Those who cherish the Declaration must resist placing it in the legal arena.
Recently, voices from across Israel’s political divide – from Bennett’s Beyachad party to the Movement for Quality Government – have proposed placing the Declaration of Independence at the opening of Israel’s future constitution, thereby elevating it to the apex of the country’s normative legal hierarchy. Former Supreme Court chief justices, Meir Shamgar and Aharon Barak, have expressed similar views. Is this appropriate?
The impulse is easy to understand, even compelling. The Declaration is an Israeli canonical text – without equal. For decades, Israelis have recognized the almost miraculous significance of the broad consensus reached by the leaders of the pre-state Yishuv. At the very moment the state was being born, with its survival still in doubt, they managed, through words, to give form to the Israeli spirit of a Jewish people renewing its life in its homeland.
The Declaration tells our story at the singular turning point when the Jewish people returned to history as a people. It is a capsule of distilled Israeli DNA, implanted in our national bloodstream by the founding generation as a gift to those who followed. It would therefore seem only natural to give it pride of place at the head of our future constitution.
But we should not.
Anyone who wants to preserve the Declaration’s exalted status above Israel’s political disputes must recognize the distinction between two very different kinds of discourse: one of identity and one of rights. The Declaration belongs to the first. It should serve as an instrument for forging shared identity. It is Israeli identity’s home port – the place from which Israelis set sail into the riptides of disagreement and to which they return to recover a sense of common belonging. Its success in fulfilling this historic role depends on broad popular support, both emotional and intellectual.
That support, however, will not survive if the Declaration is transformed from an identity-defining national canon into a legal instrument for determining rights. Dragging it into the discourse of rights will damage it, because that discourse plays out through judicial rulings, with winners and losers. When one side seeks to defeat the other by invoking the Declaration, it pushes its opponent toward rejecting the Declaration itself – thereby diminishing its value as a shared identity asset.
That erosion of the Declaration’s symbolic, educational, and identity-building power has already begun. During the dramatic Supreme Court hearing on the “reasonableness standard,” the lawyer representing the government challenged the Declaration’s importance, arguing that it had been drafted by an unrepresentative group, written in haste, and is old and anachronistic. He later clarified and softened his remarks, but the damage had been done: the Declaration had been deeply scarred.
At the other extreme, a Supreme Court justice, in a supremely activist lone opinion in the case concerning the “Tiberias Law,” held that the Declaration is the fundamental norm on which the entire Israeli legal system rests. He thus set in motion an intellectual and legal project that seeks to turn the Declaration into a legal trump card – one that could serve as the basis for judicial review even of Basic Laws.
The justice reiterated this position in a ruling handed down last week on the law freezing the arrests of Haredi draft evaders. In his view, the law “was enacted outside the scope of the Knesset’s authority and is therefore void,” because it infringes the right to “full equality” enjoyed by all citizens by virtue of the operative legal force he attributes to the Declaration.
Those seeking to incorporate the Declaration into a future constitution are embracing this justice’s position – and taking it a step further. In doing so, they risk turning the Declaration from a cultural asset into a legal weapon. Their well-intentioned effort to elevate its status could end up, paradoxically, destroying the very value it holds for all of us.
We suffer from a toxic syndrome: the Israeli public conversation repeatedly gravitates toward the discourse of rights while neglecting the discourse of identity. We choose to shift the center of gravity of our cultural disputes away from the public arena – ideology, politics, and the marketplace of ideas – and into the judicial arena, where binding decisions are handed down. Those who cherish the Declaration must resist placing it in the legal arena. The debate over judicial review of ordinary laws and Basic Laws should not be decided by invoking the noble words of the Declaration of Independence.
We live on shifting sands. Precisely for that reason, we have an urgent – even existential – need for a fixed point of consensus capable of holding us together. The closest thing we have to such a fixed point – our one secular sacred text – is the Declaration of Independence.
We must not squander the founding generation’s gift.
Published in jns