University of San Diego Law School Conference : Israelis Work on Constitution for Their Country

A paragraph--or, at least, a well-researched footnote--in the 40-year history of modern Israel may be written in San Diego this week.

In a wood-paneled courtroom at the University of San Diego School of Law, California legal scholars will sit down today and Tuesday to help a delegation of professors from Tel Aviv craft a constitution for the Israeli homeland.

The trip to San Diego for expert legal advice is one of only a handful the Israeli lawyers have taken as they struggle--with the encouragement of members of Israel’s parliament--to shape a basic legal document for a nation that has functioned without one through half a dozen wars and four decades of evermore passionate religious strife.

“There have been such overwhelming problems, it simply has not been possible to get to until now,” explained Sheldon Krantz, dean of the USD law school.

Both the United Nations’ 1947 partition plan for Palestine and Israel’s Declaration of Independence the following year envisioned the development of a constitution for the new state.

Against a Constitution

But David Ben-Gurion, Israel’s first prime minister, argued that it would be wrong for the relative handful of pioneer Israelis to impose a constitution on the hordes of immigrants expected to descend on the new state from around the world. Other members of the first Israeli parliament contended it was unwise to adopt a constitution in the unsettled and threatening early days of the nation.

So a draft constitution was set aside. In its place, a series of so-called “basic laws” have legitimized Israel’s basic institutions, and the Supreme Court, drawing on the English common law tradition, has served as the primary bulwark of individual liberties.

Now--though Israel’s security remains fragile and its political life is perhaps even more fractious than it was in 1948--the cadre of Israeli legal heavyweights visiting San Diego is insisting that enactment of a constitution can no longer be delayed. The nation, they warn, could self-destruct without a social contract to knit it together.

“There is a feeling in Israel that this is the time to establish a constitution,” explained Joseph Edrey, a visiting law professor at USD who serves on the Tel Aviv University law faculty with the drafters of the proposed constitution. “If we follow the line established by Ben-Gurion, 40 years is enough. It’s time to do it.”

No Simple Task

But the process is not a simple one. For it is the very issues that most divide Israeli society--the role of religion, the balance between national security and civil liberties, the rights of non-Jewish minorities, the paralysis of a fractionalized parliament--that the Tel Aviv professors must address as they draft the language of a constitution.

Each of those topics, and others, will be discussed with the California scholars during the two-day conference in the USD law school’s Grace Courtroom. The sessions, which begin at 9:30 a.m. each day, are open to the public.

Up for debate will be the drafters’ proposal for a drastic revision of Israel’s parliamentary system. Now, members of the Knesset are elected by party; if a party receives 10% of the national vote, the top 12 names on its party slate are seated in the 120-member parliament. Typically, the leader of the party that can form a coalition among the score of parties represented becomes prime minister.

With the two largest blocs, Labor and Likud, virtually equal in popularity, the leading parties have been forced to join in a temperamental government of national unity since 1984. The drafters hope to forever overcome the resulting paralysis with electoral changes that would reduce the power of minor parties and implement the direct election of the prime minister in an almost presidential manner.

Religious Concerns

Religion, though, is the preeminent concern for the Tel Aviv professors. Their constitution aims to maintain Israel as a democratic--but distinctively Jewish--state in a hostile region, according to Robert Burt, a Yale University constitutional law specialist who participated in discussions with the Israeli professors in New Haven earlier this year.

Should the rights of non-Jewish citizens be any less than those of Jews? Should tradition-minded, Orthodox Jewish religious authorities maintain their control of such social institutions as marriage and divorce for the Jewish majority? Should men and women be guaranteed equal rights, whatever Jewish law may say to the contrary? Should Sabbath observance--and the attendant limitations on secular public activity--be mandatory?

To answer these questions, the drafters--whose own views range from the strongly secular to the ultra-Orthodox--propose a continuing link between religion and the state. But the legitimacy of the more liberal Conservative and Reform movements in Judaism would be recognized for the first time, minority rights would be guaranteed and civil marriage and divorce would be introduced.

“They have a very, very carefully crafted compromise,” Burt said.

“Israel, after all, is a Jewish state and was founded as such, so American notions of a wall of separation between church and state are not appropriate in that context,” he explained. “Yet there are conflicts between the secular and the ultra-Orthodox--the dominance of the religious courts in matters of family law in particular, which is an established part of the Israeli scene, but at the same time is very troubling to many people.”

Orthodox Jewish leaders played a key role in blocking adoption of a constitution in the months after Israel’s founding, according to Howard Sachar, a professor at George Washington University whose two-volume history of modern Israel is considered definitive. But delays in addressing church-state issues have made resolving them all the more difficult, Sachar said.

“The longer they put it off, the more complicated it got as the power of the religionists grew,” he said. “They’ve kept sweeping it under the rug for all this time, with increasingly horrible results.”

Ivory-Tower Enterprise

Can a cadre of self-appointed constitution writers descend into this thicket from the ivory towers of a law school and command a nation’s respect?

Burt says the enterprise is not so different from that undertaken by America’s Founding Fathers. In 1786, he noted, a group of national leaders, including James Madison, took it upon itself to convene a meeting in Annapolis, Md., to discuss the failings of the Articles of Confederation. Their deliberations laid the groundwork for the convention in Philadelphia one year later at which the U.S. Constitution was created.