Israel’s constitutional crisis raises language that offers Americans some “compare and contrast” opportunities, to reflect on our own tenets of justice, our national identity, and the basis for American foreign relations.
The Israeli right wing has passed a law constraining their Supreme Court from striking down laws the Court finds “unreasonable.” Reasonability as a standard for jurisprudence differs from the U.S. Supreme Court’s generally recognized basis for judgment, namely the constitutionality of the law in question. Israel does not have a written constitution, so its Court would not have that standard. As to reasonability, the U.S. Constitution has included painfully unreasonable measures such as the counting of slaves as three-fifths of a person.
It may be that a state founded on an identified religious faith has underlying tenets to define “reasonable,” and Judaism does have deep traditions of such discourse. The U.S. Constitution is the edifice of state on America’s national foundation, set in the Declaration of Independence. Prior to the Thirteenth Amendment, the Constitution made little direct reference to moral norms but its purpose, in a reading of the preamble, is to set governing practice by the tenets voiced in the Declaration’s creed. SCOTUS’ ultimate standard of justice resides in those tenets, of unalienable rights equally endowed in all, and government that exists to secure those rights.
The complaint of the Israeli right is that unelected judges have the power to block the acts of an elected parliamentary majority. They call that undemocratic. The U.S. Supreme Court can also block laws passed by a majority. For us, that power serves to secure the rights of political minorities, per the Declaration’s truth that all persons carry unalienable rights.
Can a religious state respect non-observers’ rights? In 2018 Israel’s Supreme Court took up the question of discrimination against Arab citizens, given the nation’s definition as Jewish national homeland. It found that definition to be just, provided that other recognized “basic law” establishing human rights is not contradicted.
The conceptual difference is that Americans put the unalienable rights first, as integral to our identity, where Israel’s court deemed human rights – as per Israel’s laws – proper and sufficient constraints on religious discrimination for a nation defined by religion.
The longstanding US friendship with Israel reflects many factors, but Israel’s tradition of internal democracy is perhaps the most important. Hence President Biden expressed concern at their weakening of their Supreme Court. We should note that concern over this pillar for our friendship is not in itself interference in Israel’s internal affairs; we have a right to choose our friends by our own lights, and to tell them where we stand.
But we should take special care before anyone invokes “democracy.” Is Netanyahu’s rationale right, that impeding the will of an elected majority is per se undemocratic? Or is the reservist saying the country would become a dictatorship, and vowing not to serve, if the law stands? In our polarized politics, “democracy” is a loaded term. Its use will trigger the usual reduction of a real question to partisan dismemberment, to fit left and right political orthodoxies. We already alienate each other over charges of undemocratic leanings, one side invoking discrimination against particular identity groups, the other decrying onerous government measures. We do not need another issue where partisan posturing locks us into “either-or” choices between deeply divergent policies, particularly in our engagement with the world.
The basic question of American friendship with another country should be whether, and how deeply, they share in our core dedication to rights. Or, if not deeply committed, whether that country and its rulers show some development toward rights-based governance, or hold the door open for it to grow – or oppose the idea. At times we have collaborated with distinctly undemocratic regimes; distasteful pragmatism has its times and places. But those cases should be rare; their necessity, and benefit to our founding tenets, should be clear.
Whether Israel follows up on the new judicial law to look like a discriminatory theocracy, or digests their conservatives’ interests while preserving due process of law and minority rights, is up to Israel’s people. Our place is only to determine how amicable our relations are. U.S. policy may have to make judgement calls, to calibrate our relations to their evolving nature. We should develop that capacity for any nation – is China, for instance, a dictatorial system out to run the world and undermine our tenets, or is it just a developing society with deep insecurities? In any case, America’s bottom line comes in the answer to one question: how does friendship or rivalry affect our founding commitment to rights?
Common Conviction 