The controversy over Israel's Bill of Rights*

1) does the Israeli Parliament, the Knesset, have the power to enact such a Bill of Rights;

2) is it desirable for Israel to have such a Bill of Rights; and

3) is it reasonable to expect that Israel will enact a Bill of Rights in the foreseeable future?

To be sure, much legislative and political activity in Israel has been premised on affirmative answers to each of these three questions. Twice in recent history a Draft Bill of Rights has passed the First Reading.¹ Parties include in their platforms the intention to legislate a Bill of Rights and voluntary groups set up committees to prepare special drafts of such Bills. Presumably, such activity presupposes that the Knesset has the power to legislate a Bill of Rights, that there are those who believe that it is desirable that the Knesset do so and that it is worth expending the effort to try to achieve this goal.

In this paper I shall address each of these questions separately, recognizing that the questions may not be as distinct as might appear at first sight: the answers given to one question might depend on the answers given to the other two. To illustrate: Many of those who argue that the Knesset does not have the power to enact a Bill of Rights think that it is either undesirable generally, or in Israel at this time particularly, to make such an attempt. Many of those who believe that it is undesirable to have a Bill of Rights base this belief in part on their perception that the Knesset is unlikely to generate a satisfactory Bill of Rights at this time. Some of those who believe that it is unlikely that Israel will soon have a satisfactory entrenched Bill of Rights console themselves by arguing that its desirability is anyway questionable. Nonetheless, I shall try to keep the questions and arguments distinct.

Logically, the question whether the Knesset has the power to enact a Bill of Rights is preliminary. It is therefore discussed in Part I of this paper. The theoretical question has been addressed in great detail in the literature, and I shall merely present the arguments. I accept the view that the Knesset has the power to do whatever it decides to do. I further argue that the question is by now settled in Israel since the political system, in all its branches, has been acting as if the Knesset does have the power to adopt an entrenched Bill of Rights.

The main section of this paper is Part II, in which I shall argue that it is desirable for Israel to have an entrenched Bill of Rights. I set forth a sketch of the general argument in favour of such a Bill of Rights and then proceed to review critically the main arguments brought against such an enactment in the legislative debates in Israel. My primary aim is to put the debate in Israel into a context.

Part III—dealing with the likelihood of Israel having a Bill of Rights—involves an analysis of the reasons why the first Knesset and all subsequent Knessets have refrained from adopting such a document. This analysis suggests that once the legislature deferred the enactment of a Bill of Rights at the moment of the creation of the State, the likelihood of such an enactment ever occurring became slim. The scope of this analysis goes beyond political speculations and their implications for action, however. It is also a fascinating example of the interplay between argument and power in politics, and of the merits and disadvantages of candour versus myth in such processes. Thus, the history of this important debate reveals themes that are crucial in understanding Israel, both past and present.

I. DOES THE KNESSET HAVE THE POWER TO ENACT

A BILL OF RIGHTS?

Clearly, if this question is answered in the negative, the debate over the desirability or likelihood of Israel having a Bill of Rights will necessarily be altered: The enactment of a Bill of Rights will then require a major change in the existing legal structure. It is thus important to establish that this is not the case.

Two preliminary points should be stressed. First, the issue is not whether a law enumerating basic rights may be enacted. The Knesset is the legislature of Israel, and as such, it may legislate as it pleases. The question is whether the Knesset can bind future Knessets by enacting a law that will effectively be entrenched and will thus limit the legislative powers of future Knessets.

Second, it is important to remember that the resolution of an issue such as this is ultimately a political rather than a legal-theoretical matter. The ultimate test of the power to enact an entrenched Bill of Rights is not the best argument, but the response of the political system, broadly conceived, to purported uses of this power. Thus, if the Knesset purports to enact an entrenched Bill of Rights, then one must wait and see how the political system in general, and the Supreme Court of Israel in particular, will respond to this attempt.

