In a political first, Israel’s opposition leaders have presented a common set of principles for the government they intend to form. Four issues top the agenda: equal sharing of the national burden, establishing a state commission of inquiry into the failures of October 7, instituting term limits for prime ministers, and adopting a constitution.
Resolving these issues is a matter of paramount national interest. Without equal sharing of the burden, Israel will struggle to function militarily, economically, and socially; without a state commission of inquiry, we will neither learn how to prevent similar failures in the future nor fulfill our most basic obligation to those who paid a heavy price as a result; term limits are needed to inject fresh thinking into national leadership and reduce the risk of government corruption; and a constitution is an indispensable social and legal framework for safeguarding the stability of Israeli democracy.
These issues are not all alike. The first three can be implemented swiftly through legislation and raise no especially complex professional questions. Adopting a constitution, by contrast, is a complex legal, cultural, and social undertaking – perhaps the greatest challenge a legislature can face – and will therefore take considerable time.
The first three measures also enjoy relatively broad public support in Israel. In-depth surveys indicate that even some supporters of the coalition back the opposition’s positions on these issues. Opinions differ over how equal sharing of the burden should be achieved and how far it should go, but the general direction is supported by a large majority.
The idea of a constitution also enjoys broad support – but only in the abstract. Once the Knesset seeks to translate it into concrete provisions, disagreements among the identity groups that make up Israeli society will erupt in full force. The record is clear: Israel has seen many serious attempts, both inside and outside the Knesset, to propose a constitution, and all have failed. Israel is more polarized today than it was then; the challenge has only grown.
Israelis protest against the government’s proposed judicial reforms in Tel Aviv on February 4, 2023. (credit: RONEN ZVULUN/REUTERS)
There is another important difference. Arrangements governing the first three issues can be enacted by an ordinary coalition majority, however narrow. By contrast, constitutional arrangements require broader public support.
A constitution provides stability
A constitution has a stabilizing effect only if it is entrenched, so that it cannot later be amended by an ordinary coalition majority. But if the present generation is to constrain the legislative freedom of future coalition majorities, the constitution itself must be adopted by broad support. Without such support, the constitution’s legitimacy is called into question, and instability may actually deepen.
Even so, the opposition leaders are entirely right to put the constitutional challenge on the national agenda. The question is how, in practice, to advance a constitution after the election – and what, in principle, the proper path should be.
A full constitution addresses three fundamental questions: the state’s core identity (who are we?); a bill of rights (what do we believe in?); and the institutions of government (how do we manage our shared life?).
Given Israel’s polarization, broad agreement on the first two questions is unattainable. Even if the “reform parties,” as they call themselves, reach agreement on these matters, they would lack the professional and public legitimacy needed to entrench those arrangements so that future changes would require a larger majority than the one that enacted them.
Would opposition leaders accept constitutional provisions adopted by the current coalition requiring a supermajority – say, 80 MKs – for any future amendment? Hillel the Elder and Immanuel Kant taught us not to impose on others what we would not accept for ourselves.
There is, however, a way to stabilize Israel through a partial constitutional settlement – a “thin constitution” focused on the third question: relations among the branches of government. The fierce struggle over judicial reform shows that disagreement is intense here as well, but the prospects for broad agreement are comparatively greater because these are not questions of identity.
Most Israelis – including supporters of the opposition parties and members of the liberal camp – favor measured changes in the relationship among the branches. A thin constitution that sets rules all sides would regard as fair and effective when viewed from “behind a veil of ignorance” – without knowing whether they will find themselves in the coalition or the opposition in the future – could command broad support.
That is how Israel can achieve the reform it needs.
The writer is president of JPPI – the Jewish People Policy Institute – and professor emeritus of law at Bar-Ilan University.