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The Jewish Story: Seventy Years of Constitutional Crisis – part II 1992
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In part two of this exploration of Israel’s seventy year constitutional crisis we take a look at the revolution of 1992 and how it contributed to today’s battles. As a special bonus I included a little bird walk along the lines of the Torah’s commandment for a king.
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Auto-generated transcript. Not time-synced to the video.
men make history and not the other way
around says Harry Truman in periods
where there is no leadership society
stands still progress occurs when
courageous skillful leaders seize the
opportunity to change things for the
better while I'm gonna seize this
opportunity to tell a story that I hope
can change things a little bit for the
better because I'm Roth Mike Boyer and
this is the Jewish story episode eight
seventy years of constitutional crisis
part two
now I'm fascinated by the idea of
historical moment that there's to be an
exsisting time in society and culture
what have you where the lines come
together in a way which allows for
change that doesn't happen every day and
I have a sense that while we may have
missed one in 1949 we actually might be
in the midst of it right now and when I
think about the gravity of the situation
in which we find ourselves what comes to
mind the words of John Jay from the
Federalist Papers once again we said
when the people of America reflect that
they're now called upon to decide a
question which in its consequences must
prove one of the most important that
ever engaged their attention the
propriety of their taking a very
comprehensive as well as very serious
view of it will be evident and in my
imagination this is how the generation
of 1948 spoke and in my hopes this is
how we'll learn to speak today now it's
true I hope you got the sense from last
episode that the Constituent Assembly
definitely realized the gravity and
historic potential the moment that
they've been granted or at least they
should have because you can recall high
moistens words at the invocation
remember that the eyes of the whole
Jewish world are upon you and that the
yearning and prayers of past generations
accompany you may we all be worthy of
this great moment and it immense
responsibility no matter whether you
think they were listening or not we saw
in the first half of this discussion a
constitution was not to be because
rather than bringing down a new Torah to
the nation the Constituent Assembly
reconstitute
itself as the first Knesset now I could
say that they chose to seize power
rather than seize the potential of the
moment but as we saw last episodes it's
not so simple to lay the blame for our
rudderless state at their doorstep
because there were four essential
challenges which the new state faced in
1949 all of which made the writing of a
constitution a weighty and difficult
matter my goal is not to lambast the
leadership of 1949 for their failures
because it's kind of useless at this
point what I'm aiming to do is to prompt
the leadership 2019 to do their job in a
democracy the leadership will never take
the type of risks entailed in crafting a
constitution unless an overwhelming
voice rises from the populace demanding
that they do so and so this story is my
contribution to making it happen and
that's why this episode is a bit of a
platypus one part historical episode one
part philosophical interlude in one part
cry from the heart for help in building
a better future let it be soon let it be
now so I want to start off but just
touching those four factors again in
order to set us on the path to
understand what exactly our
constitutional crisis is about today now
remember the first one was the Arab
Jewish divide which really had two
phases first was the question are the
Arabs really part of the demos in the
Jewish state and that question goes to
the heart of the tension or whether
Israel is a civil state of all its
citizens or it's the ethnic nation-state
of the Jews which gives civil rights to
non-jews by the way if you've been
following the story this is what lies at
the heart of the nation state law and
though it's not our focus right now I
may have to touch on it as we roll along
because it's a critical element of the
constitutional struggle in 2019 we'll
see what happens this divine also
complicates the quest for a constitution
because of what we know to be the
general tension between the duty of the
state uphold individual rights and its
obligation to public security
oddly enough as you'll see later in our
story no one said it better than former
Prime Minister Yitzhak Rabin when he
justified setting off the Palestinian
Authority as a despotic regime and
empowering it to crush all opposition
especially the Islamists whose terror of
being found to be so threatening
when he did it he said that they
wouldn't be restrained by Bhagat's
orbits Elam in crushing Hamas and if you
don't know the acronyms Bhagat's is the
Israeli Supreme Court and B'Tselem is a
major human rights organization which
works in the field so as I said the Arab
Jewish conflict is not our focus today
but it needs always to stay on the board
because it's frankly gonna color the
entire Jewish story at least within
Israel from here on out and it could
make a cameo appearance maybe further
down the line when we discussed the
constitutional revolution of 1992 we'll
see
so next was power politics the bear fact
that Ben Gurion from a PI Party
dominated the Knesset in 1949 and
therefore saw no reason to constrain
what amounted to unlimited power with a
constitution of checks and balances and
I'll add to that Ben greens belief that
true democracy is found in the
legislature alone remember as we move