I argue that in fact, the debate about the Knesset's power would seem to have been well-nigh decided by the political system: The Knesset has enacted entrenched provisions of basic laws, and the courts have opted for some version of recognition of the power of the Knesset to bind itself.

1. Historical Background

To understand the question of the power of the Knesset to enact an entrenched Constitution (including a Bill of Rights) one must turn to the history of Israel and its legal system.

On 29 November 1947, the United Nations adopted a resolution providing that the British Mandate over Palestine should end no later than 1 August 1948. This was to be followed by the establishment of two States: one Jewish and one Arab, the internationalization of Jerusalem, and economic cooperation between the two States. The resolution provided in great detail that no later than two months after the end of the Mandate, each of the two States would hold elections to select its respective Constituent Assembly that in turn would enact a democratic constitution, to include entrenched guarantees for the civil rights of all citizens and of the holy places. In addition, the resolution required that each State declare that it would protect the rights and liberties of minorities residing therein.

The British decided to terminate the Mandate on 15 May 1948. The Jewish Yishuv (organized population in Israel) had prepared itself for Statehood by creating two pre-independence governing bodies: Mo'etzet Ha'am (the legislature) and Minhelet Ha'am (the government). On 14 May 1948, Mo'etzet Ha'am proclaimed the Declaration of Independence, declaring the foundation of the State of Israel and creating a Provisional State Council (legislature) and a Provisional Government. The Declaration of Independence specified that these bodies would govern until an election would be held pursuant to the provisions of a Constitution to be prepared by a Constituent Assembly elected no later than 1 October 1948.

The Declaration of Independence also contained a commitment to the fundamental principles that would guide the new State:

“THE STATE OF ISRAEL will be open for Jewish immigration and for the Ingathering of the Exiles; it will foster the development of the country for the benefit of all its inhabitants; it will be based on freedom, justice and peace as envisaged by the prophets of Israel; it will ensure complete equality of social and political rights to all its inhabitants irrespective of religion, race or sex; it will guarantee freedom of religion, conscience, language, education and culture; it will safeguard the Holy Places of all religions; and it will be faithful to the principles of the Charter of the United Nations."

In fact, the first elections took place only on 25 January 1949, mainly due to the protracted War of Independence. Instead of the Provisional State Council continuing to function as a legislature until the Constituent Assembly enacted the Constitution (including the Bill of Rights) pursuant to which the first regular elections could then be held, the Provisional State Council declared that it would only function until the election of the Constituent Assembly. Thus, all legislative powers of the Provisional State Council were passed on to the Constituent Assembly.² The Constituent Assembly then enacted the Transition Law, 1949, in which it called itself "The First Knesset".³

The First Knesset, i.e., the Constituent Assembly, conducted long debates about the question of a Constitution. Many members felt that it was not advisable to enact such a document for reasons to which we shall return below. The debate ended with a compromise solution known as the Harari resolution, adopted in 1950. It stated that: The first Knesset directs the Constitutional, Legislative and Judicial Committee to prepare a draft Constitution for the State. The Constitution shall be composed of separate chapters so that each chapter will constitute a basic law by itself. Each chapter will be submitted to the Knesset as the Committee completes its work, and all the chapters together shall be the State's constitution.⁴

The First Knesset did not serve a full term, and not a single Basic Law was enacted during that term. The act providing for transition to the Second Knesset transferred all the powers of the First Knesset to the Second and any subsequent Knesset.⁵

2. The Constitutive Power of the Knesset

There can be no doubt that the original intention of the Declaration of Independence was to distinguish between legislative and constitutive powers, and to base the new State on an entrenched Constitution, including a Bill of Rights. It is also clear that the Constituent Assembly had, by that original design, only the power to draw up the Constitution. The controversy relates to the significance of collapsing the Constituent Assembly into a legislature, and to the implications of the First Knesset not adopting a Constitution.

