Political foes of Israel’s old/new Prime Minister Benjamin Netanyahu seem to be borrowing a page from the American left’s playbook. They’ve mounted a worldwide campaign to portray him as a threat to democracy. Much as the threat and then the reality of civil disobedience and uncivil violence was raised against Donald Trump even before he was inaugurated, Netanyahu’s enemies raise the specter of a constitutional breakdown that they themselves organize.
The Israeli left, as the left in so many places, has used such tactics against their political opponents for a long time. The rightist Menachem Begin was portrayed relentlessly by the ruling socialists in the first decades of Israel’s independence as a dangerous revolutionary, and support of him put one beyond the pale — an early version of cancel culture.
Barak is no longer on the court, but he is fighting the political battle to gut Netanyahu before he can fulfill his campaign promise to reform the runaway power of this rogue government branch.
The reality of Begin was decidedly different. When he was finally called to join the cabinet in the life and death situation when Israel stood isolated and without any ally against Egypt’s announced plan to wipe it out, Begin advocated making his nastiest political enemy the leader. In Begin’s selfless vision, that man, for all his faults, was a proven a dauntless war-time leader. And when Begin became prime minister about ten years later, he respected the constitutional norms scrupulously, showing the left’s calumnies to be just that. And Begin’s term finally verified Israel’s democratic credentials, much as Jefferson’s ascension did in 1801, showing that the nation was larger than one political faction.
Netanyahu’s position is different than Begin’s. There has been real choice in Israel ever since Begin, with the Right and the Left surging and ebbing in turn, as in all the other democracies. What he faces is a constitutional aberration sorely in need of correction — the slow usurpation by Israel’s judiciary of the supreme power of the state, power limited only by their own all-too-imperfect consciences.
There are some parallels to the establishment of meaningful power in the hands of America’s judiciary. Until John Marshall became Chief Justice, the courts were insignificant in comparison to the other two branches, where real political power was being exerted. It took Marshall’s genius to make the judiciary a co-equal partner in the Marbury decision, an enduring landmark in the progress of free constitutional government.
But Marshall worked with a written Constitution. And although Israel has written Basic Laws, they are more of an afterthought, not the incredibly well-thought-out structure of America’s Constitution.
For much of Israel’s governmental structure maintains continuity with British law, the law that ruled the Holy Land for the three decades preceding Israeli independence. Britain’s constitution is unwritten, and decisively rejected the idea of judicial review.
That rejection took place in the political ferment in the decades leading up to England’s Civil War. The great jurist, Justice Edward Coke, dared to challenge King James I by asserting that the law was supreme over kings as well as commoners. This was an old strain, introduced less pointedly by Fortescue in the late Middle Ages, and based by Fortescue on biblical precedent — even kings are answerable to G-d’s laws and any sovereign powers they have depend on their faithfulness to the Sovereign of Universe.
Coke’s brilliant scholarship and articulateness threatened not only the king, who neutralized his judicial power, but also left him without allies in Parliament, who did not care for his claim of judicial supremacy any more than did the king. Coke eventually joined forces with the parliamentarians and helped to bring about the great Petition of Right, marking the beginning of Parliament’s successful struggle to become the supreme political and legal power.
So, there was no early assertion of judicial power against an all-powerful parliament in Israel. It followed the British model. But when the opposition took power finally in Israel, things were ripe for change, just as the first change in power in America set the stage for Marshall to establish the power of the judiciary.
For just as Marshall was the last of the old Federalist guard to have a hold on power in the U.S., so too were the judges in Israel people appointed by the left in all their years of rule, and so were the only ones still in positions of power, though that power was as yet undeveloped.
It took some years and the leadership of a powerful will and intellect in the person of Israel’s former chief justice, Aharon Barak. He expanded the power of the courts, making them an effective check on the Knesset’s power and on that of the governments that Israel’s parliament maintains.
