opinion
Thane Rosenbaum
I t was just Presidents Day in America, which,
for reasons having perhaps something to
do with slumbering patriotism, has long
been associated with mattress sales. This year,
however, there’s a real fear that America’s
friend Israel is in danger of putting its democ-
racy to bed.

That’s right: Israel, the only democracy in
the Middle East — or anywhere near that
region, for that matter — is undergoing a
constitutional crisis. The country has been
democratic since its inception, commencing
with a Declaration of Independence the day before five
Arab armies declared war against the fledgling Jewish
state. America has a similar origin story — with 13
colonies taking on the British Empire soon after July 4.

When these allies of the Enlightenment — America and
Israel — speak of shared values, that’s what they mean.

This week, Americans may be reclining, but Israelis
will be standing upright in mass protest. The new
coalition government, the most conservative in Israel’s
history on a range of issues, is moving against its
own Supreme Court with a panoply of reforms that
opponents believe would undermine the separation of
powers and the principle of judicial review.

But let’s not get ahead of ourselves. Israel is still a
very young country, nearly 75 years old, and very much
a free society in an increasingly less democratic world.

In 2012, there were 42 liberal democracies. Today, there
are but 34. Poland, Turkey, Hungary and Russia are
clearly now off the board, precisely because, among
other features of authoritarian rule, none possess the
checks and balances of independent judiciaries.

Many Israelis see the overhaul of their Supreme
Court as an ominous sign that they are next. It is
an especially sensitive subject. Maintaining Israel’s
democratic character is a numeric challenge in a nation
that intends to remain a Jewish state. Israeli Arabs
already comprise 20% of the population. There are
other minorities in Israel. With declining Jewish birth-
rates and loud whispers within the new government of
annexing the West Bank and absorbing its Palestinian
population, the Jewish majority will dissipate further. A
majority-rule voting public could one day take the Star
of David out of the Israeli flag.

Suddenly, the conflict with the Palestinians is being
subordinated to an internal conflict among Israelis
about the contours of their democratic governance.

In principle, the Knesset really should address serious
16 FEBRUARY 23, 2023 | JEWISH EXPONENT
problems with its judiciary that are long overdue. There
is no appellate court other than the Supreme Court in
Israel. That means that its 15 justices hear everything
— the appellate review of trial court decisions, the inter-
pretation of its Basic Laws and the legality of military
operations, security fence and building of settlements.

There is probably no more overburdened high court, or
one with a broader portfolio, on the planet.

Moreover, unlike the American judicial system, Israel
largely places the responsibility of selecting judges
in the hands of lawyers — not voters, legislators, the
cabinet, prime minister or president. Perhaps that’s too
much independence, which is why the government is
seeking more control over judicial appointments. And
the Israeli Supreme Court, unlike most liberal democ-
racies, exercises almost unchecked authority in inval-
idating legislation. That’s why the new government’s
overhaul proposal includes an override that would
enable lawmakers to preserve legislation that the court
may have just ruled to be unconstitutional.

Speaking of the constitution: Israel does not actually
have one. It may be a constitutional democracy, but it’s
one of three countries (England and New Zealand are
the others) that functions without a written constitution.

Israelis just never got around to drafting one. They
have Basic Laws (think of them as an evolving Bill
of Rights), which they have enlarged and amended
repeatedly. The expectation was that eventually they
would all become incorporated into an actual Israeli
constitution. Days and years passed, along with wars
against its Arab neighbors, the terrorism of Palestinians,
startups in high- and biotech, the blooming of barren
land and desalinating of the Mediterranean Sea.

Honestly, who had the time for a constitutional
convention? America had its constitutional drafters in James
Madison, Alexander Hamilton and The Federalist Papers.

Israel became better known for its Mossad and
Nobel Prizes. Being surrounded by two major
oceans gave America room to operate — to
develop a body of law with oversight from three
distinct branches of government.

Israel has never had that geographic luxury,
is not set up for such governmental interplay
and has never known a single day of peace.

It has always been a magnificent work in
progress, blessed with the agility of a people
who know how to improvise and mobilize in a
hurry. Like the ancient Hebrews baking bread
without yeast in the desert, Israel inherited
that same resourcefulness, making do with all
deficits with deftness and calm.

All that enterprise came with consequences, however.

Some things simply got left undone. Israel developed
a shadow constitution on the fly and without a name. It
borrowed elements from other democracies — England,
Norway, France and Canada — and even some features
from the Ottoman Empire and Bahrain. Yet, it even forgot
to include freedom of speech as a Basic Law.

Perhaps it’s now time for Israel to finally anoint its
Basic Laws with constitutional status. And that same
constitution should clarify the powers and limitations of
the Supreme Court. Judicial review and independence
must be respected, but the Court can’t hold absolute
veto power over the actions of the government and
legislation of the Knesset.

Americans who were displeased with the Supreme
Court’s decision overturning Roe v. Wade knew that
individual states were free to enact a woman’s right
to choose, the House and Senate could codify a
federal right to an abortion and the president could
issue an Executive Order doing the same. That’s what
Separation of Powers means in practice, and precisely
what Israel lacks.

Democracies are messy. But Israel has never shied
away from conflict. It might just emerge stronger from
this constitutional crisis. Actually, it must. As a beacon
of freedom, the light must stay on. Israel knows that its
neighbors are despots and theocrats, and that minori-
ties, women and homosexuals around the region all
wish they lived in Tel Aviv. That has everything to do
with the freedoms that are enjoyed in and the moral
authority bestowed on a liberal democracy. ■
Thane Rosenbaum is a novelist, essayist, law professor
and distinguished university professor at Touro
University, where he directs the Forum on Life, Culture
& Society. He is the legal analyst for CBS News Radio.

This was originally published by Jewish Journal.

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Israel’s Shadowy Constitution