Whose Constitution, Whose Democracy?

On March 26 Benjamin Netanyahu, the prime minister of Israel, announced that he was firing his defense minister, Yoav Gallant. The previous day, Gallant, a former navy commando, had demanded that Netanyahu halt the government’s plan to overhaul the country’s judiciary—a plan that threatens to dismantle as much as reshape it. The proposal, unveiled by the justice minister, Yariv Levin, in early January, would give the governing coalition control over the appointment of judges, limit the Supreme Court’s ability to annul legislation through judicial review, and enable Israel’s parliament, the Knesset, to override decisions made by the court. Levin committed to passing each plank of the plan as a bill of its own in quick succession.

Since January opponents of Levin’s proposal to subordinate the judiciary to the Knesset have held demonstrations around the country every Saturday night. As the first bill—which would change the system of appointing judges—moved through the legislative process over the course of a dozen weeks, the protests gained in size and intensity. In Tel Aviv, crowds swelled to roughly 200,000; in Haifa, to 50,000. The movement remains largely a revolt of self-identified liberal, secular, educated, and middle-class Israelis. But in firing Gallant, Netanyahu ignited something of a larger uprising. On the night of March 26 tens of thousands of Israelis took to the streets, gathering on Tel Aviv’s Ayalon Highway, erecting barricades, and lighting bonfires.

The demonstrations continued into the following day. In Jerusalem over 100,000 people turned out in front of the Knesset. The Histadrut, the national labor federation, declared a general strike. Perhaps most significantly, an initiative gained momentum among military reservists, including in the air force and elite combat units, to refuse to continue serving as long as the judicial reforms proceeded. They felt, as one of their protest leaders put it, that the Netanyahu government sought to turn Israel into a “dictatorship” under which “a people’s army cannot exist.” With the country paralyzed, Netanyahu announced that he was suspending the legislation until the start of the Knesset’s summer session in late April, ostensibly to give him and his opponents time to negotiate, reach a consensus, and avoid a “rupture within our people.” (Two weeks later, he reversed Gallant’s dismissal.)

Last November Netanyahu’s right-wing religious coalition returned to power with 64 of the Knesset’s 120 seats—a commanding mandate—after having been deposed for a year and a half by an unruly coalition headed jointly by the former settler leader Naftali Bennett and the centrist former TV host Yair Lapid. Netanyahu’s current governing coalition is perhaps the most right-wing in Israeli history. It is composed entirely of religious nationalist and ultra-Orthodox parties, in addition to Netanyahu’s Likud. Yet faced with a religious right bent on installing its hegemony beyond contestation, the current parliamentary opposition—led by Lapid’s arch-secularist Yesh Atid party and the former IDF chief Benny Gantz’s statist-militarist National Unity Party—has proved largely ineffectual, able to muster little more than calls to preserve the status quo.

The practical task of loudly resisting the Netanyahu government, then, has fallen to the movement in the streets. From the beginning this movement was patriotic—self-consciously so. Draped in Israeli flags, adorned with army paraphernalia, the demonstrators chanted, “Democracy.” Some even called for “equality.” What did they mean?

It has been far from clear. Part of what has fueled the largely secular reservists’ protest is anger toward the Orthodox, who they believe shirk their national responsibilities, and the fear that the religious parties, empowered in the current coalition, seek to turn Israel into a halachic state, or Jewish theocracy. It was the scale of the reservists’ protest this spring, which broke a central cultural taboo in mainstream Israeli society, that prompted Gallant to speak out. He was concerned both that Israel risked compromising its military preparedness and that army service would no longer seem sacrosanct, beyond partisan political divisions. Now, by demonstrating against what they see as the prospect of a right-wing religious dictatorship, these reservists have shown that they exert the ultimate leverage. But until last January they showed no qualms about serving within the apparatus of Israel’s apartheid regime in the West Bank. Presumably, if the judicial overhaul is scrapped, they will return to doing so.

