Analysis from Israel

The heated debate over a bill to let the Knesset override Supreme Court decisions that overturn laws drove home a shocking fact: An entire generation has now grown up believing a law approved by a mere quarter of the Knesset actually constitutes binding constitutional legislation.

Back in 1992, when the Basic Law: Human Dignity and Freedom passed by a vote of 32-21, the idea that a law enacted with less than half the 120-member parliament even present and just a quarter voting in favor could be used by the court to overturn subsequent legislation passed by much larger majorities would have flabbergasted most Israelis. That’s precisely why so few MKs showed up to vote. On consequential votes, the entire house turns out. But few MKs in 1992 considered this bill terribly consequential.

Why? Because normal democracies – which Israel was until 1992 – understand that binding constitutions require approval by super-majorities, not minorities. No other democracy worldwide has ever treated legislation passed by a minority of parliament as a binding constitution.

Nor has any other democracy ever adopted a constitution “almost secretly,” as then-Supreme Court President Aharon Barak famously described Israel’s process. Normal democracies understand that constitutions must be adopted intentionally – meaning by people who know they’re voting on a constitution. In contrast, most people in 1992 viewed Basic Laws not as a binding constitution, but merely as candidates for inclusion in a future constitution. That’s why courts had consistently ruled that previous Basic Laws didn’t authorize them to overturn subsequent legislation. Thus few MKs imagined this law would be treated differently. If they had, they might well have voted it down.

This brings us to the oft-heard claim – repeated in a Jerusalem Post editorial last week – that the bill enabling the Knesset to override the Basic Law is “anti-democratic.” This would be questionable even if Israel had a valid constitution: Canada lets its parliament override the constitution, and nobody challenges Canada’s democratic credentials.

But it’s downright ridiculous when the “constitution” at issue doesn’t meet the two most basic standards for constitutional legislation: approval by a large majority, and approval by people who knew they were actually enacting a constitution. The Basic Law was enacted as just another ordinary law – and ordinary legislation can be superseded by any subsequent law, even without a special override provision.

What really is anti-democratic, however, is that an unelected Supreme Court has taken a law never intended as a binding constitution and turned it into one. Granted, the Knesset has cravenly acquiesced in this judicial power grab for 22 years, due to fears of being deemed “anti-democratic” by the legal and academic elites who cheered the court’s bloodless coup. But that doesn’t change the fundamental, anti-democratic fact that Israel is the world’s only “democracy” whose constitution was imposed by judicial fiat rather than knowingly adopted by the public’s elected representatives.

Moreover, as the Post’s editorialist correctly noted, few things endanger democracy more than undermining democratic institutions. Yet nothing has undermined Israel’s democratic institutions more than the court’s decision to impose this Basic Law as a constitution.

Over the past two decades, the court has repeatedly overturned government policies on issues that most democracies leave to their elected representatives – ranging from welfare policy to defense – by claiming that these policies violate the Basic Law. But controversial policy issues usually involve competing values, any of which could theoretically be subsumed under the Basic Law’s vague wording. Thus in many cases, the court has simply substituted its own value judgments for those of the public’s elected representatives. It has thereby made itself just another political player, no more worthy of respect than ministers or MKs, while also alienating sizable sectors of the public that disagree with its hierarchy of values.

This has had three pernicious consequences. First, public trust in the court has plummeted: Only 56% of Israeli Jews expressed confidence in the court in 2013, down from 80% in 2000. This undermines its ability to play the vital role courts normally play in democratic societies – as a trusted venue for resolving disputes peacefully, thereby reducing the likelihood of violence.

Second, the court’s behavior has damaged Israelis’ faith in democracy. Democracy rests on the premise that change can be effected peacefully by persuasion: Convince enough people that you’re right, and they’ll elect a government that will make the desired change. But that premise no longer holds if an unelected court routinely overrules government decisions by claiming they violate a “constitution” of the court’s own making.

Finally, it has undermined the very respect for human rights that elevating the Basic Law to constitutional status was supposed to reinforce. Nothing illustrates this better than the law the override bill is aimed at reinstating, which allows illegal migrants to be held indefinitely at the open detention center in Holot. I actually agree with the court that this law is problematic. But as I noted last year, after it overturned an earlier version of the law, the court forfeited its authority when it chose to become just another political player. Among large parts of the public, its views on human rights now carry no more weight – and sometimes less – than those of any politician.

Even worse, the court’s abuse of the Basic Law to impose its own value judgments on the government has gutted the very idea of “human rights”: Many Israelis – particularly younger ones, who have grown up in this world the court created – now see human rights not as a positive good, but as a term devoid of any real content whose sole purpose is to justify any policy the justices want to impose.

Thus the real problem with the override bill isn’t that it’s “anti-democratic” – which it isn’t. It’s that it does nothing to ameliorate any of these very real evils.

Undoing two decades of judicial overreach won’t be easy. But there’s only one logical place to start: Stop treating a Basic Law passed by a mere quarter of the Knesset as a binding “constitution.” If Israel is ever to have a constitution, it must be adopted the same way other democracies adopt theirs: openly, in full knowledge, and by a super-majority.

Originally published in The Jerusalem Post

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Physicians, Heal Thyselves

It’s no secret that many liberal Jews today view tikkun olam, the Hebrew phrase for “repairing the world,” as the essence of Judaism. In To Heal the World?, Jonathan Neumann begs to differ, emphatically. He views liberal Judaism’s love affair with tikkun olam as the story of “How the Jewish Left Corrupts Judaism and Endangers Israel.” In fact, he believes tikkun olam endangers Judaism itself. Anyone who considers such notions wildly over the top should make sure to read Neumann’s book—because one needn’t agree with everything he says to realize that his major concerns are disturbingly well-founded.

Neumann begins by explaining what he considers the modern liberal Jewish understanding of tikkun olam. It is taken, he says, not just as a general obligation to make the world a better place, but as a specific obligation to promote specific “universal” values and even specific policies—usually, the values and policies of progressive Democrats.

He then raises three major objections to this view. The first is that the only way to interpret Judaism as a universalist religion with values indistinguishable from those of secular progressives is by ignoring the vast majority of key Jewish texts, including the Bible and the Talmud, and millennia of Jewish tradition. After all, most of these texts deal with the history, laws, and culture of one specific nation—the Jews. The Bible’s history isn’t world history, nor are its laws (with a few exceptions) meant to govern any nation but the Jews. Judaism undeniably has universalist elements. But to ignore its particularist aspects is to ignore much of what makes it Judaism, which therefore corrupts our understanding of Judaism.

The second problem is that if Judaism has no purpose other than promoting the same values and policies touted by non-Jewish progressives, there’s no reason for Judaism to exist at all. Consequently, the tikkun olam version of Judaism really does threaten Judaism’s continued existence, and it’s no accident that the liberal Jewish movements that have embraced it are rapidly dwindling due to intermarriage and assimilation. After all, why should young American Jews remain Jewish when they can do everything they think Judaism requires of them even without being Jewish?

This also explains why, in Neumann’s view, tikkun olam Judaism endangers Israel. If there’s no reason for Judaism to exist, there’s certainly no reason for a Jewish state. Indeed, Israel is anathema to the tikkun olam worldview because it’s the embodiment of Jewish particularism—the view that Jews are a distinct nation and have their own history, culture, and laws rather than being merely promulgators of universal values. Thus it’s easy to understand why tikkun olam Jews increasingly abhor the Jewish state.

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