Israel’s Constitutional Promise

This evening at Jerusalem, the Knesset is set to vote on the judicial reform bill that has become the signature of Prime Minister Netanyahu’s latest government. This has occasioned palpitations not only in the premier’s chest — he had a pacemaker installed over the weekend — but that of President Biden, who has wheeled on the plan. In Israel, opponents undertook a “March on Jerusalem.” A constitutional convention would be better. Far be it from us to tell Israel how to run its affairs. The core of the controversy, though, is a bill that would limit the power of the Supreme Court to review government decisions for “reasonableness.” Critics of the bill contend that it amounts to a parliamentary coup. Supporters of the legislation see it as a way to rein in a judiciary turned Leviathan, possessed of powers unknown in the courts of the Free World.Judicial reform has split the country. Doctors are threatening to strike and reservists are declaring that they will hang back, even as high tech machers warn of the economic fallout. The Netanyahu government, though, stood on this platform in the last election and won a breakthrough after years of stalemate. As President Obama mused, “elections have consequences.” Israel’s protesters seek to claim in the streets what they failed to seize in the voting booth. President Herzog, fresh off a turn at the Capitol, flew to the premier’s hospital bedside to broker a compromise. When it comes to Mr. Netanyahu, one of the world’s great political magicians, anything is possible. An opportunity beckons, though, for Mr. Netanyahu to get ahead of the hectoring from Washington, the demands of his own coalition, and the increasingly implacable opposition — and call for a constitution.Israel’s Declaration of Independence, proclaimed in May 1948, announces that the “Land of Israel was the birthplace of the Jewish people.” The declaration is one of the 20th century’s great political parchments. It called for a constitution to be adopted soon. The Jewish state, though, was soon plunged into war. There were other priorities to address if the return to Zion was to succeed. The constitutional moment passed.At the root of the current crisis is a speech in 1992, when the president of Israel’s Supreme Court, Aharon Barak, announced a “constitutional revolution” whereby “the Israeli society has imposed upon us, the Justices of the Supreme Court, the task of giving content to the molds for human rights that will befit our values as a Jewish democratic state.” A species of legislation known as “Basic Laws” would function as an ad hoc constitution. A decision written by Judge Barak three years later, Bank Mizrahi v. Migdal Cooperative Village, is referred to as Israel’s Marbury v. Madison. It enshrined the practice of judicial review. In America, though, that power is given shape by the Constitution. It limits the powers of government. It curbs the courts, which are limited to hearing only actual cases and controversies. It is how the country makes sense. Otherwise, the courts could simply rule. So it is not our purpose here to oppose the reform law currently before the Knesset. The Supreme Court, even in terms of existing law, has jumped its traces, blocking the government from appointing a minister of its choice because the court found him “unreasonable.” That is a symptom of the runaway nature of this court. The current reform measures, though, are best seen as a step toward the redemption of Israel’s founding constitutional promise. Writing and ratifying America’s Constitution, incidentally, was no picnic for the Framers, who like the heroes of Zion had to earn their country on the battlefield. Calling for such a constitutional convention could cap Mr. Netanyahu’s astounding career. It would offer him the chance to be the peer not just of Menachem Begin and Ariel Sharon, warriors turned political leaders. It would catapult him to the ranks of Ben-Gurion and even Herzl.

Israel’s Constitutional Promise

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