The Jewish Story: Seventy Years of Constitutional Crisis – part II 1992

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 hard-earned money to make this show possible keep it free help me distribute it as widely as I can I want to invite you to join them you can go right now to my website Jewish story dot Co and in the upper right hand corner you'll see a button that says be a patron you can click on through there for a little bit of per pod cast support and I want to remind you of two opportunities in addition one is dedications I'm always happy to devote a show to the honor of the living or the memory of the Dead just send me an email at Ralph Mike Feuer at gmail.com or you can catch me on my Facebook page throughout my Ford just send me a personal message and I'll shoot you back the details the other way in which you can participate is the upcoming webinar it's looking like we've changed the dates to July 14th and 21st we're gonna I'm gonna be engaging the question of religion in the postmodern era if you want to be part of that discussion you can also send me an email or a Facebook message and I'll slide to the details so I also want to thank the Land of Israel Network that's the Land of Israel com for creating a platform that allows me to reach so many amazing people I want to thank the partes Institute dar des Oregon il for building an educational institution that gives me the privilege of touching the hearts and minds of so many wonderful Jews and I want