Israel faces an ongoing constitutional crisis — without a constitution

For months, Jewish Israelis have been taking to the streets to protest Prime Minister Benjamin Netanyahu’s plan to remake the country’s judiciary. Netanyahu says the legislation is a corrective against activist judges. Opponents say the laws enable a dictatorship.

The prime minister paused the legislative process in late March, after demonstrators almost shut down the country, and protests slowed. But the upheaval threatened to come roaring back Tuesday, as demonstrators took to the streets to oppose a preliminary vote by the country’s ruling right-wing coalition to roll back the court’s power of judicial review.

Experts and scholars call this kind of conflict, a fundamental rift between branches of government over the function of the state, a “constitutional crisis” — but in Israel’s case, it is in a country without a constitution in the first place.

The crisis is rooted in the same unanswered questions about fundamental rights and governance that prevented Israel’s founders from formalizing such a document. In many democracies, a constitution codifies the structure of government and its fundamental legal principles. In practice, constitutions can: achieve near-unalterable status, as in the United States; be frequently rewritten, as in many other countries in the Western hemisphere; be used to justify authoritarian forms of rule; or come to be entirely disregarded.

Israel, Britain and New Zealand are outliers, as they do not have constitutions, said Hanna Lerner, the author of “Making Constitutions in Deeply Divided Societies.” The United Kingdom and New Zealand rely on common law, bodies of legal thinking and precedent developed over centuries, which serve a de facto constitutional role.

U.K. common law is considered so fundamental that it is interwoven in originalist interpretations of U.S. constitutional law. Israel, a far younger country, relies on Basic Laws with quasi-constitutional status, developed over the past 75 years.

Israel’s leaders initially put off writing a constitution, as they could not agree on, or did not want to set in stone, a fundamental resolution to the question of democracy in a self-described state of the Jews, said Brendan Szendro, a professor of political science at McGill University in Canada. Fundamental tenets — such as defining religion and state relations, governing structures and the rights of both Jewish and Palestinian citizens — remain less clearly codified than they would be under a single constitutional document.

Israel pledged to draft a constitution when it declared independence in 1948. The following year, it held elections for a Constitutional Assembly to write one. But “there was a lack of political push for a constitution,” said Amichai Cohen, a scholar with the Jerusalem-based Israel Democracy Institute, which advocates for an Israeli constitution. The assembly turned into Israel’s first parliament.

But Israel was never just a state of Jews, a label that excluded its non-Jewish Arab and Palestinian citizens, said Yousef Munayyer, a nonresident senior fellow at the Arab Center Washington DC. “The state sees Palestinian citizens of Israel as outsiders, as not part of this conversation,” he said. Israel “wanted to set itself up as a state that excludes Palestinians and privileged Jewish people around the world” to maintain a demographic majority, Munayyer said.

From the get-go, religious parties opposed a constitution, fearing it “would enshrine rights that might limit the ability of the state to intervene in religious matters” on their behalf, Cohen said. Israel’s founding father, David Ben-Gurion, also opposed the idea, worried that a constitution would limit his and the government’s efforts to protect the fledgling state, he said.

“Very quickly the debate came over whether Israel should draft a constitution or not, not over the content,” Lerner said.

Equality for all citizens, a fundamental tenet of democracies, was not made a guarantee.

By 1950, Israel’s parliament, or Knesset, came to a compromise: Over time, it would pass Basic Laws as the blueprint for a future constitution. But this body of laws has not specified a full range of checks and balances between the three branches of government. In Israel’s parliamentary system, the party that wins the most votes in elections gets to form a coalition government and the party head becomes prime minister.

Calls for formalizing a constitution ebbed and flowed in the following decades, said Lerner, who also heads the School of Political Science, Government and International Affairs at Tel Aviv University. In the early 1990s, Israel went through what’s known as its constitutional revolution. The Knesset for the first time passed two Basic Laws related to human rights that guaranteed human dignity, liberty and freedom of work. The Supreme Court also adopted a doctrine of judicial review, which it said enabled it to strike down legislation in violation of a Basic Law.

The courts have since interpreted “human dignity” broadly, to extend to civil rights, but there remains no entrenched principle of equality under the law, Lerner said. In 2018, the Supreme Court went in the opposite direction and voted to uphold a 2018 Basic Law, known as the Nation-State law, which declared that the “right of national self-determination” in Israel “is unique to the Jewish people” — which leaves Palestinian and Arab citizens as second-tier.

The law echoed the Israeli public’s shift rightward and the rising political power of the national religious voting block, many of whom support an ethno-nationalist religious state.

To maintain power, Netanyahu has brought once-fringe extremists and settler activists into the mainstream. These groups long viewed Israel’s Supreme Court as too liberal, secular, elitist and biased against them (and Netanyahu, who faces corruption charges). Now their lawmakers are in the majority and want to be able to remake the rules. “We have seen the religious right and the nationalist right converge in the push to oppose constitutionalism in Israel,” Szendro said. “They argue that constitutionalism undermines democracy.”

“To start, any serious constitution must ask what the borders of the State of Israel are,” Joshua Leifer, a contributing editor at left-wing magazine Jewish Current, writes in the New York Review of Books. “Defining its territorial boundaries would require either formally annexing the West Bank” — or officially designating the settlements there as outside Israel’s sovereignty.

Calls for a constitution to entrench key freedoms have grown among some anti-Netanyahu protesters who fear losing their rights to live secular or queer or religiously nontraditional lives. “They will respect our values,” opposition leader Yair Lapid told a demonstration in March. “This was a hostile takeover by messianic nationalists. We won’t stop until Israel has a constitution.”

Still in large part absent from the protests and constitution debate has been “talk about the rights of Palestinians and of the occupation,” Munayyer said. “Suddenly, the principle of equality has become much more important for a lot of [Jewish] people in Israel, for women, for LGBT people, for secular people,” he said. But the debate remains where it started, about “keeping this two-tiered system of privilege in place,” he said.