The Foundation for Constitutional Democracy

01-Jan-2002

Why Israel Needs A Constitution

Filed under: GeneralConstitution & Rights — eidelberg @ 5:17 am

Professor Paul Eidelberg

[Based partly on a paper presented at the American Political Science Association annual conference in Washington, DC on August 31, 1997, and partly on the author’s book Jewish Statesmanship: Lest Israel Fall (2000)]

Introduction

To show why Israel needs—and desperately needs—a Constitution, it will be necessary to expose the fatal flaws inherent in her present form of government. Before doing so, let us anticipate objections that any proposed Constitution may arouse at this moment in Israel’s history.

It may first be said that Israel is so faction-ridden that a Constitution, however desirable, is utterly impractical. Moreover, so imminent are the dangers confronting Israel that to place a Constitution on the public agenda may be deemed a mischievous distraction. Hence the burden of justifying, let alone of implementing, a Constitution for the State of Israel in the present juncture of domestic and international affairs appears insuperable.

If it can be shown, however, that Israel’s political system — really a melange — is itself a fundamental cause of her internal crises, and that these crises enfeeble the country and magnify its external dangers, it would logically follow that Israel will not overcome her precarious situation without drastically changing her system of government. In fact, given the prolific birthrate of Israel’s Arab citizens, the existing system will collapse in the near future. Hence I contend that a Constitution comparable to the one proposed in this paper is essential to Israel’s salvation. But first, let us understand why Israel has no Constitution.

1. The Unconstitutional Basis of Israel’s Form of Government

A. The Failure of a Constituent Assembly

Few people are disturbed by the fact that the Proclamation of the Establishment of the State of Israel, which was promulgated by the People’s Council on May 14, 1948, explicitly requires the drafting of a Constitution for the Jewish State. The Proclamation calls for an “Elected Constituent House” to be convened not later than October 1, 1948 to adopt a Constitution for the fledgling State. Although the War of Independence intervened, Israel’s Provisional Government in 1949 arranged for the election of a Constituent House to write the country’s Constitution and prepare elections for Israel’s parliament, the Knesset.

The House was duly elected and appointed a Constitutional Committee consisting of various party spokesmen, a majority of whom were Socialists. A draft Constitution was submitted to the Committee by Dr. Leo Kohn. The most controversial issue involved the political status of Israel’s Arab inhabitants. The draft Constitution prescribed equal political rights for Arabs except in the case of the President who had to be a Jew—a logical conclusion given the Proclamation’s repeated reference to Israel as a “Jewish” State.

Mapai and Mapam spokesmen rejected this logic. They did so not by the contrary logic of democracy, that is, of indiscriminate equality, so much as from fear that a constitutional provision requiring Israel’s President to be Jewish would be regarded by the world as “racist.” (MK Michael Kleiner’s recent proposal that the office of Prime Minister be limited to Jews was also rejected as “racist.”)

Meir Loewenstein of the religious Agudat Yisrael party dismissed such fear as cowardice. He urged his colleagues not to worry about any “racist” slur. Zorah Wahrhaftig, representing Mizrachi and Ha-Poel Mizrachi, two other religious parties, dismissed left-wing fears as unjustified. He noted that the proposed Constitution would in other respects favor Jews, such as their unrestricted right of immigration and almost instantaneous citizenship. Hence he saw no compelling reason why a Jewish State should hesitate to make clear that its “first citizen” is a Jew.

The controversial provision was nonetheless deleted, largely from fear of anti-Semitism. This fear, no less than their democratic predilections, induced the founders of the supposed-to-be Jewish State to fashion Israel’s political institutions according to non-Jewish concepts. Decisive at the birth of the State was the timidity and secular mentality of Israel’s dominant political parties, Mapai (now Labor) and Mapam (now part of Meretz). This must be borne in mind when examining the flaws of Israel’s present system of government and the constitutional remedies proposed herein. Contrary to common opinion, the religious parties were not initially adverse to a written Constitution. To be sure, opposition will now be expressed by various religionists; but whether they would reject the Constitution outlined below (and personally elucidated by its author) remains to be seen.

