Civil liberties in Israel are under assault. In December 2009, Anat Kamm was placed under house arrest. Kamm, a reporter for Israel’s Walla news, allegedly stole sensitive defense ministry documents and gave them to a Ha’aretz journalist who ran an article about IDF violation of Supreme Court orders. An Israeli court issued a gag order, silencing the Israeli media and government officials, inhibiting free speech. Until the foreign press got hold of the story, the entire incident was under wraps. Richard Silverstein, an American journalist at the forefront of breaking the news, queried: “In what kind of country does a journalist simply disappear with other journalists and news outlets having no recourse to publish about it? China? Cuba? Vietnam? Iran? North Korea? Is that what Israel is aiming for? To be no better than countries ruled by despots?” This would be an outrageous quashing of freedom of the press, but no constitution exists to protect it. The “Anat Kamm Incident” is the latest headline to expose the troubling shortcomings of Israel’s unsustainable domestic status quo.
The State of Israel struggles to juggle Jewish identity, social pluralism, and democracy without a written constitution. This is a bit like sword-swallowing while walking the tightrope blindfolded—with no net. Demographic shifts favoring the Haredi and Arab populations, and the growing empowerment of the nationalist Right threaten to undermine Israel’s tenuous balance of democratic and Jewish identities. Without constitutional safeguards to protect the liberal values on which the state was founded, it is only a matter of time before the house of cards topples. As a juvenile state with deep social divisions, it is imperative for Israel to enact a popularly-supported constitution that ensures long term stability and peaceful (or at least tolerant) cohabitation through the defense of civil and collective rights.
Part I: How Israel never got a constitution.
Explaining Israel’s pressing need for a constitution requires mention of how it never got one in the first place. UN Resolution 181 advancing the partition of Palestine also called for the drafting and ratification of a constitution containing universal equality and suffrage, minority rights, and “human rights and fundamental freedoms, including freedom of religion, language, speech and publication, education, assembly and association”. On May 14th, 1948, David Ben Gurion announced the establishment of the State of Israel, founded on the principles of “freedom, justice and peace”. In accordance with Resolution 181, his speech promised “complete equality of social and political rights to all its inhabitants irrespective of religion, race or sex…freedom of religion, conscience, language, education and culture” under a future constitution (emphasis added). The Declaration of the Establishment of the State of Israel is the basis for Israel’s unwritten constitutional law. Ben Gurion further stated that a constitution was to be drafted and ratified by the Constituent Assembly no later than October 1948. Israel’s state of emergency during the War of Independence delayed the constitutional process until a ceasefire could be negotiated and the country stood on terra firma.
During Israel’s War of Independence, Leo (Yehuda Pinhas) Kohn drafted a tentative constitution based principally on the American and French models. His draft included a Bill of Rights and crafted the Jewish national homeland as a state of its citizens—Jew and non-Jew alike. Universal equality and suffrage registered high on the priorities of this document. Article 4 ensured equal political and legal rights for all inhabitants of the state regardless of race, religion, tongue, or gender. Freedoms found in the American Bill of Rights, such as freedom of religion, expression, conscience, and assembly were protected under law, as was the Jeffersonian sacrosanctity of life, liberty, and property (Articles 12, 13, and 14). Protection of religious minorities’ rights found legal assurance under Article 15. Protection of minority linguistic and educational rights for Arab communities were protected under Articles 5 and 25. Kohn’s constitution embodies Western liberal precepts in its emphasis on individual rights, tolerance, and equality.
Wary of democracy’s overthrow, Leo Kohn asserted it would be foolhardy for Israelis to delude themselves into believing that “nothing like [the fall of German democracy] could happen in Israel”. Having witnessed firsthand the downfall of many European democracies in the thirty years prior to Israel’s founding, Kohn recognized Israel’s need for a constitution that enshrines civil liberties, prevents perfidious government action, and safeguards the individual. Kohn cites the interwar constitutions of Poland, Czechoslovakia, and the Baltic states as exemplars for Israel because of their “special guarantees of national minority rights alongside the accepted guarantees of individual rights”. Kohn’s constitution died in utero. Had it passed, Israel might have become a state of Jews rather than the Jewish State.
