Washington, DC – -(AmmoLand.com)- This week, in response to mass demonstrations and a nascent general strike, Israeli Prime Minister Benjamin Netanyahu delayed legislative consideration of his right-wing coalition’s judicial reform agenda. Both sides in the acrimonious battle over that plan say they are defending democracy, which is a misleading way to frame an issue that should be familiar to Americans.
The controversy, which Netanyahu said threatens to become “a civil war,” is really about what sort of democracy Israel should be — in particular, how much power judges should have to override the will of the majority. While Netanyahu’s allies are right that judicial review is a constraint on democracy, their opponents are right that unconstrained democracy is a recipe for tyranny.
More than two centuries ago in Marbury v. Madison, the U.S. Supreme Court established the principle that the judicial branch can override legislation that is inconsistent with the Constitution. “It is emphatically the province and duty of the Judicial Department to say what the law is,” Chief Justice John Marshall declared, and judges, therefore, must decide what happens when they “apply the rule to particular cases” and find that “two laws conflict with each other.”
The Israeli Supreme Court reached a similar conclusion in the 1995 case United Mizrahi Bank v. Migdal Cooperative Village, asserting the power to overturn statutes that conflict with Israel’s “basic laws.” Since the 1990s, Israeli law professors Amichai Cohen and Yuval Shany note, the court “has invalidated 22 laws or legal provisions” based on “its new powers of judicial review.”
Among other things, those cases involved treatment of asylum seekers, discriminatory tax rates, expropriation of Palestinian land, religious exemptions from military service, and due process for detainees. But the impact of judicial review extends beyond those specific decisions, Cohen and Shany observe, because the question of whether legislation can survive it “has become a dominant consideration in the legislative process.”
This is the “constitutional revolution” that Netanyahu’s coalition members resent, although that term is misleading, since Israel has no formal constitution and the Knesset, Israel’s parliament, can amend its basic laws at will. In response to what they see as undemocratic interference by unelected judges, legislators have proposed various contentious reforms.
The proposals include legislation that would guarantee the government a majority on the committee that selects judges, restrict the circumstances in which the Supreme Court can invalidate statutes, eliminate the precedential force of such decisions and allow the Knesset to override them by a majority vote. In practice, Cohen and Shany say, those changes would mean “the end of judicial review of Knesset legislation.”
The plan’s supporters think it’s about time. “At school they told me that Israel is a democracy,” conservative commentator Evyatar Cohen wrote this week. “They said that as soon as I reach the age of 18 I can go to the polls and influence the future of the country, its character and goals.”
Newspaper columnist Nadav Eyal, by contrast, welcomed the pause that Netanyahu announced. “Israeli democracy may die one day,” he wrote. “But it will not happen this week, nor this month, nor this spring.”
Both of those takes elide the reality that untrammeled majority rule is a threat to civil liberties. Netanyahu himself has recognized that point.
“A strong and independent justice system,” he noted in 2012, is the difference between governments that respect “human rights” and governments that merely pay lip service to them. He promised he would “do everything in my power to safeguard a strong and independent justice system.”
Netanyahu, who faces corruption charges that will be adjudicated by that system, now presents himself as a mediator between his coalition partners’ demands and the concerns that have driven hundreds of thousands of Israelis to the streets in protest. The question is not only whether he can broker a compromise but whether it will preserve the safeguards he rightly described as essential to the rule of law and the protection of individual rights.
About Jacob Sullum
Jacob Sullum is a senior editor at Reason magazine. Follow him on Twitter: @JacobSullum. During two decades in journalism, he has relentlessly skewered authoritarians of the left and the right, making the case for shrinking the realm of politics and expanding the realm of individual choice. Jacobs’ work appears here at AmmoLand News through a license with Creators Syndicate.
Opponents of this new judicial reform in Israel, sent a small delegation to the US to whip up opposition to it in the US, particularly among American Jews. They should go the hell back home. It’s blatant interference in our internal affairs when foreigners urge us to interfere in their internal affairs. Israelis can handle their own politics, and the US should mind it’s own business when it comes to fellow democracies.
The American Left LOVES the tyrannical Israel court and wishes for a “packed” court here, as well. That’s why Soros and US State Department money have been pouring into Israel to finance the demonstrations. Almost every problem Israel faces is linked to the self-perpetuating power and arrogance of its Supreme Court. How DARE the common citizens presume to have any voice in their own government!
Another alternate view is that the paragraph that starts with “constitutional revolution” has nothing to do with the current situation and shouldn’t be a part of the article at all since Israel doesn’t have a constitution as the author then proceeds to state. In effect Israel is run by an unconstrained leftist cabal of judges who decide what the law is and the judges themselves are appointed by the same cabal of leftist judges. In essence this cabal ultimately decides the law despite the parliamentary process. This has little to nothing to do with the “corruption charges” that have been… Read more »
Here in the U.S. although we don’t elect Federal judges, they are niminated by the executive branch, and confirmed by the Senate; both are elected to represent the people.
What’s missing in this piece from Jacob Sullum is…, who appoints those judges in Israel, and are they mostly liberal in their judgements?
And, prior to the announcement of these impending reforms, I don’t recall protestation calling for these reforms, from the Right. To me, hundreds of thousands of protestors in the streets of Tel-Aviv looks more like mob rule than it does any thought out process of deliberation or negotiation.
This is a very shallow view of the situation in Israel. You have left out the supreme court there elects it own justices and in the last decade have become a hard left group that nullifies laws passed by the elected conservative government. Not because they conflict with other laws but because they conflict with the left. They have in effect taken full control of the government, answer to no one (including the people) and nothing happens without their approval.