Not only did the Constituent House fail to adopt a Constitution, but it appointed itself as the first Knesset! The Knesset proceeded to assume absolute power, at least in theory. In fact, however, the Knesset delegated virtually unlimited power to the Government, i.e., the Cabinet. The power of the Government is virtually unlimited precisely because the People of Israel have been arbitrarily deprived of a constitutional foundation for limited government. The People were never properly consulted about Israel’s system of government. They have tacitly consented to that system because they believe— and they have been educated to believe—that the present system is not only legitimate but democratic. Such a belief has no solid theoretical or empirical foundation.

B. The People Do Not Rule: why the Government is Weak in Foreign Affairs

Democracy literally means the rule of the people or popular sovereignty, which reduces to the rule of the majority. Majority rule requires political equality, more precisely, universal suffrage or one adult/one vote. Universal suffrage exists in Israel. Democracy also requires political freedom, the freedom to form political parties and compete in periodic elections for the control of the Government. Such freedom exists in Israel. I will nonetheless argue that despite universal suffrage and periodic multiparty elections, popular sovereignty does not exist in Israel, except on one day in roughly four years. I will also show how the lack of popular sovereignty renders Israeli politicians less capable of resisting international pressure. Indeed, we shall see that how Israeli politicians react to such pressure depends not only on their own moral and intellectual character but also on the character of Israel’s political institutions, a factor ignored by other commentators.

Since 1996, Israeli governments have consisted of no less that seven parties, each with its own agenda. Even if headed by wiser and more dauntless prime ministers, it would be virtually impossible for such governments to pursue a coherent, resolute, and long-term national strategy. This medley of parties, which renders the Cabinet a collection of fiefdoms, is the result of a system proportional representation based on an electoral threshold of only 1.5 percent. This is by far the lowest electoral threshold among some fifty countries using proportional representation. What is more, Israel is the only reputed democracy that employs fixed party lists, and without constituency elections. This is a formula for party dictatorship. Party dictatorship not only undermines popular sovereignty, but, strange as it may seem, it diminishes Israel’s independence vis-à-vis her patron, the United States. Let me explain.

Assume that the leader of party A is Israel’s Prime Minister, and that the leaders of parties, B, C, D and E are his cabinet ministers. Now, because a majority of the Knesset’s members (MKs) owe their position and perquisites to these parties and not to the votes of constituents, they cannot function as judges of their Government’s policies as do legislators in all democratic countries. If an MK were to vote against his Government he would be committing political suicide. This will inhibit him from resisting policies he deems unwise or self-destructive. He will then be less able to resist the same foreign pressure prompting his Government to pursue that questionable policy. Meanwhile, because the voters have no individual Knesset Member accountable to them, whom they could then expect to uphold their basic interests — which may well be opposed to the Government’s foreign policy—they themselves, the voters, will become unduly sensitive and more subservient to “world opinion.”

Therein is a hitherto unnoticed reason why Israeli governments — no longer in the youth of Zionism—have yielded to the American State Department’s post-Six Day War policy of “territory for peace,” contrary to the deepest convictions of a large majority of Israel’s Jewish population. If this majority’s convictions on the territorial issue have since been eroded, a basic cause is this: they lack Knesset representatives of their own choosing.

Let us recall the 1992 Knesset elections—the elections that brought Labor to power. Labor, attentive to overwhelming public opinion confirmed by professional polls, promised No withdrawal from the Golan, No negotiation with the PLO, No Palestinian state, and No negotiation over Jerusalem. These were not campaign promises about taxes and health care but about the very borders and capital of the State of Israel. Once in office, however, the Government literally scorned public opinion. As for the Knesset, it was controlled by the ruling party coalition in the Cabinet.

More recently, Prime Minister Benjamin Netanyahu boasted that “no one” expected him to meet with Yasser Arafat, that “no one” expected him to use Oslo as the basis of the peace process, and that “no one” expected him to withdraw from Hebron. This clearly implies that those who voted for Netanyahu in the 1996 elections opposed such a policy, which means he too disregarded the convictions of those who made him Prime Minister. As for the Knesset, it remains a cipher. And so, as indicated earlier, popular sovereignty in Israel is king only for a day.

