I find the article by Arie Morgen­stern (“Dispersion and the Longing for Zion, 1240-1840,” Azure 12, Winter 2002) to be of great importance during these days, where even among Zionists there is a weakening of the notion that there is justification for a Jewish national state in Israel.

It is so obvious to all of us that there were immigrations to Israel for spiritual and other reasons since time immemorial. However, it is important to write about it and make sure that we are not painted as modern-day colonialists with no attachment to this land. I absolutely loved the article, as it reinforces my love for those pioneers over the centuries, those who braved the trials and tribulations of the various aliyot, and makes me proud to be part of that chain. Thank you for raising my morale.

Jonathan Davis
Kochav Yair

 

In “A Constitutional Convention for Israel: Lessons from the American Experiment” (Azure 12, Winter 2002), Ruth Gavison presents an outstanding exposition of the lessons from the American Constitutional Convention of 1787 that can be applied to the Israeli situation. While I concur with almost all she writes, I disagree with the two operative functions that she prescribes for the Knesset in an Israeli constitutional process. My skepticism of the Knesset’s ability to rise to the occasion—indeed, the Knesset’s very performance has been one of the prime motivators of the renewed call for a constitution—plus other factors lead me to conclude that its role in the process must be minimal.

Specifically:

1. The Knesset should not alter the proposal created by a constitutional committee or convention. In 54 years, the Knesset has not fulfilled its mandate to create a constitution; why should it now have the opportunity to meddle with the product of an arduous process that will represent, at long last, the consensual agreement that we have all been longing for? Second, it was the Knesset that designed and enacted—and subsequently repealed—Israel’s ill-conceived version of direct elections for the prime minister. How can that same body be entrusted yet again with the design of governmental mechanisms? Third, a draft constitution will most likely prescribe changes to legislative powers, possibly by providing greater checks and balances or by restricting legislators’ immunity. How can the Knesset—an interested party—be empowered to tamper with the delineation of its own authorities or of its relationships with other branches of government? Fourth, the knowledge that the Knesset is at liberty to change the product may well deter committee members from agreeing to painful compromises out of fear that their concessions will be undercut by the Knesset, and that they will subsequently be perceived as unprincipled, or worse, fools. Finally, believing that the Knesset would become involved later in any case, the committee might well opt to avoid addressing certain controversial issues altogether, preferring to push them off onto the Knesset and thus defeat the very purpose of the committee.

Rather, the role of the Knesset should simply be to vote “yes” or “no” on whether it believes that the convention’s product is worthy of being sent to the people for their consideration. A simple majority is all that should be needed from the Knesset, as public ratification is what will give authority to the constitution. In addition, a new constitution may very well call for a different legislative structure, in which case even a special majority of the current Knesset would not be a legally meaningful act.

The American experience suggests a number of additional reasons that the Knesset should not touch the product of a committee or convention. The Continental Congress at first considered making changes in the Constitutional Convention’s document. However, at the urging of James Madison and others, it thought the better of doing so for four key reasons, as Madison recounted in a letter to George Washington (September 30, 1787):

Applied to the situation in Israel, these reasons might be restated thus: (i) Any role the Knesset might play in a constitutional reform process would really be out of formal respect, but it is not where real reform is intended to emanate from; (ii) Knesset deliberations would likely take a lot of time and, in the end, not produce a better result; (iii) if the country has specifically convened a constitutional committee, then that is the body out of which the final proposal should come; (iv) Knesset involvement would simply detract from the importance of the occasion.

2. Members of the constitutional committee should not be appointed by the Knesset. Knesset appointment does not guarantee that the members represent the public’s will, either in fact or in the eyes of the public. It also does not ensure that the ablest and most respected members of Israeli society are assigned to this most momentous and historic task.

Rather, members should be elected in a special election, which itself would add drama to and focus on the proceedings. Every party in the Knesset would offer a slate of its best and brightest thinkers and doers. (No traditional campaigning, though; the candidates’ names and bios should speak for themselves.) To ensure that the commission is not simply a subset of the Knesset, at most only every third name on a party’s list should be permitted to be a sitting member of Knesset. Then, the citizenry will elect, say, thirty national representatives based on proportional representation, with no entry threshold. This approach would foster full representation by capable people.

The interests of local government also need to have a voice at the table to weigh in on local or regional interests. Thus, local representatives too should be chosen, preferably in the special election.

Such a special election would have the added benefit of bestowing enhanced legitimacy on the delegates and the committee, imparting additional gravitas to the entire process, and enhancing the sense of participation in the process and ownership of the results on the part of the citizenry.

The Knesset’s statutory responsibility for producing a constitution for Israel would be fulfilled responsibly and best simply by enacting legislation that calls for the special election, by charging the delegates with their mission, by providing adequate resources for them to do their job well, and then by deciding whether the results warrant consideration by the citizens.

David Raab
Ra’anana