The battle for the presidency of the Supreme Court has been decided. After 16 months of struggle, the highest position in Israel’s judiciary has once again been filled.

In accordance with what has been the customary practice since the establishment of the state, the most senior judge on the Supreme Court bench – Justice Isaac Amit – was backed by five of nine committee members, and thus, seemingly, order has been restored. But is this really so?

Opposition to the appointment, obsessively led by Justice Minister Yariv Levin, did indeed fail, but it would be a mistake to frame the conflict as mere “background noise” that can be ignored now that the decision has been made.

Certainly, this was a tactical achievement for Israel’s liberal camp, but it is worth examining the situation from a strategic perspective that considers the status of the court and the notion of the rule of law in Israel in the long term.

The protracted saga, which in recent weeks hit a fever pitch of personal accusations and sharp exchanges between the justice minister and Justice Amit, has widened the cracks in the wall of public trust, which is meant to protect the judiciary from subversive forces with populist tendencies and self-serving agendas.

I would suggest that now, with the court’s directive to appoint the president of the Supreme Court implemented, the liberal forces in Israel reconsider their stance on the ongoing struggle over the Supreme Court. And this time from a non-dogmatic perspective that realistically considers the good of the system from a strategic, long-term angle.

A proposal by Levin and Foreign Minister Gideon Sa’ar to change the law determining the procedure for selecting judges in Israel is currently on the table of the Knesset’s Constitution, Law and Justice Committee. This proposal is significantly better than Levin and Rothman’s original plan that roiled the country in 2023. Nevertheless, although it does not signal the “end of democracy,” it has substantial flaws and should not be enacted in its current form.

If passed, it would politicize the judicial selection process and likely erode the professionalism of Israeli judges in the years to come. The Levin-Sa’ar framework risks altering the professional DNA and ethos of the Israeli judicial system.

A series of critical amendments to their proposal must therefore be demanded – changing the proposed decision-making rule (from five out of 9 to six out of 9), revising the process for selecting the two attorneys, creating an alternative mechanism for resolving deadlocks, and more.

On the surface, it appears that the proposed improvements to the Levin-Sa’ar outline – which were discussed at The Jewish People Policy Institute (JPPI)’s Thin Constitution conference last week and in the media – will cook up spirited debate when brought to the Knesset.

It is not known what the final dish will look like, but there is significant concern that it will be bland. Instead, I believe it is possible and appropriate to propose a broader package deal with far better results.

Levin previously proposed appointing his associate, Dr. Aviad Bakshi, to the Supreme Court. An objection was raised: Bakshi’s professional and academic track record does not meet the usual criteria for Supreme Court appointments, and he is one of the chief architects of the judicial reform/revolution Levin originally proposed.

Levin’s insistence on Bakshi, despite the existence of excellent conservative candidates who do meet the standards, is not about merit, but is rather an expression of Levin’s need to win his confrontation with “the system.” It is unfortunate that he has chosen to “boycott” Amit.

In any case, from a strategic perspective, it seems to me that appointing Dr. Bakshi – an honest, wise, patriotic man who has the best interests of the rule of law at heart, even if his interpretation of this principle is, in my opinion, quite wrong – is not a tiebreaker move.

In order to prevent the inclusion of one voice, albeit a discordant one, in an orchestra of 15, is it worth risking the enactment of a Basic Law that undermines the process for appointing judges to the Supreme Court and all other courts?

Most legal experts in Israel believe that the existing law (which Sa’ar had a hand in drafting) is far better than the Levin-Sa’ar outline. Given the Israeli culture war and the potential consequences of the return of the judicial overhaul, which is creeping its way back onto the national agenda, what is needed now is a “ceasefire” until after the next Knesset elections. Removing “the law” from the battleground (especially during wartime) is a strategic necessity.

If my advice were followed, the incoming president of the Supreme Court – contrary to all expectations – could raise the flag of compromise in the form of the victor’s outstretched hand and allow Levin’s candidate to be appointed to the court.

But only if it is agreed in advance that the judicial selection process will not be adulterated, that the committee will work to fill all vacancies in the Supreme Court and other courts, and that the constellation of relations essential to the functioning of the justice system – led by the Supreme Court president and the justice minister – will return to normal.

To the purists, I say: “Jerusalem was destroyed only because they strictly upheld Torah law and did not go beyond the letter of the law” (Babylonian Talmud, Bava Metzia 30b).

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The post We should all compromise to protect Israel’s judiciary from political strife first appeared on The Jewish People Policy Institute.

Recently published data shows that the balance of migration to and from Israel has become negative in recent years. In 2023, the number of Israeli émigrés outstripped the number of returning Israelis by 27,500. And the negative balance more than doubled in 2024: About 59,000 more left than returned. As an illustration, imagine that two-thirds of the population of Ra’anana left Israel last year.

Alongside these figures, it is important to note the continued aliyah of Jews to Israel, but here, too, a downturn is evident. In 2023, Israel welcomed some 47,000 immigrants, but only 32,800 in the past year.

Why is Israel less attractive, and is, as many fear, a significant wave of emigration ahead?

At the present moment, it is clear that the economic and security situation is a key driver of out-migration. But in the long term, these difficulties do not pose a significant threat to Israel’s growth.

In the past, Israel has overcome economic (hundreds of percent inflation) and security (the Yom Kippur War) challenges that sparked waves of emigration, but they were halted and the country returned to impressive growth.

Yet it seems the current wave may be different – more severe and lasting, and therefore more dangerous than its predecessors. This is because we are experiencing a different kind of crisis now, one we have never seen before: an undermining of the social order.

First, society: Israel is in the process of replacing its elites. This is the way of the world, but it is most excruciating for the groups that are being pushed out of national leadership. One can understand the fear, disappointment, and frustration of those who feel that although “they” built this country, with talent and sacrifice, the steering wheel is slipping from their grip as a result of demographic and social processes.