The Israeli government’s failure to reach a consensus on a constitution between 1948 and 1950 is ascribed to two matters: disagreement over the Jewish State’s national identity, and power politics between First Knesset parties. Orit Rozin recognizes identity politics as the greater impediment that prevented the ratification of a constitution. Inasmuch as any constitution would define the state’s religious, cultural, and ideological identity, opponents argued that “the identity-forming aspect of the constitution was liable to ignite a cultural controversy and even a Kulturkampf”. With mass immigration anticipated from across the Jewish world, some parliamentarians were hesitant to set the stage before most of the actors arrived. Even among those present there was little agreement as to how Israel should brand itself. Some secular representatives found the religious overtones of Kohn’s draft distasteful and pushed for a revision completely devoid of such implications. Religious representatives opposed liberal ideologies—like gender equality and freedom of religion—that contravened Orthodox norms, and were dead set against any document that would effectively supersede the Torah as the Law of Israel. Although a minority, political solidarity among the religious contingents allowed them to punch above their class and prevent the passing of a constitution. Both sides of the religious divide questioned the status of non-Jews in the Jewish State. How a one-nation state identity could reconcile the existence of a non-Jewish minority—in addition to determining what rights and responsibilities that minority would have—was a matter of great debate. Perhaps the biblically-versed MKs recalled Exodus 1:10, when Pharoah spoke of the Israelite slaves, and applied it to Israel’s Arab minority: “come, let us deal wisely with them, lest they multiply, and it come to pass, that, when there befalleth us any war, they also join themselves unto our enemies, and fight against us”.
Prime Minister David Ben Gurion’s unwillingness to relinquish power, not only ideological opposition to a constitution, is another consideration. Mapai, Ben Gurion’s party, had secured a majority in the First Knesset and he understood that enacting a constitution that would limit parliamentary power could undermine government capability at a critical juncture in Israeli history. A more cynical approach argues Ben Gurion’s disinterest in divesting himself and his party of unbridled parliamentary dominance through the passing of constitutional limitations. The Israeli parliamentary system grants unchecked power to the ruling coalition—headed then by Ben Gurion and the Mapai party. Governments amass, not relinquish, power. Instances of the latter are exceedingly rare, and Ben Gurion was not one of them.
Rather than engage in the requisite “negotiation and painful compromise among different groups”, the Constitution, Law and Justice Committee opted for what became known as the Hariri Compromise: a compromise not to compromise. Everyone agreed to disagree and let no constitution be written, and on 13 June 1950 the Knesset resolved to agglomerate basic legislation chapter by chapter. The First Knesset did not sort out critical state formation problems of political and national identity, the role of religion and non-Jewish minorities, and civil rights, and left them to fester unresolved.
In the past sixty years, the Basic Laws of Israel have been gradually written, ratified, and amended. Starting with the Basic Law: the Knesset in 1958, they now also include the Basic Laws of the Presidency, the Government, the Judiciary, the Israel Defense Forces, Jerusalem, Lands, the State Comptroller, the State Economy, and Human Dignity and Liberty, and Freedom of Occupation. The last two are the most recent additions to the legal compendium, having been passed by the Twelfth Knesset in 1992 and 1994, respectively. Supreme Court Justice Aharon Barak proclaimed their passing a “constitutional revolution” and considers them a de facto Israeli constitution. Since their ratification, Barak claims, the Israeli public, executive, legislative, and judicial branches recognize “that democracy is not just formal democracy but also substantive democracy, based on the supremacy of values such as the separation of power, judicial independence, rule of law, and human rights.” Barak spoke overzealously. No such revolution occurred. Israel’s Basic Laws are too inadequate to assume the title of constitution.
