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April 24, 2014 / 24 Nisan, 5774
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Posts Tagged ‘Founding Fathers’

So You Say You Want a US Style Constitution in Israel…

Sunday, January 6th, 2013

After you make aliyah from the United States, it’s hard not compare everything to what you’ve come to expect from your prior life.  Whether it’s people’s attitudes, prices, the government bureaucracy, and so many other things. As a lawyer who has studied American and Israeli law and someone who has been politically active in both the US and Israel, I compare Israeli and American constitutional law.

The first thing, of course, that jumps out is not that there is no constitution in Israel. That doesn’t in and of itself bother me. What bothers me is that the Supreme Court believes there is one and therefore acts as if it has the power of judicial review.

But after that, there is the fact that when Israeli legal authorities talk about a constitution they didn’t really mean a whole constitution, they mean only a bill of rights. That’s why it was so easy for Aharon Barak and the Supreme Court he led to rationalize giving themselves the power of judicial review. Israel, they thought, has basic laws on everything except a bill of rights. Now the Knesset has approved a basic law on “human dignity and liberty” so therefore the constitutional process has been competed and what are termed “basic laws” will automatically be considered superior law to regular laws.

That was how they glossed over the fact that only some basic laws have “entrenchment clauses,” which say make the law superior to later laws unless the later law is approved by a certain sized majority, and that when Basic Law: Human Dignity and Liberty was approved legislators were told by the Chairman of the Knesset committee on the Constitution, Law and Justice that it would not give the Supreme Court the power of judicial review.

But a constitution is much more than a bill of rights. It’s about the structure of government and how that impacts decision-making and in and of itself protects the rights of the people.

Unfortunately, it doesn’t appear much thought was put into the system of government in Israel – not the serious kind of political philosophy that when into the U.S. Constitution. Israel’s governmental structure is very simplistic. There are no districts, so elections are just one big free for all, with whoever can form a majority-coalition in the legislature forming the government. And then off to the side there is the Knesset. Of course, that doesn’t make politics simple. In fact it makes it unduly complicated, but in all the wrong ways.

While studying the evolution of judicial review in Israel, I read Emmanuel Rackman’s account of early Israeli constitutional decision-making – both in the provisional government and then in the Constituent Assembly, the body elected to adopted a constitution and which became Israel’s first Knesset. The main constitutional issues which were discussed and debated were the concept of the a written constitution and a bill of rights. No one could agree on those so it was agreed to disagree and make laws about the basics parts of government in “basic laws” which would later be used as the basis for a constitution.

In my op-ed in last Thursday’s Jerusalem Post, I wrote that the Disengagement – which involved a forcible mass transfer of thousands of a certain class (Jews) – was a result of the inability of the Israeli governmental system to protect citizens’ rights and ensure the adoption of sound policy, due to the fact that it lacks the checks and balances as they exist in the US constitutional system (as well as many others).

My conclusion was that,

Those who recognized the disengagement as the act of despotism it was ought to consider how our form of government affects the policies which are adopted and how it should be changed to ensure that a plan that pits soldiers against thousands of their countrymen is never approved again.

But against all my arguments and comparisons between the Israeli and American systems, first person to comment on the article argued that, “The grass really isn’t greener elsewhere. Here in the US, our one-time system of checks and balances has been largely destroyed, and we are on the fast track to financial ruin.”

That wasn’t the first time I’ve gotten such a response to a US-Israel constitution comparison. Once, while making the point about Israel’s judicial selection procedure (judges are chosen by a committee of nine, three are from the Supreme Court, two from the Knesset (one is an opposition member), two from the government and three from the bar association who side with the judges) and how it was inferior to the American judicial selection procedure, in which judges are more tied to the people since they are chosen by the political branches, a distinguished ivy-league educated law professor remarked about how judicial committee hearings in the Senate can be a joke, so perhaps it should not be so emulated.

That all may be true. The US system has its dirty moments. It’s the nature of democracy and politics in any system that politicians will play to the cameras and their base for popularity and in so doing make a mockery of themselves and potentially lead to bad decisions.

Nevertheless, the US system is quite remarkable and renowned around the world. It has also served the US quite well. When it was first adopted it was not even agreed that the US was to comprise a nation, but in the framer’s vision that’s what the country became.  And it stayed that way despite deep-seeded differences between the North and the South, which only turned to civil war once (which was perhaps inevitable) – and the Union – i.e. the United States as bound by the Constitution won out.

Senators who might make a show for the public over a judicial nomination dispute are doing just that – making a show. The rhetoric is just the public face for whatever  actual reasons they are voting for or against the judge, reasons which may differ from time to time, but it’s still a story as old time.

And the US may be facing a recession, maybe one day another depression, I don’t know. But something tells me – that the US will come out alright in the end. I believe it will remain the world’s foremost superpower for decades to come, if not much longer.  (One of those things that informs my opinion on this is an excellent essay, “The World America Made,” by Robert Kagan).