Second, ideology: A struggle is underway between identity groups, each of which seeks to achieve different national goals from the others. The fault lines between these groups touch on a range of fundamental issues: religion, nationality, culture, and ethos. The multiple fronts and intensity of the struggle have ignited a firestorm of controversy in the public sphere, fueled, with abject shortsightedness, by a political leadership that thrives on it.

The tug-of-war is becoming increasingly hysterical and undermines Israeli unity to the point of fraying the bonds of mutual responsibility. It foments alienation from Israel – the place and the idea – and is driving tens of thousands to leave the country.

Third, democracy: The Zionist movement has been committed to democratic principles since its founding. This is the Israeli DNA. However, the judicial reform/revolution that tore us apart in 2023, and is rearing its head once again, has subverted confidence in Israel’s commitment to democratic precepts.

Those who voted for the current coalition are disappointed that, even though they won the last elections, they have been unable to advance the reform. For them, the majority-rule democratic system has failed in the face of opposition from the elites, who thwart the “will of the people.”

And on the other side, opposition voters have discovered with great alarm that a slim majority in the Knesset is plotting to “steal” the country, through a takeover that would upend the “natural order.”

Hundreds of thousands took to the streets calling for “democracy” because they felt it was in real danger. And so, for the first time in the history of the Zionist project, there are many – from the Right, the Center, and the Left – who are no longer sure that the democratic system is a stable, fundamental fact of our national life.

IT APPEARS that the right way to strengthen Israel’s allure, for all its citizens and for world Jewry, is through the restabilization of Israeli democracy.

The threat to the social order lies in the fact that we do not have consensus-based “rules of the game” by which we conduct the dispute over the character of the state and manage the ideological struggle between different identity groups.

We do not have a constitution, and therefore any casual Knesset majority may attempt – as is currently the case – to change the rules of the game unilaterally. This possibility exacerbates the potential harm of the Israeli dispute, because it tempts election victors, at any given moment, to exploit it to decide the struggle in favor of one of the identity groups.

The absence of stable, codified rules of the game shakes the confidence of many Israelis in a shared future. If this situation continues, the wave of Israeli abandonment may intensify.

The analysis clarifies the importance of establishing a “thin constitution,” intended to propose a limited constitutional instrument that does not decide the ideological disputes between identity groups but establishes rules of conduct among government authorities based on broad, pan-Israeli consensus.

A thin constitution would deploy a safety net for all of us, because in Israel – “a state of all its minorities” – there is no immutable hegemonic majority. If we are all potential minorities, we should all want the rules of the game to be accepted through, and only through, broad consensus. A “thin constitution” is the recipe that will enable Israel to return to what it should be: the most attractive place for the individual and the collective.

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The post To stop the Israeli exodus, we need a constitution first appeared on The Jewish People Policy Institute.

Rational observers of Israel may be pulling their hair out: What are the country’s leaders, in all three branches of government, busying themselves with at this historic moment? What is the dominant question in the public and media debate?

The Middle East is indeed being reshaped; IDF soldiers are fighting – boots on the ground – in Gaza, Lebanon, and Syria; for the first time, a realistic opportunity has arisen, one that must not be missed, to eliminate Iran’s nuclear program; a new administration is about to take office in Washington, which carries both opportunities and risks for Israel; the society and the economy are groaning under enormous strain; and most important – we are still digging graves for those who fell in uniform, and a hundred of our daughters and sons remain in enemy captivity.

All of these are, of course, monumental, but nevertheless Israeli leadership pays much more attention to the question of whether the seniority system in appointing the chief justice of the Supreme Court should be maintained. This is complete madness and unparalleled irresponsibility.

And to add to this absurdity, the prime minister, the most central figure in shaping Israel`s future at this historic juncture, is required to appear three days a week in the basement of the Tel Aviv District Court to defend his innocence. Even in times of calm, it is said that the Israeli prime minister’s desk is busier than any other, and all the more so now, when the instability across the entire region requires undivided attention. There can be no doubt: we have lost our faculty of judgment.

AND AS in a Greek tragedy, the shrill drone of a refusenik chorus is heard from upstage: a former attorney-general who recommends that IDF reservists refuse to volunteer to serve if the judicial reform is relaunched; a former chief rabbi who calls on the ultra-Orthodox, one-eighth of the population, to refuse to enlist, advocating noncompliance with the Compulsory Service Law; a sitting minister of justice and members of Knesset who publicly air the possibility of refusing to yield to a High Court ruling. One Israeli cabinet minister has declared, with fanatical audacity, that he has not ruled out “regime change.”

These individuals are subverting the very ability to maintain the rule of law here, which is the only basis that keeps us from “swallowing each other alive.”

Amazingly, Israel has been successful on seven external fronts against its enemies, but it is dangerously close to losing on the eighth: the internal front against itself. The price of losing the internal war is structural and cannot be easily reversed: state institutions are undermining public trust in state institutions. The current government majority is exploiting the democratic system in order to erode its foundations.

And the main point: social solidarity – in a time of war – is cracking more and more. It seems that the immune system of the Israeli body politic is attacking itself.

THE MAIN responsibility for the situation lies with those in power: the prime minister and the entire governing coalition. They are determined to relaunch the judicial reform. The colossal damage caused by their attempt in 2023 has taught them nothing, and the folly of attempting to change the rules of the game unilaterally, without broad consensus, has returned to center stage. But others in high office are also participating in the tragedy: is it right to dig our heels in and insist on every single issue?

For example, in the case of the attorney-general – what would we have to lose if the state were to agree to conduct a criminal mediation process in the Netanyahu cases for a limited period of time so that a plea agreement might be reached by the court? This would immediately free the prime minister from having to give testimony and allow him to focus on fulfilling his role at this especially critical moment in time. Perhaps, if the mediation were to succeed and put a just end to the saga, it would be possible to heal an open wound that has been festering for years.

