The Foundation for Constitutional Democracy

X - Democracy and Judaism
Professor Paul Eidelberg

If it be said that democracy is inconsistent with Judaism, no less than Spinoza would agree. Spinoza, the father of liberal democracy and of modern biblical criticism, deemed the Torah anything but democratic. Yet distinguished rabbis and jurists contend that the two are consistent. To resolve this contradiction, I shall distinguish between two types of democracy, “contemporary” or normless democracy and “classical” or normative democracy.

Democracy has two basic principles, freedom and equality. Whereas freedom, in contemporary democracy, means “living as you like,” equality legitimates all “life-styles.” This is why moral equivalence and hedonism now permeate democratic societies. Hence one may ask: “What is there about democratic freedom that would prompt youth to restrain their passions, to be kind, honest, and just? What is there about democratic equality that would prompt a person to defer to wisdom or show respect for teachers or parents?” (more…)

IX - Importing Political Wisdom From America to Israel
Professor Paul Eidelberg

One cannot possibly appreciate the political wisdom of America’s founding fathers without assiduous study of James Madison’s notes on the debates of the Constitutional Convention together with their elucidation in The Federalist Papers, which he co-authored primarily with Alexander Hamilton.

One of the principles of statesmanship manifested at the Constitutional Convention and virtually forgotten in our own time is this: how to get men to agree to a common course of action for different reasons. Superficial commentators find the answer in the notion of “compromise”; indeed, they describe the American Constitution as a “bundle of compromises.” This partial truth obscures the nature of philosophic statesmanship. Here I shall present an example of this statesmanship most relevant to Israel. (more…)

VIII - Judicial Dictatorship
Professor Paul Eidelberg

“The Supreme Court rules… The Court [has] asserted its power over every branch and level of government …” Thus begins a two-page NEW YORK TIMES article of June 27, 1999, detailing how the US Supreme Court has altered the character of American society.

Although the Court does not make many decisions – roughly 170 of some 7,000 annual petitions for review – their decisions impact society’s pressure points, from police authority to questions of privacy, discrimination, citizenship, free speech, employment, federalism. Scholars refer to the Court’s expanding power as “judicial dictatorship.” This is the title of an essay by Professor William J. Quirk (Transaction, Jan.-Feb. 1994). (more…)

VII - Refuting Arguments Against Presidential Government
Professor Paul Eidelberg

Various arguments are made against presidential vis-a-vis parliamentary government. Some political scientists contend that, given the president’s fixed term of office, the political process becomes broken into discontinuous, rigidly determined periods without the possibility of continuous readjustments as political, social, and economic events may require. No evidence, however, is offered to substantiate this academic contention. One may equally argue that most governments under parliamentary systems run their allotted tenure of four years and are equally discontinuous.

Alternatively, it could be argued that presidentialism reduces the uncertainties and unpredictability inherent in parliamentarism. Parliamentary systems usually involve a large number of parties whose leaders and their rank-and-file legislators often undergo changing loyalties and realignments and can therefore, at any time between elections, make basic policy changes and even change the head of the executive, i.e., the prime minister. A country like Israel, surrounded by hostile dictatorships, requires strong and predictable executive power, hence presidential government. (more…)

VI - A Model for Israel’s Supreme Court
Prof. Paul Eidelberg

Israel’s Supreme Court is a creature of the Knesset, and the Knesset is very much subservient to the Government, i.e. the Cabinet. In principle, and for the most part in practice, the Court lacks the power to adjudicate governmental acts of questionable legality. As a consequence, previous governments of Israel have at times ignored some of the basic and even criminal laws of state—or so it has been maintained by eminent Israeli and American law professors.

