Thursday, April 25, 2013

Who Needs a Constitution?

Israel, famously, has no constitution. Fact. The reason, according to general opinion, is that back in 1948, the religious parties didn't want one, because it might conflict with the Bible, so the secular politicians humored them at the time, and what started as a temporary act of politics became a permanent condition.

Here's the transcript of the cabinet meeting of December 13, 1949 (not 1948) where the issue was discussed at length, and the decision was made. (And note that it's part of our Declaration of Independence project.) Listening in on the discussion contains some surprises: yes, the Minister of Justice, Pinchas Rosenne, was in favor of enacting a constitution. And yes, the Attorney General, Yaacov Shimshon Shapira, agreed with him. And yes, one of their main considerations was the need to protect the rights of individuals. And yes, the religious representatives were skeptical, though not because they felt the Bible could serve as a rule book for the particularities of life in modern Israel, a claim they didn't make. And yes, many of the discussants felt that enacting a constitution in the fractured Israeli political climate would be divisive and challenging.

But that wasn't the dynamic that foiled the intention to have a constitution.

The reason the cabinet decided not to work towards creating a constitution was David Ben Gurion. Ben Gurion had no interest in there being a constitution, and so he hijacked the discussion in its fourth minute (at the latest), and by the time he stopped talking the issue was dead, even though the conversation went on for another hour or more; then, when at the last moment Rosenne tried to salvage his position by suggesting the government tell the Knesset it would set up a committee, Ben Gurion shot that down, too.

The reason for Ben Gurion's strident position? "There's no time." Actually, he offered three reasons, though he said it was two, but only one was really important. The first of the three and the one he didn't count was that he didn't see any reason for having a constitution. Why should some laws be stronger than others? And why think that today's legislators are any wiser than those 300 years hence? (He probably had a low opinion of any number of the ones of his day, but that's just speculation.) There need to be good laws, yes; and the United States needed a Constitution to stitch together all the colonies, but Israel has other challenges. The second reason, and the first he admitted to, was that a session of the Knesset dedicated to formulating a constitution would be given over to posturing and grandstanding - he didn't single out any particular party or group as the main potential culprit.

The real reason he gave, at great length, was that there were vastly more important things to do. So he gave a long speech about bringing in 3-400,000 additional immigrants and making a place for them; about settling the Negev and using its resources; about building ports and railways, towns and highways; and also all the regular, mundane laws needed to run a country. "The coming few years are the most important in our history. If anyone thinks that declaring independence or winning the war (of 1947-1949) were what was needed to found the state, they're wrong. The work is all ahead of us."

On the edge of the discussion, there was a humourous little exchange between Ben Gurion and Golda Meir, who basically accepted his argumentation, but nevertheless said that in principle she was in favor of having a constitution. "That's because you're American," Ben Gurion shot at her. "Yes, that may be," she responded.


  1. To deny the religous element's demands of a "religious" constitution rather than a secular constitution under which all the inhabitants of the State of Israel could live is to make the silence of the religious parties, etc., into something that it wasn't. There was no religious participation in the meeting that the State Archives reports, and it was incumbent upon Ben Gurion to find a way that would not hurt the necessary national unity to establish and pursue the work of the new state.

    Certainly, the personal "life passages," which are still under the rabbis control, would have had to be a part of any constitution to insure national unity. Ben Gurion did not want to given the rabbis a constitutional foothold in the operating of the state. While he was a secular Zionist, what Ben Gurion failed was to see the future of the state as it would demographically develop.

    He never claimed to be a prophet, but among all the politicians around today, none of them have achieved his level of statescraft, and Israel could use a few statesmen.

    1. IMO Ben Gurion was an autocrat that wasn't afraid to get his hands dirty. Perhaps you would define statesmen?