The development of an independent judiciary is of paramount importance in maintaining political freedom. Without the power to assert the supreme force of the underlying compact that binds government and the governed, democracies become people’s republics, democratic in name only. Unrestrained power in the hands of the legislature or executive, over time, always generates abuse.
But who governs the governor? Lincoln raised the question in the wake of the disastrous Dred Scott decision, which helped to undermine the Constitution’s hold on the people and grease the skids to civil war. Lincoln’s powerful arguments in the Douglas debates made a strong case that the power of the judiciary as well is subject to the undying sovereignty of the people.
Lincoln’s insight was firmly based in American political thought. In Federalist 51, Madison made his argument for setting up co-equal powers that would hold each other in check by the balancing opposition of their natural and fallible ambitions. Gravity by nature pull structures down, but if we design a cantilevered structure, the downward pull of gravity on one part of the structure meets the same downward pull on the other side, and the structure stands firm. Government is not then dependent on the powerholders being perfect, which is just as well, for perfect people are in short supply. As Madison memorably put it:
Ambition must be made to counteract ambition. The interest of the man must be connected with the constitutional rights of the place. It may be a reflection on human nature, that such devices should be necessary to control the abuses of government. But what is government itself, but the greatest of all reflections on human nature? If men were angels, no government would be necessary.
That’s true even in the Holy Land.
What Barak did verifies Madison’s observation. We Americans know that even with rights specified in words, a skilled player can game it. Despite the 13th, 14th, and 15th Amendments and civil rights legislation after the Civil War, our justices and most of the rest of our political society tolerated the de facto extension of quasi-slavery for many decades. How much the more so are the opportunities when the constitution is in the British mode — or was made to be so.
For Israel has Basic Laws, a sort of a constitution, and they were held in that kind of esteem—until Barak decided that his court was the judge of which Basic Laws could stand. In America, it would be as if SCOTUS could rule on the Constitution and declare the parts it didn’t like invalid. This makes the court the sovereign power, subject to nothing other than its own sense of what is right, and accepting no constraints from anyone. At least in the headiest days of the Warren Court, the justices believed — or at least said they believed — that their penumbras and such were actually in the Constitution, and so had its authority.
But Barak’s judicial activism was breathtaking in its raw assertion of power, implying that he and his cohorts were indeed so angelic as to be able to properly wield such divine power. Barak’s tactics seemed more Machiavellian than heavenly. He moved with great skill to gut the power of the elected government by subjecting it to judicial oversight unaccountable to any law.
Jonathan Rosenblum of Mishpacha magazine writes:
Barak’s tactical acumen reached its peak in his transformation of the position of attorney general from one of acting as the government’s chief legal advisor and representative to one of acting as the de facto emissary of the Court to keep an eye on the legislative and executive branches — all without a stitch of statutory warrant. Barak ruled that the attorney general — a position in which he served from 1975 through 1978 — can nix any government action he determines to be unreasonable, and thus illegal. And that decision is not subject to judicial review.
And we think that Special Prosecutors have too much power!
Barak is no longer on the court, but he is fighting the political battle to gut Netanyahu before he can fulfill his campaign promise to reform the runaway power of this rogue government branch. The justices who have inherited his power have now ruled that Netanyahu cannot hold a portfolio in the government while the attorney general continues his endless pursuit of a bribery charge that he continues to hold over his head without ever bringing evidence capable of conviction. The court has also just ruled one of Netanyahu’s picks for his Cabinet may not be seated, something that could result in the dissolution of Netanyahu’s majority coalition.
This is just the briefest of summaries of the situation. It is enough to disabuse the reader of the line of American legacy media, which this audience suspects with good reason of being not accurate.
Netanyahu prizes The Federalist as one of the greatest works of political thought in human history. There’s little doubt that his effort to rebuild the cantilever that Barak collapsed and to rebalance the government among branches close to co-equal would command Madison’s approval as well.
Author: Shmuel Klatzkin