At the same time, in the case of the Judicial Appointments Committee – would the appointment of one judge who advocates the positions supported by a significant group of the ideologically conservative right cause irreparable harm to the Supreme Court? I am acquainted with one of the justice minister’s two candidates. His views do indeed differ from some on the current bench, but he is completely committed to the system itself and could represent another voice in the judicial orchestra – which, while not necessarily harmonious, would be valuable.

The bitter truth is that although the multi-front struggle is the result of genuine, patriotic anxiety on both sides regarding our shared future, the generals of the different camps lack intellectual flexibility and expansive vision. Each is entrenched in their own “Masada,” eyes shut to the overall good, which by definition requires compromise.

As noted, I do not believe there is an equivalence of responsibility here: the government is more responsible than any other party, because it holds the power and is obliged to wield it in a way becoming to statesmen. The fact that the coalition, which vaingloriously embraces the “conservative” label, is attempting to change the rules of the game is ironic in the worst sense of the word. All the polls show that public trust in the government is exceedingly low, and it certainly does not enjoy the support of the majority of Israelis.

A CEASEFIRE is needed on the eighth front, without which victory on the other seven fronts may prove pyrrhic. A ceasefire does not mean the dispute has been settled, but rather is a call for its removal from the nation’s immediate agenda. The debate must continue, but it must be conducted with the sincere intention of reaching an equitable balance of power between the branches of government, not by exploiting a political moment when one of the parties has the upper hand.

The parties to the dispute must understand that a decisive victory for one of them is a loss for all of us. A unilateral victory is not a state of equilibrium in Israel, because each of the camps is too large to agree to surrender. The losing side will regroup for another round in the struggle. Thus, for example, if the justice minister manages to pass some of the proposed changes in the Knesset, it is very likely that after the next elections those changes will be repealed by a new coalition. And along the way – we all lose. Not just the losers in the current round, but also the winners, who will lose in the next round.

“Compromise” is seen as a waiver of principles and an expression of ideological weakness. This is a grave mistake: compromise is the life blood of those who seek the good of the State of Israel, given the deep social divides within it. In compromise, no one comes out with all their desires fulfilled, but no one is defeated in a way that triggers extreme moves that could be destructive.

Those who have not yet understood this should take an unblinking look at where we are right now: a public sphere that is operating with a centrifugal force that has destructive consequences. The great Israeli poet Yehuda Amichai stressed this when he looked into the depths of the public psyche and determined that “from the place where we are right, flowers will never grow in the spring.”

The rules of the game for managing the Israeli dispute are unstable. A simple majority can – and is currently trying to – change them unilaterally. Israel’s future depends on the ability of our leadership, in all branches of government, to promote broad consensus on fair rules to be anchored in a “thin constitution,” which cannot be changed with a simple majority. A “thin constitution” is the necessary antidote for this crisis. Until it is enacted – and in times of war – a ceasefire is required. Only then will flowers grow here in the spring.

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The post The wrong priorities: The absurdity of today’s Israel is on full display first appeared on The Jewish People Policy Institute.

We our living in a time unlike any other in the history of the State of Israel. I say this unequivocally from the perspective of someone who recently turned 77. Nothing similar to the events of October 7 had ever happened before in the history of the state, indeed nothing like it has happened since the Holocaust. (Incidentally, I believe the October 7 War is the best name for this war. I certainly can’t call it the Simchat Torah War.) The behavior of the Hamas monsters on that bitter day was Nazi in nature. This is not an empty comparison. Mass murder of people in their beds, in their homes, rape, pillage – all because they were Jews and Israelis – cannot be called by any other name.

We remain in the midst of the war. Hamas has been weakened but not yet eliminated, and the hostages cry out for redemption. There are other fronts. But part of our collective therapy is going on with life in a way that is as close to normal as possible. Therefore, what is being done here today is not disconnected from the grief over those we have lost, the hope that the captives are released, the wish to see the wounded heal, with the grace of God, or the desire to see the evacuees return to their homes and begin the process of restoration.

As for myself, my great hope is placed in the soldiers, the hundreds of thousands gradually released from the reserves, in which the brotherhood of warriors is sanctified in blood. If Jew and non-Jew, religious and secular, Ashkenazi and Sephardi, left- and right-wing – all the tribes of the People of Israel and the State of Israel – can fight together, shoulder to shoulder, and trust their comrades in arms, quite literally, through fire and mud – then why should they not continue their dialogue of trust as civilians. Hope has been sown; I hope it will take root.

Between January and October 2023, we were swept up in the frenzy of the judicial revolution. The storm came mostly by surprise. It was not the central issue the November 2022 elections. My wife Miriam and I found ourselves demonstrating week after week, the Israeli flag in our hands. It was a trauma for both of us, public servants since a young age. These events, however, were pushed aside by the enormity of the war effort, which locked the dispute away for the moment and led us to focus on the more immediate challenge. The psychic energies are in the war effort.

Moshe Dayan, whom I served under as his assistant at the Foreign Ministry, early in my career, used to quote David Ben-Gurion and would sometimes impersonate him as saying there are things that are “dead” but can be resurrected and there is “dead and buried” – when resurrection is no longer possible. I assume that the judicial overhaul is “dead” but not “dead and buried.” But it seems that many, perhaps a great majority, understand that to advance such issues that go to our very essence, a broad consensus is required. Here, we will discuss one of these possibilities, as a look toward the future.

I will not talk about the ruling nullifying the reasonableness law, the leak of which was a dark day in the history of the Supreme Court. There is no need to say much about the problematic of “woe unto me from my Creator and woe unto me from my inclination” that was before the court. Much will yet be said about this.

In times almost forgotten, the United Nations partition plan of November 29,1947 called for the Jewish and Arab nascent states to establish constitutions. This seemed obvious, primarily because there was a need to ensure the rights of minorities in each of the states. Indeed, many talented people worked on a draft, but that is beyond the scope of this essay. The Constituent Assembly was elected to create a permanent constitution and later changed its name to the First Knesset.

