Paper delivered at the 1997 Annual Meeting of the American Political Science Association, Washington, D. C., August 1997, in response to a paper by Paul Eidelberg: “A Constitution for the State of Israel: A Practical Proposal.” Eidelberg published a book-length version of his argument, along with the text for such a constitution, several years later: Jewish Statesmanship: Lest Israel Fall (Jerusalem: ACPR Publishers, 2000).
In advancing arguments for a written Israeli constitution, Paul Eidelberg causes us to think about the problems of constitutionalism that face many countries today, riven with religious and ethnic animosities. For this reason his argument has general and not only specific interest.
For Israel, the matter may be stated this way:
1. The purpose of the Israeli founding a half-century ago was to restore a homeland to the Jews, a people whose very homelessness had been held to be in some measure responsible for their near extermination in Europe only a few years before. European Jews learned, much more disastrously, what Americans had learned in the 1770s: If you want to be governed rightly, do it yourself. No one cares more about your unalienable rights than you do. All things being equal, no one else is likely to defend your rights as effectively as you are.
2. Israel is, or at least is usually said to be, a democracy, with the full panoply of civil rights associated with modern democracies, in addition to a generous selection of the social and economic rights associated with the modern ‘welfare state.’ Self-government in this sense means the government of all by all—justified on the grounds that some of your own people might tyrannize over you as brutally as a foreign people might.
Insofar as Israel is a democracy, a regime that respects the principle of (suitably qualified) majority rule, Israel’s Jewishness is at hazard. An increasingly Arab, largely Muslim population now wields considerable power in national elections. Conceivably, a larger Arab population could end Jewish self-government—government of, by, and for the Jewish people.
Alternatively, the Israeli government, building upon its already extensive state apparatus–an apparatus so extensive that Eidelberg denies Israel status as a true democracy—might become increasingly ‘Hobbesian’ or despotic—securing, or claiming to secure, Jewish rights by imposing Jewish rule ever more forcefully upon Arabs. Eventually, might such a powerful, sovereign state not turn its untender mercies upon Jews as well?
Eidelberg reconciles Israel’s Jewishness with democracy by availing himself of the principle of popular sovereignty required by Jewish law. As the American Founders recognized, popular sovereignty requires a written constitution. If the people are to govern themselves in any territory more extensive than a village, as a practical matter they will need government by elected representatives. But representatives meeting in regular legislative session, not being sovereign, cannot unilaterally enact the fundamental human laws governing the sovereign people. Such fundamental laws may be proposed by representatives, but must be ratified by the people themselves, either directly or by representatives meeting in a convention intended for that purpose alone. Further, if fundamental human laws are not to be merely long-established unwritten customs—if they are to be laws deliberated upon and chosen by the people (as the first Federalist has it)—they will need to be written down. That is, you first need to distinguish between constitutional law and mere statutes; your legislature cannot be, in effect, a continuous constitutional convention. Second, you need a written constitution that rationally limits the powers of the sovereign people over each individual among that people.
The Torah itself is a kind of written constitution—the father of all such. In it, God as Sovereign of sovereigns sets limits on His own conduct as well as the conduct of His people. By analogy, a sovereign people under the sovereignty of God will fit constitutional powers to constitutional duties and rights. But precisely because they are sovereign under God, the Jewishness of this sovereign people cannot be elided by the word, ‘democracy.’
This raises what Spinoza called the theologico-political question. Given the diversity of the (mis)understandings of God’s ‘constitution’ respecting the peoples of the earth, how is endless war to be avoided? If one function of government is to keep the peace, how can a religiously-based government do that? The ‘modern’ answer combines religious toleration with intolerance toward violations of natural rights—the rights of human beings as such, regardless of their religious convictions. In the United States, where this solution was first tried, it has worked fairly well. The current question in America is, Can natural rights be secured despite serious ‘cultural’ differences? (In contemporary language, ‘culture’ means a sort of religiosity without religion.) The answer to this question so far has been that in practice American makes anti-republican aspects of the various ‘cultures’ unattractive to all but a few. Busy with commerce and other forms of self-government, Americans embroil themselves ‘retail,’ but manage to live together ‘wholesale.’