As for Israel – thank God, Israel has survived and done pretty well since it’s birth. But I wouldn’t thank it’s current system. Let’s face it, people here don’t vote for representatives. Party bosses and power players do. The judges choose themselves. The government controls the legislature. It’s just a no good, very bad, terrible system.

For Israel’s survival and lack of devolution into civil war or national destruction at the hands of our enemies, I would thank those who had the foresight not to let things get out of hand – such as Menachem Begin, when he did not allow the Irgun to retaliate for the Saison or the Altalena, who ensured that Israel would have a democracy instead of a one-party dominated system, and whose victory stopped the two-state solution from being implemented (Labor had by that point endorsed withdrawal from all disputed territories).

More generally the culprit of our prosperity is the ingenuity and persistence of the Jewish people, that, and by God’s grace do we go on. Those things will keep Israel around despite whatever terrible decisions are wrought by it’s current governing system. Not that anyone should rely on that – bad things do happen when the citizenry is apathetic, regardless of divine preference (recall the joke about the Rabbi praying for God to save him, but every time someone comes a long to rescue him he says he would rather wait for God to do it) or our national qualities.

Making these comparisons is not to simply to complain and let out frustration, or to put the US on a pedestal (though denying American strength, success and generosity is just being intellectually dishonest) or conjure up fear that if we don’t change things the state will be destroyed some time soon (the direction that many Israel-related political arguments take).

When it comes to our national prosperity, we should never shy from imagining the ideal and advocating for its realization.  And while we’ve done relatively amazing compared to the odds stacked against us, life in Israel and Israeli policy making is still far from ideal. If we can prosper even with this system and in our geopolitical situation, imagine how much better we could do with a system of government that could properly reflect and channel our exceptional national ingenuity and will.

Guard Our Freedom

Wednesday, March 14th, 2012

Cutting-edge technology is a double-edged sword. Under the mantle of progress, and with increasing ease, we are losing greater and greater slices of our freedom. Opponents of the proposed Biometric Law say they worry about how secure a database housing the biometric information of all of Israel’s citizens will be. That fear was recently confirmed when a Saudi Arabian hacker succeeded in breaking into supposedly secure Israeli websites. If the Foreign Ministry’s database, along with the Israeli credit card base, were broken into, it is safe to assume that the biometric database will also be compromised.

The possibility of breaking into the database is simply too strong of a temptation for powerful interest groups and tycoons, who are sure to find a way to get to this data. The same is true for the crazy idea to computerize the elections. If there is a stage in the vote-counting process during which a candidate or his representative cannot physically check the voter slip, it is exactly at that stage that the election will be compromised. There is no way around the fact that when election results are transferred in electronic files, election fraud becomes a simple task. In the U.S., the idea of digital voting has become so controversial that it is no longer a political debate – but rather a legal issue.

But my opposition to the Biometric Law goes a lot deeper than that.

Many years before the invention of computers and the unraveling of the genetic code, an argument developed in the U.S. around the question of identity cards. America’s Founding Fathers did all they could to ensure that the American Constitution would protect individual liberties at any price.

For the Founding Fathers, liberty superseded all other values. They engraved it on their flag and fought for it. It is liberty that gave them the most important thing of all: a goal and sense of national purpose that fueled the creation of the American nation. The founding fathers understood how easy it is to slide down a slippery slope whereby liberty slips away step by step, without anyone noticing.

Distrust of governmental authority is a value that the Founding Fathers engraved through every line of the Constitution and American culture. It is for this reason that the simple question of requiring citizens to carry identity cards became a judicial matter in the United States. Americans said, “No way am I going to let the state treat me as a number on its list, and require me to identify according to this number. My identity is exactly that – my identity – and it does not belong to anyone else.” For the Israeli citizen, this sounds absurd, for we grew up in a culture far removed from this type of liberty consciousness.

Does all this seem irrelevant? Let us do a little test, so that you can see how easy it is to lose your liberty:

If the Biometric Law proponent, Kadima MK Meir Sheetrit, pushed through a law requiring every one of you to go to a certified tattoo center and ink in a number on your shoulder, would you agree to that? Of course not. Even thinking about this brings up horrifying memories.

But if the tattoo centers used invisible ink, would you then agree? In that case, I think many people would agree. The law is the law, right?

If they were to tattoo you with invisible ink and offer you some perks in return – cutting lines, property tax breaks, and more –would you agree? In my opinion, more than half would agree to that – and maybe even more.

Now for the final question: If instead of ink they use a biometric technique that marks you without touching you, and on top of that they give you the perks previously mentioned – are you then willing? I’m confident that the overwhelming majority of people would agree to that.

Look at how, with amazing ease, they have shut off all of our warning lights and closed our eyes. The master of the house has chiseled our ear into the doorpost like a biblical slave, and just like that we’ve made a soft landing into a life of servitude.