forward that Ben Gurion saw a
Constitutional Court's power to overturn
legislation as an anti-democratic
phenomenon and I want to look at this
aspect through the lens of 1992 and 2019
before this episode is over I hope to
give you a better sense of why the
legislature is currently at war with
judiciary and how much power politics
have to do with that and how much it's
made up of other elements and maybe just
maybe they'll give you some insight on
who to root for though not taking sides
right now all right so the next two of
those four I want to tackle together
because in my eyes they're really
inseparable the identity crisis and the
religious secular divide you know the
Rambam says in mourning for him in the
guy for the perplexed that the
generation which less Egypt had to die
in the wilderness
why because he understood that a people
formed by hundreds of years of slavery
simply could not be ready for the
responsibility and potential of freedom
in the land
certainly not overnight and so it took
40 years and really the passing of a
generation before people who could be
born that could see freedom as their
birthright in that light it's no wonder
that the generation of 48 balked at
writing a document that would fix the
national character for the foreseeable
future I mean just recall last episode
and picture
Hugo Bergman crying out what is Judaism
what does it consist of what's the
meaning of a Jewish state now we've had
70 years since then it's almost twice 40
but let's face it we're looking to
overcome 2000 years of Exile the
generation of 48 and their political
inheritors actually did a tremendous job
on healing that phrase we spoken of so
many times we may have to a Magali new
mitt art say no because of our sins we
were actually exiled from our lands they
dealt with the Exile not talk about the
sins so much but in gathering the exiles
they built the rose they fought the wars
they planted the fields they gave a
physical basis for people to find
shelter and that's not a small thing
it's just that at this stage
70 years later we face a much more
profound and elusive task and it's the
one actually posed by the second half of
that phrase it's not just meat nakata in
a girl in America say no because of our
sins we were exiled from our land it's
also a hawk nomads matino and we were
distanced or alienated from the ground
now we're gonna speak out the difference
between these two phrases in many ways
for the whole season ahead in my humble
opinion it was 1967 which is the
endpoint goal for this season that was
the turning point between them but for
now suffice it to say that we Jews are
estranged from what it actually means to
be Israel we're just into what it means
to be a people in our land but few of us
have even begun to dream about what it
would mean to be organic product but as
far as I can tell when I read the Bible
and all of the rabbinic wisdom built on
it it's only as the product of the Land
of Israel but the people of Israel will
actually know what the God of Israel is
really asking of us and that's a big
task it brings us to the last point so
often offered as at the boogieman that
prevented the writing of a constitution
and though the research really doesn't
bear out blaming the religious secular
divide for the failure of 1949 it's
unquestionably a major challenge in 2019
if your only access to Israel is in the
media we need to need to know that the
division between a religious and secular
view of the state is much more than a
simplest
opposition between the people that ask
the rabbis and those that look to the
politicians first of all the sort of
religious secular binaries be flawless
is an Ashkenazi idea the Misurata world
is much more complex and rich in its
attitudes toward the relationship
between religion and secular society
furthermore if you look at the national
religious camp you'll see that there's a
bit of strange role that we play despite
being no more than I don't know 10 15 %
of the populace the doctor lemme world
is a driver of values and vision in the
country at this point albeit loved and
hated but despite an increasing
religiosity in the upcoming elections
the polls say that most national
religious voters want I yell at a kid a
secular woman to lead their parties and
that kind of throws a brick into that
easy divide now add to this there's of
course more to tour than religion
remember last episode when my prime
member of Knesset ha stood the whole
earth compared the work of the
Constituent Assembly to the revelation
at Sinai there's a deeply spiritual
element even among nominally secular
political movements particularly in the
early days of the state and the sense of
secret history of divine momentum in
their story was easy to access after the
transition into nationhood being
comprehensible horrible holocaust
incredible miracle in gathering of the
exiles and that's sense of spiritual
momentum though it was president will be
mostly dormant in the first couple
decades of the state maybe it's been
stronger hacia Tory would have got a
revelation in the form of a constitution
but she didn't it will however emerge
with explosive energy in the wake of
1967 so stay tuned in the meantime
before we launch into the particulars of
the story that which will bind together
in 1949 1992 and 2019 I want to take a
quick walk into this tangential but
related question about identity and the
religious secular mix because whether we
judge a success or failure the decision
of the Constituent Assembly to kick the
can down the road and avoid all the
battles that ready in Constitution would
have surely entailed one
thing is clear as my friend Yoda Cohen
loves to point out Sian ism failed to
produce a revolutionary new way of being
for the Jewish people
instead of evolving into the new
Israelite Kingdom in 1948 we basically
