Why the Declaration of Independence is Not, and Should Not Be, Israel's Constitution: Two Views

Israel’s declaration was never intended to function as domestic law. There’s no reason it should have been transformed into the quasi-constitution it is today.

A tourist looking at a picture of David Ben-Gurion at the Independence Hall Museum, the house in Tel Aviv where Ben-Gurion declared Israel’s independence on May, 14 1948. JACK GUEZ/AFP via Getty Images.

A tourist looking at a picture of David Ben-Gurion at the Independence Hall Museum, the house in Tel Aviv where Ben-Gurion declared Israel’s independence on May, 14 1948. JACK GUEZ/AFP via Getty Images.

Response
Nov. 22 2021
About the authors

Eugene Kontorovich is a professor at George Mason University Antonin Scalia School of Law, director of its Center for International Law in the Middle East, and a scholar at the Kohelet Policy Forum in Jerusalem.

Yonatan Green is executive director of the Jerusalem-based Israel Law & Liberty Forum, a Tikvah Fund project.

Eugene Kontorovich

 

In his superb series on Israel’s declaration of independence, Martin Kramer brings to life the circumstances and calculations behind the document’s drafting. This response will address its legal significance—internationally, in establishing Israel’s borders, and domestically, in establishing constitutional principles. To summarize: the declaration does none of those things.

As Kramer demonstrates, the declaration was intended primarily as an international legal and persuasive document, announcing the establishment of a new state on the world stage. The famous declaration of the American colonies in 1776 was not just a general inspiration, but a very specific one. One of the most fascinating details in Kramer’s history is that the Israeli document’s first draft began with the U.S. Declaration, translated into Hebrew and modified. While the particular language was abandoned almost entirely in subsequent drafts, the purpose remained to announce to the world that the Jewish state was assuming what its American equivalent called a “separate and equal station” in the world, empowered to do all the “Acts and Things which Independent States may of right do.”

The new state would be “like all other nations” in matters of sovereignty. That means it would not be any kind of protectorate or ward of the United Nations. Kramer details how the drafters nodded repeatedly at the UN General Assembly’s 1947 partition proposal, but only as one among many sources of legitimacy, subsidiary to the Jewish people’s natural and historic rights. Ben-Gurion in particular, Kramer shows, wished to capitalize on the UN’s limited toleration Jewish sovereignty, while rejecting lawyerly attempts to tie the new state’s fate to the UN. As a result, the declaration, and its insistence on sovereign equality, carried with it international legal consequences that continue to govern Israel’s principle geopolitical challenges.

The primary legal consequence involves the borders of Israel. As a state, Israel’s borders would be governed by the same rules as other countries. Those rules are simple and well-known. According to a doctrine of international law known as uti possidetis juris (literally, “as you possess under law”), a newly created state inherits the borders of the last top-level administrative unit in the area. Thus the emergence of a new nation does not result in a wholesale redrawing of boundaries based on demographic, historical, or other considerations. Rather, the new boundaries will be those of the pre-independence province, colony, district, or similar political entity. Any other rule would be a recipe for endless border conflicts both internally and with neighboring states.

For example, upon its independence, Ukraine inherited the borders of the Ukrainian Soviet Socialist Republic, including majority Russian-speaking areas that might have preferred union with Russia. In the context of the mandatory territories established by the League of Nations, new states like Iraq inherited the complete borders of the prior British mandate. While this principle has had consequences for the Kurds that may be lamentable, there is nothing even remotely controversial, from a legal standpoint, about those consequences.

The declaration of independence established Israel as the only state to arise in former mandatory Palestine. It said nothing of a claim to the full borders of Mandatory Palestine because it did not need to. The declaration purposefully left Israel open to the operation of international default rules like uti possidetis juris.

It is also relevant to note the declaration of independence that did not happen: a Palestinian Arab one. As Kramer shows, the Israeli document was the product of a brief but intense process by a highly organized political community. During this process, it had to reflect on the nature of its claims, the Jews’ historical connection to the land, and the character of the future state. Ben-Gurion brokered compromises among various sectors of society, primarily between religious and secular. No such process occurred on the Arab side. Instead of declaring independence for themselves, Palestinians largely attached themselves to the efforts of existing Arab states to destroy the Jewish one.