Some constitutional scholars in Israel believe that the system in fact adopted in Israel is similar to the English principle of Parliamentary sovereignty, so that the Knesset cannot bind itself.⁸ Others believe that the constitutive powers of the Knesset expired following the enactment of Basic Law: The Knesset.⁷ Another scholar has advanced the view that the constitutive powers of the Knesset elapsed after the First Knesset disbanded without enacting a Constitution.⁸ Under all these views, the Knesset today does not have constitutive powers and cannot bind itself. It may, of course, by legislation require a special majority for changing a provision of law, but it may always change this law by a simple majority under the general principle that a later law takes precedence over an earlier one.

On the other hand, some argue that the Knesset is still under a legal obligation to enact a Constitution, since the portion of the Declaration of Independence dealing with the Constitution was accorded the status of law, and the Knesset has never enacted a law releasing itself from its duty to make a Constitution. Needless to say, such a legal duty presupposes the power to make a Constitution.⁹

I accept the analysis suggested by both Klein and Rubinstein¹⁰ that even if the Knesset is not under such a duty, it maintains parallel powers—legislative and constituent—and that it may limit its own legislative powers while exercising its constituent powers. This analysis seems to be the most appropriate one, despite the undesirability of the length of the period for which these two kinds of distinct powers exist, and the fact that the Knesset itself is not keen on distinguishing between the kinds of power which it exercises. Furthermore, as argued below, this analysis has been vindicated by the courts.

3. Israel's Basic Laws

To date, eight Basic Laws have been passed.¹¹ However, constitutional scholars believe that it will be difficult to mould them into a Constitution.¹² One difficulty is the apparent absence of a clear criterion by which to identify the principles that should be contained in a Constitution rather than in regular legislation. Most importantly, there is usually no explicit provision that laws not consistent with Basic Laws are void or even voidable. Thus, there is no operative difference between a Basic Law and a regular law. The only exception has been provisions in a number of Basic Laws that are themselves entrenched in the sense that it is specified that they cannot be changed by a simple majority.¹³

A general entrenchment by means of a requirement for a special majority for amendment was included in two versions of the Draft Basic Law: Legislation, which v/as expected to clarify in what sense Basic legislation is superior to regular legislation, and the role of the courts in judicial review of primary legislation.¹⁴ However, precisely because the subject is so controversial, this Basic Law has not been enacted.

In the recent Human Rights Charter prepared by the Sub-Committee on the Constitution, a special entrenchment provision for the entire Charter was introduced into the draft.¹⁵ If enacted, this would become the first Basic Law which is entrenched in its entirety, giving operative meaning to the law being "Basic". Until now, only entrenched provisions have enjoyed superiority.¹⁶

4. The Response of the System

Decisions of Israel's Supreme Court to date suggest that the Court recognizes the power of the Knesset to bind itself to a requirement of a special majority, thereby rejecting the position that any attempt by the Knesset to bind itself is ineffective by virtue of the principle of Parliamentary sovereignty.¹⁷ The Supreme Court has recently even suggested that the Legislature has a legal duty, enforceable by the courts, to implement the principles of Basic legislation by primary legislation, even where such Basic legislation is not entrenched.¹⁸ Thus, judicial rulings support the view that the Knesset can bind itself. They may even support the power of the Knesset to bind itself by the mere hierarchy of legislation without the need for entrenchment. It seems plausible that if a Bill of Rights is enacted, the Court will be at least as willing to exercise this limited form of review.

The fact that the Knesset, too, seems to accept the principle that it has the power to limit itself can be learned from a variety of sources.¹⁹ A dramatic illustration is the Knesset'?, response to the Supreme Court's decision in Bergman?® declaring that the law regulating the financing of the election was inconsistent with the entrenched provision in Section 4 of Basic Law: The Knesset that elections must be equal. The Knesset, without challenging the constitutional foundation of the decision, responded by passing a law validating the laws declared deficient by the required special majority, without changing their content.²¹ This action suggests that the Knesset, like the Attorney-General in arguing Bergman, did not wish to challenge its own power to bind itself by entrenchment. Any change in this position by insisting that Parliamentary sovereignty prevents such self-limitation by the Knesset seems highly unlikely.

