The Barak government or what is left of it is in shambles. Barak’s diplomacy is a failure and his cabinet consists of a gaggle of “Replacement Ministers.” And smack in the middle of this mess, Barak pulls a white rabbit out of his hat.
Folks, Ehud Barak has suddenly decided he wants to give Israel a constitution.
Now we have expressed anguish over the lack of a formal constitution in Israel. Without it, it is difficult to challenge government actions and decisions on the basis of any “higher order.” It means there are no checks and balances, and Israel often resembles “democratic totalitarianism.”
But in actuality, there is only one thing I can imagine that is worse than Israel not having a constitution and that is Israel having a constitution.
Let me explain.
The problem is that any constitution likely to be implemented in Israel will be a poor and harmful one, and no constitution is far better than a bad constitution. Any constitution that would be implemented in Israel now would likely do far more harm than good.
There are many reasons for this. Israeli politicians are prisoners of political fads and any constitution would incorporate such fads. Examples would be “constitutional rights to decent wages and housing and to union representation,” or the “right to equal access to health care.”
These are lovely sounding fads that would be introduced in any European country now adopting a new constitution. Witness the attempts to impose such splendid “rights” by the European Union. These are things that sound nice, but are not thought through, and would quickly destroy the economy and the country. How about “equal pay for equal worth,” a surefire guarantee of totalitarian attempts to control the labor force and economy? How about constitutional guarantees of “equal and fair representation?” A guarantee of affirmative-action atrocities and dumbed-down standards. And so on.
And the constitution would be filled with “rights” that make it completely impossible for Israel to defend itself against terrorism and aggression. The constitution would be written by people like Yossi Beilin, Shlomo Ben-Ami and Asa Kasher, the intellectual “titans” of the Labor Party. Just try to imagine what such people would produce!
What about constitutional prohibitions against “incitement,” something any post-Rabin constitution in Israel is likely to contain? Think I am kidding? The lobby group for a constitution last week ran ads demanding Rabbi Yosef Ovadia be prosecuted for just this thing.
What about a clause guaranteeing freedom to marry who one wishes? Would it then create both a religious kulturkampf and impose gay marriage, making sexual deviancy fashionable for the country? Witness one of the first applications of the Israeli semi-constitutional “basic law” that guarantees the right to chose a profession. It was used to defend the “profession” of an importer of pork. How about the profession of prostitute? Pimp? Drug dealer? Mercenary?
The constitution would set off religious civil war, and indeed Barak is already talking about a constitution being part of a “secularist revolution” in Israel, which would include separation of synagogue from state as well as civil marriage. All of this might sound nice to secularists but none of it is feasible and every such proposal would create enormous crises and complications. (Actually, such talk guarantees no such constitution would ever pass because the religious parties would veto it and the secular parties would fear to cross them by endorsing the passing of the constitution.) Separation of church and state might work for Christianity, which arose in a tradition of such separation. Judaism does not lend itself as easily to such segmentation of life.
The constitution would raise enormous crises with respect to the Arabs. How can you write a constitutional guarantee of equality that allows the Arabs to dodge the draft and allows immigration preferences for Jews, in the Law of Return. And would the constitution speak of equality in ways that could then knock down defense-related restrictions, such as restricting Arabs from working in the intelligence services or at a nuclear plant?
The Arab fascist politicians are already demanding not civil equality in the constitution but “national equality” in the constitution for the Arabs, granting the Arabs a “national recognition” roughly similar to the Quebecois at best and the Kosovars at worst.
How does the state exercise its defense policy and defend itself against terrorism when terrorists can hide behind constitutional guarantees?
But the worst problem of all is the iron law of unexpected consequences. When laws are passed, it is impossible to foresee all the problems, complications, lacunae and consequences they will create. This is true for all law, but it is a far worse problem for a constitution. Loopholes created by laws can be fixed by recognizing them, and then making a new law. Constitutions, by definition, are very hard to change or fix.
Take the U.S. Second Amendment, the part about the right to bear arms. Protecting the right of East Los Angeles gangs to own automatic assault rifles is not what the founders had in mind. Without getting into the whole gun control argument, let me simply note that even if 80 percent of Americans favor a certain form of gun control (prohibiting automatic assault rifles in big cities, for example), no such regulation can be passed because of the unintended constitutional barrier.
The American constitution is very well thought out. No such constitution in Israel is likely to be anywhere near as well thought through, and I cannot remember the last time Israeli politicians seriously thought through anything.
The gun problem noted is nothing compared with the lacunae and insanities a poorly thought-through constitution is likely to create in Israel.