Part II: Constitutions
Constitutions are multipurpose documents that, in part, fill the role of the social contact. They define the nature of society’s political arrangement (monarchic, democratic, totalitarian, etc.), blueprint government machinery, and draw the purview of its branches’ powers. Out of an inherent distrust of power-holders, democratic constitutions are “the process by which governmental action is effectively restrained”. Systems of checks and balances circumscribe the power of the branches of government, as exemplified by the American Constitution. A constitution also acts as the authoritative rulebook for running government, the qualification and election of officials, and the induction and dissolution of government.
Outlining basic and inalienable civil rights is the next major role. First conceptualized in the American Bill of Rights and the French Declaration of the Rights of Man, civil rights fall into three major categories. First is the protection of the individual from governmental impingement and universal equality under law. These are typified by the American Constitution’s First Amendment right of petition, Fourth Amendment protection against unlawful search and seizure, and Amendments V-VIII’s guarantee of due process, habeas corpus, trial by jury, and punishment fitting the crime. Equivalents are found in the Declaration of the Rights of Man, in the German Basic Law of 1949, and most other Western constitutions.
The second category is measures to protect the individual from social injustice. In his text On Liberty, John Stuart Mill states that aside from safeguarding the people from the government
there needs protection also against the tyranny of the prevailing opinion and feeling; against the tendency of society to impose, by other means than civil penalties, its own ideas and practices as rules of conduct on those who dissent from them; to fetter the development, and, if possible, prevent the formation, of any individuality not in harmony with its ways, and compel all characters to fashion themselves upon the model of its own.
These manifest themselves as the constitutional guarantees of freedom of conscience, freedom of religion, and freedom of speech. Personal freedoms, according to the German Basic Law of 1949, France’s Declaration of the Rights of Man, and American Supreme Court interpretation, are curtailed only in the case of harm to others.
With the emergence of multinational states in the 20th century, legal protection of the cultural, ethnic, and/or linguistic rights of minority groups found their way into constitutions. Papua New Guinea (PNG), the most linguistically and culturally diverse country in the world, has constitutional “recognition that the cultural, commercial and ethnic diversity of our people is a positive strength, and for the fostering of a respect for, and appreciation of, traditional ways of life and culture, including language, in all their richness and variety”. The PNG constitution takes extreme measures compared to most constitutions to protect linguistic the rights of Papua New Guineans. If arrested, a citizen is entitled to state-provided interpretation so they understand the charge, the nature of the offense, and any subsequent courtroom proceedings. In a country where only 12% of the population lives in urban centers in contact with global cultures, preservation of traditional village communities and their customs is important. Minority lifeways find legal protection from majoritarian intrusion under the constitution. Though the American State Department reported PNG human rights abuses including
arbitrary or unlawful killings by police, police abuse of detainees, poor prison conditions, police corruption and impunity, lengthy pretrial detention, infringement of citizens' privacy rights, government corruption, violence and discrimination against women and children, discrimination against persons with disabilities, intertribal violence, and ineffective enforcement of labor laws,
there were no reported instances of linguistic, cultural, and religious minority rights violations, demonstrating the efficacy of the constitution in smoothing those points of conflict.
A constitution also acts as the paramount law—a “norm of norms”—above the government and people alike. The English Magna Carta of 1215 was the first Western law code to place king and subjects under a common law. The Magna Carta was the seed from which a British political culture developed. That culture of the rule of law and democratic values upholds British democracy without need for a formal constitution, but in that regard Britain is an exception. Hearkening back to the spirit of the Magna Carta, the drafters of the American Constitution proclaimed:
This Constitution…shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.
A constitution’s sacrosanctity is usually protected by a requisite supermajority vote to be amended. The German Basic Law, for instance, requires a two-thirds majority in Parliament to pass amendments. The Bill of Rights found therein(Articles I to XX), however, are impervious to alteration altogether. Such measures prevent alteration on a whim and protect the constitution from its opponents.
