A New Netanyahu Government

When Winston Churchill famously commented that “democracy is the worst form of government, except for all the others,” he was being both witty and trenchant. There is, after all, something just and fair about the people—the demo part of “democracy” from the Greek demos, meaning “the people”—self-governing by choosing as their leaders individuals whose opinions about the issues of the day most closely suit their own. But there is also something deeply problematic about the concept of awarding to the people the right to self-govern without giving some advance thought to what should happen if the people should turn away from decency and justice to embrace principles that are at their core inimical to the wellbeing of the society in which they live. I never seem to tire of noting that the Nazis are believed by historians to have won the election of 1933 fairly, i.e., by getting a majority of voters’ votes—but surely no normal person would argue that that victory by definition made reasonable and just the barbaric laws enacted almost immediately by the demonic cadre of sociopaths who came to power legally in the wake of that fair and free election.

The Founders of our nation saw the problem easily and so invented a kind of democracy in which each of the three branches of government—the legislative, the executive, and the judiciary—all labor under certain restrictions designed to create and maintain a balance of power capable of keeping tyranny from gaining a foothold in our land merely because a would-be tyrant somehow manages to garner a majority of votes in a national election. Our Founders were dreamers, but they were also realists. And they clearly understood the dangers that inhere even in a democracy when a workable system of checks and balances is not put in place to keep any one part of the government from turning away from the core values upon which the republic was meant to rest.

I have been thinking about these issues all week because of legislation the Netanyahu government is planning to bring to the Knesset over the next few months that will effectively and dramatically diminish the power of the judiciary. The proposed bill is a complex piece of legislation, but two core innovations have garnered the most attention and the strongest opposition.

One is the so-called “override” clause that will dramatically constrain the justices of the Supreme Court from attempting to nullify legislation they find to be antidemocratic, discriminatory, of in contravention of Israel’s Basic Laws, the set of laws that function more or less as Israel’s constitution. Under the new law, the Supreme Court will be barred from deliberating at all with respect to the Basic Laws that function as Israel’s constitution, the interpretation of which will henceforth be almost solely in the hands of the legislature.

And the other, related to the first, will basically make it possible for the Knesset to override Supreme Court decisions with a simple majority of sixty-one votes. (There are 120 seats in the Knesset.) In other words, if the Supreme Court finds a piece of legislation to be in contravention of the Basic Laws, they could strike it down…but only with the assent of all the court’s justices. But even that won’t put the matter to rest, since the Knesset could simply vote again on the same law and recertify it as government policy with a majority of one single vote. This is, to my mind, a hugely dangerous move that could conceivably impact on the democratic nature of the State in many different profound ways. Nor am I alone in thinking that: David Horovitz, the founding editor of the Times of Israel, published a piece in his own newspaper earlier this week under the title “Justice Minister Sounds Death Knell for Israel’s Inadequately Protected Democracy.” (To read the piece, click here.) And I read a dozen other essays in the press and across the web expressing similar dismay.

In our nation, Supreme Court decisions can be overridden. But the process is complex, lengthy, and specifically designed to make it impossible for the Congress “just” to override a decision of the Court.

The Court itself, of course, has the power to overturn its own decisions, but the President has no such power: the best an American president can do if he or she is unhappy with a decision of the Supreme Court is to push for a review of a specific law in the hopes that the Court will override its own prior decision. But what about Congress? Article V of the Constitution allows Congress to amend the Constitution if two-thirds of the House and the Senate vote to do so or if two-thirds of the states request such an amendment, and that could in effect override a decision by the Court that a practice or a law was unconstitutional. But such an amendment must then be ratified by three-quarters of the states, and that is a process that can take years. In its darkest hour, for example, the Supreme Court determined in the 1857 “Dred Scott Decision” that enslaved individuals were not American citizens and were therefore not entitled to protection by the government or the court system. And it also determined that Congress had no authority to ban slavery from federal territory. Both parts of the decision were then overturned by constitutional amendment, the part about slaves not being citizens by the Fourteenth Amendment, which granted American citizenship to all people born in this country, and the part about the authority to ban slavery by the Thirteenth Amendment which, in fact, granted Congress the right to ban slavery and, in fact, banned slavery in the United States. So Supreme Court decisions in our nation can indeed be overturned. It just takes a long time and is a very arduous process.

The concept of an “override” clause that allows the government legally to act in contravention of the rights guaranteed to its citizens under the Constitution is not unknown to Western democracies. Section 33 of the Canadian Charter of Rights and Freedoms, for example, is popularly called the “Notwithstanding Clause,” because it awards federal, provincial and municipal governments the right to legislate in ways that contravene the basic rights of citizens for some greater good. The federal government has never availed itself of this right, but some provincial governments, particularly the government of Quebec, have. In Ontario, I remember it being invoked to justify the inherently unfair policy of the provincial government of funding Catholic schools, but neither Protestant nor Jewish ones; the government admitted that this was inherently unfair, but insisted on maintaining the policy “notwithstanding” its inherent inequity because it derived from the original 1841 merger between Upper and Lower Canada that created the Province of Canada. (The Province of Canada was part of the British Empire until the British North America Act of 1867 created the nation of Canada as we know it.)  There is no specific parallel to the “Notwithstanding Clause” in American law.

But neither the American method of overriding the Court (i.e., by the long, arduous process of amending the Constitution) nor the Canadian one mentioned above is anything like the proposed legislation in Israel in terms of its ability basically to make it possible for the legislature simply to ignore the Court and vote its way around any decision issued by its justices.

The majority Netanyahu cobbled together to put himself back in power is in many ways an ultra-conservative one that includes among its ministers a criminal like Aryeh Deri, who was convicted of bribery, fraud, and breeching the public trust in 1999 and sent to prison for three years, and who was then convicted again of income tax evasion just last year and fined the equivalent of about $50,000 U.S. But far more troubling are the presence of extremists who have openly questioned the basic civil rights of Israel’s Arab citizens, its LGBTQ citizens, its female citizens, and its non-Jewish citizens. If there was ever a government that is going to need to be reined in by a vigorous, vocal Court devoted not to the political future of the PM or his party but to the moral future of the State itself, it is this one. That not being the case, I fear we are in for a rough ride indeed.

And yet, as I said from the bimah just last Shabbat, we cannot allow our concerns about the government to affect our willingness to support the State of Israel itself. America is more than its government and its political parties. So are all countries, including Israel. I am worried about some of the ministers Netanyahu has appointed—and certainly not just Aryeh Deri—and not sure if their extreme right-wing approaches can or will be vitiated by the presence in the government of calmer, more reasonable types. The future will unfold. Some developments, I suppose, will be regrettable. I have never allowed my distaste for any specific politician to affect the deep sense of patriotic loyalty I bring to my feelings about my own country. And I do not plan to allow any specific policies of the Netanyahu government to weaken my support for Israel itself—for the nation and for its people.