Bearing in mind that Israel is a unique case, nothing so weakens this country as the absence of a Legislature independent of the Executive, one whose members are directly accountable to the voters (and not simply to a party). Precisely because a Prime Minister may lack the courage to resist foreign pressure, an independent legislature is necessary to compensate for his frailty either by the threat of decisive opposition to his foreign policy, or, conversely, by rallying to his support to neutralize intimidation from abroad.

A more subtle consideration is this. If Israel had a written Constitution that prescribes institutional checks and balances as well as constituency elections, an astute juxtaposition of America’s own constitutional constraints would tend to diminish Washington’s readiness to importune Jerusalem.

It follows that a weak Legislature does not necessarily make for a strong Executive in foreign affairs, and Israel’s legislature is pathetically weak. Although the Knesset can topple the Government by a vote of no confidence, the only time such a thing has happened in Israel was in 1990, but then only as a result of party defections in a Government of National Unity! Such is the unchecked power of the Executive in relation to the people and the Knesset, that it can conclude agreements with foreign states and even with criminal organizations without public debate and even without serious Knesset debate. Whatever one thinks of the September 1993 Oslo or Israel-PLO Agreement, the fact remains that it was ratified on the White House lawn. Indeed, unknown to the Knesset, the Rabin-Peres Government secretly agreed to yield eastern Jerusalem to the PLO contrary to various Israeli statutes, including the 1980 Basic Law: Jerusalem, Capital of Israel.

Meanwhile, the Supreme Court’s power to adjudicate suits challenging the legality of Cabinet decisions on such potent issues has no established constitutional basis. Yet the court feels free to render decisions affecting the moral, religious, and ethnic character of the “Jewish” state—all without the sanction of legislation!

Clearly lacking in Israel are institutional checks and balances. While the Supreme Court, in contempt of the Knesset, has become an unrestrained law-maker, the Government, in equal contempt of the Knesset, can disregard the law with impunity. All this makes a mockery of Israel’s vaunted democracy.

The rule of law, a basic principle of democracy, means that those who make the laws are themselves subject to the law. Yet, in August 1997, Arab Knesset Members, in violation of the law, visited Syria, an enemy state, embraced Hafez Assad and the leaders of various terrorist organizations. One reason why they were not indicted by a Likud Government is that Jewish Knesset Members have also met illegally with Israel’s enemies. (Another reason will be mentioned later.)

Consider, too, the case of Arab Knesset Member Hashim Mahmeed who, in 1991, addressed Arabs in Gaza and declared: “By the intifada we mean not only the stone but the war… Palestinians must fight the conquerors with all the means they have.” For this act of incitement and surely of sedition, a Likud-controlled Knesset, by a vote of 54 to 48, did nothing more than suspend for three months Mahmeed’s parliamentary privilege of unrestricted access to all areas of the country! In contrast, Moshe Feiglin and Shmuel Sackett, two private citizens, were charged with sedition for causing major traffic tie-ups in protest against the Rabin-Peres government’s surrender of land to the PLO (still specified as a terrorist organization in Israel’s criminal code). And on September 2, 1997, a Jerusalem Court handed down a verdict of guilty.

The incidents related above—and many more of the same kind could be cited—not only disgrace all three branches of government, but are indicative of a regime that oscillates between anarchy and authoritarian rule.

Another way of classifying Israel’s form of government is as follows. Given the concentration yet fragmentation of power in the Cabinet, Israel exemplifies, de jure, an ersatz oligarchy—and I have not mentioned the government’s ownership of most of the country’s resources. This ersatz oligarchy metamorphoses into a de facto dictatorship when the Labor Party gains control of the government, since Socialists have always dominated not only the economy and mass media, but the country’s educational and cultural institutions. This overwhelming concentration of political-economic and opinion-making power in the hands of Israel’s interlocking elites offers no redress and no outlet for rational and effective dissent or opposition between elections. Hence it is hardly an exaggeration to conclude that every four years or so the people of Israel exercise their political freedom and then relapse into political servitude.

Indeed, Israel has the worst of two worlds. Her people not only live under an oligarchy, but the oligarchy is dignified and thereby fortified by the veneer of democracy, which renders the people of Israel all the more powerless. Moreover, because Israel is perceived as a democracy, her Government is expected by the democratic world to make gratuitous concessions to Arab despots, indeed, to take “risks for peace— which no democratic government would dare ask of its people. Israel’s form of government is a disaster.

