Historical Background

Few people are disturbed by the fact that the Proclamation of the Establishment of the State of Israel calls for an “Elected Constituent Assembly” to be convened not later than October 1, 1948 to adopt a Constitution for the fledgling State.

Israel’s Provisional Government in 1949 arranged for the election of a Constituent Assembly to write the country’s Constitution and prepare elections for Israel’s parliament, the Knesset. The Assembly was duly elected and appointed a Constitutional Committee consisting of various party spokesmen, a majority of whom were socialists.

A draft Constitution was submitted to the Committee. The draft prescribed that the President had to be a Jew-a logical conclusion given the Proclamation’s repeated reference to Israel as a “Jewish” State. The spokesmen of the socialist parties rejected this logic. They feared Israel would be regarded by the world as “racist.”

The spokesmen of the religious parties regarded such fear as cowardice, but were outvoted by the secularists who dominated the Committee. The Provisional Government then summarily designated itself as the Knesset. The people of Israel have therefore lived under a system of governance of which they never formally approved. This system has become increasingly dysfunctional and corrupt.

A Constitution remains a dire necessity. Although the religious parties now say “we have a Constitution, the Torah,” the truth is they (rightly) fear a leftwing constitution on the one hand, and are currently animated by sectarian interests on the other. Besides, Israel today lacks the intellectual and moral qualifications for a Torah government, which mandates a King and a Sanhedrin, which require, under Jewish law, the approval of the people-something not to be expected. Therefore, a lesser Constitution is needed, one appropriate to the character of Israel’s “mixed” population.

Although no constitution-not even the Torah (which depends on human commitment to uphold)-can guarantee honest and efficient government, a well-designed constitution can increase the probability of obtaining such a government. It can therefore facilitate consistent, comprehensive, and resolute national policies and thereby contribute to national unity and security as well as national dignity and prosperity.

Every sensible and unbiased Jew, whether religious or not, will support such a constitution, provided he is fairly confident that it will help remedy the manifest flaws of Israel’s existing system of governance, while safeguarding his private and civil rights. Surely he would prefer to vote for an individual candidate familiar and accountable to him, rather than vote for an obscure, self-perpetuating oligarchy, i.e., a party slate that gives politicians safe seats and enables them to ignore public opinion with impunity. Who can be content with a parliamentary system that spawns political parties like weeds, fragments the Government, conduces to corruption, sullies Israel and undermines Jewish national identity and purpose?

But if Israel is to preserve its Jewish identity, then non-Jewish citizens of Israel, while enjoying the full range of personal, civil, economic, and religious rights, cannot logically be accorded the power to determine the laws and policies of the nation-which is not to say they cannot participate with Jews in a branch of government that secures their rights while promoting justice and national loyalty. Israel therefore needs a four-branch system of government in which only Jews are eligible to vote for, and be members of, the Legislative, Executive, and Judicial branches, while the fourth branch will be open to Jews and non-Jews alike.

We are therefore proposing a unique bicameral parliament. Since legislatures have two basic functions-law-making and administrative oversight-we propose the following. The law-making function will be assigned to a “Senate,” while the function of administrative oversight-lacking in the present Knesset because of its subservience to the Cabinet-will be assigned to a “House of Representatives.”

Here we present the outline of a Constitution, to convey its general character:

The Preamble

We the People of Israel, grateful to the Creator for preserving us as a Nation and for returning us to the Land of our Fathers, do solemnly establish this Constitution. Nothing in this Constitution is to be construed as derogating from the authority of the Torah or from the wisdom of our Prophets and Sages. To the contrary, this Constitution is intended to preserve the Jewish heritage and to hasten the day when Israel will present the example of a Nation in which Freedom dwells with Righteousness, Equality with Excellence, Wealth with Beauty, the here and now with Love of the Eternal.

A. Institutions of Government

The Senate

1. The laws of the nation will be enacted by the Senate, and all treaties or agreements with foreign powers or entities must be ratified by a three-fifths vote of a Senate plenum.
2. The Senate shall be composed of 120 members, no less than half of which will be individually chosen in constituency elections.
3. The Senate will have a six-year tenure, one-third to be chosen every second year.
4. To be eligible for membership in the Senate, a person must have knowledge of the Hebrew Bible, Jewish history and customs, which knowledge must be certified by secular and/or religious institutions of learning as prescribed by law.
5. Any group of 20 or more Senators may nominate a presidential (and vice-presidential) candidate. The number of candidates nominated will be no less than two and no more than three.
6. A majority of the members of the Senate may, by a petition addressed to the President, request the President to decline to sign and promulgate as a law any Bill (other than those affecting defense and appropriations) on the ground that it contains a provision of such national importance that the will of the people thereon ought to be ascertained in a national referendum.

The House of Representatives

1. The House of Representatives will consist of 60 members individually chosen in constituency elections. Representatives will have a four-year tenure, one-half to be chosen every second year.
2. Excepting classified security matters, the House will inspect the national administration, including the ministries, the army, and every institution or enterprise in which the national authority participates, whether managerially or financially. Inspection shall include accountancy, legality, and appropriateness of the practices examined.
3. The House will conduct public hearings, investigate public complaints regarding the national administration, and suggest measures to remedy any administrative shortcomings or abuses.
4. The House may recommend legislation to the Senate, which the Senate may reject or amend as it sees fit. But if such recommendations are enacted into law, their juridical authority will be derived solely from the action of the Senate.