Indeed, the protest movement’s concept of democracy has often been rather meager. At the Saturday night rallies, powerful former generals and politicians warned the crowds that the dismantling of the judiciary could expose Israeli soldiers to prosecution at the International Criminal Court for human rights abuses by making Israel appear unable to adjudicate such cases satisfactorily. For the most part, Palestinian citizens of Israel have abstained from joining the movement, which has overlooked them almost entirely. The protesters, it can seem, want to protect civil liberties for Jews—freedom of expression, LGBT rights, and gender equality—while preserving the existing infrastructure of Jewish supremacy and maintaining Israel’s occupation of the West Bank and blockade of Gaza. They appear oblivious to the fact that a state that legally privileges one ethno-religious group over all others can never be a genuine democracy.

Within the movement, a new demand has emerged since Netanyahu put the legislation on pause: not just to stop the judicial overhaul but to write a formal constitution. Although Israel has a series of what are called Basic Laws that serve a pseudoconstitutional function, it has never had a comprehensive written constitution. Yet the movement’s nationalism and its blindness to the occupation—the features that have allowed it to grow large enough to obstruct Netanyahu—all but guarantee that a new constitution will prove impossible to ratify. For no attempt will be able to resolve the fundamental conflict that has bedeviled Israel since its establishment in 1948, a central reason it lacks a constitution in the first place: the irreconcilable contradiction between the country’s Jewish-supremacist character and its liberal-democratic aspirations.

Under the terms of the 1947 United Nations resolution that partitioned British Mandatory Palestine and authorized Israel’s creation, the new Jewish state was supposed to write such a founding document. Israel’s first leaders failed to do so, but not because they didn’t try. The drafting fell to the Frankfurt-born, Heidelberg-educated jurist Leo Kohn, then an adviser in the Ministry of Foreign Affairs. Kohn had gained scholarly renown for his work on the 1922 constitution of the Irish Free State, another former British colony. He was also a religious Zionist—an Orthodox Jew and a nationalist. This was another reason for assigning him the task: he was meant to bridge the gap between the demands of the secular Zionist parties and their Orthodox counterparts. That gap had nearly undermined the drafting of Israel’s Declaration of Independence, which was signed only at the last minute, before the British Mandate expired in May 1948.

Between 1947 and 1948 Kohn wrote three draft constitutions intended for the nascent state’s provisional government. Already in those early years, the tensions that would make ratification impossible were evident. “WE, THE JEWISH PEOPLE,” began one of the draft preambles. The document pledged to “rebuild our Commonwealth in accordance with the ideals of Peace and Justice of the Prophets of Israel.” But its only recognition that the state would include a significant population of non-Jewish Arabs is in a slight nod to “the rights of the stranger within our gates.”

Kohn understood that there was no possibility that the Palestinians, against whom Zionist forces were fighting a war of expulsion, would agree to any constitution and therefore felt it unnecessary to accommodate them.^* His preamble also reflected the prevailing Zionist sense that non-Jews could never be part of “the people” to whom the state belonged. The problem, then, was how to draft a constitution that reflected this exclusionary conception of national belonging but also, in a decolonizing world, appeared to make the country a procedural democracy.

Israel’s constituent assembly, later the Knesset, never approved Kohn’s text, which was shelved amid the 1948 war. Nor, for that matter, did the legislature approve any alternative later. One reason was that Israel’s founding leaders disagreed sharply over the relationship between religion and state. Long-simmering tensions between the dominant Labor Zionists and their Orthodox opponents proved irresolvable. The Orthodox parties demanded that the laws of state be the laws of the Torah. The secular Zionist parties would have no such thing.

But at the core of the inability to agree on a constitution were ambiguities inherent to Zionism itself. What did it mean for Israel to be a formally Jewish state when, even after the Holocaust, most Jews lived elsewhere, and those who immigrated would need to be settled on conquered land? If the state defined its own borders—which to date Israel has refused to do—would that mean giving up on territorial expansion, on dreams of sovereignty extending across the Jordan River? Would a constitution require granting equal political and civil rights for its non-Jewish minority, and if it did so would Israel remain a Jewish state?

