Discover more from Israel from the Inside with Daniel Gordis
With civil war dangerously close, seven leading Israeli activists and thinkers have an idea ...
What happened to the "Constituent Assembly" the Declaration of Independence promised, and why some leading Israeli scholars believe that reviving it now is what the country needs to save itself.
There’s a major new initiative brewing in Israel, which some hope might help the country back away from looming disaster. We’ll get to that proposal below, and on Wednesday, we’ll post a conversation with one of the primary figures behind this proposal.
Before we get there, though, some background.
Outside academic circles, the 12th paragraph of Israel’s Declaration of Independence (there are 19 altogether) has long languished in relative obscurity. It reads:
WE DECLARE that, with effect from the moment of the termination of the Mandate being tonight, the eve of Sabbath, the 6th Iyar, 5708 (15th May, 1948), until the establishment of the elected, regular authorities of the State in accordance with the Constitution which shall be adopted by the Elected Constituent Assembly not later than the 1st October 1948, the People's Council shall act as a Provisional Council of State, and its executive organ, the People’s Administration, shall be the Provisional Government of the Jewish State, to be called “Israel.”
That passage’s relative obscurity, though, has come to an abrupt end over the past six months of Israel’s “constitutional” crisis. People of late have been asking all sorts of questions about it, including:
Why did the Founders promise to pass a Constitution by October 1, 1948 in the middle of a War of Independence, when it was obvious that that would be impossible? Answer: in large measure because Resolution 181, the UN’s “Partition Plan,” specifically required that the Jewish state and the Arab state (which never came to be because the Arabs rejected the plan and attacked, instead) both be democracies—and both had to ratify constitutions. The Declaration’s promise, therefore, was primarily for the consumption of the United Nations.
Why, then, did Israel never ratify a constitution after the war ended? Answer: there are many reasons, including the fear on the part of some that there was so little consensus about what the hastily-cobbled-together country should be that trying to pass a constitution would have ripped it to shreds. And, as we noted above, David Ben-Gurion himself, a bit of a democratically elected autocrat, opposed a constitution for fear that it would limit his powers. (The ironies never cease.)
A question that people rarely ask, though, is “whatever happened to that Constituent Assembly?” Was it ever elected? If it was, where did it go?
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If these past painful months have contributed anything to our thinking about Jewish education, in Israel and in the Diaspora, it is a renewed awareness that one cannot be a thoughtful or responsible participant in conversations about Israel today without a much better familiarity with Israeli history.
Historical literary is critical to civic engagement, it is now clearer than ever. In a few weeks, we will post a conversation with Dr. Laura Shaw Frank, who has recently written a wonderful piece on this issue and who has thought a lot about why Jewish schools need to do a much better job of teaching history, but how they ought to do it.
So here’s a quick bit of history necessary for understanding what some leading Israeli thinkers and activists are now proposing:1
Israel’s first elections took place on January 25, 1949. Though it is commonly said and written that those were the elections for the First Knesset, that is mostly true but not completely accurate. Those elections were actually conducted to elect the Constituent Assembly, which would pass a constitution, following which an Israeli parliament would take over.
But this Constituent Assembly, it quickly became clear, was never going to succeed in ratifying a constitution (largely due to David Ben-Gurion’s resistance). In the end, the Assembly passed exactly one law, the Transition Law, which was ratified on February 16, 1949. The Transition Law put into place the basic functioning of Israel’s parliament, which it named the Knesset. And it transformed the Constituent Assembly into the First Knesset.
What about the constitution? Just over a year later, on June 13, 1950, the Knesset passed what is now known as the Harari Compromise (or the Harari Law) which determined that instead of the Knesset trying to draft a constitution, responsibility for the constitution would be passed to the Committee on Constitution, Law and Justice, which would, with the agreement of the Knesset, pass a constitution bit by bit, through a slowly aggregated set of Basic Laws, which is essentially what Israel has done ever since. (There’s a much more extensive discussion of this in my recent book, Impossible Takes Longer.)
That is how, though there is no constitution, we got pieces of a constitution.
But whatever happened to the Constituent Assembly? It essentially put itself out of business. It passed the baton to the Knesset and to the Knesset’s Constitution Committee, and disappeared.
But Israel is now in a moment of constitutional crisis. PM Netanyahu is determined, he insists, to push through elements of the proposed judicial reforms that have brought the country to an unprecedentedly dangerous moment. His right flank is urging him not to compromise, and to make use of the fact that they have a legitimate, democratically elected majority that can pass what it wants.
But the opposition is equally determined. The protests this past Saturday night were huge (some 3.6% of the population according to some reports, which would be some 12,000,000 people in the United States). More ominously, there have been renewed declarations from reserve commandos in Flotilla 13, Israel’s Navy Seals (among other units) that they will not show up for duty until Judicial Reform is formally dropped, and the top brass is clearly alarmed about the implications for Israel’s battle-readiness. The resistance is planning a national day of protest on Tuesday, which they promise will largely shut down the country. Many employers have announced that they are giving their employees the day off to go and protest. Some major retailers have already announced that they will be closed on Tuesday. It could be bedlam—and it could be worse than that.
The reservists’ refusal to serve is causing a lot of discussion here, and they are taking a lot of flak. But their argument, as the leaders of the protest articulated it on Sunday night in a public Zoom call, is simple: they made a commitment to serve, with a state called Israel, which meant that it was Jewish and democratic. If it’s not both of those, it’s not the country they promised to serve and to risk their lives for. And if the judicial reform in its present form goes through, Israel won’t be a democracy, so it’s Israel that broke the deal, not them.
One can agree or disagree, but it’s worth understanding their logic.
In response, some in the pro-reform camp are already calling for a boycott of those retailers, while some members of the government are calling for the arrest of the protests’ leaders or the firing of the Attorney General—when either step would without doubt set the country ablaze and push it, quite possibly, beyond a point of no return.