In praxis and in language, constitutions emulate divine writ; they serve as an inviolable legal authority above state and citizen alike. In as such, modern constitutions supplant human figureheads and abstract notions of patria as the object of paramount loyalty. “The constitution tends to become a symbol, and its provisions become so many symbols in turn. It is this symbolic function of words which makes the constitution a political force,” writes Carl Friedrich. This modern social phenomenon has been termed constitutional patriotism. By “proclaim[ing] all the values their framers believe essential to a good society” constitutions create a common identity for the entire citizenry based on “the norms, the values and, more indirectly, the procedures of a liberal democratic constitution” regardless of cultural, linguistic, religious, or racial differences.  The principles found in the Constitution of the United States define the American people just as the Grundgesetz defines Germanness. Further, it is to the values enshrined in these texts that utmost allegiance is paid. The United States Oath of Allegiance reads “I hereby declare…that I will support and defend the Constitution and laws of the United States against all enemies, foreign and domestic,” and its contents are mirrored in the Presidential oath of office and the armed forces oath. It is to the Grundgesetz that utmost fealty is sworn, as the foreword to the Basic Law of 1949 reads: “We Germans have every reason to be proud of our Basic Law and to defend it to the best of our ability”.
Part III: Shortcomings of the Status Quo
The absence of an Israeli constitution bodes ill for many reasons. There is a complete lack of provisions for the primacy of the Basic Laws over future Knesset legislation or the hodgepodge of existing Israeli laws. The Basic Law: Human Dignity and Freedom—the closest thing Israel has to a Bill of Rights—is not legally entrenched like its foreign counterparts. It doesn’t require a supermajority, or even a regular majority, to be amended. The Supreme Court has ruled that “the Knesset could do pretty much what it wanted,” including suspend or abolish a Basic Law, “to protect the Jewishness of Israel”. Until now the Supreme Court has been a bastion of liberality in supporting civil rights and striking down violating legislation, but this is happenstance. A determined parliamentary coalition under an non-interventionist Court could revoke civil rights in the name of a nebulous notion of “Jewishness”.
Just as the Basic Laws can be amended or repealed by ordinary Knesset proceedings, so too were they created. Unlike the American Constitution, which was assembled by a constitutional convention outside governmental politics, the Israeli Basic Laws were drafted and ratified by elected officials with political interests. Inasmuch as “the people are the source of authority for the constitution and the values and institutions it affirms”, the Israeli Basic Laws insufficiently encapsulate the will and identity of the Israeli populace. Representatives of the body politic outside government have little to no role in their creation. Few governments legislate limitations on its purview of power; any such modifications must come from without by persons with no vested interest in maintaining the status quo.
Granting the Knesset such unchecked power is dangerous. In the American Constitution a tripartite division of governmental power limits the potential for abuse. Free-reigning legislature is shackled by a Supreme Court that can strike down unconstitutional statutes. Gordon S. Wood warns that a constitution-less state like Israel that “appoints a legislature, without any reservation of the rights of individuals, surrenders all powers in every branch of legislation to the government”. The current configuration accords unchecked power to the Knesset with no real regulation. The Supreme Court’s authority to interpret constitutional matters is not firmly grounded, being limited exclusively to legislation contravening entrenched statutes. Prejudicial or conflictual legislation found in the rat’s nest of Israeli law predating 1995 can not be retroactively uprooted. New laws may be reviewed but problematic ones, like the Law of Return and the British Defense Emergency Regulations 1945, are untouchable. Judicial review is limited in theory and practice to “cases in which there is a fundamental divergence from the basic principles of the system,” those being, in the words of the Basic Law of Human Dignity and Liberty, “the values of the State of Israel as a Jewish and democratic state” in that order. Former Supreme Court Justice Meir Shamgar argues that an entrenched constitution would
provide for a framework of ordered freedom within a set of rules which prevents both majorities and their elected parliamentary representatives from acting against the basic freedom of individuals, minorities, or the definition of the power of public authorities.