For example, in the United States there is a vigorous and politically significant population of Muslims, including the ‘Black Muslims’ or Nation of Islam. It is not at all clear that Islamic law can be reconciled with modern republicanism; an ‘Islamic Republic’ is no democratic or commercial republic. In the United States, however, American Muslims generally conduct themselves as all other citizens do with respect to their civic duties. Muslims are free to do so because the United States was founded as a natural-rights republic, with civil rights designed to secure those natural rights. Although Americans of the founding generation were usually Christians, often secularists, and never Muslims, they did not found a Christian republic, much less an Episcopal, Quaker, Presbyterian, or Congregational one. This implies that a workable consensus exists with respect to what natural rights are. That is, democratic republicanism does require a certain sort of ‘culture.’ The regime allows substantial cultural pluralism, but it could not sustain thoroughgoing cultural relativism or nihilism. If American Muslims, or members of any other religion, were to reject the workable consensus that exists in America regarding the nature of natural right, they would present a serious problem insofar as they joined that rejection to political action.
In solving the problem of the apparent but not necessarily real contradiction between Jewishness and democracy in Israel, Paul Eidelberg must therefore address two further problems. Political solutions always exchange one set of problems for another, and the sensible question usually is, Are the new problems better problems to have than the old ones?
First: How can Israelis in a constitutionally democratic-Jewish regime ensure natural rights to non-Jews, without granting full citizenship rights to non-Jews? Eidelberg seems to propose a sort of Locke-like religious toleration, as distinct from the American system of religion as a natural right. How can Arabs be assured that stated guarantees will not be mere ‘paper’ guarantees? How will Arabs in an Israel with a written constitution that ‘establishes’ Judaism defend themselves legally, without the need of taking to the streets and having “a little rebellion now and then”? Given the comprehensive character of Islamic law, would Israeli Muslims in principle comply with Section E, Article 9 of the Eidelberg constitution, which stipulates that “Residents of Israel shall have the right to establish their own religious and educational institutions, provided that these are consistent with loyalty to the Jewish State”?
Second: Given the constitutionally-guaranteed Jewishness of the new Israel, two other questions from pre-modern times emerge. Who is a Jew? To answer this question you need to answer another: What is a Jew? In any regime where citizenship rights attach to a religious category, the definition of the category will become politically contentious, as seen in the history of Europe, which saw catastrophic warfare over the questions, Who is a Christian? and What is a Christian? Just as Eidelberg’s constitution would settle Israel’s “crisis of the house divided” in part by narrowing the citizenship rights of non-Jews, future factions within the Jewish population would surely attempt to draw those lines more narrowly still, for the sake of political advantage. Can a means be devised to prevent or at least dilute the problem of schism in a religiously-based polity?
In conclusion, the Eidelberg proposal consists of several elements, each of which deserves serious consideration. There is the proposal for a written constitution for Israel. I am inclined to think this an excellent idea. Israelis are not Englishmen, with the long, more or less unbroken tradition of self-government which enables the English to govern themselves with no written constitution. Although (as any American knows) a written constitution remains susceptible to interpretive manipulation, it does give citizens a more precise understanding of their rights and duties as members of a sovereign people.
Eidelberg also proposes to reconfigure the structure of the Israeli government, moving it away from parliamentary republicanism toward an American-style republic with separation of powers, including a strong executive branch. I am inclined to think this an excellent idea as well, on the grounds Charles de Gaulle invoked in his critique of French parliamentarism. Again, Israel is no island nation, like Britain. Executive dispatch will prove useful.
Finally, there is the proposal to make Israel a more exclusively Jewish country than it now is. Here is where the problems will arise. I want to learn more about how this would be done in a manner that would contain the bitter factionalism which will surely result. To say that Israel already is wracked by bitter factionalism is true but insufficient. Will the new factionalism be in some way preferable to the old factionalism it replaces? The old factionalism has proved sustainable for half a century. If it really is no longer sustainable, how sustainable will the new factionalism be? This is a question for Israeli citizens to answer, not some American commentator. Theirs are the lives that are on the line.
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