Rule of the smarties

Countries with healthy democratic institutions tend to produce a confident, independent citizenry. Where robust democratic institutions are absent, however, even the natural instinct for self-preservation atrophies.

The perfect example is Europe, which is in the midst of a transformation from independent democratic nation-states to one large bureaucracy. The culprits responsible for Europe's growing democracy deficit are not totalitarian dictators or corrupt autocrats, but a class of bureaucrats and jurists clustered in Brussels.

The proposed 187-page European Constitution represents the ultimate triumph of unaccountable and unrepresentative bureaucrats and jurists. Unlike the American constitution, which is mostly procedural, setting forth the powers of the various branches and their limits, and establishing a system of checks and balances between the various branches, the European constitution is primarily substantive. It grants a right to a high level of just about everything - education, health care, and environmental quality.

There is no attempt to identify a few fundamental rights, as in the American Bill of Rights. Everything from the right of children "to express their views freely" to the "moral and physical integrity of sportsmen" is protected. The European Union already regulates everything down to the curvature of bananas sold in European supermarkets, and the proposed constitution of more than 400 articles raises many such momentary fads to constitutional status.
Having elevated this vast array of "rights" and guarantees above the political process, their implementation would be left to bureaucrats and judges. As Charles Moore has pointed out, for the first time the European court would be primarily issuing cultural edicts, with a constitutionally mandated bias to creating a single, unified European culture.

The bureaucratization of Europe parallels its long-range decline. By the end of the century, Bernard Lewis recently predicted in Germany's Die Welt, Europe will have a Muslim majority.

Yet Europeans have only limited options when it comes to countering these trends. The lassitude that prevents Europeans from defending themselves - total European defense expenditures were less than half that of the US even before Iraq - and makes them susceptible to utopian fantasies of the United Nations' obviating the need for self-defense apparently extends to the human instinct for self-perpetuation as well. The fertility rate in Old Europe has dropped well below the replacement rate; in Italy and Spain, it is barely half that.

That means ever fewer young workers are left to pay for the generous package of social benefits promised to a rapidly aging population. The only way for European countries to meet their social security commitments is to continue to allow large-scale immigration from the Middle East and North Africa, and then watch the immigrants multiply at rates several times that of native Europeans.

THE EUROPHILES who have helped bring the continent to its present situation view bureaucratization as the cure for what they see as the abiding weakness of democracy, the alleged stupidity of the common folk. Bureaucracy, in their view, transfers power to where it properly belongs - into the hands of the smarter, more enlightened elites.

That same cast of thought exercises a strong pull for Israeli elites as well. They too view democracy - known as politics - with a certain disdain. The Supreme Court's recent order that the government respond to the International Court of Justice's decision on the security fence is but one example of the natural affinity between Israeli and European elites.

The prestige of the Israeli Supreme Court derives in large measure from the deplorable level of political norms in Israel. But the low level of political behavior is partly a consequence of the weakness of democratic institutions and the growing concentration of power in an unrepresentative and unaccountable judiciary and bureaucracy.

The Knesset does not even exercise the power of the purse today. Only the Treasury bureaucrats know what is in the budget lawmakers vote for in the wee hours of the morning. And many in the elites advocate transferring the remaining Knesset budgetary authority to the Supreme Court by enacting a Basic Law of Social Rights.

Just as Europeans have been rendered impotent in the face of threats to their national cultures by the weakening of democratic legislatures, so has the power of the Israeli Supreme Court led to an atrophying of Israelis' democratic instinct to control their own lives. The court has become the ultimate arbiter of political norms, and what is proper has become coterminous with what is not illegal, as defined by the court. The most basic democratic impulse to "throw the bums out" has withered accordingly.

In that vein, we should welcome Attorney-General Menahem Mazuz's refusal to equate what is protected speech with what is proper. His refusal to heed those who would give an extremely broad interpretation to the term "incitement" has left the judgment of strong statements by public figures where it rightly belongs: with the citizenry. Criminal prosecutions, absent an explicit call to violence and a clear and present danger of that call being heeded, should not be allowed to short-circuit public discussion, Mazuz insists.

That nurturing of public debate can only benefit Israeli democracy.