Without an interventionist judiciary preventing parliamentary abuse of power, the Basic Laws gird civil liberties in paper-thin armor. As we have seen in the Anat Kamm Incident, a Supreme Court ruling against assassinating terrorists when arrest is possible was flouted by the IDF. The only repercussions were those Kamm suffered for exposing this dangerous erosion of Supreme Court authority.
Judaism is a comingling of nationhood, religion, and culture. Therein lies the problem of Israel’s definition as a “Jewish and democratic state”. To what extent ought the Jewish religion play a role in the running and identity of the Jewish state, and who says which interpretation is authoritative? At Israel’s inception, Ben Gurion consulted Jewish scholars worldwide about civil identity and how the Jewish state should mitigate religion. Sir Isaiah Berlin’s reply in 1959 is as relevant as the day it was written:
…the civil status of the State of Israel must be sharply and definitively divided from Judaism as an established religion … and that this is the moment to establish once and for all the principle that a modern liberal State is, and must be, secular in character and that the religion of its citizens must be, in so far as it is a state and nothing else, indifferent to it….
No such arrangement segregating religion and state materialized. As Western democracies go, Israel has a greater intermingling of religion and state than any other. Freedom of religion does not exist in the Holy Land.
Ben Gurion’s Status Quo Agreement conceded public observance of the Sabbath and kashrut, separate state-funded religious schools, and rabbinic management of personal status in exchange for political support from the Orthodox parties. Insofar as the state is concerned, Orthodoxy is the only Judaism, and who qualifies as a Jew is determined by the Orthodox Rabbinate. In Israel, citizenship and nationality are two separate concepts. Those Israelis considered Jewish by the Orthodox establishment are Jewish nationals, whereas non-Jews are conferred national status based on their religion affiliation. There is no civil marriage under Israeli law. Although foreign marriage certificates are recognized, in Israel Jewish citizens can only marry Jews, and the ceremony must be presided over by an Orthodox rabbi. Burials must have a rabbi present, and only Jews can be buried in state-sponsored cemeteries.
Official preference of one faith over another in religiously divided societies breeds conflict. India, Canada, and Republic of the Philippines exemplify divided societies that utilize constitutions to establish the rule of law and protect individuals as well as ethnic, linguistic, and religious communities. Each country consists of a number religious groups lumped into a single state, and each mitigates majoritarian maltreatment of minorities through constitutional measures. Canada makes no specific separation of church and state—some Catholic schools are government-funded—but grants the unbounded practice of religion. The Indian government, reigning over a subcontinent chock-full of faiths, takes a stance termed “principled distance”, whereby the state can interfere in religion (either helping or hindering) in order to reduce intra- and inter-religious conflict. The Philippines takes an American-esque approach by completely removing religion from state affairs.
Secular Jews and non-Jews together constituting a majority of the country’s population, the time has come for Israeli identity to be divested of its religious trappings. How can a large portion of Israel’s population uphold the current state if they do not associate with its abstract concept of judeonationalism? As it currently stands, the Jewish religion’s privileged role in state affairs undermines national cohesion by excluding those who do not identify with the official state religion—over 30% of the population. A constitution that recognizes citizens as individuals rather than members of a nationalist grouping is necessary to prevent a national identity crisis. An Israeli constitution needs to separate Israel from Judaism the religion and make the state indifferent to the religious identities of its citizens.
How can this democracy endure without endowing its populace with democratic constitutional patriotism? The Basic Laws not only do not define Israeli national identity, but do not instill democratic principles upon the citizenry as the American constitution does. Whereas in the United States the principles found in the Constitution serve as the foundation for American patriotism, no such guiding light or expression of “We the People” exists in Israel. Professor Rafi Cohen-Almagor notes the absence of the teaching of democratic principles—liberty, fallibility, equality and tolerance—to Israeli schoolchildren, and that Israel does not
have a shared raison d’être with 20 percent of its population—Arabs….And then there is another 25 percent Orthodox or ultra-Orthodox who’d be happy to replace democracy with theocracy….On top of that, we have another 20 percent, immigrants from the Soviet Union, who know nothing about what democracy is all about, who are suspicious about government and have never lived under democracy.
