Israel’s Left Wants Unlimited Power

This week in the Wall Street Journal, William A. Galston reached back to David Ben Gurion, Israel’s first prime minister, to put Israel’s current struggle over judicial reform in perspective. 

Galston notes Ben Gurion’s rejection of the Madisonian idea of a written constitution that requires a supermajority to change. He trusted the parliamentary process, believing that voters would trust they’d each have their turn to garner a majority and rule. That same trust, Ben Gurion held, would not be there for a small panel of appointed judges. (READ MORE: What Israel’s Protests Are Really About)

In a speech to a 1949 government committee considering an American-style constitution, Ben Gurion said:

In a country such as ours, imagine for yourselves that the nation wants something, and seven people designated with the rank of judge cancel something that the nation wants! … This, in our country, would lead to revolution. For the people would say: we will do what we want.

Galston’s article was good, but deserves further contextualization. 

Ben Gurion, Galston correctly points out, was particularly critical of the American Supreme Court’s rough treatment of progressive legislation. Like FDR, he did not want any court overturning anything that he could get through Israel’s parliament. Like FDR, he believed that he and his party would hold power for the foreseeable future, and, again like FDR, he succeeded in establishing his policies for a very long time.

The ruling elite of early Israel was socialist. They had stopped their plunge leftwards, something they identified with modernity, just short of communism — unlike the Bolsheviks, they did not believe in jettisoning national identity. Under the Marxian influence, though, like the Bolsheviks, they saw themselves as leading the inevitable march of progress toward a socialized worker’s paradise. But they, unlike the Leninists, would achieve it peacefully, with no need to use terror and violence. (READ MORE: The Insanity of Biden’s Opposition to Israel’s Judicial Reform)

Ben Gurion was an astute politician. He successfully isolated his main opponent on the right, Menachem Begin, as a would-be insurrectionist, and made that lie stick. It would be thirty years before a non-socialist government, led by Begin, would first assume power.  

Ben Gurion was a practical politician. He appreciated the workings of British democracy, which had just a few years before also installed a socialist government. Israel’s law today is built on the framework of law the British had administered during its Mandate and Ben Gurion admired the parliamentary system. Britain had rejected the idea of a supreme court at the time of Justice Coke, during the rule of James I. After the two civil wars of the seventeenth century, Britain settled on parliamentary supremacy, regulated only by an unwritten constitution that showed its power in the same way as Common Law — through the allegiance it successfully inspires the people of the nation. 

As the head of Israel’s parliament, and with the British example, Ben Gurion felt no need to set any check on the supremacy which was in his hands. He was confident in the socialist trend of history, and he placated the principled and faith-based opposition of those Jews loyal to the religious tradition by granting them certain concessions: government observance of the Sabbath and other points important to the observant. Ben Gurion fully expected that as history progressed, the traditionally observant would disappear, along with their resistance to progressive changes, without any need for coercion or violence. He could wait a little for the religion to disappear on its own; why bother pushing water downhill? (READ MORE: Revisiting the ‘Death of Israel’s Democracy’ as They Finally Reform Their Leftist Judiciary Gone Wild)

There are few socialist triumphalists any more. Israel’s religious community has burgeoned and finds its way forward, fighting for its concerns in the political arena like everyone else, and annoying the left when it is occasionally successful. The rest of Israel has generally moved rightward as a whole, and the economy, released from dogmatic leftist restrictions, has turned Israel into the Start-Up Nation, a First World player.

In this new environment, the left has decided to turn away from Ben Gurion and embrace an American-style constitutionalism — at least that part that would make the Supreme Court able to overturn any legislation and action of the parliamentary government, the parliament over which the right has a hold.

Do not think, though, that the left’s goal has been to emulate the balanced American system in which each branch of government checks the other and in which the Supreme Court is answerable to a written constitution. Though Israel’s president has tried admirably to find a path to a viable consensus, the opposition on the left wants only the status quo ante. That means control in perpetuity over a court whose new justices are selected by the old ones and by other lawyers (guess where their affiliations are) with only a small minority of the selectors coming from the people’s elected representatives. This new left aspires to rule in the minority, not on the basis of a written constitution reflecting a supermajority’s consensus, but by something as ephemeral as what seems unreasonable to them. And the new left wants those decisions to be unreviewable, even by a supermajority.

Progressives then and now have pushed against constitutional limits. Their guiding principle is that they know best, and that they should rule and any means that accomplish that will be good. Early American progressivism was gradual. In many states, such as my Ohio, it aimed at making constitutions amendable by a simple majority, so that they could rid themselves easily of any judicial check on their rule. My home state of Ohio is trying to rectify a successful progressive undercutting of Ohio’s constitution from decades ago, in which they made it possible for the people in referendum to amend the constitution by simple majority. Predictably, the constitution has been reduced to a statute book with pretensions, including immensely long and detailed pieces of legislation dressed up as fundamental law. We should know Tuesday if Ohio has finally rectified this mistake.

What progressives lose in the polls and in the hearts of the people, they try to retake in the streets. In Israel, they have learned from Obama’s successful strategies. Ignoring that the right ran on the issue of judicial reform, the left tries to create the impression that it is they who stand for the people. 

But in Israel as here, they are led by those who ignore the people when the people choose the other side. History has not yielded their inevitable unending domination. The supreme parliament they created is not in their hands. Therefore, the people and their representatives are to be dethroned so that the only ones who really know what is right can take what they believe is their proper place as sovereigns.

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