It is difficult to project from the reaction of the political system to a relatively straightforward and uncontroversial constitutional provision (e.g., equality in the conduct of elections, where there was no difficulty in obtaining the special majority required for validation) the likely reaction of the political system to an entrenched Bill of Rights, wherein the issues raised might be much more sensitive and complex. The courts may exercise extreme self-restraint in reviewing primary legislation on such matters, and the Knesset might be more vigorous in calling for strict limits on judicial review. However, the broad principles of entrenchment and review themselves would seem to be beyond attack. Their vindication by the courts and by the political system, barring an unlikely change in the political and judicial climate in Israel, would seem to effectively close the debate over whether the Knesset has the power to bind itself.

II. SHOULD ISRAEL HAVE A BILL OF RIGHTS?

Some scholars appear to believe that there is wide affirmative consensus on this question.²² I believe that the facts that we do not have a Bill of Rights, and that the First Knesset satisfied itself with the Harari resolution, suggest that the picture is more complex: While on the rhetorical level there may be such a consensus, the political reality is against it.

One preliminary cautionary note is necessary at this stage. I shall argue in favour of a Bill of Rights for Israel. This argument does not suggest that any Bill of Rights is better than none. The position with respect to reform will have to be taken in the context of particular by the Court. On the general relationship between Knesset and Court see Kling-hoffer, "Legislative Reaction to Judicial Decisions in Public Law", 18 Is. L. Rev 30 (1983). For a critical assessment of this response see also note on the Bergman decision, 6 Is. L. Rev. 117 (1971). proposals.²³ The argument herein advanced is that, in principle, an acceptable Bill of Rights is better than none.

The question of a Bill of Rights is not unique to Israel. Not surprisingly, many of the arguments raised in Israel both for and against a Bill of Rights have also been invoked in other countries, notably in England and in Canada.²⁴ My primary interest in this paper is to document the Israeli debate on this question. I shall thus take the liberty of sketching arguments rather than arguing them fully, while stressing the special nuances of the Israeli context.

There have been three major discussions in the Knesset on the problem of a Bill of Rights. The first was the general discussion preceding the Harari resolution. In that debate, most of the political leaders of the then-coalition argued against the adoption of a Constitution, including a Bill of Rights, while the opposition was all in favour of it.²⁵ In 1964, the Knesset held a preliminary discussion on the question of a Bill of Rights for Israel when Liberal MK, Professor Klinghoffer, proposed a private member's Bill of Rights. It was voted out without gaining even a First Reading, after a fierce dismissal by the Minister of Justice.²⁶

A turning point seemed to be the effort by the Constitutional, Legislative and Judicial Committee of the Knesset to submit a draft Bill of Rights. The Draft Bill of Rights was introduced²⁷ and even passed the First Reading.²⁸ However, it never reemerged from the Committee for a final vote. The Bill now pending is based on a private Member's bill proposed by Arnnon Rubinstein on the basis of Klinghoffer's revised draft.²⁹ Another general discussion of the issue was held when Rubinstein's Draft passed the First Reading.³⁰

In addition to these parliamentary debates, the question of the desirability of a Constitution, including a Bill of Rights, has been addressed by some eminent judges and constitutional scholars.³¹ All these will serve as my sources.

1. The Presumptive Case for a Bill of Rights

The case either for or against a Bill of Rights cannot be won by a knockout: any sophisticated scholar must concede that such a Bill has both advantages and disadvantages, that having a Bill gives rise to some dangers, and not having it—to others. The argument must therefore be based on listing these factors and dangers and assessing their relative importance and likelihood. It must also be conceded that much of this analysis is inevitably affected by personal convictions that are not always fully supportable by either argument or by clear historical lessons.

Nonetheless it is important, indeed indispensable, to try and assess the strength of those arguments that actually have been made, and to reevaluate them in view of political developments and later-acquired insights. The features of the place and time of such reevaluations must be taken into consideration, although we must also take care not to become too specific, because constitutional debates cannot be fought that often. In short, we should aim at achieving a balance between not ignoring the special problems and features of the society and the period in question, and viewing them from a broader perspective.