Ben-Gurion decided, with characteristic pragmatism, not to enact a constitution. Among his reasons were that only a relatively small part of the Jewish people lived in Israel, that the conflict with Israel’s neighbors and with Israel’s Arab population had not yet been resolved, and therefore it was not advisable there and then to obligate future generations. Surely there was a tangible pragmatic consideration behind this. It was classic Ben-Gurion – the reluctance to tie the hands of the government, and we should remember that in those days Israel’s Arab citizens were under military rule, something we cannot imagine today. In his exceptionally polemical Knesset speech on February 20, 1950, Ben-Gurion explained, in less than a fully explicit way, why in his opinion there was no place for a constitution at that time, and strongly sanctified the Declaration of Independence even in the absence of its formal enshrinement in law. In his view, there was no need for freedoms to be anchored in a constitution because, after all, Israel was a free country. Rather, he saw the need for bill of obligations that would focus on immigration, settlement and security, and for this purpose there was no need to be confined to a rigid framework and artificial tools. All this led to the well-known “Harari Decision” of June 13, 1950 (named after Knesset House Committee Chairman Yizhar Harari), which established a framework of Basic Laws. Today Israel has 13 Basic Laws, of which eight can be called “governmental” (The President of the State, The Knesset, The Government, The Judiciary, The State Comptroller, The Military, The State Economy, Israel Lands), and the rest of which have varying national, political, and diplomatic value. But the Basic Laws never coalesced into a general constitution, as anticipated by the Harari Decision.

Since the 1995 High Court of Justice ruling in the Mizrahi Bank case (which had some origins in the Court’s 1969 Bergman decision), the Supreme Court, which was originally sitting as a High Court of Justice, serves as a Constitutional Court. It has interfered with some Knesset legislation, mainly on the basis of Basic Law: Human Dignity and Liberty. It has done so sparingly – twenty-four interventions in nearly thirty years, out of some five hundred constitutional petitions. Some of its interventions have been minor, but the very existence of its authority to do so, which, over time, has been accepted as fact, today is almost unquestioned. This has caused religious politicians (especially) to oppose any enactment of a Basic Law on Human Rights for fear that it would be interpreted by the High Court in a liberal/secular/left manner – a very exaggerated concern.

The constitutional project has yet to be completed. Basic Law: Legislation is a missing piece. While this may not go to the heart of the difficulties, without such a law most of the Basic Laws are not entrenched and can be changed with a simple Knesset majority as if they were insignificant municipal bylaws.  A futile debate over the Judicial Override Clause was, among other things, detrimental to the cause. I have been complaining for many years about the inability to complete the constitutional project, despite the great efforts of parliamentary and extra-parliamentary bodies, for example, the committee at the Israel Democracy Institute headed by the late Supreme Court President Meir Shamgar, a liberal-nationalist, an exemplary nationalist and an exemplary liberal, and the efforts of MK Michael Eitan as chairman of the Knesset Constitution, Law and Justice Committee.

Why do I believe a constitution is important? It is not somuchinthe “net” substantialcontext,becauseif, for example, theissue of equality is taken up,evenifitdoesnotappearintheBasicLaws,the High Courtwillupholdit through its interpretation of the BasicLaw:HumanDignityandLibertyandtheDeclaration of Independence; it didsoinpetitionsregarding the 2018 BasicLaw:Israel – The Nation-Stateof the JewishPeople(“Nationality Bill”).

The most important value of having a constitution, in my view, is the educational aspect. In the United States, every high school graduate knows what the First Amendment, which guarantees freedom of speech, is; many know about the Second Amendment, which guarantees the right to bear arms; the Fourth Amendment, which protects individuals from unreasonable government searches and seizures, and the Fifth Amendment, which shields individuals from self-incrimination.

Incidentally, amending the United States Constitution is a lengthy process requiring a privileged supermajority of Congress and ratification by three-fourths of the individual state legislatures. We don’t have any such document to be taught in our schools.

Israel’s Declaration of Independence fills part of this vacuum and is of great importance, but it certainly does not fill it entirely. The Nation-State Basic Law could have played a certain role – and could have served as a kind of first chapter of the constitution – had it not lacked any reference to civil equality (as opposed to national equality), so that every non-Jewish citizen would have a sense of partnership in the state, a feeling that should be encouraged and which is in great demand.

Unfortunately, a full constitution, something I would very much like to see, is not on the horizon. In my view, as I have already mentioned, an equality clause is of particular importance. It exists in the Declaration of Independence and the courts apply it as part of the interpretation of Basic Law: Human Dignity and Liberty. A few years ago, I joined forces with a Druze brigadier general and several professors to draft a proposed amendment to the Nation-State Law, which could have served as a sort of preamble for a constitution, in a way that would have considered all the major questions. The endeavor did not take off. I now see the current initiative of Prof. Yedidia Stern and the Jewish People Policy Institute to draft a “thin constitution” as a first stage toward completion of the constitution, including an equality clause. Perhaps sharing the burden of the war will open new doors.

Constitution (hukah in Hebrew) is an uplifting word. Together with its derivatives, the word appears in Hebrew in the Bible 100 times, including the grouping “a law of justice” (Numbers 27:11, concerning laws of inheritance, including daughters, and chapter 35 verse 29 concerning cities of refuge.) Other common groupings are “an eternal statute” (for example, in Exodus 27:21 concerning the Ner Tamid [eternal flame]); “My commandments, My laws and My teachings” (for example, Genesis 26:5 on Abraham’s path). The biblical term does not refer to a “supra-legal” document of the kind we are familiar with today, but to something analogous to the law (see Ben-Gurion’s speech to the Knesset mentioned above). Nor do the Ten Commandments exactly make up a constitution, the specifications of which in law are to be found in the Torah portion Mishpatim (laws) in the Book of Exodus. ButHansKelsen’s hierarchy ofnormsplacesatitsheadtheconstitution,theconstituentdocument.