2. The “Arab Question” and Party Politics

A. Arab Citizenship versus Israel’s Destiny as a Jewish State.

The disastrous nature of Israel’s form of government has another source: the political power and hostility of Israel’s Arab citizens. Consider a 1994 symposium held by the Dayan Institute of Tel Aviv University. Participating in that conference were prominent Arab citizens who spanned the entire spectrum of political opinion, from those who were members of the Labor Party to those who were undisguised supporters of the PLO. Without an exception, these Arabs declared that even if a Palestinian state were created, that would be insufficient because almost a million Arabs in Israel would still be living under “foreign” domination. The claim of the Arabs was that, if the Jews truly wanted peace, they would have to change the name of the state so as to reflect the entire population rather than merely the Jewish majority. The state would have to become a bi-national one with a new flag and a new national anthem. Nor is this all.

Inasmuch as the Arab participants in this conference also insisted on the enactment of an Arab law of return to admit all Arabs who supposedly fled from the land as well as their descendants, the success of the Oslo peace process entails Israel’s disappearance in an Arab-Islamic sea.

The issue here is Arab citizenship in a Jewish State. The late Yitzhak Rabin once addressed this issue. On May 6, 1976, Mr. Rabin, then Israel’s Prime Minister, warned:

“The majority of the people living in a Jewish State must be Jewish. We must prevent a situation of an insufficient Jewish majority and we dare not have a Jewish minority….There is room for a non-Jewish minority on condition that it accept the destiny of the State vis-à-vis the Jewish people, culture, tradition, and belief. The minority is entitled to equal rights as individuals with respect to their distinct religion and culture, but not more than that.”

Mr. Rabin was obviously referring to Israel’s Arab citizens who most emphatically do not accept the “destiny of the State vis-à-vis the Jewish people.” This is why they are exempt from military service for security reasons. (Recall that a large majority openly supported Saddam Hussein during the Persian Gulf War despite his threat to incinerate Israel including themselves!) Nevertheless, despite their transparent disloyalty (and who can blame Moslems for not wanting to live in a Jewish State?), Israel’s government has not revoked, as it may lawfully do, their citizenship. Fear of the canard of “racism” is not the only reason. Because of Labor’s declining electoral base among Jews, the party has become dependent on Arab voters and Arab parties to gain power. Which means that Labor has formed a political alliance with parties identified with Israel’s enemies! But even the Likud seeks Arab votes and has sacrificed patriotism to party politics. For as indicated above, Likud-led governments have repeatedly refrained from enforcing the law against Arabs guilty of incitement and sedition.

B. Cultural and National Self-Preservation

Virtually all of Israel’s parties are wedded to the culturally neutral and suicidal principle of one adult/one vote, a principle that enables Arab Knesset Members to consort with Israel’s enemies and incite others Arabs to kill Jews! Conferring citizenship on Moslems in a supposed-to-be Jewish state is more absurd than making Jews citizens of any Moslem state, considering only the disparity in their respective birthrates. Moslem states bar Jews from citizenship, and reasonably so. For just as only Jews are qualified to make the laws of a Jewish State—think of the knowledge and reverence required to preserve the Jewish tradition, its religious precepts and practices, its methods of education, the memory of its great teachers and leaders—so only Moslems are qualified to make the laws of any Moslem state.

Japan confines citizenship to ethnic Japanese. This is essential to Japan’s cultural and national self-preservation. Excluding Arabs from citizenship in Israel is essential to the cultural and national self-preservation of the Jewish State of Israel, as Yitzhak Rabin intimated in May 1976 (the year before Labor lost its 29-year control of the government and thereafter needed the Arab vote to compensate for the unprecedented alliance of the religious parties with the Likud). Clearly, Israel needs a Constitution based on Judaism. Without such a Constitution, Israel will see very little of the 21st century given the prolific birthrate of Israel’s Arab citizens, who adamantly identify themselves as “Palestinians” or as part of the “Arab Nation.”