My strategy will be to start with a short account of the standard arguments for and against a Bill of Rights, and to argue that, in general, there is a presumption in favour of such a measure. I shall then show that in Israel we need the advantages of a Bill of Rights not less than in other countries, and that in some areas Israel's need is even more pronounced, while the dangers of a Bill of Rights are not more acute than usual and in some contexts are even less threatening than in most countries. The bottom line of this complex argument is, I believe, firm support for a Bill of Rights for Israel.

a. The Features of a Bill of Rights

The Bill of Rights I envisage has three distinct features:

a.      It is a single enactment or document, listing in a concise and exhaustive way the main rights that individuals enjoy.³²

b.      It is entrenched, i.e., it cannot be changed or amended by the regular legislative process, either explicitly or implicitly.³³

c.      It is supreme, i.e., all regular legislation should be consistent with it, and there is a mechanism for challenging alleged inconsistencies.³⁴

These features do not necessarily have to go together. The conception of a Bill of Rights that I am discussing has all three. A Bill of Rights enjoying only the first feature is called a "flexible" Bill of Rights. Entrenchment and supremacy usually go together, but, logically speaking, a law may require a special form of explicit amendment, even though the system does not recognize its supremacy or the possibility of challenging and invalidating laws inconsistent with it.³⁵

b. The Strengths of a Bill of Rights

A Bill of Rights should be judged by its capacity to enhance the protection given to the rights enumerated therein in comparison with the protection afforded such rights in the absence of such a Bill. When seen in this way, there are three main advantages to a Bill of Rights, easily connected to the features listed above:

The entrenchment of the Bill of Rights serves, to some extent, to protect these rights from the mere majority of the Legislature.³⁶ The Bill of Rights thus constitutes a limitation on the power of the Legislature. In a system like Israel's, where most of the legislation is initiated by the Government, and where such legislation is almost bound to pass because the Government cannot operate without the support of a majority of the Knesset, so that laws may grant the Executive far reaching powers, entrenchment is necessary to protect the rights of individuals from executive power as well.³⁷

The superiority of the Bill of Rights, i.e., the need to check legislation and to make sure that it is consistent with the Bill, gives meaning to this limitation of legislative power. It permits enforcement of the Bill of Rights through the nonpartisan legal system, in addition to debates within the political system itself. Furthermore, this superiority helps to draw attention to the values contained in the Bill and to alert the legislators to the fact that their laws might affect these rights. It also ensures that there is no single power in the political system, broadly conceived, that has "the last word" without checks and balances.

The declarative and concise form of the Bill signifies the credo of the society in question, indicating that it has a commitment to the protection of the rights of those subject to its laws. The declaration and the document have great expressive value and serve as an educational tool.³⁸ The document highlights, in a concise way, the main values and rights to which the State is committed and the basis on which it was founded. This document may thus serve as a unifying force, setting the limits of public debate by stressing the constraints accepted by all in terms of individual rights.

c. The Strengths of Legislative Sovereignty

People objecting to a Bill of Rights usually do not present their objection in terms of the argument that rights should not be adequately and effectively protected. They simply argue that a Bill of Rights, because of its distinctive features, has serious drawbacks. These disadvantages of a Bill of Rights are precisely the strengths of the principle of legislative supremacy.

First, it is argued that legislative supremacy is the only way to assure majoritarianism, an essential feature of democracy. Any restriction of the majority's power to decide is, potentially, to permit a minority to enforce its views on the population at large. Entrenched legislation also has the effect of imposing upon a present-day majority the wishes of a past majority.

Secondly, this principle assures accountability of the highest decision-makers through the democratic process of elections and public scrutiny. Review in general, and judicial review in particular, will grant veto power to a non-accountable agency.

