The Foundation for Constitutional Democracy


10 Short Position Papers - V

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


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.

I. Basic Tenets

1. One tenet affirms, “The State of Israel is the state of the Jewish people, founded on this people’s eternal right to sovereign existence in the Land of Israel.” (The phrase “eternal right to sovereign existence in the Land of Israel” is illogical, unless that eternal right is derived from God as proclaimed in the Torah. Unsurprisingly, however, the Constitution makes no reference to God, as do several European constitutions.)
2. A second tenet declares, “The State of Israel is a democratic state. The source of all governmental authority is the will of the citizens as expressed in free elections and referenda.” This tenet contradicts the previous tenet. It substitutes “citizens” for the “Jewish people.” In fact, appearances to the contrary notwithstanding, this Constitution reduces Israel to a “state of its citizens” as opposed to a “Jewish State.” (Contrast Israel’s Declaration of Independence, which not only proclaims Israel a JEWISH State, but does not contain the word “democracy,” even though it prescribes political quality for all inhabitants of the state).

B. General Provisions

The Constitution affirms the Law of Return, which accords to every Jew the right to immigrate to Israel and to acquire citizenship. This is the only politically significant, Jewish aspect of the document, apart from its affirmation of Israel’s current Flag, Emblem (Menora), and Anthem (“Hatikvah”).

III. Human Rights

1. Eight pages are devoted to 31 “Human Rights.” One can agree with almost all of them. Indeed, perhaps unknown to the Constitution’s authors, most of the stated rights may be derived from Jewish law! (For example, the right to privacy, presumption of innocence, no self-incrimination, workers rights, and many others.) However, three things are to be noted.
a. The multiplicity of rights is bound to lead to excessive litigation and magnify the power of the Supreme Court vis-à-vis the legislative and executive branches of government. Indeed, the Constitution will legitimate “government by the judiciary” or the “Courtocracy” called such by critics across the political spectrum.
b. Second, the Constitution’s excessive emphasis on “personal freedom” stamps it as a permissive document. It would enable the Supreme Court to continue to nullify any laws affecting homosexuality, same sex marriages, and other “lifestyles” that undermine the family, the soul of Judaism. Contrast Israel’s Declaration of Independence, which speaks of freedom “as understood by the prophets of Israel”—far removed from the permissive freedom of contemporary democracy.
c. Third, the list of human rights concludes as follows: “The limitations of a human right pursuant to any provision in this chapter shall be conditional upon such limitation being consistent with the democratic character of the State of Israel.” No mention is made of limiting any so-called human right which may become inconsistent with Israel’s being the State of the Jewish people.
2. However, and perhaps contrary to the authors’ intentions, it would be perfectly consistent with this last quoted human right to limit political equality if unqualified application of political equality threatened the democratic character of the State! Such would be the case if non-Jewish citizens, averse to democracy, outnumbered Israel’s Jewish citizens!

IV. The President of the State. This chapter on the President more less duplicates the existing institution, which in the present writer’s opinion, is superfluous.

V. The Knesset

1. This chapter contains the first solid improvement over the existing system. It prescribes a Knesset of sixty members elected on a personal candidature basis in 60 district elections. The rest of the (120-member) body is elected in proportional national elections. A better ratio would be 80 to 40 favoring constituency elections.
2. The R-Constitution retains the system of fixed or closed party lists for the national elections. A more democratic system would be open party lists, which would allow the voter to alter the order of candidates listed by the party of his choice.
3. The proposed Knesset has a 2.5% electoral threshold. This would have no effect on the existing Knesset. No more than three of the present 15 parties in the Knesset would be adversely affected by such a threshold, and they would join other parties to avoid elimination. A 5% threshold would be more conducive to national unity as well as more coherent and resolute national policies.

F. Legislation. The four pages devoted to legislative procedures are excessive and an obstacle to popular comprehension of the document. Except for some general constitutional guide lines, the legislature should formulate its own procedures based now on five decades of experience.

G. Treaties. This chapter rightly gives the Knesset the power to ratify treaties, which it now actually lacks (except by a never-effective use of a vote of no-confidence). Also, a thirty-day period must elapse before treaties are ratified. (No more fait accomplis ala Oslo.) However, the chapter fails to specify any extraordinary majority for ratification.

H. The Government: This chapter rightly provides for direct, i.e., popular, election of the Prime Minister. Another good feature: Neither the PM nor his chosen ministers will be Knesset Members. But the PM is limited to two terms, leading to the unfortunate phenomenon of a “lame duck” prime minister. There are irrefutable arguments against this provision in the FEDERALIST PAPERS.

IX. The Judiciary

1. This is the most questionable chapter. It endows the Supreme Court, an oligarchic body, with excessive power. Enough that the court will have judicial review. But the Constitution also makes the Court a “Constitutional Court” overseeing the constitutionality of legislation in the absence of litigation by any private citizen. The Supreme Court would be the most powerful court in the world.
2. The document fails to mention the status of Jewish law in the state’s legal system. It therefore ignores the 1980 Foundations of Law Act which severed Israeli law from the binding force of English law, and provided: “Where a Court finds that a legal issue requiring decision cannot be resolved by reference to legislation or judicial precedent, or by analogy, it shall reach its decision in the light of the principles of freedom, justice, equity, and peace of the Jewish heritage.”

There are several other chapters in the Constitution, such as the State Comptroller, the Economy, the Army, and Public Administration, much of which, it seems to me, is pedantic.

One other chapter is worthy of comment, Political Parties. “The right to found and maintain a party is shall not be impaired unless the Supreme Court, in proceedings prescribed by law, has held its objects or the objects of its founders entail any of the following: (1) negation of the State of Israel as the state of the Jewish people; (2) negation of the democratic character of the State; (3) incitement to racism. This provision is contained in the 1982 Party Law, which has been applied only against the late Rabbi Meir Kahane’s Kach Party. It has not been applied against any of Israel’s Arab parties despite their blatant negation of the Jewish state.

Significantly, the Reichman Constitution makes no reference to National Unity. It is a thoroughly pluralistic document very much influenced by contemporary, i.e., libertarian American thought and practice. It thus appears oblivious of Israel’s precarious situation in the Middle East and the country’s dire need of national unity, the first concern of any statesman.

Summing up: The Reichman Constitution is silent about Judaism and Jewish law. It contains a fatal contradiction between the “State of the Jews” and “democracy,” by uncritically accepting the permissive freedom and indiscriminate egalitarianism of contemporary democracy, as opposed to classical democracy, where freedom and equality had ethical and rational constraints. Although I would not feel proud or very optimistic living under this constitution—for it will not overcome the religious-secular conflict exacerbated by the Supreme Court—I prefer it to the existing system of government. Surely, with astute selection of its good points, Israel can do much better.