the majority. Alexis de Tocqueville’s concerns about “the tyranny of the majority” certainly have had a basis in the American reality.  The rights of Indians and slaves were denied in the constitution itself, and the history of the attitude to blacks since then bespeaks the limitations of the social mechanism that the authors of The Federalist believed would protect the rights of the “chronic” minorities.

Attempts by the courts to solve the problem of chronic minorities, both in the constitution and in its interpretation, have generally not improved the situation appreciably. The Bill of Rights was rarely applied to blacks until after the Civil War, seventy-five years after it was adopted; even then, the enactment of the Thirteenth and Fifteenth Amendments, which banned slavery and guaranteed blacks the right to vote, did not protect blacks from a high level of systematic discrimination and segregation. Similarly ineffective was the institution of judicial review, which had been promoted by Alexander Hamilton in The Federalist and first asserted in practice by the Supreme Court in 1803, in Marbury v. Madison.  Although the courts succeeded on occasion in standing up against the widespread discrimination against blacks, they did so only rarely and at a very late stage, addressing the challenge of equal protection for blacks beginning in the 1950s—eighty years after the constitution had granted them formal equality, and nearly two centuries after the founders had declared that “all men are created equal.” In the final analysis, the power of the courts to effect social change has been quite limited.

Yet for all that, it is difficult to deny the success of the American constitutional experiment. The founders of the United States forged a coherent and enduring supreme law, most of whose components have won broad consensus that has only increased with the passage of time. The distinction between constitutional and ordinary politics has been maintained throughout, and with it, the unparalleled stability of the American regime.

IV

In considering how to draft and adopt a constitution, what lessons can Israel draw from the American example?

A basic insight of the American constitutional process is that a constitution must provide good answers to the most trenchant problems facing the particular society which is to be governed by it. Moreover, the constitution must reflect that society’s political tradition and culture. Any discussion on the adoption of a constitution for Israel, therefore, must begin with a look at the unique problems arising from the country’s social and constitutional history. 

Israel’s Declaration of Independence, which was adopted unanimously by all the representatives of the nascent Jewish state on May 14, 1948, expressly stated that the form of government in Israel would be based on a constitution. The declaration also provided for temporary institutions, meant to serve until an elected Constituent Assembly adopted a constitution that would establish the permanent institutions of government. The declaration stated that Israel was a Jewish state, and promised equal civil, political, and social rights to all its citizens. Several draft constitutions for the Jewish state were prepared prior to independence. One of them, composed by Leo Kohn, had even been selected as the starting point for deliberations.

But a great deal changed with the War of Independence, and when elections for the Constituent Assembly were finally held in February 1949, the provisional People’s Council, which had served until then as the country’s legislature, transferred ordinary legislative responsibilities to the newly elected body, which it was supposed to exercise while simultaneously carrying out its mandate for crafting a constitution. In early 1950, the assembly, which had renamed itself the “First Knesset,” conducted a lengthy and exhaustive debate on the subject of the constitution, which ended with an agreement that became known as the “Harari decision”: The process of creating a unified, supreme constitution would be postponed, and the Knesset would pass a number of “basic laws,” which would ultimately be brought together into a constitution at some point in the future. The task of crafting the basic laws and creating a constitution out of them was given to a standing committee of the Knesset, the Committee on Constitution, Law, and Justice. 

The Harari decision was the product of the first attempt by Israel to govern itself by means of a constitution serving as the supreme law of the land. Scholars may argue over whether it was the best decision to make under the circumstances, but the fact remains that no formal constitution has yet emerged from the process it started, and it is worth recalling what led the country’s leaders to refrain from decisive action at Israel’s original, constitutive moment.