pulled down the Union Jack and ran up
the Star of David on the same pole we
declared the State of Israel but it was
a nation state like every other so
before we finish this story of the
Constitution in two parts I want to
consider exactly what type of government
the Torah might command us to create
here in the Land of Israel you know when
I was in grad school surrounded by
grassroots activists from developing
nations around the world I had a lot of
really memorable conversations but none
stands out in my mind more perhaps than
a very brief exchange I had with a woman
named Horry now or it was from Mali and
was truly both classic West African much
taller than me a smile that could light
up a room and short bouncy dreadlocks
she was also a unique human being and
she was literally born in hut with dirt
floors no electricity or running water
and here she was when I met her
attending a grad program at Brandeis
University so she also happened to have
a warm spot in her heart for the Jews
she gained it mostly at Brandeis of
course where they treated her quite well
so wasn't surprised when one day as we
were chatting before class she said to
me you know Mike I really love the Jews
you know they're generous their culture
the blah blah blah and she says they're
also deeply Democratic well at the time
I was not so long for my transition into
a religious life so I looked there with
a kind of funny look on her face and I
said you know you're wrong she said why
so we're actually all closeted
monarchists huh I said yeah when was the
last time you prayed for a king
I do it three times a day you know this
idea has a dominant place in Jewish
thought that we're waiting for the king
and it's got roots of course as anything
would in the Torah if you look at the
volume chapter seventeen lines 14 and 15
you'll see a very interesting set of
verses Keith of all our recessional
Katherine wrote in LA right when you
have entered the land that the Lord your
God is assigned to you and taking
possession of it and settled in it and
you decide right
I'm Ellis Kakaako in my share sweet
bowtie right I want to put a king over
me as do all the nations around me so it
says some Kasim Alamelu right you shall
well it actually depends you may set a
king over you you shall set a king over
you you must set a king over it's
actually what we call a huge Michael
look at rich on him it's a big argument
of both the early medieval authorities
and really frankly the later authorities
down to our day what exactly this phrase
some Kasim ilaha Mela means don't get
nervous
it's not a classic Torah course I'm not
gonna drag you through all no although
by the way if you're interested let me
know because frankly it's something I've
taught before maybe I should do it again
suffice to say though that there's no
agreement as to whether an actual king
is commanded by the Torah or whether the
key in which the people call for in the
verses is simply how government was
conceived of in that day notice that
that phrase right that I will set a king
over me kick coal hog I share this
view what I like all the nations that
around me is a strange one in general
then the Torah tells Ami's Rell that
they're acting like Alma nations around
them it's not a good sign so here
there's a question which is what exactly
is the form of government that the Torah
conceives now aside from that question
there are a couple more points for a
present discussion I want to pull out of
these verses and their biblical context
first of all just know it's worthwhile
to look at the entire section around
those verses basically check out
devouring with 1618 which is the
beginning of partial show theme if
you're familiar at that structure all
the way through the end of chapter 18
and what you'll find are all the models
of leadership that the Torah has to
offer it's very interesting
judges priests prophets and kings are
all there and they're not only present
but if you look closely as a sense of
each of them each of these separate
leadership models is meant to rule
within its own particular realm it's
what we might call today a separation of
powers we could say that the priests of
the keepers of law the course are the
guardians of just as the king maintains
the social order within and without and
the prophets of course are always there
to speak truth to power and keep our
eyes on the true king
the mission of the later of Minik
thought even goes on to explore what we
call checks and balances through the
question of whether the courts have the
authority to try the king in general
it's actually worthwhile looking into
the depth of how our sages understand
these models of leadership and the
relationship to one another's you'll
find a sophistication of political
thought which is worthy of contemplation
but these are just the first two pieces
again the multiple models of leadership
and that question of whether a king per
se is mandated by the Torah or whether
this is a permission or command
what-have-you just to create a
government the last point is of course
that the kingship failed
not only did fail and it was practical
sense when it was conquered first by
Assyria and then Babylon but all the
nuancing and positive presentation and
idealization that the majors can provide
doesn't hide the fact that both the text
and our sages had deep doubts about
whether authoritarianism discussion now
if you want to explore the second
attempt to create a king movie so go
back and listen to all season one for
now the 2000 years of Exile that
followed that failed attempt gave rise
to a different sort of Kingdom for the
Jewish people
a kingdom of law one that was embodied
in courts and communities but really
ultimately gave its focus to the actions
of individuals and that's the question
that we face here still early on please