Some wish to see in the Declaration of Independence the nucleus of a constitution – and I too find supreme educational importance in it – and of course its principles are mentioned as an interpretive basis in the Basic Laws of rights, human dignity and liberty, and freedom of occupation, with perhaps equality being the most important principle of all. Nevertheless, the Declaration of Independence is not a constitution. Some 25 years ago, my colleague Justice Noam Solberg and I wrote an article in which we did not go so far as to confer legal validity to the Declaration of Independence, but we talked about an expansive interpretive model, although not about the declaration as an independent source of human rights. In any event, after decades of statehood, the result of the absence of any overarching governing framework (I do not like the phrase “rules of the game”) is constitutional chaos. The main ill is – as already stated – the ease of amending a Basic Law.

Basic Law: The Knesset, for example, has been amended some 50 times, many of them to serve transitory political needs. The one-year budget stipulated by Basic Law: The State Economy has repeatedly been transformed through temporary orders, into a two-year budget to make things politically expedient for the government, and this is just one of many examples. In order to enable so-and-so to serve as a minister, Basic Laws can be amended at will, like changing socks.

Given such impudence, which also affects the position of the Knesset, which is not supposed to act as a band of cheerleaders for the government (as I had occasion to write in one of my judgments), the Basic Laws are often relegated to an ordinary law that masquerades as a Basic Law in name only. In England, where there is also no constitution, there is a phrase “it isn’t done,” something that wouldn’t be done even in the absence of a written rule saying so; here however, it is done, again and again. Any coalition majority, even theoretically a 2:1 majority in the plenum, can, at will, change most of the Basic Laws.

The late Rabbi Shlomo Zalman Auerbach, of blessed memory, said there are some things that may not be written but are obvious to everyone. Nowhere does it say that one cannot put a cat in the Torah ark, but would anyone think to do so? Unfortunately, we have not created a legislative parliamentary culture that acts by these “unwritten rules” and therefore we need a framework that protects the Knesset from the government. A framework that prevents chaos and instability, such as Basic Law: Legislation, which would establish rules and set boundaries, does not exist.

I can testify to this personally, both as a former cabinet secretary, attorney general and judge. Let me present another example: In one of the iterations of Basic Law: The Government, the government could have no more than 18 ministers. In 1999, the elected government, for political reasons, needed to increase the number of ministers. This was something that had already happened in the past, for example in the National Unity governments of 1984-1990. In 1999, I was attorney general and based on my earlier experience as cabinet secretary I tried to dissuade the government from increasing the number of ministers. In an article I published 28 years ago concerning Basic Law: The Government, I wrote: “On the balance of considerations, it seems that there is reason to limit the number of members of the government, first and foremost for public reasons, related to the large expense from the public treasury inherent in each ministerial position – the minister’s office and accompanying allowences. Experience shows that all government functions can be fulfilled without difficulty with a composition of up to 18 government ministers. Governments that reached 26 ministers […] were no more effective than governments with a much smaller number of ministers.” I can therefore state unequivocally: All government missions can be conducted successfully and effectively with 18 ministers.

A framework to regulate this would have served the state well. The large number of ministers, which has reached new records, is superfluous from both a public service and financial perspective. Moreover, sitting in court, I was often saddened, not to mention horrified, by how the Knesset was losing its identity as a legislature and as a body supervising the government, and how the government controlled the Knesset like a puppet on a string. Petitions are submitted; what should the court do? Should it, like the three monkeys, see no evil, hear no evil and speak no evil? As our sages say: “My handiwork is drowning in the sea, and you are reciting a song?” Should it betray its role and say, “the elected representatives have decided, and peace be upon you” even if the result is instability that rocks the ship to and fro, a driven leaf?   And then, when the court speaks, comes the cry, “Why are you interfering”? After all, we know that constitutional intervention should be used sparingly, and that only 5% of constitutional petitions have been accepted.

Everything so far shows that the status of the Knesset is at a low point compared to the government. And the implications for the status of the court are clear, and humiliate it as well, exposing it not only to criticism but also to attempts to undermine it like the ones we have witnessed, especially in the past year. The question of intervention in Basic Laws, with all its problems, has now been determined in the affirmative. How do we extricate ourselves, at least to a significant extent, from this situation? By the way, contrary to the prevailing image among certain publics, the court is not really “searching for cases” in order to undermine the government and the Knesset. Quite the opposite.

In the absence of any possibility of a full constitution at the present time, Prof. Yedidia Stern has proposed a “thin constitution,” in other words a regulating framework of rules that can be agreed upon and is not heavily burdened by contrasting ideologies, and can thus contribute to stability. He has convened a group of scholars and advisers to attain this goal. A substantial portion of this “thin constitution” can already be found in the Basic Laws. Now the time has come to bind them together and add to them the keystone of this framework – Basic Law: Legislation. As already stated, we should see in this idea a step on the way to a constitutional text that will also include equality; it will be the beginning of the redemption, atchlata de’geula.

Prof. Ariel Bendor has catalogued the issues that need to be dealt with – the legislative process, its principles and stages – be they with regard to regular legislation or Basic Laws, judicial oversight including over Basic Laws, override and more. I should note here that I have long believed that if Basic Law: Legislation is passed and Basic Laws are adopted and amended by special procedure, there will be little need for judicial review of Basic Laws, as opposed to ordinary laws, although there will be those who disagree with me, for their own reasons, which should not be ignored.

Professor Stern has acted according to the Talmudic maxim, “If you grasped many, you did not grasp anything; if you grasped few, you grasped something.” It is for this reason that we have come together. Perhaps, also because of the approaching ruling, and I would like to hope that it will be for good, and that the double upheaval we all went through this year – “the judicial revolution” and the terrible war – will serve as a source of motivation for change, and perhaps will also pave the way for change. We hope not to be disappointed. This will require preparatory work, building on the legacy of our predecessors, but no less, and clearly so, we will be tasked with persuading the political establishment to learn the lessons of the difficult period we have been through.

And just one more thing: Modesty, which Nachmanides talks of as “the best of all virtues.” The effort we are engaged in must also be undertaken with modesty, not only because many good people have tried before us and not succeeded, but because of the very gravity of the issue.

