Ben-Gurion on Judicial Reform

Israel does not have a constitution in the way most Americans understand the term. Instead, it has a series of “Basic Laws,” passed by Israel’s unicameral legislature, the Knesset, with a simple majority of members present and voting. In the 1990s, after the Knesset passed two new Basic Laws to protect human rights, Israel’s Supreme Court declared that these laws had constitutional status and could be used as the basis for striking down ordinary legislation.

Many analysts on the right have argued that what proponents have called a “constitutional revolution” was an act of judicial usurpation, and lingering resentment over the alleged judicial coup helped fuel the effort by Israel’s current government to weaken the court’s power.

It may seem odd that Israel has no written constitution. With few exceptions, modern representative democracies have adopted such documents, and Israel’s Declaration of Independence, issued on May 15, 1948, promised that Israel would ratify one by Oct. 1 of that year.

Explanations for the failure to do so usually focus on practicalities: As Israel struggled to survive the invasion by Arab armies and the influx of immigrants and refugees, other matters were more urgent; and besides, the key factions in Israeli politics could not agree on the substance of fundamental law.

While there is something to both these rationales, the most important explanation for the nascent state’s failure to adopt a constitution is that David Ben-Gurion, Israel’s founding father and dominant political figure, did not want one. Two years ago, Neil Rogachevsky, a scholar at Yeshiva University, found and translated a speech that Ben-Gurion delivered in 1949 to the Knesset committee responsible for drafting a constitution.

Ben-Gurion began his speech by denying that conventional practice had relevance for the new state: Israel had arisen in “special historical circumstances” and would have “particular tasks that nearly no other nation” had, he said. The only question was whether prevailing practices would be good (or not) for the state of Israel. He reviewed the reasons that led other countries to adopt constitutions—such as the need to delineate powers in a federal system or to draw the line against tyrannical power—and denied their relevance for the Israeli case.

Ben-Gurion then went to the heart of the matter: whether Israel needed a distinction between ordinary laws that can be enacted by simple majority and foundational laws that would be harder to adopt and change. His answer was a resounding no. “Just as I am against special privileges [in politics],” he declared, “I am also against privileged laws.” Even if he found himself in the minority, he would oppose supermajority requirements. “Why would the minority restrict itself?” After all, he continued, “every minority fancies that it will one day be a majority.”

Citing the Lochner era of U.S. Supreme Court opposition to progressive social legislation, Ben-Gurion directly attacked American-style judicial review as a standard for Israel. “In a country such as ours, imagine for yourselves that the nation wants something, and seven people designated with the rank of judge cancel something that the nation wants! . . . This, in our country, would lead to revolution. For the people would say: we will do what we want.” Israel, Ben-Gurion argued, had chosen a parliamentary form of government in which the people’s representatives make and implement laws. In such a system, he bluntly concluded, it’s impossible to “delegate authority to the court to decide whether the laws are kosher or not kosher.”

As Ben-Gurion spoke to the Knesset committee, the new state was experiencing a wave of immigration from Middle Eastern countries, which, he noted, was raising concerns among Israel’s mainly European founding generation that they would be overwhelmed by “savages” who had no regard for the law. To his enduring credit, he pushed back hard against these sentiments, and he warned against efforts to use the law to entrench the beliefs of European Jews against the views of newcomers.

Israelis who have mobilized against the Netanyahu government’s plan to restrict the power of the judiciary do not share Ben-Gurion’s confidence that unrestrained parliamentary majorities can always be trusted to observe democratic norms. In recent decades, attacks on the judiciary around the world have often opened the door to soft authoritarianism with a democratic face. Still, Ben-Gurion was right to emphasize the tensions that judicial review would create in a parliamentary democracy, and many Israelis who reject the current government’s attack on the judiciary believe that the expansion of judicial power in the 1990s went too far. But the quest for a new balance is proving elusive, and the failure to find it could inflict enduring damage.