God in the third Kingdom right from
where do we draw the wisdom to create a
sustainable future as a people is the
repository of that wisdom the halaqa
Jewish law as it's been constructed over
the last two thousand years you know
just a few weeks ago a member of Knesset
natal Smotrich caused a little tempest
in a teacup here in Israel and he said
that he was pursuing the position of
Minister of Justice in order quote to
restore our judges as of old and
furthermore declared that he wanted a
hollow state in which Israel is governed
by torah law now this is like a big red
light in the religious secular divide in
fact Prime Minister Netanyahu was quick
to tweet back as reply the State of
Israel will not be a holic state of
course neither of them real
addressed what it meant and because
aside from the politics that lay behind
this kind of public sounding off small
Tricia's desire and bebés response
raised a very real question can the
halacha system that carried omnis RL
through exile which has helped us in so
many ways transform ourselves from
israel into the jews now help us
transform back from the jews into the
modern nation state of israel and i want
to just touch two fundamental attitudes
toward that question both is general
food of thought and because there's a
tendency on the part of some religious
people out there to claim that the Torah
is our constitution and therefore we
need no other and they generally do it
without ever contemplating what exactly
that might mean in the modern state
despite his well deserved reputation as
a critic of religion and state in his
youth
professor Yeshayahu Leibowitz was a
great advocate of religious Zionism you
know it was in the early 50s when his
attitude soured on many things that he
became deeply troubled by what he saw to
be the failure of religious Zionist jury
to embrace fully the new reality of the
state he's got an article on the crisis
of religion in the State of Israel and
there the professor as we call him it
identified three possibilities which are
really enshrined in Jewish
historiography right statehood and
independence in an ideal past exile and
foreign rule in a realistic present and
state with an independence in an ideal
messianic future but he notes in that
article in 1948 a fourth unexpected
possibility emerged what he calls
Israeli statehood and independence in an
unredeemed world and among people Jew
and non-jew who have not yet attained
their tico and their personal Redemption
this is an unprecedented situation and
therefore he asserts that or observant
public has to make a choice either we
can essentially retreat we can renounce
the possibility of actually fulfilling
the Torah in its most complete way
within the state basically inspect ation
of the utopian end of days in which
we'll keep tour as we know it it's what
I call the messianic punt right you can
just push that one off and deal with the
reality as it is Lori says we can take
responsibility for creating a Torah
regime within the present-day reality
now if you watch the news obsessively
like me you may have caught that
momentary outrage within the religious
community over the Shabbat violation
that was bound up with the recent
Eurovision celebrations in Tel Aviv it
happened to be that Prime Minister
Netanyahu was in the midst of
negotiating government with the
ultra-orthodox parties and therefore it
was poorly timed from his opinion but
his response to them was quite revealing
he said the Israeli government respects
Shabbat as a national day of rest and
shall continue to maintain the status
quo that is held in Israel for years and
then he added most the participants in
the event are from abroad and aren't
Jewish anyway
now for the young Leibowitz the
political status quo around Shabbat
observance was the GUI milta it was the
revealing fact of the depth of challenge
and failure that the religious world
faced in the modern state because the
status quo was a product of what he
called sort of clerical politics we'll
get to it in a second basically static
Oh in Israel involves avoiding Shabbat
violation to the extent possible and
when impossible depending on non-jews or
even non-religious Jews to be the
Shabbos to take the hit for the team
and to violate the Shabbat while the
religious people get excused from the
problem and professedly with solve this
attitude as a gross failure it was a
family that sidestepped what he saw to
be an opportunity presented by the state
and in fact created its own problem he
felt that rabbinic leadership needed to
respond with a new program with
religious rulings that gave form to the
Torah in a socio-economic reality of
modern independent Jewish state and with
a vision that could inspire people to a
deeper commitment because that state was
indeed an embodiment of what the Torah
could be in fact in his eyes
Allah Jewish law would only survive the
transition to the state if it continued
to develop within that modern society it
needed to be an organic part of the
evolution of state
all in its democratic liberal format and
not a problem-solving approach that
guided religious Jews into how to
navigate and get out of the system and
in specific Leibowitz feared that if
rabbis and political leaders of the
religious world struggled to exempt
religious jews from working on shabbat
by letting others do their jobs and by
the way he didn't say it but we can add
struggle to avoid serving the army and a
host of other religiously complicated
things then we would fall quickly into a
parasitic stance that would ultimately
distance religious and non-religious
youth from the Torah this may sound
familiar if you read the papers
basically he was afraid that the stance
of the religious Jews would become
sectoral rather than visionary and that
the Torah therefore would never actually
