From Calamity to Constitution

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By Elliot Friedman

The responsibility of a generation that lives through crisis is not to let that crisis go to waste. This generation of Jews inherited a safe and strong Israel, along with a prospering Diaspora. That all changed on Oct. 7. Suddenly, this generation found itself the potential author of another decisive chapter in Jewish history. It has conducted itself heroically in the face of this challenge. But out of this struggle must arise a Jewish and Israeli constitution. If it does not, another 75 years will pass before the opportunity presents itself again.

America and Israel have much in common. They were both born in a war for independence, overthrowing an oppressive government while invoking biblical ethics and imagery. These revolutions were not about conquest but rather the realization of faith and freedom.

But the United States took the opportunity of its victory to formulate a constitution that endures to this day. Israel did not. Instead, it produced a very narrow and flimsy version of constitutionalism.

The founding fathers of America and Israel held rigorous debates about the nature of man and statehood, furthering mankind’s conception of life and liberty along the way. Leaders like Theodor Herzl, Ze’ev Jabotinsky and Ahad Ha’am presented a range of profound ideas about the nature of a Jewish state that combined faith and freedom.

Yet Israel’s first Prime Minister David Ben-Gurion, faced with an existential war for independence, forwent the creation of a “broad” constitution. He settled for Israel’s Declaration of Independence. Unlike in the United States, this declaration was not followed by a constitutional convention.

The Israeli Declaration of Independence called for a “constitution which shall be adopted by the Elected Constituent Assembly not later than the 1st October 1948.” However, Ben-Gurion held that a constitutional convention would be too contentious for the newborn state. The looming threat of invasion by the surrounding Arab nations forced Ben-Gurion into a strategic decision: The security of the Jewish people would take precedence over constitutional debates. He stated that he would give up all other values for the value of protecting Israel.

Israel is now in its eighth decade, which has historically proved momentous in the history of nations. The first two sovereign Jewish kingdoms notoriously began to collapse in their eighth decade. During the recent judicial reform controversy, many Israelis wearily took this as a warning to prevent civil war at all costs. Then tragedy and atrocity struck at the heart of Israel on Oct. 7. Is the Jewish state once again resigned to repeat the catastrophe of its own history?

The American example provides guidance. In its eighth decade, the U.S. seemed to be heading towards the same tragedy. The Civil War was raging. It threatened to irrevocably split the Union and destroy the ideals and aspirations of America’s founding fathers.

However, instead of simply winning the war and maintaining the Union at all costs, President Abraham Lincoln used the crisis to transform the Union and further realize the fundamentals of America’s constitution: liberty and equality for all. With the Emancipation Proclamation and the ensuing Thirteenth Amendment to the Constitution, Lincoln cemented the eradication of slavery. Thus, America’s eighth decade was not the end of the American dream. It was, in many ways, its beginning.

Israel is nearing such a decisive moment. The never-ending election cycle of the past five years demonstrated the deep flaws in Israel’s electoral system, which imperils the nation. The judicial reform crisis showed that the fissures in Israel’s system of checks and balances must be addressed through a wide consensus. The Yom Kippur debate at Tel Aviv’s Dizengoff Square showed that tensions between faith (Israel’s Jewish heritage) and freedom (Israel’s democratic character) must be dealt with in the same manner. Most importantly, the terrible blow Israel suffered on Oct. 7 demonstrated the relationship between faith, freedom and Israel’s security.

Thus, an Israeli constitutional convention is clearly an absolute necessity. It must deal with the relationship between Israel’s legislative and executive branches, the role of Israel’s judicial branch and the scope of its powers, the issue of Israeli Judaism (faith) and its relationship to democracy (freedom), and the constitutional status of world Jewry, perhaps enshrining their status as semi-citizens, once proposed by then-Economy and Diaspora Minister Naftali Bennett.

Ben-Gurion’s subjugation of constitutional values to security was necessary in a newly-founded state under threat of destruction. The opposite is the case today. Subjugating constitutional values sows internal discord and projects weakness to our enemies. It leaves our allies baffled as to the true nature of Israel.

The late, great statesman Henry Kissinger recently died at 100. Two relevant lessons can be drawn from his legacy: Kissinger always sought linkage between different concepts in different arenas of international affairs and between domestic and foreign policy. He also worked to create order and opportunity out of chaos and crisis, as exemplified by the path to peace he forged in the Middle East following the 1973 Yom Kippur War.

Israel’s neglect of domestic issues is strongly linked to its security and diplomacy. Some will argue, like Ben-Gurion, that postwar Israel should shelve any contentious issues. But Kissinger’s legacy shows that this moment is an opportunity to create order out of chaos by creating a constitution out of crisis.

Israel needs a constitution to enshrine its potential as a nation of faith and freedom, to project strength and unity internally, and to send the right message to its many friends and enemies. It must not put this work aside for another 75 years. The end of this war, whenever it comes, will inevitably be followed by a period of rebuilding and a new security concept. It must also be followed by a constitutional convention.

Elliot Friedman is an IDF reservist in a special forces unit. He works at Meitar, a leading international law firm in Tel Aviv.

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