Since Judaism (conversion aside) is not culturally neutral, a Jewish Constitution cannot be based on the cultural indifferentism of contemporary democracy. It should be noted, however, that contemporary democracy is profoundly different from classical or Athenian democracy whose citizens had to be Athenian in the ethnic sense of the term. Thus, even though equality and freedom were basic principles of Athenian democracy—as they are in the Torah—both principles were qualified by ethnic and even ethical values. Reason and justice demand no less of a Jewish Constitution.

A Jewish Constitution requires institutions which are distinctively Jewish. Hence those who exercise the powers of those institutions should not only be Jewish; they should have respectable knowledge of Judaism. This is a matter of common sense and national self-respect. Such qualities animated those who designed the Constitution of the Republic of Ireland. To preserve their people’s cultural heritage, they established a bicameral parliament whose upper house, the Senate, consists of 60 members, 49 of whom are elected from five panels of candidates having knowledge and practical experience in the major sectors of public life, the first being “National Language and Culture, Literature, Art, Education and such professional interests as may be defined by law for the purpose of this panel.”

A Jewish Constitution must go further. The democratic principle of political equality must be subordinate to Israel’s paramount governing principle as a Jewish state.[1] Accordingly, the present writer proposes a four-branch system of government in which only Jews are eligible to vote for, and be members of, the Legislative, Executive, and Judicial branches, while the fourth branch, to be described below, will be open to Jews and non-Jews alike.

3. General Structure and Principles of a Jewish Constitution

A Presidential-Parliamentary System

Given Israel’s precarious situation in the Middle East, unity in the Executive branch is utterly essential. A President whose cabinet shares his convictions will best serve this purpose.

The Parliament should be bicameral. While the function of law-making will be assigned to the upper branch, the “Senate,” the function of administrative scrutiny will be assigned to the lower branch, the “House of Representatives.” To anticipate objections to a second branch of Parliament without law-making power, let us compare it with the existing Knesset.

Although the Knesset, in theory, has absolute power, in practice it is little more than a rubber-stamp for the cabinet. It does not legislate so much as affirm legislation initiated by the coalition of party leaders heading the cabinet ministries. Subservient to the cabinet, the Knesset is incapable of exercising the important function of administrative overview—which is why corruption in government is so widespread in Israel. Second, whereas members of the Knesset are utterly dependent on their parties, members of the proposed House of Representatives will be accountable to their constituents. Representatives will have a base of independent power, while constituents will have their own representatives. Since Representatives will be excluded from the cabinet, they will not be deterred from scrutinizing the bureaucracy to see whether the laws are being faithfully and efficiently administered. This will minimize corruption.

4. A Draft Constitution

A. The Preamble

[It would be perverse and ignominious that the People who gave mankind ethical monotheism should omit reference to God in the Preamble of its Constitution when God is mentioned in various constitutions of the democratic world. Hence the following is suggested.]

“We the People of Israel, grateful to God for preserving us as a Nation and for returning us to the Land of our Fathers, mindful of our sacred responsibility to Mankind as the Torah-bearing Nation, dedicated to Truth, Justice, and Peace, do solemnly establish this Constitution. Accordingly, nothing in this Constitution is to be construed as derogating from the Wisdom of our Prophets and Sages. To the contrary, this Constitution is intended to preserve the Jewish heritage and to hasten the day when Israel will present the example of a Nation in which Freedom dwells with Righteousness, Equality with Excellence, Wealth with Beauty, the here and now with Love of the Eternal.”

B. Institutions of Government

[Inasmuch as Judaism is a nationality, indeed, a 3,500 year-old culture, to preserve the integrity and continuity of this culture,only Jews, be they religious or not, are eligible to vote for,or be members of,the Senatorial, Executive, and Judicial branches of Government.]

The Senate

1. The Senate shall be composed of seventy-two members having a six-year tenure. One-third will be chosen every second year.

2. To be eligible for membership in the Senate, a person must have knowledge of the Hebrew Bible, Jewish history and customs, which knowledge must be certified by secular and/or religious institutions of learning prescribed by law.

3. The “Personalized” Proportional Representation system will be used to constitute the Senate. The country will be divided into forty-eight districts. The district boundaries will be determined by a “non-partisan” committee prescribed by law and presided over by a former member of the Supreme Court. The forty-eight districts will be based on single-member plurality rule. Those parties which did not receive in the single-member districts the seat share proportional to their nationwide vote share will receive the remaining twenty-four Senate seats.

