Who Needs a Constitution? In Defense of the Non-decision Constitution-making Tactic in Israel
"People in Israel disagree. They disagreed in the past; they have disagreed about the past. They disagree about the future; they will probably disagree in the future. This Article will visit Israel's near and far constitutional history, focusing on disagreements, controversies, and disputes as the central feature of Israel's constitution-making. This feature, I will argue, stands behind Israel's failure to enact a formal constitution in the formative years. Furthermore, I will argue that Israel still does not have a formal constitution, notwithstanding the conventional wisdom in Israel's legal community that since the "Constitutional Revolution" such a formal constitution exists.2 Disagreements and disputes prevent Israel from acknowledging and making real and substantial progress in constitution-making. This Article, however, argues that one should not shed tears over Israel's lack of a formal constitution. The constitutional tactic chosen by Israel's founding fathers was the "decision not to decide," which fulfilled the goals and needs that impel nations toward formal constitution-making in the first place. Continuing to fulfill those same goals and needs has been endangered by attempts over the past decade by political and judicial entities in Israel to establish a formal constitution. In order to substantiate my claim, this Article will focus on two landmark periods of Israel's constitution-making process. They are considered by many to have had crucial consequences for Israel's constitutional arrangements. Part I examines disagreements and constitution-making in the formative period of the state of Israel. First, it describes the political landscape of the Zionist movement before the establishment of the State and the disagreements and controversies that characterized it. This Article argues that Israel's failure to enact a constitution was the direct consequence of these and other disagreements that can be divided into two categories: substantive disagreements and institutional disagreements. Often these two categories of disagreements are intertwined. The founders of the State of Israel transcended the problem posed by this Gordian knot of disagreements by adopting the constitutional tactic of "deciding not to decide."3 This tactic fulfilled two main goals: fair and stable cooperation based on democratic foundation and the protection of human rights. Part II examines disagreements regarding and attempts at constitution-making since the 1980s. First, it describes Israel's politics in the 1980s, which were characterized by continued moral, political, and cultural disagreements. Israel's constitution-making was shaped by these disagreements, and public representatives continued clinging to the tactic of deciding not to decide basic constitutional issues. In addition, this Article argues that the enactment of the two new Basic Laws not only did not constitute a deviation from the tactic of deciding not to decide foundational disagreements about Israel's constitutional structure, but rather constituted a direct implementation of this tactic. Later on, I will examine how the decisions of the Israeli Supreme Court declaring that Israel has a formal constitution in the conventional sense and the efforts by different political entities to establish a constitutional regime in its American version points to the adoption of a new constitutional tactic: "the decision to decide." This Article argues that the new constitutional tactic thwarts the fair social cooperation among Israel's political factions and impedes the protection of human rights. Finally, this Article argues that the attempt to push the Israeli society to acknowledge the existence of a formal constitutional regime has failed. This failure should be traced to those disputes that keep us from agreeing that a formal constitution exists and that point to the conclusion that deciding not to decide is still the best interpretation of Israel's constitutional arrangements. Before discussing all these issues, it should be noted that the scope of topics analyzed in this Article is vast and the number of academic writings and judicial decisions having to do with Israel's constitutional arrangements after what was called the "Constitutional Revolution" are immense and continue to grow apace. The need to keep this Article within reasonable bounds, on the one hand, and the desire to present an overall picture of the nature of Israel's constitution-making and its constitutional arrangements, on the other, caused me to organize my argument around two periods: the formative period and the period since the 1980s."