Hoping for good luck, and the help of heaven.

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The post On a Thin Constitution first appeared on The Jewish People Policy Institute.

To this end, two working groups have been established: the first, the research group, is composed of professionals whose role is to propose the arrangements. The second group, the advisory committee (the Thin Constitution Council), accompanies and advises the research group. Its composition reflects all segments of Israeli society.

If we succeed in our endeavor, the State of Israel will benefit from a stable institutional and governmental framework.

The post Toward a Thin Constitution Anchoring Israeli Governance first appeared on The Jewish People Policy Institute.

It is hard to believe, truly inconceivable, that equality is not an entrenched constitutional value in the State of Israel. Our commitment to shaping Israel’s identity as a “Jewish state” cannot be fully realized when we turn our backs on the basic biblical commandment: “You shall have one manner of law for the stranger and home-born alike” (Leviticus 24:22). Our commitment to shaping Israel’s identity as a “democratic state” cannot be fully realized when we refuse to honor the commitment to this noble human right.

If it were up to me, the very first section of the country’s future constitution would affirm that the State of Israel is “a Jewish, democratic, and egalitarian state.”

Therefore, as a matter of principle, I unhesitatingly add my voice to the many contending that we should not be satisfied with simply enacting a “thin constitution” that establishes the rules of the game between the branches of government, as I earlier proposed (The Jerusalem Post, June 12). It must be accompanied by a constitutional anchoring of the principle of equality, in the spirit of Israel’s Declaration of Independence.

I wholeheartedly support this; enshrining equality in the constitution would be great news for the citizens of Israel, as it would allow judicial review of laws that undermine equality on the basis of race, color, gender, language, religion, nationality, ethnicity, social status, sexual orientation or age.

In Israel, the majority has already shown time and again that undercutting equality can wreak havoc – equality is essential for our common future. This is the case in other countries, and certainly in one torn by a culture war; a country that may be characterized, among other things, as “the state of all its minorities.”

That is the background to the fervent demand by parts of the protest movement against the judicial overhaul, who seek to take advantage of the current crisis to rectify flaws in our constitutional regime, and that the right to equality be enshrined as a supreme constitutional value. For them, this is a fundamental principle that must not be compromised in any way. But can this demand be met in the real world?

The constitutional instrument is powerful: through it, one generation, the one that establishes the constitution, obligates future generations to accept the values embedded in it. The use of this special power can only be justified if it is supported by broad public consensus in the enacting generation.

This is why the ambition of the current 64-member coalition to modify Israel’s political system and preserve that change for generations to come is illegitimate (regardless of the nature of the change). Endorsement by two-thirds of the electorate – represented by 80 Knesset members – is imperative.

It is also preferable that any future constitution be put to a public referendum in which a significant majority would be required. This is the only way the constitution would enjoy legitimacy for generations to come.

Consequently, those demanding “equality now” must overcome a factual obstacle: Is there a broad consensus in Israel at this time for making the right to equality an entrenched constitutional value?

The shock we have experienced over the past six months has convinced many of the need to establish an Israeli “common denominator.” There have been pleasant surprises from some outside the classic Israeli political Center, who are willing to accept a commitment to equality.

Even so, precisely because the scope of the right to equality is so wide, and because its impact on our lives – were it to become an entrenched constitutional norm – would be so significant, I do not think it is possible to reach a broad consensus for a constitutional initiative of this kind, desirable as it may be.

There is quite a gap between general statements in favor of “equality” and the positions that will be revealed once a real discussion gets underway. Equality is replete with ramifications for the interests and values of Israel’s various identity groups.

ATTEMPTS HAVE been made in the past by the Knesset to enshrine the principles of the Declaration of Independence in law. On the face of it, there should be no opposition to a Declaration of Independence Act.

The founding fathers were prepared in 1948 to grant “complete equality of social and political rights” to all citizens, including Arabs, at a time when the fledgling state’s Jewish majority was shrinking and it was embroiled in a war of survival against Arab armies. Then why should today’s strong and mature Israel, with its solid three-quarters Jewish majority, be unable to commit to equal treatment for its Arab minority?

Yet again and again we have seen that even a simple Knesset majority cannot be mustered in support of such an initiative, much less a broad consensus.

The Israel Democracy Institute’s “Israeli Democracy Index 2022” confirms this assessment. The survey examined the extent of support among the Jewish public for granting special rights to Jews in Israel, by virtue of its being a Jewish state. About half (!) of the country’s Jews support this.

The distribution, as expected, was by political camp (support on the Right, 62%; the Center, 33%; the Left, 11%), and according to religiosity (support among the ultra-Orthodox, 69%; among the National Religious, 67%; among the Masorti-religious, 67%; among the Masorti-non-religious, 52%; among the secular, 29.5%).

These are findings that pertain to a single topic. As noted, equality has many other important implications for a wide array of issues that divide and frustrate Israeli society. Thus, for example, it is absolutely clear that “equality” as a constitutional value would mean a dramatic change in the status quo relationship between religion and state. Is there a broad consensus in Israel today for such a change?

The protest movement seems to have succeeded in preventing the situation from worsening. But there is a significant difference between “avoiding evil” and “doing good.” Empirical findings from across the democratic world show that the majority can be kept from harming the minority through determined action by the minority (provided it is carried out in nonviolent ways).

But in a liberal world, it is not possible to impose a constitutional value on a sizeable part of the citizenry opposed to it. Insisting on the unattainable can prove dangerous. It could exacerbate the acrimony of the culture war we are experiencing and cause it to boil over. It raises expectations among the liberal public that cannot be fulfilled, and intensifies fears and concerns among the conservative public.

It is worth noting that even in our current situation, in the absence of a dedicated constitutional right to “equality,” the Supreme Court finds ways to promote equality. It will be able to, and I believe it will, continue to do so in the future. “Going to battle” for equality could drag us to a decision that will result, ironically, in its diminution.

