The defining element of any national constitution is that it expresses the fundamental will of the people. Only to the extent that it expresses those values does it it enjoy democratic legitimacy.
Even the most obvious characteristic of a constitution -- its normative superiority to all other laws enacted by the duly elected legislature -- is but a corollary of that essential element. Only because the constitution is viewed as expressing something more fundamental than the normal outcomes of the legislative process does it trump, as it were, other laws.
The process by which a constitution is enacted is thus one of national self-definition. It is axiomatic that it cannot be carried out in secret and requires the broadest possible participation of the populace. Moreover, constitution-making requires a deliberative process that clearly distinguishes it from the mundane business of law-making.
Justice Cheshin in the Bank Mizrachi case compared the day that a constitution is promulgated to the giving of the Torah at Sinai: "For regarding the granting of a constitution it shall be said: `Today you have become a people’ (Deuteronomy 27:9) Or in temporal terms: `Today you have acquired a norm superior to all others.’ "
"The day a consititution is granted," he wrote, "is a festive day, a holiday. All know: `Here the constituent body is about to give the constitution; . . . there – the constitution has been given.’ The constitution is given with complete awareness that the people are willing to accept the yoke of the constitution."
Consistent with the unique status of a constitution in the eyes of the population, nations have clearly distinguished the constitutive process from other forms of law-making. In the United States, for instance, the thirteen original colonies each selected representatives to a Constitutional Convention. The deliberations of that Convention and the drafting of the Constitution lasted five months. Thousands of pages of recorded debates are available to anyone interested in determining the intentions of the drafters.
Ratification by the states took another seven months. That process was accompanied by extensive public debate and produced the greatest work of American political theory, The Federalist Papers.
More recently, other nations engaged in the formulation of constitutions have established elaborate procedures consistent with the august task at hand. The Italian Constitutional Assembly charged with drafting a constitution after World War II required 18 months to complete the process. The new South African constitution was drafted in full public view. Drafts of the constitution were widely circulated, along with explanatory notes and diagrams. Using modern electronic communications, the public was invited to participate interactively in the process and to communicate its opinions.
Only Israel, among the democratic nations of the world, has a "constitution" not by virtue of it having been promulgated with the pomp and ceremony described by Justice Cheshin, but by virtue of its having been "discovered" by the Supreme Court. In Bank Mizrachi, Justice Barak proclaimed that the enactment of two Basic Laws in 1992 – The Basic Law of Freedom of Occupation and The Basic Law of Human Dignity – marked nothing less than a constitutional revolution. The two laws, he argued, have constitutional status. As a corollary, Justice Barak claimed that the Supreme Court was now empowered to judicially review Knesset legislation under the Basic Laws and to strike down laws it found inconsistent with those Laws.
The claim that the 1992 Basic Laws have constitutional status is untenable. Their enactment was accompanied by none of the trappings associated with the promulgation of a constitution. Only 37 Knesset members voted, in the middle of the night, for the Basic Law of Human Dignity and 23 for the Basic Law of Freedom of Employment. In her exhaustive study of the legislative process surrounding their enactment, Yehudit Karp concluded that no more than a handful of Knesset members expressed any sense of a momentous event taking place.
Nor was the enactment of the 1992 Basic Laws accompanied by any extensive debate or the seriousness associated with constitution-making. Indeed, slipshod draftsmanship, undue haste, and a lack of understanding by Knesset members of what they are voting for, writes Professor Ariel Bandor, has characterized the Basic Laws in general.
The enactment of the 1992 Basic Laws involved more legislative horse-trading than it did an attempt to define a set of consensus national values. The MKs themselves had little idea what they were voting for. A number of religious MKs , for instance, supported the Laws after having been told that they would protect the employment rights of Sabbath observers. Yet one of the first decisions of the Supreme Court under the Basic Law of Freedom of Occupation was to permit the importation of non-kosher meat – something for which the religious MKs would never have voted.
Justice Barak himself has admitted that the enactment of the Basic Laws involved virtually no public participation – indeed that the process was "almost hidden." That secrecy was not accidental. Sheva Weiss was on the mark when he described MK Amnon Rubenstein as trying to "sneak" the Basic Laws past the Knesset.
Professor Ruth Gavison recently described in Ha’Aretz the view of many in the elite legal circles in Israel that a "hush-hush" policy must be followed in pushing through a constitution in Israel. But a "constitution" enacted behind the backs of the people has no democratic legitimacy and cannot be said to express their fundamental values. Such a constitution, says Gavison, is nothing less than coercion by a narrow elite seeking to impose a homogenous set of values, enforced by the Supreme Court, on a very heterogenous population.
Today Amnon Rubenstein is once again busy trying to hurriedly push through new Basic Laws, whose highly abstract terms will give carte blanche to the Supreme Court to interpret as they will. Once enacted, even by a 2-1 majority, they can only be amended by 61 MKs, no matter how far the Court’s interpretation departs from the Knesset’s intent.
No wonder Professor Gavison warns darkly: "We are liable to wake up one morning to find that we have a rigid constitution without having known or seen or read or been asked for our opinion about it. . . ."
If that happens, she says, "Large segments of the population will again be left with the feeling that something has been forced upon them. That is both wrong and dangerous."