Third, legislative supremacy permits the required flexibility and adaptability. All laws need to be updated, and if the processes of change and amendment are cumbersome, this may result in anachronistic laws or, worse still, leave us without effective tools of government.

Finally, departures from legislative supremacy will run counter to the principle of separation of powers. In addition to the disadvantages noted above, such a system is likely to endanger the legitimacy of the regime. On the one hand, it imposes limits on the wishes of the majority, and, on the other, it necessarily weakens the claim of the Judiciary to neutrality and impartiality.

d. One Preliminary Argument: Does a Bill Make any Difference?

We can now deal with a preliminary argument, which is double-edged, but is usually advanced against a Bill of Rights. In a nutshell, the argument is that a Bill of Rights does not really make a difference.

A society bent on oppression and discrimination will find ways of achieving these goals no matter what the law says and regardless of whether a Bill of Rights exists. A society with a strong commitment to freedom and equality does not need an entrenched Bill of Rights to protect these ideals. All the legal support these ideals need will anyway come from regular legislation.³⁹

Dealing with this general argument would require a long detour into a comparative assessment of the indispensability of a Bill of Rights for the effective protection of such rights. Yet it is important at least to suggest why I believe that this argument is not fatal to my strategy.

How real are the benefits of the Bill of Rights? It is true that most of the educational goals could be achieved by a flexible Bill of Rights.⁴⁰ Such a Bill could serve as a tool for interpreting primary legislation, creating a presumption in favour of the protection of rights that could still be defeated by explicit legislation.⁴¹ It is also true that constitutions are normally drafted in very general terms, so that it is not impossible, by interpretation, to infringe on the rights that are listed in them.⁴² It must further be granted that there are many countries with Bills of Rights and no commitment to them, in which rights are substantially less protected than they are in the Constitution-absent United Kingdom. Yet the existence of an entrenched Bill of Rights is the only way to seek legal review of primary legislation. It may not always help against legislative infringement of rights, but it is an indispensable tool. In Israel, it has been used with good results in the sphere of judicial review of administrative action. It can be equally helpful in curtailing the legislative power of the Knesset.⁴³

Comparative analysis suggests that there are benefits to the protection of rights that can be gained by the combination of an entrenched Bill of Rights and judicial review. Dramatic examples are the areas of desegregation, freedom of expression and suspects' rights in the US.⁴⁴ Protection of such rights may, of course, be achieved through regular laws and their interpretation, as has been done in Israel in many areas.⁴⁵ Hence the question of whether a Bill of Rights is essential to such achievements is controversial. Nevertheless, it seems that the benefits are real, even if they are neither dictated nor uniquely guaranteed by an entrenched Bill of Rights. First is the benefit that such a Bill provides in protecting rights in situations where the legislative process, for various reasons, has not yielded or cannot yield such results. A less tangible, but extremely important benefit, is the way a Bill of Rights creates a framework for elaborating the implications of protecting such rights outside partisan politics, and the way it draws the attention of the political community to values and possible ways of protecting them.⁴⁶

My presumption in favour of a Bill of Rights rests on the belief that the contribution of Bills of Rights to the protection of rights is more real than the dangers posed by such Bills. I know of no catastrophe in human affairs which is even remotely attributable to the existence of a Bill of Rights, although there are periods in which courts have given Bills of Rights controversial interpretations. I know of no catastrophe in human affairs that could have been prevented, single-handedly, by a Bill of Rights. However, many advances in the protection of human rights have been made under such Bills. The record and potential for achievement are, in my opinion, much stronger than the possible dangers arising from a Bill of Rights.

If there is a presumption in favour of a Bill of Rights, we can proceed with analysing the main arguments against it. If they are not persuasive, the conclusion is for a Bill of Rights.

2. Limiting the Power of Present Day Legislative Majority

I start with this argument because I believe it represents the primary benefit of the Bill claimed by its supporters, and points out the Bill's gravest shortcoming in the eyes of its opponents.

