Aaron’s iconoclasm

This was originally published at www.israpundit.com. It was also written prior to reading  Robert. H. Bork’s book Coercing Virtue, on the worldwide role of judges to defeat majoritarian democracy. Due to the latter, this may be revised and otherwise expanded.

A Constitution? Federalist Concerns

Aaron Eitan Meyer

            There has been talk of drafting a constitution for Israel. The underlying premise that Israel’s present system is inadequate is correct, but the proposed solution is unworkable. The brilliance of the American Constitution was not meant to be replicated, but designed to meet the challenges posed to a specific group of people at a certain time. That is not to say that the US Constitution is in any way outmoded, but that it cannot simply be imposed over the Israeli framework. That said, the underlying philosophy and political acumen that is embodied in the US Constitution may certainly be applied. In order to approach it properly, however, the text that must be turned to is The Federalist, by Hamilton, Madison, and Jay. In it, they expounded the reasoning for the Constitution, and explained why the system was needed, and how it would work.

            A crucial point made in the Federalist is that authority must be derived from the people. It was not the states that were called upon to ratify the Constitution, but the people, as such. What has been lost, if it was ever present in Israel, is that determination. It must be the people who are the ultimate authority, not political parties, and not geographic blocs. This need not take the form of referendums, but at the very least, the people should be considered, and not merely through opinion polls.

            An additional essential point is that the people must be engaged. Every idea, every group is meant to be essentially co-opted into the national political sphere. By doing so, the individual groups are left less susceptible to the dangers of schism, which is ideal prey for foreign manipulators. In the US, this has meant that major cultural shifts have been incorporated in one form or another into the whole. The revolution of the 1960’s would be a prime example. In contrast, in

Israel, certain political groups are marginalized immediately, as a matter of course.

            There have been calls to limit the number of parties in Israel, by mandating a minimum of seats in the Knesset, for example. The Federalist called for the exact opposite. The way to prevent a tyranny of the majority is to increase the number of factions, not to have an opposing almost-majority. Specifically: “In a society, under the forms of which the stronger faction can readily unite and oppress the weaker, anarchy may as truly be said to reign, as in a state of nature, where the weaker individual is not secured against the violence of the stronger.” (No. 51) The present disengagement theory that is being forced through is a textbook example of the danger embodied.

            Another essential aspect of Federalism is the Separation of Powers doctrine. Often misunderstood as a system of checks and balances, it is a means to prevent consolidation of power by any segment or governmental branch. Certain powers are given to certain branches, with the stipulation that in these powers that branch is supreme. It is a matter of giving responsibility for something, and the necessary power to adequately meet the responsibility. The objects of power should limited, though not the power itself – which would be equally inefficient. By forcing each branch to pursue greater power, ambition is made to balance out the whole.

            “Ambition must be made to counteract ambition.” (No. 51) It is not merely personal ambition that is spoken of, but departmental desire for increased areas of control. The legislature cannot merely be an extension of the executive power, but must have its own distinct sphere of influence – unbeholden to the executive.

            The judiciary must also be given standing on a par with the other main branches. Otherwise, in matters of national and international import, their rulings would amount to nothing more than rubber stamps. This too has been seen in

Israel regarding the Supreme Court’s rulings on the Disengagement Plan. The judiciary must be able and obligated to apply the law, not according to the dictates of the dominant political party or coalition, but according to the law itself. In order to do so, it must not be reliant on the other branches.

            The utility of a constitution would be best served by setting forth an authority that does not stem from contemporary power balances, but from the supreme authority of any democratic nation – the people. According to the Federalist, the Constitution trumps all subsequent statutes and executive orders by virtue of the fact that its authority stems from the vote of the people, unadulterated and not filtered through years of legislative procedures. It would provide a binding authority far greater than approval ratings.

            The dangers of constructing a constitution at this time are manifold. Creating a viable constitution is extremely complex to begin with, and is made even more difficult in the case where a nation has been existent for decades. As well, the framers must be able to put aside their preconceived notions, idealistic as they may be, and concentrate on creating a pragmatic document. This was the supreme triumph of the Federalists over the anti-Federalists. Instead of floating lofty ideals and prophecies of ‘evolving societies’ the Federalists focused on human nature as it is, and proceeded accordingly. It makes a better sound bite when one cries for one’s ideals, but it is the pragmatist who will see his work last over centuries and beyond.

            Another potential concern is the makeup of constitutional framers. If American jurists are prominent, there is the distinct danger that the present conception of a ‘living Constitution’ will be incorporated – thereby inserting a fatal flaw directly into the constitution in utero as it were. By providing that later interpretation can selectively ignore even express clauses of the constitution, the document itself is severely compromised. The utility must be that laws and statutes be considered in light of the constitution, not according to contemporaneous philosophies that pay it at best lip service.

            In the end, a constitution based on the American model as planned by its Framers would be of incalculable value to Israel. However, it is a mirage. A major restructuring of the government would be necessitated, with power shifting dramatically. It is highly unlikely that the present political parties would be willing to cede some of their nigh-unfettered power, much less the Prime Minister’s office. What would likely emerge from a constitutional convention would be a document that would be a series of compromises aimed at maintaining the status quo. Therefore, pragmatism must dictate a complete opposition to any present plan of devising a constitution for Israel.

This entry was posted on Wednesday, January 4th, 2006 at 2:27 am and is filed under Current Affairs. You can follow any responses to this entry through the RSS 2.0 feed. You can skip to the end and leave a response. Pinging is currently not allowed.