To avoid these pitfalls, David Ben-Gurion, Israel’s first prime minister, rejected further calls for a constitution. He did not want his vision of Zionist permanent revolution constrained by a legal document. “The existence of the State of Israel depends first and foremost on security, on aliyah [mass Jewish immigration], and on settlement,” he declared in a 1950 speech before the Knesset. And so, to paraphrase the political scientist Dan Horowitz, Israel’s founding leaders decided not to decide. Unable to reach consensus on a constitutional text, the Knesset agreed in 1950 to a compromise: instead of ratifying one comprehensive document, it would gradually legislate a constitution by passing a series of “Basic Laws.” The hope was that, after the exigencies of the state’s early years had been settled, the Basic Laws would eventually amount to a formal constitution. They never did.

It was this failure that Aharon Barak, then president of Israel’s Supreme Court, sought to rectify in the 1990s. In March 1992 the Knesset passed two new Basic Laws that enumerated for the first time the rights to which Israeli citizens were entitled. One allowed for the liberalization of Israeli employment law. The other protected “human dignity and freedom” by stipulating the “basic human rights” guaranteed to all Israeli citizens. These included the rights to life, property, and personal liberty, but not—tellingly—to equality.

Together, the new Basic Laws also defined Israel as a “Jewish and democratic state.” This phrase appears nowhere in Israel’s 1948 Declaration of Independence. Until 1992 the idea of Israel as “Jewish” and “democratic” had only appeared explicitly—though in separate phrases—in a 1985 amendment to the country’s election regulations that later barred the violent right-wing extremist Meir Kahane from parliamentary politics. According to the historian Shira Robinson, the adoption of the “Jewish and democratic” formulation was part of an effort by Israeli leaders to shore up the ethnically exclusive character of the state as Israel entered the negotiation process that would culminate in the signing of the Oslo Accords. But for Barak, these Basic Laws also inaugurated the process of trying to harmonize Israel’s Jewish character and its putatively liberal-democratic commitments. The legislation was a prelude to the main act, which he would perform in the court.

In the 1995 Supreme Court case United Mizrahi Bank v. Migdal Cooperative Village, Barak cemented what he called Israel’s “constitutional revolution.” The implications of Mizrahi Bank are far more important than the dry details of the case itself, which dealt with the issue of agricultural land debt. Barak ruled that when laws or parts of laws violated the rights now enshrined in the 1992 Basic Laws, the court had the power to annul them.

The decision both formalized the court’s power of judicial review and turned the Basic Laws into a constitutional foundation against which ordinary laws could be judged. In elaborating the court’s new power, Barak outlined criteria for adjudicating conflicts between ordinary laws and constitutionally enshrined principles, as well as conflicts between Israel’s Jewishness and its nominally democratic character. A law could violate the rights protected by the Basic Laws only if, Barak wrote, it “befits the values of the State of Israel, it was passed for a worthy purpose and the harm caused to the constitutional Human Right is proportional to the purpose.”

In effect, Barak created a legal means by which human rights could trump prerogatives of Jewish supremacy and state security. While this decision did not spark widespread outrage right away, with each ruling that struck down government policies in the name of democracy or human rights, right-wing hostility to the court increased. During Barak’s tenure, for instance, the court provoked objections from the right when it ruled that Israel’s security services could not use physical torture—a decision that was substantively reversed in two cases in 2017 and 2018—or when it required that the Israeli military governor in the occupied territories change the location of the West Bank separation barrier to protect Palestinian private property rights. For Palestinian and human rights advocates, such interventions by the court have themselves been inadequate, because they left the infrastructure of the occupation intact and preserved laws that privileged Jews over non-Jews. In the right-wing imagination, however, the court as empowered by Barak now appeared as a threat both to Israel’s security and to its Jewish character.

Netanyahu’s coalition aims to reverse Barak’s project of empowering the court and elevating human rights to a constitutional value. (Not coincidentally, the attack on the court also dovetails with Netanyahu’s ongoing efforts to evade conviction in his own corruption trial.) The right insists that Barak’s actions were their own judicial “coup”—a usurpation of the sovereign will of the people as expressed in legislation passed by the Knesset—and rejects the notion that the values of human dignity and democracy should ever win out over Jewish supremacy and state security. In fact, for much of the Israeli right, it has become anathema to suggest that the power and position of the Jewish majority have any limits at all. As the notoriously pugilistic Likud Knesset member and lawyer Tali Gottlieb proclaimed during a March 27 rally in support of the coalition, “The people are the sovereign, and the sovereign decides!”