The need to limit the powers of majorities is seen by many theorists of democracy as one of the safeguards society must accept against unlimited democracy. Others argue that such a limitation is inconsistent with the very idea of the rule of the people, which is the conceptual and the justificatory essence of democracy.⁴⁷ The claim that there must be a way of limiting the majority stems from the perception that any other interpretation of democracy poses a grave threat to minorities.⁴⁸

If we accept this reason for imposing some limits on the power of the majority—as I think we must—it follows that limits on the power of majorities are especially necessary where problems of minorities are most acute, and in the areas in which the rights of minorities are most vulnerable. Minorities, by virtue of either lack of collective power, or lack of numbers, or both, exist in all societies—the mentally sick,

would not have changed the results, it would definitely have improved the reasoning of the court and forced it to address the civil rights issues involved homosexuals, the very young and the very old. Some of these minorities are reasonably well defended by the majority, e.g., children. But for most minorities, unlimited democracy means a constant threat to their civil rights.⁴⁹

It is hardly necessary to explain why Israel needs guarantees to protect minorities. Political minorities exist in all democracies, but one of the unique features of Israel is the presence therein of a large Arab minority. Moreover, the Arabs are not just a national minority in a country characterized and established as a homeland of the Jewish people. As a group, the Arab minority is often perceived as creating a grave security risk to Israel and to the life and safety of its Jewish inhabitants. This is a situation in which limitations on their rights are almost "called for". Hence, the need for guarantees against unjustified limitation of their rights is all the greater. Recent developments have emphasized in the most dramatic way how dangerous a militant Jewish campaign against the rights of Arabs can be.⁵⁰

Luckily, sentiments to deny Israeli Arabs their basic rights have been kept in reasonable check until now. Most of Israel's political community still adheres, at least on the level of lip service, to the ideal of equal rights to the Arabs in Israel.⁵¹ Nevertheless, there have been recurring allegations of discrimination against Arabs, and it must be conceded that there are many contexts in which the Arab sector has been treated differently than the Jewish sector. Some deny these differences, some seek to justify them, but all must concede that the problem is real and central.⁵²

I do not for a moment believe that a Constitution could put an end to discrimination against minorities of all sorts.⁵³ But at least it could deal with the most blatant forms of such discrimination, and set the rules of the political game in such a way that would make some political platforms unconstitutional. It is instructive to note that in the historic 1950 debate about the Constitution, the rights of the Arabs were hardly mentioned by the speakers.⁵⁴

But what about the alleged costs to "majoritarianism" and democracy? First, we should be reminded that in Israel, at least, legislative supremacy should not be regarded necessarily as identical with enacting the wishes of the majority. Israel's political history is full of illustrations of situations in which a small minority has leveraged its status as the sine qua non of the ruling coalition in order to obtain legislation and administrative arrangements that might otherwise have been unacceptable to the majority of both the voters and legislators.⁵⁵ The most obvious example of the phenomenon is that of the religious parties, but similar situations have occurred with other small parties in connection with welfare issues.⁵⁶ A Bill of Rights could thus serve as an additional political tool by which attempts to limit the rights of the majority by arrangements made to please a politically powerful minority can be thwarted.

Secondly, it is not always clear that unlimited majorities are themselves the best defenders of democracy. A Constitution and a Bill of Rights are supposed to protect all democratic societies against the ever-present wish of those in power to maintain and perpetuate their power.⁵⁷ The guarantees against such a danger consist of both a strict adherence to entrenched rules concerning elections, accountability and a system of checks and balances, and protection of those civil rights that are the foundation of true democracy—freedom of speech, movement, association, criticism and information, and freedom from arbitrary power and harassment.⁵⁸

No society is ever free of this desire of those in power. Furthermore, it is only natural that people with a strong substantive commitment to one way of solving public problems will think their way the best and will seek to make sure that they will prevail, despite their not enjoying popular support. In addition, there is the self-interested pursuit of power for its own sake. All countries hope that their political leaders will place the general interest ahead of their own narrow interests. Yet it is oft observed how easy it is to move from considerations of the public intere