shape society and that the best that
religion could hope for was to get a
bigger piece of pie through clerical
politics once again sound familiar the
one thing which sadly the religious
world has never been able to offer here
in Israel is a vision of how society
could be now as was true with so many
other things that he wrote this article
raised quite a storm within religious
Zionist circles because his type of
liberal idealism was just downright
threatening to all the social structures
to the nature of religious authority to
Torah and law as we know it it was rough
motion area a chief student of rava
mutant corn cook who took up the battle
with Leibowitz in a series of articles
and letters that's actually known as the
Leibovitz nary a dispute if you want to
look it up but I don't want to go into
its details right now I'd rather just
give you the other side of the coin
because while Leibowitz thought the
choices between liberal idealism or
clerical politics the students have
Robert cook actually held out the hope
of what I'll call pragmatic messianism
you know of cook amongst many other
things was a great messianic dreamer the
desire to move forward in history by
restoring our glorious of old pervades
his writing he strove for the return of
prophecy he was a Cohen who long for
service in the temple he agreed to be
Ashkenazi chief rabbi basically as a
practical step toward restoring the
Sanhedrin the High Court of Jewish law
never of cooked died in 1935 unless he
never
saw the state but in one of his few
usages of the word Medina modern Hebrew
first state he characterized what he saw
coming as quote the foundation of the
throne of God in the world whose entire
desire is that God be one and his name
one
that's about as Messianic as it gets but
lest you think this was purely utopian
like I said this sort of Punk down the
field and retreat into what Leibovitz
calls clerical politics there is
actually interestingly enough a
pragmatism that can flow directly from
utopian dreams because let's say I share
those dreams and by the way I'm Amish
dream of the template and I let it be
soon let it be now I still have a
question of what rava cooks legal mind
would say about the status of the
government that exists before that era
say the last 70 years perhaps
unfortunately as a great legal authority
he left us his thoughts in the matter
didn't wish Peter Cohen in 144 if you
want to look it up where he says it
seems reasonable that when there is no
king
meaning that he envisions the tourist
commandment to set up a government as
the kingship he says it seems reasonable
that when there is no king that these
rights of government reverts the people
in general it is a certainty that
appointed judges and general leaders
stand in the place of King and this is
the origin or what we call the mom
Lottie Dottie stance I truly not just
national religious but a society
oriented religiosity it's not just about
being law-abiding and religious it's
about being religiously law-abiding now
it's a powerful stance one that has
contributed much to our country but
there are two fundamental challenges
with messianic pragmatism first of all
it pushes off the question of this
dynamic engagement between Jewish law
and modernity that Leibowitz envisioned
he didn't just envision he felt that
religious Judaism was doomed without it
it pushes it off to the utopian future
you may have to obey the courts because
they have the status of the king but
none of the students of rough cook think
that they're adjudicating law on the
level of the Sanhedrin they're not
creating buying
precedent for the thoughts of God in the
world they're just helping to build
society with the authority of the Torah
behind them and that's why today in the
religious Zionist world you can see a
clear tension between respect for the
government in its role as guardian of
the state particularly law order army
and struggle with it on questions of
value like issues of gender and
sexuality questions of Shabbat
observance all of the liberal democratic
ideals which are sometimes difficult to
reconcile with tradition and that's a
major element of the anger we might have
heard underlying member of Knesset
sponsors call for a torus state but what
he actually said was the State of Israel
and the state of the Jewish people will
return to be governed as it was governed
in the days of King David and King
Solomon by torah law obviously in
accordance with our days our challenges
and economy and how society lives in
now Leibowitz would agree with that if
we were willing to get the tore out
there in the public marketplace and
empower human beings to really
adjudicate it in the light of modernity
I'm not so sure that's what the member
of Knesset was speaking about or of cook
was waiting for the Sanhedrin take that
role so the second challenge of the
pragmatic messianic approach is that
imbuing the state with a sacred status
and labeling its representatives as
agents of the divinely appointed King
really only works if you see the state
more or less headed for redemption and I
gotta tell you if you don't know there's
a growing sense amongst religious
Zionist that the state might have just
gone off the rails these are not the
secular pragmatic pioneers that ruff
cook found so inspiring and someday will
speak about the 2005 disengagement from
Gaza and its impact and the messianism
of a national religious world but the
question at hand is the Constitution or
lack thereof and if you want to
understand the challenge that we face in
2019 particularly the challenge in
marshaling the support amongst this
critical and dynamic element of society
that in its roots wants to integrate
torah and montana tea and enlisting them
in creating a new and binding national
government then you have to hear the
rest of member Knesset
