A Better Way to Reform Israel’s Supreme Court – The American Spectator

Israeli Prime Minister Benjamin Netanyahu was educated in America. His father taught here. Netanyahu expresses admiration for The Federalist Papers, which he considers to be a landmark in constitutional thinking and an inspiration and guide for how to set up a viable free government.

As head of government of the Jewish state, he is connected as well to the Jewish law tradition, which forms a part of Israeli law, and the English Common Law tradition, many of whose features were inherited from the years between the end of the World War I until independence shortly after the end of World War II.

As we have written about here, Netanyahu is spearheading a proposal to reform the Israeli high court. It is a constitutional reform, law at the highest level. Important issues are at stake, and the rhetoric is passionate, with people deeply committed to principle on both sides of the issue. The issue is worthy of the passion.

Law is meant to be majestic. This is especially true with the law in Hebrew Scripture, where the law-giver is God Himself.

So, one might expect that the ideal in law is strict judgment, letting the law follow its course no matter what; in the language of the rabbis of the Talmud, “Let the Law pierce the mountain.” In other words, if you have what you believe to be the right principle on an issue, stick to your guns, fight in the last ditch, go down if you must with the guns still blazing. Or as Hank Stamper put it, “Don’t give an inch.”

Yet we find it is otherwise. The Talmud sets out here the opinion that was accepted and followed as law:

Rabbi Yehoshua ben Korcha says: It is imperative to seek a compromise in a dispute, as it is stated: “Execute the judgment of truth and peace in your gates” (Zechariah 8:16). Is it not that in the place where there is strict judgment there is no true peace, and in a place where there is true peace, there is no strict judgment? Rather, which is the judgment that has peace within it? You must say: This is compromise. –Sanhedrin 6b

Constitutional order requires compromise. No one should take for granted that assent of “We the People” that makes possible the vigorous debate and peaceful exchange of power that is the hallmark of political freedom. Whereas tyrants must force compliance on a populace whose opinions are ignored and whose dignity and conscience are seen as threats.

America’s constitutional convention was characterized by compromise. The religious wars of Europe had taught the lesson that one can only insist on law from heaven in precious few things. Beyond the Noahide Covenant, as the rabbis called it, which lists seven commandments that define the minimum order necessary for civilized life, everything else can be debated but not demanded. And to find a constitutional order that draws the freely given allegiance of the nation as a whole, everyone needs to find a way past claiming absolute truths that admit of no compromise at all.

Alexander Hamilton put it like this in Federalist 85: “Every Constitution for the United States must inevitably consist of a great variety of particulars, in which thirteen independent States are to be accommodated in their interests or opinions of interest.”

Hamilton there writes at length about the difficulties and the accommodations that went into bringing the 13 states together under one umbrella. No one could dictate anything. To bring everyone in, no one could be ideologically pure except for the greatest, all-encompassing ideas of what is necessary for a republic.

All the authors of The Federalist Papers demonstrated how constitutional government requires a balance of powers. This is the key — the natural inclination toward gathering power is counterbalanced by others doing the same thing. The tension between the different branches makes the gravity that would otherwise pull down the structure act as gravity does with beams set in a structural triangle: the same force that would pull the single beam down now makes the triangle firm and strong and capable of holding up a structure.

With this in mind, I’d like to return to the constitutional issue before Israel right now. Two weeks ago, I made the case for reform of what has made Israel’s judiciary a tyrannical threat to democracy. By arrogating to itself the ability to create laws merely by claiming that what they rule is reasonable, and by arrogating to themselves with no sanction in law the ability to veto the appointments of the executive to fill its own department, it has required a constitutional reform.

But I did not yet subject the current reform proposal to criticism. A cure must first do no harm — and there is a quite harmful element in the reform as it stands now. The reform proposes that any decision of the court can be overridden by a simple majority of the legislature.

This would not create a balance; it would give an absolute supremacy to the legislature. That is a danger against which Hamilton cautioned in Federalist 71:

The representatives of the people, in a popular assembly, seem sometimes to fancy that they are the people themselves, and betray strong symptoms of impatience and disgust at the least sign of opposition from any other quarter; as if the exercise of its rights, by either the executive or judiciary, were a breach of their privilege and an outrage to their dignity.

So without compromise, the two sides in Israel are in grave conflict.

But the story of a working constitution is the story of how we find our way to that place where judgment and peace come together: compromise.

A simple compromise is clearly within grasp that will appeal to all who truly seek principled constitutionalism rather than partisan advantage: reform the judiciary as proposed, but require a supermajority to overturn a high court decision. This would protect the people from runaway actors in either the judiciary or the legislature. The people would be the winner.

The principle of distributed and balancing powers of government is the principle of the highest order among all the principles invoked. Strong adherence to this most powerful defense against tyranny will require compromise on all lesser issues, by all parties.

Good government is about the attainment of peace in our country, “to insure domestic tranquility” in the words of our Constitution. Good government requires good judgment, not strict judgment, but judgment that contains peace within it. We forget the virtue of principled compromise at our peril. Better to remember.

Domestic tranquility is a principle of the highest order. It would be headstrong and foolish to allow our highest principles to be lost in order to stand fast on some secondary value. With our priorities straight, all will fall into place. Our dedication to the highest requires compromise on all low-order issues, as necessary. Only then do we have the unique power of a democracy to forge a oneness out of the most richly varied spectrum of human talents and ideas. It gives us an immense advantage over all those other systems of government that value only the opinions of the elite and (temporarily) powerful.

Constitutional, free government is being tested in Israel and here. Let us put the highest principles first, and be the leaders. Dedicated to the highest first, we will prevail.