Needed in Israel is a Supreme Court comparable to the American Supreme Court whose power of “judicial review” vis-à-vis acts of government is very much indebted to the Torah, specifically, the (Great) Sanhedrin. (more…)

V - A Critique of the Reichman Constitution
Prof. Paul Eidelberg

Introduction

The so-called Reichman Constitution (hereinafter, the “Constitution”) was published in 1988 under the chairmanship of Uriel Reichman, professor of constitutional law at Tel Aviv University. The drafting committee consisted of ten academics, none of whom was a rabbi. The committee consulted more than twenty other academics on various constitutional issues. Included were professors from prominent American universities—but again, not a single rabbi. Yet the constitution in question was intended for the Jewish State of Israel, a state in which 82% of the population were then Jewish (the figure is now 79%), of which 25% are Orthodox, while another 55% are traditional.

Although the Constitution is a well-crafted document, its 48-page length and technicalities render it largely incomprehensible to ordinary citizens, for whose benefit it was ostensibly designed. Unlike the Torah, it was written for lawyers, not laymen. Not only is the Constitution a thoroughly secular document, but it was made for Israel’s ultra-secular Supreme Court and clearly intended to augment and legitimize the Court’s enormous de facto power. Nevertheless, despite its fundamental ideological and institutional flaws, this constitution is preferable to the Israel’s existing system of government, which is leading to the country’s self-destruction. What follows are actual chapter headings used in the document and a brief critical analysis. (more…)

IV - How To Gain Support From Religious Parties
Professor Paul Eidelberg July 5, 1999.

The religious parties are inclined to oppose a constitution. They fear it will legitimize and further enlarge the power of the Supreme Court, which not only has a Meretz-Shinui agenda, but has usurped powers rightly belonging to the legislative and executive branches of government. (This is why the religious parties—and not only the religious parties—would oppose the Reichman constitution, which would lead to “government by the judiciary.”)

Although our Foundation, which advocates a constitution, includes rabbis—indeed, no less than the renowned Rav Aaron Soloveitchik has consented to serve as our Halachic adviser—still, many religious people object to a constitution saying, “We have a constitution, the Torah.” There are ways of overcoming such opposition. (more…)

III - Electoral Thresholds
Professor Paul Eidelberg July 5, 1999.

Electoral thresholds, like age qualifications for voting or for holding office, are not entirely arbitrary. We know that a 3% electoral threshold for the Knesset would have no significant affect on the number of parties in the Knesset. Had a 3% threshold been operative in the May 1996 elections, it would have eliminated three parties, except that the parties endangered by such a threshold would have formed joint lists. A 4% threshold would have eliminated two other parties, but they too would have combined with one or another party.

After one or two elections, a 5% threshold would produce a Knesset with no more than five parties or party coalitions. Since these coalitions would have to campaign on a common platform, this would tend to enlarge their political horizons and minimize extremism. With no more than five parties in the Knesset—improving its deliberations—the Cabinet would consist of two or three parties. This would facilitate more coherent and resolute national policies and thus contribute to national unity and national security. (more…)

II - How to Increase the Power and Dignity of the Knesset
Prof. Paul Eidelberg

The 1949 Transition Law renders the Knesset the most powerful branch of Israeli government, if not the most powerful legislature in the world. In fact, however, the Knesset is not only weak, but it is losing more and more of its remaining power to the Supreme Court. This is ironic, because the Supreme Court, unlike its American counterpart, is not a co-equal branch of government. To the contrary, it derives its legal power from the Knesset! Nevertheless, the Court now acts like a super legislature, arousing criticism from former Supreme Court justices as well as ­from politicians and academics across the political spectrum. (more…)

I - Why Israel Needs A Presidential Form of Government
Professor Paul Eidelberg

The first concern of any statesman is National Unity on the one hand, and National Security on the other. This should be obvious in a country like Israel, surrounded by autocratic regimes.

To obtain national unity, Israel needs a Unitary Executive. Even now, with a popularly elected prime minister, Israel has not a Unitary but a Plural Executive. This is the consequence of coalition cabinet government. Coalition cabinet government, with its multiplicity of parties—each with its own agenda—is inherently incapable of formulating and executing coherent, comprehensive, and resolute national policies. (more…)