When parts of the protest movement set the condition of “equality or nothing,” they lose a very important opportunity – more modest than desired, but more ambitious than currently found – for improving our public life: a thin constitution that would establish rules of the game for managing the ideological discord in Israeli society.

The solution requires a combination of forces. Let us promote, on the legal-constitutional level, a thin constitution that incorporates values conducive to the fair management of the political-public debate (such as freedom of expression).

At the same time, let’s promote recognition of the importance of equality in the other spheres of our national life – the educational, public, ideological, and religious ones – in order to win hearts and minds for its transformation, by broad consensus, into a constitutional value. Success in this last task is a prerequisite for the establishment of a constitution worthy of us.

First published by The Jerusalem Post.

The post Can equality be enshrined in an Israeli constitution now? first appeared on The Jewish People Policy Institute.

Israel is in a trauma center. At the President’s Residence, the political parties are negotiating a possible agreement on a few specific issues to stabilize the patient. But Israel needs more than emergency medicine. To heal, “big ideas” about Israel’s future are required. Three proposals are on the table: comprehensive judicial reform, a full constitution and cantonization.

Each of them is a dangerous illusion. All three demand decisive action in a reality that is not ripe for such sweeping change. A different idea, big but realistic, is needed – one that recognizes the fact that a culture war is underway, which cannot be resolved by any big idea, but nevertheless offers a dramatic improvement of our national life in a time of such stark division. I would like to propose such an idea: a “thin constitution.”

No one knows how the negotiations will end. It is likely that the prime minister will navigate through the minefield in which he has entrapped himself into a position that will spare him from having to make a tough decision. This way he will preserve his coalition without rekindling the full force of the protest movement that began this past January.

But anyone who thinks that such avoidance can turn back the clock is mistaken. The Israeli Center, a great bear that hibernated through a long winter, neglecting its post in the Israeli culture war, awoke in a burst of rage after a sharp jab to the ribs by the proposed judicial overhaul.

How the judicial reform tore Israel apart

Now, the bear is more alert than ever, and it is unlikely that it will slip back into slumber in the foreseeable future. And so, even if the prime minister makes it out of the present crisis with no additional damage, things will not go back to the way they were. The attempt to avoid a decision may dampen the weekly protests and create the impression that things have returned to normal, but the depth of the events of the past six months has already been ingrained into an entire generation’s consciousness.

For years we have neglected the fundamental questions of Israeli society – first and foremost the relationship between Jewish particularism and liberal-democratic universalism, and the array of theoretical and practical conclusions that derive from it. Our entire national conversation was swallowed up by a black hole: the question of the territories. Public debate has focused on where the borders should be, not on how the state inside those borders should look.

At this time, however, when many Israelis on the Right, the Center and even parts of the Left see no chance for a peace process vis-à-vis the Palestinians, the black hole’s gravitational pull has weakened. The main axis around which the political discourse revolved, the future of Judea and Samaria – the debate that defined “Right” versus “Left” – has rusted out in the past decade. Israel has shifted its attention inward.

The introspective impulse has gained momentum in the last decade. Identity politics has occupied a significant place in the national conversation – it has created a new or renewed sphere of controversy around identity groups based on religion, nationality, ethnicity and geographic location. President Reuven Rivlin’s 2015 “four tribes” speech conceptualized the topic and made it accessible to the general public. The rifts that had been revealed within society turned out to be not only chronic, but also partly overlapping – the same identity group on one side of various rifts – making them difficult to bridge. And yet, the Center continued to conduct itself with relative complacency. It did not feel threatened.

This was the case until January 4, 2023, when Justice Minister Yariv Levin announced the first phase of a four-stage reform with no attempt to clarify the next stops along the way, or about what awaits Israel at the final stop. This roused the Center in a game-changing way. It became clear to many that a government unique in Israeli history – a “fully” right-wing government – could decide the culture war in favor of particular identity groups, those constituting the current ruling coalition.

The sheer audacity of the plan, and the aggressive way it was marketed, punched a hole in the fabric of Israeli national life, and through it, poured the boiling lava of identity discord. Even if a way is found to patch over the hole – through a compromise arrangement – it will not provide an infrastructural solution to the identity crisis. It is only a matter of time before the lava erupts again.

This concern is the driving force behind the creative energies working to devise a broad and principled response to the identity dispute. As mentioned, various proposals have been raised.

Constitution vs cantonization: Two proposed solutions for Israel

Some strive for the enactment of a constitution. They hope to heal the nation through a “new social order” that includes a definitive determination of the state’s identity and its fundamental principles, while also expressing a national commitment to codifying a comprehensive bill of human rights and the protection of minorities.

That determination, if it is anchored in a binding constitutional document entrenched in a way that makes it very difficult, though not impossible, to change in the future, would shape a new pan-Israeli partnership for generations to come. A constitution would guarantee the Israeli Center that the extremes threatening it – those who wish to strengthen the Jewish (religious and/or national) identity component over the democratic one, or the democratic identity component over the Jewish one (by diluting the particularist character of the nation-state) – would be unable to impose their will.

A constitution would reduce the appetite of potential revolutionaries by setting limits on their capacity to upend national stability. Once we commit to a constitution, its proponents claim, calm will prevail.

Others aspire for the establishment of a federation. In their view, Israel should be organized as an array of autonomies, each tailored to the desired dimensions of one of the country’s identity groups, which would exist side by side in a federative framework.

The realization of this idea, which has been termed “cantonization,” would enable each group to manage its own affairs as it sees fit in predefined fields, and to bear responsibility for its choices – at its own expense and not at the expense of others. Many flowers would bloom, and no one would impose anything on anyone else. According to this proposal, the Israeli partnership would be reduced to a bare minimum, which would not rely upon points of ideological consensus regarding the state’s identity.

These two proposals take opposite approaches to resolving the Israeli culture war: a constitution would bind us together, while cantonization would recognize the sharp differences between us and grant them legal and practical validity. Yet the two approaches do have something in common: neither is feasible, and any serious attempt to promote either of them would deepen the crisis even beyond what we have experienced this spring.