his words he says the laws of Torah are
far more preferable than the state of
law instituted by our own Barack why is
a state of law in which the person who
determines the wall as his own Barack
and a small group of people who were not
elected okay and so the question which
will bring us off this catwalk back to
our main topic is who was on Barack and
what was the constitutional revolution
of 1992 from the Harare decision of 1949
until in 1992 the Knesset actually
passed nine basic laws but despite their
name the status of these laws remained
unclear were they like a true
Constitution as the Harare compromise
seemed to make them a limit on
government actions as superior
constitutional legislation or they just
another law codifying existing practice
with a fancy name and basically they
were treated as the latter and because
of that in essence for the first forty
five years of its existence the knesset
spout was all but unlimited really they
were bounded only by the laws which they
themselves passed and the Supreme Court
therefore could only attempt to hold the
Knesset to these laws it's true that in
the formative decades of the state when
one-party rule and centralized
government were just a reality and when
collective good and the good of the
country were always placed amongst
individual good in the public
consciousness the court did everything
it could to balance what it perceived as
a general threat to civil rights they
managed to give human rights a
constitutional status mostly through the
values enshrined in the Declaration of
Independence and they showed themselves
willing to hear challenges to both laws
and executive actions which they felt to
be in violation of civil rights but
there was a critical step the court
refused to take they refused the power
of a true constitutional court which is
to repeal primary legislation passed by
the Knesset which was injurious to human
rights even when they found that injury
was unjustified as
Miriam been Bharat said already in 1987
so that's pretty late
however negative the opinion of the
judiciary maybe about an arrangement in
the absence of a constitution the
Knesset possesses the power and
authority to pass a discriminatory
statute and if it has done so there is
no option but to act upon it well that
was in 87 and only five years later
there was going to be a radical shift in
the court in 1992 two additional basic
laws were passed and then for the first
time they directly addressed the
question of civil and human rights first
was the freedom of occupation law and
the second was the law of human dignity
and freedom first as the theme indicates
deals with one singular freedom that's
the freedom of occupation not from of
the second includes several rights
property movement from into Israel
Liberty dignity privacy it's interesting
what's not in there but this isn't a law
course now these were major shifts in
legislation because as I said they were
the first additional laws that were more
than simply procedural or structural but
actually what we would call in a right
sense substantive and oddly enough at
first they went largely unnoticed their
prime author and legislator was
Professor Amnon Rubinstein who's now one
of Israel's foremost scholars
constitutional law not coincidentally
and in 1990s to rumensin was actually a
member of Knesset on behalf of the
left-wing merits party and a minister in
the government of Prime Minister Yitzhak
Rabin about eight years later in the
year 2000 in an interview I'm not even
seen to hold his interviewer quote most
of the media never even reported on the
legislative process and the television
entirely ignored it when the law passed
the second and third readings
journalists reported it but some editors
didn't consider it newsworthy most of
the media never told their readers that
the Knesset had passed the laws
revolutionary as the basic law of human
dignity and liberty and the fact is it
wasn't just a problem of media when you
look at the Knesset record you will find
that the basic law human dignity and
liberty was ratified on his third
reading in the
on 17th March 1992 54 Knesset members
participated in the vote 32 for 21
against in 1 abstaining meaning less
than half were there and barely a
quarter of the Knesset voted in favor
and that's not a very impressive showing
for a constitutional revolution as the
coudé member of Knesset Michel Eitan
described it one day more precisely one
night in perfectly ordinary
circumstances two laws were bought to
vote with less than half of the House
members present nobody mentioned that
this was a constituent assembly nobody
spoke about a revolution and nobody said
that a constitutional change was
underway they voted after a few months
the people were told a revolution is
taking place knew this was the first
revolution that took place without the
public knowing about it
only after the fact was it informed of
the revolution now the depth of how such
a thing happened may have to wait until
we get to the 90s in season 4 but for
our purposes now want you to know that
the process of 1992 is going to have a
direct effect on our situation in 2019
Alain Barak was the Chief Justice in
1992 and he was the one who announced
the revolution he's an interesting
personality by all accounts everyone
agrees brilliant deeply committed to a
socially liberal democratic vision in
his own words Barack said in March 1992
two basic laws are enacted in absolute
silence March passes April May and
nothing nothing at all and I read the
two basic laws and I say to myself this
is our Constitution and then in a brief
lecture I gave I spoke of a
constitutional revolution now what
happened in legal terms was that under
Chief Justice Barack actually in a later
ruling that's known as the United
Mizrahi Bank ruling if you want to look
it up the court have vocht the idea of