The Saudi hacker is not the real issue. The real issue is how easy it is to lose your liberty without feeling a thing. So guard it with the greatest vigilance, and do not give anyone your biometric information. As for the Saudi hacker, if his attack has at least awakened us to understand this danger, he has done us a great service.

The People In American Politics

Wednesday, March 17th, 2004

Now that the primary season is seriously upon us, at least one claim is common to all of the candidates. No matter the differences between them, all of the political aspirants exhibit a fundamental populism. “I want to be the people’s president” is their shared mantra. Indeed, for any of them to suggest otherwise would be far more than foolish; it would be downright blasphemous.

Populist appeals are hardly novel in America. On the contrary, they have become altogether obligatory for anyone seeking public office. Interestingly, however, this has not always been the case. Rather, the history of the United States reveals early and substantial contempt for “The People.”

While the men who drew up the Constitution in Philadelphia during the summer of 1787 created a document that was stirringly republican, they hardly believed in the promise of democracy. Rather, deeply impressed with the philosophy of Hobbes and the religion of Calvin, they had very far-reaching anti-popular sentiments.

For Edmund Randolph, the evils from which the new country suffered originated in the “turbulence and follies of democracy.” Elbridge Gerry spoke of democracy as “the worst of all political evils,” and Roger Sherman hoped that “the people… have as little to do as may be, about the government.” Hamilton charged that the “turbulent and changing” masses “seldom judge or determine right,” and recommended a permanent public authority to “check the imprudence of democracy.” Even George Washington, the presiding officer, urged the delegates not to produce a document merely to “please the people.”

Today, many years later, we try to forget that the Founding Fathers displayed a distrust of the common people and an abundant fear of democratic rule. With no more than a half-dozen exceptions, the men of the Philadelphia Convention were scions of wealth and privilege, disdaining the people as little more than a dirty mob. As for the inclination toward serious thought by the populace, it was something only to be discouraged. In the words of the young Governeur Morris: “The mob begin to think and reason, Poor reptiles . . . They bask in the sun, and ere noon they will bite, depend on it.”

Even Benjamin Franklin, whose faith in the people was substantially stronger than that of most of his colleagues, remarked that the public capacity for purposeful citizenship was doubtful. In a similar vein, President Washington, in his first annual message to the Congress, declared that the American people “must learn to distinguish between oppression and the necessary exercise of lawful authority… to discriminate the spirit of Liberty from that of licentiousness.”

Looking back, the Founding Fathers were largely correct in their expectations for popular government, but for all the wrong reasons. We the people have displayed an extraordinary capacity for compliance and for deference to lawful authority. At the same time, we have also revealed a persistent unwillingness to care for ourselves as persons, as individual members of the commonwealth. As a result, the mob does reign supreme in America – not the mob feared by Hamilton and Sherman and Morris - but a dangerous mob nonetheless.

Who are the members of this mob? Significantly, they are drawn from every corner of the nation, from every nook and cranny of our country. They are rich and poor, black and white, Easterner and Westerner, educated and uneducated, young and old, Jew and Christian and Muslim. It is, as so many of the Founding Fathers feared, a democratic mob, but its distinguishing criterion is not poverty or lack of schooling. It is the absence of individuality, participation, and meaningful thought.

Where is the individual citizen, the authentic “one,” who does not draw comfort from the warmth of mass society? He or she no longer exists as a person, but only as a member. For America, it does not matter if the multitude is vulgar or sublime, as long as one is able to belong. For the United States today, demos is not the path to virtue but the valley of mediocrity and, ultimately, despair.

We have come a long way from the ancient Greek belief that a person must be honored for individual worth and treated with respect only because one is oneself. In the words of the Athenian statesman Pericles: “Each single one of our citizens, in all the manifold aspects of life, is able to show himself the rightful lord and owner of his own person, and do this, moreover, with exceptional grace and exceptional versatility.”

In today’s America the one who acts as the rightful lord and owner of his own person is judged either a fool or a sociopath, blind to the incessant demands and material rewards of belonging. It is as members of mass society that we now choose to deform ourselves and to dissolve the republic.

Almost devoid of those rare, noble and quixotic souls who will not stoop to prevailing conformance and imitation, The People allegedly adored by presidential candidates have generally become shamelessly comfortable with “fitting in.” Before this condition can change, it will be necessary for us to emerge from the dreadfully low estate of public life and to display innate powers both cultivated and unspoiled – sound, free from mimicry; displaying that individualization without extravagance that is genuine and unpretentious. Either we shall begin such emergence soon, or “The People” so distrusted by the Founding Fathers of the United States will become the natural enemies of excellence. If we fail, the outcome of the next presidential election will be far less important than we think.

Copyright, The Jewish Press, 2004. All rights reserved.

LOUIS RENE BERES (Ph.D., Princeton, 1971) is the author of many books on international affairs. He is Strategic and Military Affairs Analyst for The Jewish Press.

Printed from: http://www.jewishpress.com/indepth/columns/louis-bene-beres/the-people-in-american-politics/2004/03/17/

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