Sad stories make bad constitutions

The media frenzy surrounding Vicki Knafo’s campaign on behalf of single-parent families guarantees a long summer of similar protests. The stories broadcast nightly of families barely able to put bread on the table are not only creditable, they represent but the tip of the iceberg.

The widespread hardship caused the government’s austerity measures will no doubt generate a host of proposals to alleviate that hardship. Most of those proposals, however, will fail to address the economic crisis that gave rise to the austerity plan in the first place or to take into account the need to jumpstart the economy.

Of the many hare-brained schemes to which the summer of our discontent will give rise, the worst are the various proposals for a basic law conferring social rights. Mistakes enshrined in a constitution are by their nature the most dangerous because they are the hardest to correct.

The various proposals for a Basic Law: Social Rights all seek to guarantee Israel’s status as a "welfare state." The proposed basic law introduced by Histadrut leader Amir Peretz in the last Knesset would ensure Israel’s status as a state founded on the values of "equality, social justice, mutual responsibility, and equality of opportunity" by guaranteeing each citizen a level of pay and work conditions, health care, housing, education, and social insurance appropriate for an existence with human dignity. Another proposal by Tzachi Hanegbi sets the goal of equality in employment, education, housing, health care, and environment. Only equality of weather conditions is omitted.

To fully appreciate the danger of a basic law on social rights requires an understanding of the proper role of a constitution in a democratic society. From the point of view of democratic theory, the ideal constitution would concern itself with establishing the rules of the game, not determining the outcome of the game. Those rules include procedures for enacting legislation, the powers of the various branches, and the checks and balances between those branches. They would also include those rights without which democracy is impossible - e.g., freedom of political speech and freedom of the press.

Such a minimalist constitution best guarantees democratic legitimacy by providing a level playing field for all points of view. The belief in a level playing field is the glue of democracy. The laws enacted by today’s majority are viewed as legitimate by those opposed to them because the opponents know that though they failed to prevail today they may do so in the future.

Juxtaposed to the minimalist constitution is the maximalist constitution, which seeks to enunciate the ultimate goals of the society employing a rich array of abstract terms, like the dignity of man. The constitution of the former Union of Soviet Socialist Republics provides a good model of the maximalist constitution, just as the American Constitution is an admirable example of the minimalist constitution.

Democratic societies too may succumb to the lure of enunciating a set of maximalist goals in a constitution, but only at the cost of democratic legitimacy. Even were there exists a widespread societal consensus on particular values, that consensus represents no more than a snapshot of society at one specific moment. Constitutionalizing those values is a means of perpetuating the snapshot forever and immunizing it to change. Groups with different views are thereby deprived of the chance to prevail through the normal democratic processes.

Economic issues are the stuff over which elections are fought in democracies. The central debates between Christian Democrats and Socialists in Western Europe, Tories and Laborites in England, Democrats and Republicans in America often turn on policy choices between maximizing freedom and maximizing equality.

At any given moment in time, most democratic states line up somewhere on a continuum from laissez-faire capitalism to the Scandanavian welfare state. That point on the continuum, however, changes with each election. Economic policy remains subject to the ebb and flow of democratic politics. Voters may opt for a more laissez-faire approach in one election and welfare state approach in the next election. Neither should be fixed in the constitution.

NO ONE CAN PREDICT WITH ANY CERTAINTY how the Israeli Supreme Court would respond to suits to compel the government to provide higher levels of housing, or health care, or education, or welfare payments commensurate with the requirements of human dignity. Nothing in the Court’s recent behavior, however, suggests that the Court would prove reticent in ruling on such claims, particularly when armed with a basic law providing a mandate for intervention.

In the process, the Court would inevitably usurp the principal remaining power of the Knesset: the power of the purse. At the very least, the Court would become, together with Finance Ministry bureaucrats, another major center of budgetary power apart from the elected representatives of the people.

Judicial decisions can often have budgetary implications. If an American court rules, for instance, that jail overcrowding violates the constitutional prohibition of cruel and unusual punishment, the state will have to spend money to rectify the situation. But the proposed Basis Law: Social Rights would involved the Supreme Court directly in virtually every major area of budgetary allocations. Even the size of the defense budget would be determined by the levels of social spending mandated by the Court in other areas.

Apart from the affront to representative democracy involved in the transfer of so much power to the courts, it is hard to imagine from a practical point of view a worse way of allocating national resources than through a series of law suits. Courts by their very nature rule on cases one at a time. Each claim for greater funding would be treated in isolation.

Such a piecemeal approach can only wreak budgetary havoc. It would make any overall planning impossible and prevent balancing each claim for greater funding against competing claims.


Examples of the budgetary disaster that would result abound in Government by Decree: What Happens When Courts Run Government by Ross Sandler and David Shoenbrod. One federal district court ordered Philadelphia to fit every sidewalk in the city with wheelchair friendly ramps pursuant to the requirement of the Americans with Disabilities Act of unimpeded access for disabled persons to any government service. The projected cost of the two-year project was $180 million, a sum equal to the city’s entire capital budget.

The attempt to judicially enforce statutory "soft rights" with specific budgetary targets has repeatedly failed to take into account the cost of doing so. Sandler and Shoenbrod detail at length litigation on behalf of a spastic, deaf, and mute boy to force a nearly bankrupt city of New York to provide the battery of specialists needed to meet the federal requirement of ``free, appropriate education" for all handicapped children. That litigation has already outlasted three mayors and eight city school chancellors.

Permitting the Supreme Court to determine the appropriate level of government social funding through a series of lawsuits would be the judicial equivalent of the Finance Minister buying off each successive group of protesters by rescinding another budget cut. The inevitable result would be recreating the budgetary crisis that led to the cuts in the first place.

"Hard cases," -- i.e., those involving emotionally compelling factual situations -- "make bad law," our law professors warned. That rule applies to constitution making as well. The justified sympathy for society’s unfortunates should not lead us to constitutional aberrations.