An Israeli constitution should encapsulate these missing values in a digestible form so as to bestow a passion for democratic principles and a sense of constitutional patriotism that Arab, secular, and religious Jew can rally around.
As they presently stand, the Basic Laws do not meet the needs of the Israeli body politic. None of them address the deep ethno-cultural rifts in Israeli society, leaving subgroups vulnerable to legal and social marginalization. Several fundamental rights remain unprotected by law—most notably freedom of expression, freedom of demonstration, freedom of religion, and freedom of assembly—and their absence “leave[s] the door open, at least theoretically, to contradictory legislation” that would strip Israelis of their inalienable rights.
Erosion of rights seems underway already in light of the infractions against said freedoms thus far in 2010. The Mossawa Center reported in March that the Knesset tabled at least twenty one bills discriminatory against Israel’s Arab population, up from twelve in 2009 and eleven in 2008. The authors of the report were quoted in Haaretz as saying: “there has never been a Knesset as active in proposing discriminating and racist legislation against the country’s Arab citizens”. Further, bills were proposed that contradict freedom of expression. One such bill called for the incarceration of anyone who publishes or says anything that would “bring contempt upon or discomfort to the country”. In another instance from January, Minister of Culture and Sports Limor Livnat pulled Israeli Film Fund financing from the controversial movie Lipstikka, a Palestinian adaptation of director Jonathan Sagall’s mother’s Holocaust survival story. Livnat’s decision to withhold NIS 1.3 million killed the project. Noam Sheizaf of the Promised Land blog aptly commented: “Allocating funds according to the political message of films means that from now on only certain views would be allowed to be shown”. That same month Hagai El-Ad, head of the Association for Civil Rights in Israel, was among several arrested for protesting the usurpation of Palestinian homes in Sheikh Jarrah, East Jerusalem. Cracking down on left-wing protests comes in conjunction with Justice Ministry attempts to pass legislation that would allow the government to scrutinize foreign funding of left-wing organizations.
The Israeli government retains British Mandate Defense Regulations of 1945 that were originally enacted to quell Jewish resistance and maintain order. Despite multiple attempts to repeal them in the intervening sixty-five years, Regulation 88—executed in the ongoing Anat Kamm Incident—allows the Israeli Army Censor to “prohibit the importation or exportation, or the printing or publishing of any publication…which, in his opinion, would be, or be likely to be or become, prejudicial to the defence of Palestine or to the public safety or to public order”. Other regulations in this legal heirloom, claims Sammy Smooha,
enable the authorities to issue military injunctions on a regular basis, and not necessarily during the conduct of war, to detain or restrict the movement of activists, to outlaw a publication or organization, or to declare areas as closed and lands as confiscated. These excessive powers are kept for making it easier to deter, police, and punish those among the Arab citizens of the state contemplating hostile acts. It is plausible to assume that these Draconian emergency regulations would have been repealed had the Arab minority not been perceived as a liability to national security.
These outdated provisions are antithetical to the spirit of the Israeli Declaration of Establishment and constitute a chink in the armor of Israeli democracy. While the floodgates of tyranny may not have broken open yet, these factors testify the fractures forming in Israel’s liberal façade. Now, more than ever, Israel needs reforms to halt the rise of government tolerated or approved racism and protect personal liberties.