essential entrenchment meaning
entrenching a law is giving it a status
which places it above all other laws as
constitutional law rightly is that's why
you have a constitution to determine
whether laws which follow it are
constitutional but essential at transmit
meant that whether the basic laws were
written in a manner that gave them
primacy other other legislation or not
the court said that by definition they
had it which meant that with the basic
laws of freedom occupation and human
dignity and liberty
Israel suddenly had a written
constitution of course if it has written
constitution that a term means by
definition the Supreme Court now has an
obligation to review legislation and
executive action in light of the
Constitution which itself had declared
and that's how it came to be that Israel
both wrote and did not write the
Constitution we have a document most of
which was passed in the salami style as
we talked about last episode with a
critical portion in 1992 pushed through
by minority of the legislature and then
elevated the constitutional status by
the judiciary now in case you think I'm
just telling you a conspiracy theory
here these words from Minister Knesset
I'm Ramon which he actually said in the
Knesset debate as late as 1998 he said I
wish to remind the members of Knesset
how at the end of the 12th massive term
we enacted these basic laws I was then
chairman of the labor faction which was
part of the government even member of
Knesset Amnon Rubinstein and certainly
not I did not imagine it would be
interpreted in the way the court
interpreted it I call this
constitutional revolution an incidental
constitutional revolution because the
legislature did not intend it and that's
the key to our challenge now how could
you possibly have a constitution which
the legislature did not intend now how
it came to be deserves deep analysis and
by the way if you take a look at the the
bibliography that I put up for each show
slowly but surely
on patreon you get to see some sources
and there a couple articles there that
will detail for you all the arguments of
how it's possible to have a
constitutional revolution in such a way
and there's another encouragement by the
way to just become a member on patreon
because that's kind of stuff you get to
see for as little as one dollar a show
but in
order to understand the situation in
2019 we don't need to go into the full
depth of how such a thing came to be
besides nobody really agrees if we want
to know about the war between the
legislature and the judiciary that's
going on right now we need just two more
pieces first of all you need to know
something about the unique mechanism
that exists for selecting judges for the
Supreme Court in Israel serene court
jesters are technically appointed by the
president but they're appointed from
names which are submitted by the
judicial selection committee right and
the committee has nine members there are
three sitting court judges two main
Supreme Court judges two cabinet
ministers which include the justice
minister to other Knesset members and to
representatives of the Israel Bar
Association but and here's the kicker
by established practice appointments to
the Supreme Court require a yes vote of
all three justices sitting on the
committee which means that in essence
the court reproduces itself and by a
large it reproduces itself along
ideological lines who can just look at
the recorded history the other piece you
need to know to get the death of 2019 is
that there's a social shift which
underlay the passes or the 1992 basic
laws which triggered this constitutional
revolution to begin with the Rabine
government of 1992 was also the
government that passed the Oslo Accords
and no matter what stance he may take on
that decision you can see it as the last
temple left to return to the heyday in
which they held leadership in politics
for the first thirty years of the state
because frankly since then with a few
bumps the populace has been shifting to
the right both politically and
religiously but the court which
historically more than any other branch
of government has been establishes
establishment with liberal values has
remained a bastion of the left and so as
the struggle between left and right has
been playing itself out since that 1992
period the court in its constitution
have become an increasingly important
tool in the battle where the left has
lost a lot of its traction in the
legislature
that simplistic presentation brings us
up to 2019 you know in a recent
interview of Justice Minister Emil Hanna
spoke about a 2004 Supreme Court ruling
in which the court refused to allow the
military to destroy several Palestinian
buildings along a Sufi mcafee route that
led into the Gaza Strip and then Harris
subsequently used that very building as
covered to murder a pregnant Israeli
woman
tallyhawk to L and her four daughters
now the court had made a decision
they placed immediate human rights of
some people over the abstract safety of
others and this was the result
and when Minister Ohana was asked
whether in certain situations the High
Court decisions should therefore not be
followed he replied the ultimate
consideration hacks D but preserving
citizens lives yes
now the responses were predictable the
chief justice team court accused him of
leading Israel down the path to anarchy
the Prime Minister refused to back him
and I'm not looking to take a stance on
this point what I want you to understand
is that a situation in which a justice
minister the element of the executive
tasked with upholding law can undermine
the authority of the Supreme Court the
arbiter of the law and knowing that
despite the Prime Minister's reaction
that it will play well with the
legislature the people who make the law
that is a dangerous situation and it's a