A constitution is a noble idea. I have dedicated years to the design of a constitution for the State of Israel, and no one would be happier than me to see one enacted. But in the current situation, I must oppose such a move. Today’s identity politics, which is based on differentiation from, and demonization of, the other, is a killing field for constitutional politics, which is based on compromise over fundamental issues. The thought that a broad Israeli consensus on questions of identity and values could be reached at this time is an illusion, and it would be irresponsible to make that idea a political objective. Please note: Even the canonical text of the Declaration of Independence – sacrosanct in the secular sense – is unfortunately becoming a subject of controversy in society.

Cantonization is a bad idea. It would provide normative legitimacy and political solidity to the identity dispute. Instead of managing it, it would intensify it. If Israel becomes “a state of all its tribes,” it is likely that the centrifugal forces that drive us apart today would accelerate dramatically. The hope that the tribes would all live side by side in peace, thanks to their autonomy, would be shattered by a reality in which each tribe is organized independently, and with legal backing. The competition that would ensue for control, for influence and for dominance in shaping the public ethos would heighten and fortify the walls that already separate us today, unscalable obstacles that would frustrate any attempt at joint action to achieve national goals.

RATHER THAN aiming for a unifying constitution or a divisive cantonization, it would be more appropriate to pursue a different kind of solution, one that is relatively modest but reasonably feasible: a “thin” constitution.

Solving Israel’s political crisis with a “thin” constitution

While a full constitution comprises three parts – an identity section that lays out the nature of the state, a rights section that includes a bill of human rights, and a section that deals with the branches of government – a thin constitution, sometimes called a “procedural constitution,” only includes the third part. It would regulate the three branches of government (their composition and how it is determined, their powers, their modes of operation and the division of responsibilities between them, including the separation and balance of powers) as well as the institution of the presidency, the state comptroller, the state budget and the military. One could also add to this the regulation of local authorities and municipalities. A thin constitution does not deal with identity-related matters, but it sets the rules of the game for the operation of the state.

Some of the aforementioned issues are not yet regulated by Basic Laws (such as the legislative process), and some indeed are (for better or worse) but stand on shaky ground because a coalition can cancel or amend them without any special procedure (with a few exceptions). A simple Knesset majority can also enact new Basic Laws in a routine legislative proceeding.

This is a flaw that places Israeli democracy on a slippery and dangerous slope. The Basic Laws, which aspire to be part of the constitution, are putty in the hands of the Knesset and easy prey for the whims of the governing coalition, which can advance revolutionary changes of all sorts, such as divesting the Supreme Court of its authority, restricting the voting rights of some citizens, altering the state’s Jewish character or modifying the state’s democratic character. Additionally, if it is decided that the Supreme Court lacks the authority to conduct judicial review of Basic Laws, there would be no legal backstop to a determined majority’s desire to change Israel as it sees fit.

This is not a theoretical concern: all of the country’s recent prime ministers chose to amend Basic Laws in accordance with their immediate political exigencies (e.g., the “rotation government,” whereby the premiership changes hands part way through its term). The judicial reform currently proposed is just another step, albeit an extraordinarily extreme one, along a path already charted by others.

In constitutional democracies, the rules of the game cannot be changed casually – with a simple parliamentary majority. Because of their vital importance, the rules are embedded in an entrenched constitution, meaning that they can only be changed in accordance with strict requirements, such as a parliamentary supermajority, consent of both houses of a bicameral legislature, approval by all or most of the states in a federal framework or by public referendum. Further, in most countries, a constitutional culture prevails that precludes changing the rules to suit momentary convenience.

The social and ideological divide within Israel makes it impossible to decisively settle the culture war currently underway. But this divide would not prevent us from accepting the authority of a thin constitution – a mutually agreeable framework for managing our conflicts in the future. There is a real likelihood that we can reach a consensus on the rules of the game, as they do not deal with the different value systems that fuel the culture war.

True, at this moment in time, the Knesset is regarded as a body where sensitivity to the state’s Jewishness is strong, while the Supreme Court is perceived as more acutely sensitive to the state’s liberal character. That is the reason why the current coalition, which is not liberal, wants to transfer power from the judiciary to the political arena. But this is a shortsighted calculation; the present situation is not a law of nature.

Thus, for example, there is no safe bet as to who will win the next election and form a governing coalition. Therefore, everyone has an interest in optimally stabilizing the system, as every party could potentially find itself sitting in the opposition. Entrenched rules would protect them.

This is also true regarding the composition of the Supreme Court: at one time, a large majority of its justices could be classified as liberals, but today the balance of power is changing; at least a third of the justices are conservatives. If the selection method for the chief justice remains unchanged, a conservative judge will inevitably be appointed to lead that respected institution.

The Supreme Court of the United States already provides us with an example of a leopard changing its spots: the court has radically changed in recent years, becoming the nation’s bastion of conservatism. There is no way to know whether something similar will or will not happen here as well.

The uncertainty regarding the future composition of the Knesset and the Supreme Court is an excellent basis for conducting a discussion on the rules of the game that will lead to an optimal result. As the political philosopher John Rawls taught us, in negotiations for a fair and just society, a reasonable outcome can be achieved if each negotiator is “behind a veil of ignorance” – that is, they don’t know going into the negotiating process in what social position they will find themselves at its conclusion.

This ensures that the discussion will be conducted in an impartial and unbiased way. Although the opponents in today’s culture war have well-known ideological preferences, they are superfluous to refiguring the separation of the branches of government and the complex relations between them and offer neither side an escape from the proper position for making fair decisions – behind a veil of ignorance.

Will Israel’s leadership be able to give up the illusion of a decisive win – revolutionary reform, a full constitution or cantonization – and lead us to the safe haven of a mutually-acceptable long-term arrangement for managing the Israeli culture war within the framework of a thin constitution?

First published by The Jerusalem Post.

The post Can Israel’s political strife be solved by a ‘thin’ constitution? first appeared on The Jewish People Policy Institute.