In the past decade the Israeli constitutional process revved, stalled, and is now propped up on cinderblocks, waiting for rust to set in. Several years ago, Knesset Constitution, Law, and Justice Committee Chairman MK Michael Eitan spearheaded a “Constitution by Broad Consensus Project” meant to jumpstart the process through popular involvement. A proposal was proffered to the Knesset in February 2006, but considering that their website has not been updated in close to four years, it can be safely inferred that this project has ground to a halt. For the better part of two decades, Israeli government energies have been focused on “national security” and the peace process. Constitutional reform has become an eldorado, spoken of like an ever-distant messianic time that will arrive after peace comes to Israel. The defense establishment (read: government) in Israel opposes the drafting of supra-governmental law until arrival at a final settlement with the Palestinians. Many academics, David Kretzmer and Chaim Gans for instance, consider Israel’s political environment unripe for drastic constitutional change until final agreements with the Palestinian Authority are made. With the unresolved Palestinian issue looming like a white elephant in Israel’s living room, with Hezbollah fuming and arming on the doorstep, and Syria just next door, many argue that national security takes precedence over domestic issues. Deal with the Palestinians first, politicians and constituents alike say, then we will address “bringing Israel’s democracy up to code” with the rest of the West. This mentality impedes progress towards constitutional reform, but it is not alone. The religious population, comfortable with the status quo, is opposed to constitutional reform that might compromise religious governance of public life and/or public funding for religious organizations. Religious parties—as well as the other major factions-- are fearful of giving up the advantages of legislative supremacy inherent to the present system. Like Ben Gurion, none are interested in constitutional reform that would divest them of legislative power.
Talking with Professor Bernard Avishai about the prospects of an Israeli constitution in the coming years is a grim affair. With no impetus for changing the status quo from any of the major parties, it is an unrealistic vision. The presiding Supreme Court Justices who defend civil liberties are remnants of the European-educated, bygone generation. They are a rearguard, he remarked, a dying breed, and once they are gone there is no saying what stance the Court will take on executing judicial review.
Short of a constitutional revolution that could result in catastrophic upheaval, the sole realistic possibility rests in the “Bulgaria option”. Bulgaria’s 1991 constitution provisions for the protection of minority rights. Like Israel, Bulgaria is a self-declared one-nation state, approximately 20% of which is non-Bulgar minorities. Bulgaria addresses this conflict between exclusive national identity and minority populations through constitutional and extra-constitutional means. Articles 44(2) and 162 ban ethno-national or linguistic discrimination and protect the linguistic rights of non-Bulgar speakers. Bulgaria concedes legislation specific to minority rights to the international treaties to which it is party as an EU member state. Though not wholly perfect in practice, Bulgarian minorities nonetheless enjoy equal rights under law and proportionate representation in the National Assembly—31 of 240 seats, or 13% overall. Israel could take a similar, extra-constitutional approach of adopting legislation from without—by joining the European Union and becoming a signatory to the Charter of Fundamental Rights like Bulgaria. But from this end of the Mediterranean the EU seems a long way off.
The bottom line is that “rights are constitutional, not natural”. A democratic establishment without a constitution is prone to mob rule, and individuals are subject to the “tyranny of the majority” Mill cautioned against. In the coming years, pressure on liberal institutions unbolstered by constitutional law will continue to increase, threatening to topple Israeli democracy and supplant it with theocracy or Judeo-fascism. Israelis—religious, secular, Jew and non-Jew—must sit down and make the difficult decisions and painful concessions their forefathers failed to make. Kohn’s exhortation not to be deluded into believing “nothing like [the fall of German democracy] could happen in Israel” should ring in the ears of every Israeli. It would be a shame to see the Middle East’s sole functioning democracy—imperfect though it may be—go the way of the Roman and Weimar Republics.
 Qtd. in Miller, Judith. “Israel’s Censorship Scandal.” The Daily Beast. 3 April 2010. Accessed online at
on 6 April 2010.
 The United Nations. “General Assembly Resolution 181.” Part 1, Section B. Accessed online at
on 21 March 2010.
 “Declaration of the Establishment of the State of Israel.” 14 May 1948. Accessed online at
on 21 March 2010.
 Kohn, Yehuda Pinhas. A Constitution for Israel. Tel Aviv: Government Press, 1949. p. 18.
 Ibid. p. 19.
 Rozin, Orit. “Forming a Collective Identity: The Debate over the Proposed Constitution, 1948-1950”. Journal of Israeli History. 26:2, p. 253.
 Ibid. p. 256.
 Gavison, Ruth. “A Constitution for Israel: Lessons from the American Experience.” Azure. Winter 2002. Section 4, para. 6.
