Israel’s Basic Conflict

Marbury vs. Madison is probably the most important ruling the Supreme Court ever made. It was the first time the court exercised “judicial review”, the ability of a federal court to declare a law unconstitutional. It’s odd in a way, since the court’s 1802 decision amounted to one branch of government unilaterally deciding it had control over the actions of another branch, i.e. Congress, even though there’s nothing in the Constitution that gives the judiciary that power.

Israel’s Supreme Court decided its own version of Marbury vs. Madison in 1995. The country has never had a written constitution, but it does have what are called “Basic Laws”. One of these laws declares that every Israeli citizen (whether Jewish or Arab) has certain fundamental rights. After the passage of the Basic Laws, the Supreme Court ruled that it could annul laws or parts of laws that violated those rights. In other words, the court gave itself the power of judicial review. Not everybody in Israel agrees with that decision.

Earlier this year, Prime Minister Netanyahu proposed legislation that would give Israel’s parliament, the Knesset, control over the appointment of judges, limit the Supreme Court’s ability to void legislation through judicial review, and override the court’s decisions. Opposition to this legislation led to massive protests all around the country.

This is from an interesting article in The New York Review of Books by Joshua Leifer:

Together, the … Basic Laws defined Israel as a “Jewish and democratic state.” This phrase appears nowhere in Israel’s 1948 Declaration of Independence…. The adoption of the “Jewish and democratic” formulation was part of an effort by Israeli leaders to shore up the ethnically exclusive character of the state as Israel entered the negotiation process that would culminate in the signing of the Oslo Accords. But for [the president of the Supreme Court], these Basic Laws also inaugurated the process of trying to harmonize Israel’s Jewish character and its putatively liberal-democratic commitments…. 

The 1995 Supreme Court decision in United Mizrahi Bank v. Migdal Cooperative Village …  created a legal means by which human rights could trump prerogatives of Jewish supremacy and state security. While this decision did not spark widespread outrage right away, with each ruling that struck down government policies in the name of democracy or human rights, right-wing hostility to the court increased….

For instance, the court provoked objections from the right when it ruled that Israel’s security services could not use physical torture—a decision that was substantively reversed in two cases in 2017 and 2018—or when it required that the Israeli military governor in the occupied territories change the location of the West Bank separation barrier to protect Palestinian private property rights. For Palestinian and human rights advocates, such interventions by the court have themselves been inadequate, because they left the infrastructure of the occupation intact and preserved laws that privileged Jews over non-Jews. In the right-wing imagination, however, the court … now appeared as a threat both to Israel’s security and to its Jewish character.

… The right insists that [the court’s] actions were their own judicial “coup”—a usurpation of the sovereign will of the people as expressed in legislation passed by the Knesset—and rejects the notion that the values of human dignity and democracy should ever win out over Jewish supremacy and state security. In fact, for much of the Israeli right, it has become anathema to suggest that the power and position of the Jewish majority have any limits at all….

Yair Lapid [a more centrist Israeli leader] has declared that it would not be sufficient simply to stop the right-wing coalition’s judicial takeover. “We don’t need to put a bandage on the wounds but rather properly treat them,” he said in an address after Netanyahu announced that he would pause the judicial overhaul legislation to allow for negotiations. “We must sit together and write a constitution based on the values of the Declaration of Independence.”

In the days since the legislative pause went into effect, a large segment of protesters has continued to return to the streets weekly, many chanting, “No constitution, no compromise.” Their argument is that without a constitution that formally establishes the relationship between the judicial and legislative branches and explicitly guarantees the civil liberties they fear the right aims to extinguish, Israel will remain vulnerable to future efforts to consolidate power over the political system and transform it into something like Viktor Orbán’s “illiberal democracy” in Hungary.

But because the renewed calls for a constitution contain no reference to the occupation and barely acknowledge discrimination against Israel’s Palestinian citizens, they have taken on an absurd cast. Lapid himself has insisted that he rejects a “state of all its citizens”—in other words, one that would guarantee equality to its inhabitants. He [and others] have consistently refused to treat Palestinian citizens as political partners…

Were a constitution along Lapidian lines to be written, it would need to be explicitly undemocratic and inegalitarian; it would enshrine as a constitutional value the discrimination against non-Jews that, according to the NGO Adalah, already appears in more than sixty-five Israeli laws—as well as in the now-infamous Nation-State Law, which was passed with the status of a Basic Law in 2018. The potential constitution might well begin [with the preamble to a proposed constitution in 1948] “WE, THE JEWISH PEOPLE.

Writing any kind of constitution will, in other words, be no easier now than it was in 1948. The divisions between secular liberals and Orthodox traditionalists on matters of synagogue and state are perhaps felt even more intensely today than during the early years of Israel’s history. Then, secular Jews constituted an overwhelming majority, but rapidly shifting demographics mean that traditionalist and Orthodox Jews are now set to supplant them.

The protests draw some of their sense of desperation from the fear that the secular Israel of old is disappearing. More significantly, though, writing a constitution that does more than simply consecrate the current situation will still mean making the choice that confronted the state’s founding generation: between a genuinely democratic state and one that constitutionally upholds Jewish supremacy.

To start, any serious constitution must ask what the borders of the State of Israel are. Defining its territorial boundaries would require either formally annexing the West Bank or officially designating the settlements as outside Israeli sovereignty. A constitution would also need to define the status of all the Palestinians living under Israeli control. Either the constitution would grant them full equality—and therefore set in motion the dismantling of a vast apparatus of discrimination and unequal land distribution laws—or it would make Israel a de jure apartheid state, not just a de facto one.

Today no centrist or center-left Israeli Jewish leader is prepared to entertain such choices. Yet the right has its own vision for making them. After dismantling the judiciary and eliminating any checks on Jewish majority rule, it aims to annex the West Bank, legally formalize the apartheid regime over the Palestinians living there, and expel those who resist their permanent subjugation.

Some American observers have compared the situation in Israel to the ongoing debate among left-liberal legal scholars in the United States about the drawbacks of judicial politics, especially after the Dobbs decision: Has relying on the Supreme Court instead of the democratic process hampered the implementation of progressive policies? But if there is any parallel it is not to contemporary America but to the US in the years preceding the Civil War. Then in the United States as in Israel now, the country was divided over who was entitled to fundamental rights and what its founding documents meant—or in Israel’s case, what it means to lack them.

There the parallel stops. While the settler right seeks (as the proslavery camp sought) to solidify a constitutional order premised on the supremacy of the ethno-racial majority, the prodemocracy camp has embraced no call for equality comparable to that made by the American abolitionists. The protesters are largely content with Jewish supremacy as long as it protects liberal freedoms for Jews. What they seem to want is to maintain both the material benefits of that inequality and the self-comforting illusion of democracy.