situation that came to being because
whatever constitution Israel claims to
have is not the result of a broad-based
consensus that emerged out of a national
conversation because we spoke last
episode at length about the opportunity
presented in 1948 we talked about that
idea amongst constitutional scholars
that states tend to adopt constitutions
in crisis circumstances because they
both force discussion of basic values
and questions and increase the readiness
of competing groups within society to be
flexible and show compromise in order to
reach agreement and safety on the other
side well it didn't happen in 48 or 49
and then for circumstances which
didn't really flesh out came the
constitutional revolution of 1992 as
it's known except in reality it wasn't a
revolution with a little bit more like
at take over here this quote from Rea
Derry in the previous Knesset very very
late at night basic laws that should
have been passed in a plenum of 120
Knesset members after all enacting a
constitution is reason for celebration
and democracy late at night deliberately
deceiving the religious in
ultra-orthodox public and that
communicates the sentiment which many of
the religious and right-wing members of
the legislature have around a
constitution which they feel they
weren't consulted upon they didn't
participate in passing and they weren't
necessarily even aware was in the works
and that's why now oh and finally is
backed by a court which they identify as
a self propagating voice of the liberal
elitist left and that's why now in 2019
we look like we're facing the
counter-revolution and my question for
you oh dear listener is whether you
wouldn't matter what whether you feel
the core it must be protected or
destroyed whether you think that the
balance of security and civil rights
should tip one way or the other and no
matter whether you envision Israel as a
civic or ethnic nation-state the
question is are you ready for commitment
are you ready to engage in a real
dialogue that's just a conversation
where I get to say what I think to
somebody else but a dialogue in which we
all commit to the possibility that we
may not be the same people when we
emerge well if you are it would also be
well to recall Alexander Hamilton's
advice once again from the Federalist
Papers we spoke out against the
chimerical pursuit of a perfect plan I
never expect to see a perfect plan work
from imperfect man there is also the
deliberation of all collective bodies
must be necessarily compound as well of
the errors and prejudices as of the good
sense and wisdom of the individuals of
whom they are composed which tells me
that we shouldn't be afraid imperfect as
limited as our sight is as much as each
of us brings the table his own
self-interest
we gotta have this conversation a
constitutional process is long overdue
despite the fact that we already have
Constitution or maybe because of it but
there needs to be more at the base of a
productive process than simply the
commitment to transformative dialogue
you know if you open up the book in the
hammer there in Chapter nine you'll find
one of my favorite chapters in the
entire Tanakh
it's a recap of Jewish history take a
look at it it'll be familiar because
some what we say in our daily liturgy
and immediately after that ninth chapter
first line of the tenth you'll find a
line that has a critical lesson for our
situation because that historical
perspective is followed by a new
covenant it gives the whole breadth of
history and then it says whole Zoet an
african-themed Amana protein tomb
serenely anal guanine oh the holes of it
could mean one of two things it mean
nevertheless right that's what it is in
modern neighbor nevertheless despite all
that history we're gonna sign reat Amana
a faithful covenant or it could mean by
the way the holes out in light of all
this we make a faithful covenant to one
another now I think that both readings
can teach us something about why it is a
constitutional process and of course
product have so much potential for us
today in view of this in view of all of
our history we need a constitution our
commitment to one another is critical to
our survival and our ultimate healing
look with history has been when we broke
down also the holes out in spite of all
of this we make a breach Amana a
faithful covenant because despite all
the burden of the past in the structural
realities that we've inherited in the
present which divide us we must have a
constitution in order to be able to move
forward together into the future and
ultimately fulfill our mission but
what's really critical is the very
simple question I don't get it
the returnees in the time in that amia
had the Torah didn't just have the Torah
from one perspective they were the ones
most devoted to the Torah
that's why they came back when their
brothers and sisters stayed in Babylon
so what were they doing creating a new
covenant it's really worth it to look
closely at that whole book get cold so
much wisdom for our day I'll tell you
very simply they didn't make a new
covenant with God a covenant
Constitution isn't about our divine
mission they made a covenant to one
another because what a covenant what a
constitution is is a social contract
it's a vessel that can allow our society
to survive and heal and one which can
marshal our forces to work together to
build the future of which we dream let
it be soon let it be now I want to thank
a few people before I sign off I want to
thank all the folks to give their
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we're gonna I'm gonna be engaging the
question of religion in the postmodern
era if you want to be part of that
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Institute dar des Oregon il for building
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want