On September 30th our Israeli tour guide implored us, “See how safe it is here in Israel, tell all your friends back home to come and visit.”One week later, Hamas terrorists poured across the Gaza security fences and killed and tortured 1200 Israelis including Americans. They kidnapped over 200 women and children including infants. The Israeli government now vows to destroy these Hamas terrorists.
Our guide, though, was not referring to terrorist activity when he referenced the safety. He was actually talking about the previous eight months of almost daily massive street protests by Israelis against their own government’s legislation restricting its judiciary’s power. Some of the protests were as large as 200,000 people. This issue had so polarized the Israelis that some reservists of the Israeli Defense Force were vowing not to serve if called up.
With Israel bitterly divided, Hamas, which had planned its terrorist attack for years, saw an opportune time to carry out its attack.The undefined role of a judiciary without a written constitution had created the division in Israel’s society that Hamas was waiting for. If anyone doubts the benefit of a written Constitution with explicit separation of powers, then just look at the past year of Israeli politics.
Our own country needed a clarification of the separation of powers of the three branches of government. In 1803 Chief Justice John Marshall wrote the most important Supreme Court decision in our nation’s history, Marbury v. Madison. It established the principle of judicial review to strike down laws the Supreme Court found violated the Constitution of the United States.
The Israeli Supreme Court is currently deciding a case as important to Israel’s government as Marbury v. Madison was to ours. At issue is the new “Basic Law” of Prime Minister Netanyahu’s judicial overhaul package that limits the Israeli Supreme Court’s ability to overturn government decisions the court finds “extremely unreasonable.” Most in the U.S. would find this court’s authority excessively broad. In this case, however, the court has never before struck down a “Basic Law” passed by the Knesset. The court’s decision could be the Israeli Marbury or cause a civil war as many Israelis see this law as an attack on democracy.
This issue reflects underlying tensions in Israeli society that have boiled since its inception—divisions between the secular and the religious, the right wing and the center left, between Netanyahu and the political left political establishment. In 1948 Israel was created to be both “Jewish and a Democracy.” According to its Declaration of Independence a written constitution was supposed to codify this. The inability of different groups to agree on what it meant to be both resulted in a stalemate that continues to this day.
Religious groups believe that government should be based on Jewish law while secularists think the state should play no role in strictly religious matters. Polling shows that most Israelis fall somewhere in the middle and this has led to bitter fights on such mundane things as whether public transportation should operate on the Shabbat.
Without a constitution, 14 Basic Laws were passed by the Knesset, some of which can only be changed by a super-majority. They were intended to be chapters in a written constitution. There is no clear rule determining the precedence of Basic Laws over regular legislation and such issues have been left to the judiciary as it is doing in this coming decision. Will it limit its own powers?
One of the most contentious issues concerns the settlements. Should biblical descriptions of ancient Jewish land have any authority today? Initially the court deferred to the settlers but in 1979 it ruled that a settlement could not be justified and ordered the settlement removed. Some settlers then said that if democracy interfered with building a Jewish state, they would give up democracy.
When the Oslo peace process failed in 2005, Israel withdrew from Gaza which allowed Hamas to take power. Israelis soured on a negotiated settlement with the Palestinians that the left had pushed. Netayahu’s center right Likud party gradually became more dependent on settler and Orthodox parties and when they took power in 2015 they started whittling away at the court’s power.
In November 2022, the pro-settlement parties, Netanyahu’s Likud and the ultra-right Orthodox formed a conservative coalition. While disagreeing on some things, they are united in limiting court power. With the majority they amended the Basic Law on judicial authority. Due to the protests, they split this reform into parts and amended the “reasonableness” standard as their first cut at reform.
The showdown on the court isn’t just an arcane matter about the definition of “reasonableness.” It is about incompatible visions on what it means to be both “Jewish and democratic.” It will take the wisdom of Solomon and the saavy of an Israeli Chief Justice John Marshall to devise a decision that doesn’t tear apart the country apart.
Greg Ganske, MD., Member of Congress (ret), served in the U.S. Congress from 1995-2003. He is a retired plastic surgeon who cared for women with breast cancer, children with cleft lips, farmers with hand injuries and burn patients.
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