The decision not to enact a constitution shortly after statehood has generally been attributed to the principled opposition by the religious parties to any constitution that might be seen as competing with the supremacy of the Tora. Such an explanation falls short, however. Although at no time did they give their in-principle support to adoption of a constitution for Israel, the religious parties did, in the first years of statehood when a constitution appeared inevitable, cooperate in the process in order to ensure that their interests would be protected. Rather, there were other factors behind the decision to postpone the framing and ratification of a constitution. The most effective opposition came from key leaders of government, particularly Prime Minister David Ben-Gurion. Ben-Gurion was of the opinion that the proportional election system, which was copied from the institutions of the yishuv, would not allow sufficiently effective rule, since it guaranteed that a large number of small parties would succeed in electing representatives to the legislature; he therefore did not want to enshrine it in a constitution that would subsequently be difficult to amend. He also was concerned that any constitution adopted by Israel would set up an extensive system of checks and balances that would limit the power of the government. He therefore preferred to rely on the pure parliamentary system that Israel had inherited from the Mandatory period, which gave substantial leeway to the party that dominated the government coalition—which for the foreseeable future seemed likely to be Ben-Gurion’s Mapai. Ben-Gurion consistently opposed a constitution, limitations on the legislative ability of the parliament, and judicial review of Knesset legislation that would be based on the principles of a constitution and a bill of rights. In his eyes, a young nation that was literally fighting for its life against external enemies and had, at the same time, to contend with economic hardship and massive immigrant absorption could not allow itself the luxury of severe structural limitations on the power of the government. In its first years, Israel was therefore a highly centralized state, with a limited civil society and strong governmental control over all spheres of life.  In other words, Ben-Gurion saw the prospect of adopting a permanent constitution not merely as unessential for the welfare of Israel, but as an obstacle to the governance of the country.

Moreover, many Israeli leaders were reluctant to open up the painful ideological debates that would have accompanied any serious constitutional effort, particularly in light of the other pressing matters at hand. Two such debates were central at the time: The controversy over whether the Jewishness of the state was essentially national and cultural, or religious in nature; and the question of whether the nation’s economy should be conducted according to socialist or market-based principles. It is very telling that a third issue was scarcely ever mentioned: The status of non-Jews, especially Arabs, in the new state.  The first controversy was dealt with through a compromise known as the “status quo agreement,” under which secular and religious groups reached a modus vivendi to which both sides adhered for some time. The second was addressed through arrangements that struck some measure of balance between a strong welfare state and private initiatives. Both sets of arrangements were not very consistent or coherent, and would not have coexisted well with enforceable constitutional declarations.

The consequence of the Harari decision was that Israel established a parliamentary democracy along the Westminster lines, including the principle of parliamentary sovereignty, according to which the legislature was considered the supreme authority. But although the general question of what system of government would obtain in Israel was resolved rather quickly, the process of enacting a written constitution through basic laws proved to be a long one, with the first such law not passing until 1958, and with a total of only nine being enacted over the state’s first four decades. Moreover, these laws did not offer the kind of long-term stability one might expect from the pillars of a national constitution: Eight of the nine were enacted through ordinary parliamentary procedures and could be similarly changed. The key exception was the first such law, Basic Law: The Knesset. One of its clauses stipulated that elections to the legislature would be national (instead of regional), that they would be based on proportional representation, and that they would reflect principles of equal opportunity for all parties and voters. This clause reflected the existing situation: Ben-Gurion had failed in his attempts to move away from the system of proportional representation, and the opposition parties and small coalition partners, fearing future attempts to change the system, insisted on anchoring the status quo in the law, such that it could be changed only by a special majority of 61 members of Knesset (out of 120).

This “entrenchment” of the first basic law led to the beginnings of judicial review of Knesset statutes: In 1969, the Supreme Court, in the case of Bergman v. the Minister of Finance, overturned the Party Financing Law, which denied financing to new parties, on the basis that this law violated the principle of equality as established in the basic law.  A few commentators sympathetic to the expansion of judicial power hailed the decision as the harbinger of a new era and the end of parliamentary sovereignty; but most others, and the courts themselves, saw Bergman as the very rare exception. Basic laws which were not entrenched by a requirement of a special