The President

1. The Executive power shall be vested in a President. To retain the services of a wise and experienced President, he will be eligible for re-election for two successive terms after his initial election to the presidential office.
2. The names of the presidential candidates (and their respective vice-presidential candidates) shall be placed on a national ballot. The candidate receiving a majority of the votes cast shall be President. If no candidate receives a majority, the two receiving the highest number of votes shall compete in a run-off election.
3. The President shall recommend legislation to the Senate. He shall appoint, with the advice and consent of the Senate, the ministers of the Cabinet. He shall have the power to make treaties, be commander-in-chief of the Israel Defense Forces, and be responsible for the administration of the laws.
4. The President will have a suspensive veto over Bills submitted by the Senate, which veto may be overridden by a three-fifths majority of a Senate plenum.
5. The President, with the advice of a council learned in Jewish and secular law, shall nominate the Justices of the Supreme Court. The names shall be submitted to the Senate for confirmation by a majority plus one vote of the plenum.
6. The President will be subject to impeachment for malfeasance of office by a three-fifths vote of a Senate plenum chaired by the Chief Justice of the Supreme Court.

The Judiciary

1. The judicial power shall be vested in a nine-member Supreme Court and in such inferior courts which the Senate may from time to time establish.
2. Among the diverse systems of law operative in Israel, Jewish law shall be “first among equals” in every case where an Israeli statute is ambiguous or uncertain, except only where the Israeli statute explicitly differs from Jewish law. (This conforms to the Foundations of Law Act 1980, which provided: “Where a Court finds that a legal issue requiring decision cannot be resolved by reference to legislation or judicial precedent, or by analogy, it shall reach its decision in the light of the principles of freedom, justice, equity, and peace of the Jewish heritage.” The term “heritage” will be construed to include Jewish law.)
3. No law enacted by the Senate over a presidential veto will be subject to judicial review.
4. No law, having been approved in the national referendum, will be subject to judicial review.
5. No law enacted by the Senate and signed by the President can be nullified by less than two-thirds of the full membership of the Supreme Court.
6. Questions of personal status (e.g. marriage, divorce, and conversion) shall be decided solely by Rabbinical Courts.
7. The Judges of the Court will be subject to impeachment for malfeasance of office by a three-fifths vote of a Senate plenum.

B. Amendments

Amendments to the Constitution shall require the approval of two-thirds of a Senate plenum followed by a referendum by those eligible to vote for members of the Senate.

C. Other Constitutional Provisions

1. This Constitution affirms, as its paramount principle, the nation’s Jewish character to which all other principles are subordinate. Any party that negates this paramount principle will be excluded from participation in any national or local election.
2. All elected officials and civil servants shall pledge their loyalty to Israel as a Jewish nation.
3. No person holding office under this Constitution shall, during his tenure, be eligible for any other public office.

E. A Constitutional Bill of Rights

1. The Land of Israel, of which the Government is only the custodian, belongs exclusively and eternally to the Jewish People, and no part of this land may be surrendered to non-Jews.
2. Except for public purposes defined by law, the Government shall foster private Jewish ownership and development of the Land of Israel.
3. No Israeli national or citizen living abroad shall be denied the right to vote in elections for which he is qualified.
4. All residents of Israel will be guaranteed freedom of religion and freedom of speech and the press.
5. All residents of Israel shall have the right to establish their own religious and educational institutions, provided these are consistent with loyalty to the nation of Israel.
6. The right of workers to strike will not be abridged, except those involving public services, which will be resolved by arbitration.
7. No resident of Israel shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or due process of law.
8. In all criminal prosecutions the accused shall enjoy the right to counsel, to a speedy and public trial, to be informed of the accusation for which he is been charged; to be confronted by witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.
9. The right of all residents of Israel to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.
10. The enumeration in this Constitution of certain rights shall not be construed to deny or disparage others retained by the Jewish People or affirmed by the Torah respecting Jews and non-Jews.

Conclusions

The above constitutional provisions are, of course, tentative and by no means complete. The modes of constituting the various branches of government need to be further elaborated, as do their respective powers and procedures.

Nevertheless, this proposed Constitution would: (a) enhance Israel’s dignity; (b) facilitate the wise formulation and execution of national policies; (c) elevate the moral and intellectual character of Israeli politics; (d) enable the Government to negotiate more effectively with foreign powers; and (e) promote Jewish unity and Jewish national pride. (c) will elevate the moral and intellectual character of Israeli politics; (d) will enable the government to negotiate more purposefully with foreign powers, and (e) will promote Jewish unity and national pride.

Based on and further detailed in Paul Eidelberg’s books, The Myth of Israeli Democracy, Davidson Press, 2007, and Jewish Statesmanship: Lest Israel Fall, Ariel Center for Policy Research, 2000.