A Constitution Would Solve Israel's Government Crisis | Opinion

Israel is in the midst of the most serious government crisis in its history. Isaac Herzog, the country's president, said recently that it is "on the brink of constitutional collapse."

In effect, this is a power struggle between the Knesset—the Israeli parliament—and the Israeli judiciary, which over many years has assumed substantial authority to overturn laws and other acts of the Israeli government. Israel does not have a written constitution that outlines the authority of the Knesset and the Israeli Supreme Court, but since the inception of the country's political system it has been understood that the Knesset—a European-style parliamentary system—is elected by the Israeli people and thus authorized to make laws.

Under the current governing system in Israel, the members of the Supreme Court are appointed by a body independent of the Knesset majority or the government. In recent years the court has struck down laws adopted by the Knesset which it deemed to be "unreasonable" or otherwise inconsistent with its unwritten standards.

Unlike the U.S. Supreme Court, and in the absence of a written constitution, the Israeli Supreme Court can hear any case it wants, from any plaintiff, and can overturn actions of the Knesset or the government for any reason. This was tolerated by the political system—dominated by the Left since the country's founding—because the court's decisions were largely approved by Israeli elites.

However, in the most recent elections, the Israeli voters elected a right-wing Knesset majority for the first time in the nation's history, and that majority—with Benjamin Netanyahu as prime minister—has now set about to enumerate in law the powers of the judicial system.

This has resulted in huge opposition demonstrations by the Left, including threats of physical violence to Netanyahu and others, under the battle cry that the proposed Knesset legislation is a "threat to Israeli democracy."

Israeli flag
A Ryanair passenger aircraft takes off while a demonstrator waves an Israeli flag during a protest against the controversial judicial reform bill, outside the terminal of Israel's Ben Gurion airport March 15, 2023 as Prime Minister Benjamin Netanyahu heads to Germany on an official visit. - The Knesset, Israel's parliament, took another step on March 14 to push forward a legal reform package that has sparked mass protests against Netanyahu's hard-right government. AHMAD GHARABLI / AFP/Getty Images

An example of the hysteria the Israeli Left is employing in this controversy was displayed in a Washington Post column on February 23 by Yuval Noah Harari, a professor of history at Hebrew University of Jerusalem. Harari objected to the fact that under the new laws "the government would have the power to pass any law it wants, and interpret existing laws in any way it likes, without checks on its power and protection for minority rights.... Under the new legal regime, it is unclear what would prevent either the present government or a future one from passing laws that, for example, close down opposition newspapers, deny workers the right to strike, abolish academic freedom...or—perhaps most crucially—change the electoral system in a way that would guarantee a permanent hold on power." The Century Foundation, a progressive group, describes the legislation as an effort "to undermine a core pillar of democracy—the judiciary."

All this, of course, is nonsense. The core of democracy is a vote of the people and the creation of a legislature that can turn the people's wishes into law. The judiciary generally has no part in the functioning of democracy, except to ensure that the law is followed. The Left is clearly doing in Israel today what it does in the United States: turning every decision it doesn't like into a "threat to democracy."

If the Israeli Left were sincere about its concerns, it would begin negotiating with the government to secure the items, among others, that Professor Harari is worried about: protection for minorities, free speech, freedom of publication, and the ability of the people to change their government through elections.

But the Left is not willing even to discuss negotiations; that might give the Right—which may be a majority of the electorate—some legitimacy. Instead, the Left prefers demonstrations, threats of violence, and the threat that important people in business, technology and academia will leave the country unless it gets its way with the Supreme Court.

Now is the time for Israel to depart from what its turbulent foundational years required—narrow attention to defending the country against attacks from Egypt and Jordan in its early years, and the constant need for vigilance, even today, against enemies in Iran and throughout the Arab world.

That correction would mean drafting a constitution that spells out the powers of the Knesset and the judiciary, as well as protect the rights of citizens and the ability of the people to select in regular elections the government that they want. The Constitution of the United States would be a good template.

Peter J. Wallison is a senior fellow emeritus at the American Enterprise Institute. He was White House Counsel and General Counsel of the Treasury in the Reagan administration.

The views expressed in this article are the writer's own.