 Ibid. Section 1, para. 4.
 Barak, Aharon. “Human Rights in Israel.” Israel Law Review. 39.2, 2006. p. 18.
 Ibid. p. 20.
 Friedrich, Carl. Constitutional Government and Democracy. Ginn and Co.: Boston, 1950. p. 129.
 Mill, John Stuart. On Liberty. New York: Appleton-Century-Crofts, 1947. p. 5, ll. 148-157.
 Aside from the official languages of English, Hiri Motu, and Tok Pisin, Papua New Guinea is home to approximately 860 indigenous languages, more than a tenth of the world’s total, and thousands of individual communities with unique customs and traditions. (https://www.cia.gov/library/publications/the-world-factbook/geos/pp.html)
 Constitution of the Independent State of Papua New Guinea. Preamble: Article 5, section 3. Accessed online at
on 20 March 2010.
 U.S. State Department. Advancing Freedom and Democracy Reports, May 2009: Papua New Guinea. Accessed online at
on 20 March 2010.
 Constitution of the United States. Article VI. Accessed online at
20 March 2010.
 “Basic Law for the Federal Republic of Germany.” Article 79(3). Accessed online at
on 20 March
 Friedrich, Carl J. p. 170.
 Müller, Jan-Werner. Constitutional Patriotism. Princeton, N.J.: Princeton University Press, 2007. p. 1.
 Edelman, Martin. “The Status of the Israeli Constitution at the Present Time.” Shofar. 21.4, 2003. p. 5
 Accessible online at the U.S. Citizenship and Immigration Services website:
 Edelman, Martin. p. 12.
 Avishai, Bernard. The Hebrew Republic. Harcourt Inc.: Orlando, 2008. p. 57.
 Gavison, Ruth. Section 3, para. 1.
 Qtd. in Jacobsohn, Gary. Apple of Gold. Princeton University Press: Princeton, NJ, 1994. p. 98.
 Navot, Suzie. The Constitutional Law of Israel. Kluwer Law International: The Netherlands, 2007. p. 163.
 Shamgar, Meir. “On the Need for a Constitution.” Israel Affairs. 11:2, 2005. p. 348.
 Berlin, Isaiah. " ‘Who Is a Jew?’: —Professor Isaiah Berlin's Memorandum to the Prime Minister of Israel, 23 January 1959." Israel Studies 13.3 (2008): 170-177. 13 Mar. 2010.
 Fox, Jonathan and Sandler, Shmuel. “Separation of Religion and State in the Twenty-First Century.” Comparative Politics. 37:3, April 2005. p. 326.
 “The ‘Who is a Jew?’ Controversy.” U.S. Library of Congress. Retrieved from
13 March 2010. Para. 2.
 As related by Rajeev Bhargava at conference on “Constitutions and Democracy in Divided Societies”, Tel Aviv University, 5 January 2010.
 Avishai, Bernard. p. 40.
 Shamgar, Meir. p. 354.
 Khoury, Jack, and Weiler-Polak, Dana. “‘Current Knesset is the most racist in Israeli history.’” Haaretz. 21 March 2010. Accessed online at
on 1 April 2010.
 “Cultural Boycott? It’s already happening in Israel.” Promised Land. 27 January 2010. Accessed at
on 1 April 2010.
 “Defence Emergency Regulations.” 88.1. 1945. Accessed online at
on 8 April 2010.
 Sammy Smooha, “Part of the Problem or Part of the Solution: National Security and the Arab Minority,” in National Security and Democracy in Israel, ed. Avner Yniv (Boulder, CO: Lynne Reinner, _993). p. 115.
 As per statements at conference on “Constitutions and Democracy in Divided Societies”, , Tel Aviv University, 6 January 2010.
 Avishai, Bernard. p. 123.
 Barak-Erez, Daphne. “From an Unwritten to a Written Constitution: The Israeli Challenge in American Perspective.” Columbia Human Rights Law Review. Volume 26. p. 355.
 Friedrich, Carl J. p. 171