We are very close to the precipice (I lost count over Shabbat of the number of columns I read in the papers, from right, left and center, that used the phrase “civil war”).
Is there anything that can be done?
Seven leading Israelis (pictured just below) think that there is.
With the negotiations under the aegis of President Yitzchak Herzog now stalled, these seven intellectuals / social activists / religious leaders are calling for re-establishing a Constituent Assembly. In their proposal, which is available for download here, they declare:
We propose a way out of the impasse: the formation of a Constituent Assembly, a dedicated and elected body that will consolidate the principles and basic rules of Israeli democracy in a broad consensus of all its factions.2 This body will lay the foundations upon which the authorities will operate, including the system by which these principles and rules will be amended and updated from time to time. The products of the Constituent Assembly will be brought to the people for approval and the Knesset for ratification.
With many Israelis warning that Israel has inched dangerously close to civil war, when “the most fundamental agreements in Israeli society have been eroded,” they make clear that this assembly would not be:
The Constituent Assembly will not replace the Knesset, the government, or the courts. It will be a specialized forum for shaping and consolidating the principles and basic rules of Israeli democracy, including, most importantly, rules for managing and resolving continued disputes among us. The Constituent Assembly will bridge the gap between the vital need for an agreed upon social covenant and the deadlock into which the Knesset has fallen.
Their proposal is getting a fair amount of attention in Israel, including some positive reactions from MK’s who are part of Netanyahu’s coalition. It got coverage this past weekend from Makor Rishon on the right, YNet/Yedio’t Ahronot on the left/center and more.
What are the chances that this movement to sustain Israel’s democracy by re-creating a constituent assembly can succeed? It’s hard to know. On Wednesday, we will post our conversation with Professor Netta Barak-Corren, one of the visionaries behind the idea (third from right in the photo above, in the dark green shirt). (Professor Barak-Corren, you may recall, wrote the now viral position-paper on the reforms, including what is wrong with the present system, why the reforms go too far, and what reasonable reform might look like, which we posted here and which can be downloaded here. She is also widely reported, including by the New York Times, to have been central to the negotiations headed by President Herzog.)
She will explain the nature of the danger that Israel now faces, what she and her colleagues have learned from studying constitution-writing in other countries (where it failed, where it didn’t), what this Constituent Assembly would actually do, how it would be elected, and who is helping to get it traction.
Some people are saying that this might just be the ladder that everyone needs to climb down from the tree, and that that ladder cannot arrive soon enough. Everyone knows that disaster lurks right around the corner, yet everyone also says that they’re not about to blink.
Some are going to great lengths to make clear that this isn’t left-right, Ashkenazi-Mizrachi, religious-secular. It’s different. At the Jerusalem protest on Saturday night, the organizers stressed, time and again, that there are many reasonable people who believe that some judicial reform is needed. And, they said, they were delighted that those people were joining the protest.
And even on the right, there is a sense that things can’t go on this way. Yisrael Hayom, the Adelson-founded paper that was created to support Bibi, ran a headline on Sunday which was far more editorial than it was reporting.
Amending the Reasonability Clause is necessary, but not like this.
Immediately underneath the photos, the newspaper (no longer as pro-Bibi as it once was, but still very much a paper of the right) runs the following sub-headline:
Limiting the Reasonability Clauses is a welcome step, but the coalition is tossing out the baby with the bathwater, by annulling it completely. This could lead to substantial damage to civic rights.
Back to Professor Barak-Corren. We will run our conversation with her on Wednesday, but in the meantime, just to give a sense how “out of the box” some of these people are, here is a quote from a column by Nadav Eyal (one of Israel’s leading journalists, whom we interviewed in a podcast a while back). Eyal reports on a conversation he had with Rabbi Yosef Kaminer (on the right in the photo above), the Haredi member of the group. Eyal asked him why it made sense for the Haredim to get involved in this initiative. Why not just wait, Eyal asked Kaminer, for demography to do its job, so they can simply take over the country?
Here’s what Rabbi Kaminer had to say:3
As Haredi Jews, we have a long historical memory. If we do not act to lower the flames and to come to some basic agreements, there will be no state to fight over. We Haredim understand that having a state is nothing to take for granted; every day, it is a miracle all over again. In order that the state survive, we prefer to reach compromise with our Tel Aviv brothers and to live in this Holy Land under Israeli rule in a thriving country and economy, rather than being “right” and being the lone heirs to this land, by causing the country to collapse and to live under the rule of Hamas [or] in a country that is dictatorial and weakened.
We are pragmatists: we know that if they do not have Tel Aviv and their liberalism, we will not have Yavne and its sages.
Wow. Is the messianic era right around the corner?
Even if not, and even if Rabbi Kaminer is an outlier in the Haredi community, there is no way to appreciate what’s happening here without knowing about the courage and creativity of some of the players, far away from the headlines. On Wednesday, we’ll hear more about one of their plans.
But Tuesday’s mass demonstration comes before Wednesday, which makes this a good moment to begin praying that we don’t go too far tomorrow—just before we Israelis possibly figure out how to begin fixing the most ominous crisis we’ve ever faced.
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Aharon Barak, “Declaration of Independence and the Knesset as a Constituent Assembly,” in Megilat HaAtzmaut—The Declaration of Independence With an Israeli Talmudic Commentary, ed. by Dov Elbaum, (Rishon LeZion: Yediot Ahronot Books and Chemed Books, 2019), pp. 395-400.
Emphasis added, not in the original.
Nadav Eyal, “A constitutive moment? Perhaps,” in Yediot Ahronot, HaMusaf LeShabbat, July 7, 2023, pp. 4-5. Quote on page 5.