4. The electoral threshold shall be prescribed by law, but shall not be less than five percent.

5. A majority of the members of the Senate may, by a petition addressed to the President, request the President to decline to sign and promulgate as a law any Bill (other than those affecting defense and appropriations) on the ground that it contains a provision of such national importance that the will of the people thereon ought to be ascertained.

6. No treaty or agreement with any foreign power or entity shall become law prior to thirty days after its submission to the Senate. One-third of the Senate’s membership can prevent any treaty or agreement with a foreign power from becoming law immediately, by setting it aside until the next senatorial election. Such a pending bill comes into effect only if the new Senate, too, adopts it without changes after the election.

7. The Senate shall have the power to declare war, provide for the common defense, and make all laws which shall be necessary and proper to promote the welfare and dignity of the Jewish Commonwealth.

8. No Senator may change his party affiliation during his term in office.

The House of Representatives

1. The House of Representatives shall consist of seventy-two members having a tenure of four years. One-half shall be chosen every two years.

2. The “Personalized” Proportional Representation system will be used to constitute the House. The districts used for electing Representatives shall be the same as that for Senators, as will the number of single-member plurality districts as well as the number of compensatory seats for parties which did not receive, in the single-member districts, the seat share proportional to their nationwide vote.

3. The electoral threshold for Representatives shall be the same as that for Senators.

4. Excepting classified security matters, the House will inspect the State administration, including the ministries, the army, and every institution or enterprise in which a State authority participates, whether managerially or financially. Inspection shall include accountancy, legality, and appropriateness of the practices examined.

5. The House will conduct public hearings, investigate public complaints regarding the State administration, and suggest measures to remedy any administrative shortcomings and abuses. [The House’s investigatory powers render it a formidable body, as would be appreciated by those familiar with the power wielded by any investigating committee of the American Congress.]

6. The House may recommend legislation to the Senate, which the Senate may simply reject or amend as it sees fit. But if such recommendations are enacted into law, their juridical authority will be derived from the action of the Senate.

7. No Representative may change his party affiliation during his tenure in office.

The President

1. The executive power shall be vested in a President. The President shall hold office for four years, and, together with a Vice-President chosen for the same term, shall be chosen as follows:

(a) Forty days prior to the prescribed date for national elections, the Senate shall convene to nominate at least two presidential candidates. Any group of 20 or more Senators may nominate a presidential (and vice-presidential) candidate, but no Senator may nominate more than one presidential and vice-presidential candidate.

(b) The names of the presidential candidates (and their respective vice-presidential candidates) shall be placed on a national ballot. The candidate receiving a majority of the votes cast shall be President. If no candidate receives a majority, the two receiving the highest number of votes shall compete in a run-off election.

(c) An incumbent President will be automatically eligible for re-election (if he so desires), in which case the Senate will nominate two additional presidential candidates.

2. To retain the services of a wise and experienced President, he will be eligible for re-election for three successive terms after his initial election to the Presidency.

3. The President shall recommend legislation to the Senate, have the power, with the consent of the Senate, to make treaties, be commander-in-chief of the Israel Defense Forces, and be responsible for the administration of the laws.

4. The President will have a suspensive veto over Bills submitted by the Senate, which veto may be overridden by a majority plus one of a Senate plenum.

5. The President shall nominate the members of his Cabinet. The names shall be submitted to the Senate for confirmation by a majority plus one vote of the plenum.

6. The President shall nominate the Justices of the Supreme Court. The names shall be submitted to the Senate for confirmation by a majority plus one vote of the plenum.

7. The President will be subject to impeachment for malfeasance of office by a two-thirds vote of a Senate plenum.

8. The Vice-President shall preside over the Senate and vote only in the event of a tie.

The Judiciary

1. The judicial power shall be vested in a nine-member Supreme Court and in such inferior courts which the Senate may from time to time establish.

2. The membership of the Supreme Court will include three professorial and three rabbinical experts in Jewish law, all of whom, however, must be knowledgeable of secular law. Two of the remaining three members will be attorneys certified by the Israel Bar Association. The remaining member will be a former Attorney General, or, if one is not available, a former chairman of the Knesset Law Committee.