That same evening Lapid declared that it would not be sufficient simply to stop the right-wing coalition’s judicial takeover. “We don’t need to put a bandage on the wounds but rather properly treat them,” he said in an address after Netanyahu announced that he would pause the judicial overhaul legislation to allow for negotiations. “We must sit together and write a constitution based on the values of the Declaration of Independence.” In the days since the legislative pause went into effect, a large segment of protesters has continued to return to the streets weekly, many chanting, “No constitution, no compromise.” Their argument is that without a constitution that formally establishes the relationship between the judicial and legislative branches and explicitly guarantees the civil liberties they fear the right aims to extinguish, Israel will remain vulnerable to future efforts to consolidate power over the political system and transform it into something like Viktor Orbán’s “illiberal democracy” in Hungary.

But because the renewed calls for a constitution contain no reference to the occupation and barely acknowledge discrimination against Israel’s Palestinian citizens, they have taken on an absurd cast. Lapid himself has insisted that he rejects a “state of all its citizens”—in other words, one that would guarantee equality to its inhabitants. He and Gantz have consistently refused to treat Palestinian citizens as political partners and rejected forming a coalition that included any Arab-led parties other than the moderate Islamist Ra’am—a moral and strategic failure that all but guaranteed Netanyahu’s victory in the last election. Were a constitution along Lapidian lines to be written, it would need to be explicitly undemocratic and inegalitarian; it would enshrine as a constitutional value the discrimination against non-Jews that, according to the NGO Adalah, already appears in more than sixty-five Israeli laws—as well as in the now-infamous Nation-State Law, which was passed with the status of a Basic Law in 2018. The potential constitution might well begin like Leo Kohn’s discarded preamble, “WE, THE JEWISH PEOPLE.”

Writing any kind of constitution will, in other words, be no easier now than it was in 1948. The divisions between secular liberals and Orthodox traditionalists on matters of synagogue and state are perhaps felt even more intensely today than during the early years of Israel’s history. Then, secular Jews constituted an overwhelming majority, but rapidly shifting demographics mean that traditionalist and Orthodox Jews are now set to supplant them; the protests draw some of their sense of desperation from the fear that the secular Israel of old is disappearing. More significantly, though, writing a constitution that does more than simply consecrate the current situation will still mean making the choice that confronted the state’s founding generation: between a genuinely democratic state and one that constitutionally upholds Jewish supremacy.

To start, any serious constitution must ask what the borders of the State of Israel are. Defining its territorial boundaries would require either formally annexing the West Bank or officially designating the settlements as outside Israeli sovereignty. A constitution would also need to define the status of all the Palestinians living under Israeli control. Either the constitution would grant them full equality—and therefore set in motion the dismantling of a vast apparatus of discrimination and unequal land distribution laws—or it would make Israel a de jure apartheid state, not just a de facto one.

Today no centrist or center-left Israeli Jewish leader is prepared to entertain such choices. Yet the right has its own vision for making them. After dismantling the judiciary and eliminating any checks on Jewish majority rule, it aims to annex the West Bank, legally formalize the apartheid regime over the Palestinians living there, and expel those who resist their permanent subjugation.

Some American observers have compared the situation in Israel to the ongoing debate among left-liberal legal scholars in the United States about the drawbacks of judicial politics, especially after the Dobbs decision: Has relying on the Supreme Court instead of the democratic process hampered the implementation of progressive policies? But if there is any parallel it is not to contemporary America but to the US in the years preceding the Civil War. Then in the United States as in Israel now, the country was divided over who was entitled to fundamental rights and what its founding documents meant—or in Israel’s case, what it means to lack them.

There the parallel stops. While the settler right seeks (as the proslavery camp sought) to solidify a constitutional order premised on the supremacy of the ethnoracial majority, the prodemocracy camp has embraced no call for equality comparable to that made by the American abolitionists. The protesters are largely content with Jewish supremacy as long as it protects liberal freedoms for Jews. What they seem to want is to maintain both the material benefits of that inequality and the self-comforting illusion of democracy.

—April 12, 2023