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A few days ago, President Trump warned the courts not to interfere with his policies. ״These judges seem to think that they won the election,” he said. “But the people voted for me, not them.” On the basis of these and similar threats made by Trump, many Americans believe that the United States is headed toward a constitutional crisis.
Prime Minister Netanyahu and his government have made similar comments about the Supreme Court. “Who are you to tell us what we can and cannot do,” they say. “We were elected, not you. Like America, Israel is headed for a constitutional crisis but with one huge difference—Israel does not have a constitution. Our crisis, consequently, is liable to be much worse.
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Demonstrators protest against Prime Minister Benjamin Netanyahu and his government in Jerusalem
(Photo: Alex Kolomoisky)
While American society may be relatively weak, its institutions, grounded in its constitution, are strong. Israeli society, by contrast, may be the strongest in the world, but our institutions are weak. They are the product of laws and traditions that can easily overturned or forgotten. The result is a constitutional crisis without a constitution.
Michael OrenPhoto: APFull disclosure: I had long opposed the enactment of an Israeli constitution. Israeli society was too diverse, I argued, composed of too many irreconcilable communities to unite under a single document. Any attempt to impose, say, the nation state law on the Arabs or the Israeli flag in the Haredim would be met with fierce resistance, possibly even violence. No, I concluded, Israel cohered because instead of a black-and-white constitution, we have shades of gray that allow disparate populations to coexist. Now, however, as our constitutional crisis without a constitution looms, I’ve begun to rethink my long held views. Israel does need a limited constitution, one that establishes the legitimacy of our institutions and clearly describes their functions and authority. It will be a document acceptable to a sizable majority of Israelis and requiring a large majority of Knesset to change.
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A constitution will enable us to know exactly what the Supreme Court and the government can and cannot do as well as what is the enduring nature of the state and the inalienable rights of its citizens. America can perhaps allow itself to have a constitutional crisis but Israel, surrounded by enemies waiting to see us internally divided and weak, cannot. Enacting a constitution is not only a matter of averting a crisis in Israel but of preventing the next war.
Michael Oren is an author and former Israeli Ambassador to the United States.