3. The Supreme Court shall be the final interpreter of the Constitution, except as otherwise provided by this Constitution. However, any law nullified by the Court will be submitted to a popular referendum.

4. Among the diverse systems of law operative in Israel, Jewish law shall be “first among equals” in every case where an Israeli statute is ambiguous or uncertain, except only where the Israeli statute explicitly differs from Jewish law. [This conforms to the Foundations of Law Act of 1980, which 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.” The term “heritage” will be construed to include Jewish law.]

5. Questions of personal status (e.g. marriage, divorce, and conversion) shall be decided solely by Rabbinical Courts.

C. Amendments

Amendments to the Constitution shall require the approval of two-thirds of a Senate plenum followed by a referendum requiring a three-fifths vote for confirmation by those eligible to vote for members of the Senate.

D. Other Constitutional Provisions

1. All elected officials and civil servants shall duly affirm Israel’s paramount governing principle as a Jewish state.

2. Any party that negates the Jewish character of the State will be excluded from participation in any national or local election.

3. No person holding office under this Constitution shall, during his tenure, be eligible for any other public office. Nor shall he be a member of, or receive any emolument from, any profit-making enterprise, or appoint any personnel employed therein.

4. Election campaigns shall be confined to thirty days and be financed solely by public funds. Per capita expenditures for such campaigns will not exceed those of other democracies. Any expenditure that exceeds the statutory limitations will not be financed by subsequent legislative appropriations.

5. No person shall vote in any national election unless he has been a resident of Israel for one year.

6. Hebrew shall be the only official language of the State.

E. A Constitutional Bill of Rights

1. The Land of Israel, of which the State is only the custodian, belongs exclusively and eternally to the Jewish People. Hence, except for public purposes defined by law, the State shall foster private Jewish ownership and development of the Land of Israel.

2. Force majeure aside, no land under Israel’s sovereignty may be surrendered to any foreign power or entity.

3. No law of the Senate, and no decision of the Supreme Court, shall be promulgated without due respect for the abiding beliefs and prevailing practices of the Jewish People.

4. The right of workers to strike is inviolable, except to the extent that it deprives the community of its right to essential services.

5. No Israeli national or citizen living abroad shall be denied the right to vote in elections for which he is qualified.

6. All residents of Israel will be guaranteed freedom of religion and freedom of speech and press. All residents of Israel shall have the right to establish their own religious and educational institutions, provided these are consistent with loyalty to the Jewish State.

7. No resident of Israel shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property without due process of law.

8. In all criminal prosecutions the accused shall enjoy the right to counsel, to a speedy and public trial, to be informed of the accusation for which he is been charged; to be confronted by witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.

9. The right of all residents of Israel to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.

10.The enumeration in this Constitution of certain rights shall not be construed to deny or disparage others retained by the Jewish People or affirmed by the Torah respecting Jews and non-Jews.

Conclusions

The above constitutional provisions are tentative and by no means complete. The modes of constituting the various branches of government will have to be further elaborated, as will their respective powers and procedures. Nevertheless, this proposed Constitution would:

(1) enhance Israel’s dignity;

(2) facilitate the wise formulation and execution of national policies;

(3) elevate the moral and intellectual character of Israeli politics;

(4) enable the Government to negotiate more effectively with foreign powers; and

(5) promote Jewish unity and Jewish national pride. In short, the proposed Constitution would counter the basic causes of Israel’s disintegration and thus prevent this country’s collapse.

Without minimizing the obstacles to the proposed Constitution—one of which is complacency—let us bear in mind these words of a Jewish sage: “Ask not if a thing is possible; ask only if it is necessary.”

* * *

[1]See Shlomo Sharan, “State and Religion in Israel,” in The Religious-Secular Conflict in Israel (Israel: ACPR Publishers, 1999), p. 29, who writes: “… Israel is only one of many ‘ethnic democracies’ in the world where a particular ethnic group is the majority and where minority groups automatically have their national identity submerged or highly limited…. Among these can be mentioned countries such as Finland, Greece, Sweden, Norway, Denmark, Holland, Belgium, Japan, Korea, Switzerland … Furthermore, in almost each and every instance of ethnic democracy there is a connection, albeit of varying degrees, between religion and the state insofar as each country has an official religion …”