This is extremely consequential. Had they declared independence at the time, as many national-liberation movements were doing around the world, there would be two governments claiming the same borders for a sovereign state. Such situations are not uncommon—see, for instance, Libya today—and typically resolved by force of arms. But in law as in life, showing up is important. The Jewish community declared a state, and thus that state is Israel, not Palestine.

Indeed, the Palestinians did not declare independence for another 40 years. The declaration by the Palestine National Council in 1988, at the height of the intifada, is a useful contrast with Israel’s. For one, the Palestinians have no reluctance to base their declaration on explicitly religious principles. (“In the name of God, the Compassionate, the Merciful,” is how that document begins.) As Kramer explains, the Jews sought a more neutral wording in the phrase “Rock of Israel.”

The Israeli declaration’s several references to UN Resolution 181 lead some to argue that Israel only announced independence within the partition-plan borders. As a textual matter, this reading is odd, because the words “Eretz Israel” are also used repeatedly. But in neither case are these terms used in relation to borders, and Kramer shows this was no accident. One of the most important contributions of Kramer’s work is to show how studiously the provisional government rejected suggestions to specify borders.

Some lawyers involved in the drafting insisted that the declaration specify borders. Speaking with the complete assurance of today’s Israeli jurists, the future justice minister insisted it was “impossible” for a declaration of independence not to address borders. Ben-Gurion did not defer to this expertise. There can’t be a “law” that such a declaration must specify borders—witness the American one, which made no reference. Indeed, America’s borders with the British empire would only be resolved over 70 years after independence, in the Webster-Ashburton Treaty. Ben-Gurion’s reference to America shows the great influence that instrument had on Israel’s drafters, but he could as well have cited Burma and Ceylon, which had become independent from Britain in the prior months, or Ho Chi Minh’s declaration for Vietnam (1945), or the Indian 1930 Purna Swaraj.

Today, Ben-Gurion’s refusal to defer to government lawyers’ advice would be seen as insubordination, and worse, an assault on the “rule of law.” Indeed, the Supreme Court of Israel has decreed that it is presumptively unreasonable for an official to go against the instructions of his legal advisers. Yet had Ben-Gurion been thus bound, the Supreme Court, and the Knesset, would not be sitting in Jerusalem today.

As Kramer shows, the declaration’s legal meaning was reserved for the international realm. It was not understood as, or intended to be, a law, let alone a constitution. It was written in a great hurry, under an inflexible diplomatic deadline. It lacked all of the deliberation expected of constitutional instruments, and was not subject to prior public scrutiny. Indeed, its very name—which in Hebrew means “Announcement of the Establishment of the State of Israel”—indicates that it is not a document of governance. Yet half a century after the declaration, the Supreme Court has begun treating it as a constitutional document—that is, a basis to overturn Knesset legislation. The court’s former president, Aharon Barak, has gone even further, arguing that the declaration trumps Basic Laws themselves, effectively transforming it into an unamendable super-constitution.

Some textual basis for this was provided by the 1992 Basic Law: Human Dignity. Its preamble says that rights shall be “upheld in the spirit of the principles set forth in the Declaration of the Establishment of the State of Israel.” But this statement is a far cry from constitutionalizing the declaration, as the phrases “in the spirit” and “of the principles” make clear. Moreover, the principles of the declaration or too vague to be useful even as interpretive tools. What are the principles of “freedom, justice, and peace as envisaged by the prophets of Israel”? Surely these could involve indentured servitude, the death penalty, criminal regulation of sexual morality, compulsory war to reconquer Israel, and severe punishment of defeated enemies.

Of course, those are not the principles the Israeli Supreme Court means when it employs the declaration to interpret the constitution. For them it means something closer to “modern Western European social-justice ideas that we like.” And that is precisely the problem with the Supreme Court’s effort to constitutionalize the declaration: there is nothing to give legal effect to. The justices embrace the declaration specifically because they can find in it whatever principles suit them.

In the U.S., the expansive language of the declaration has also inspired efforts to constitutionalize it, but they have fared quite differently. Given that both the Israeli declaration and Israel’s use of judicial review are explicitly modeled on their American counterparts, it is useful to consider how the American declaration has been used as a tool of constitutional interpretation.

Despite mentioning in its preamble a broad range of liberal principles—”unalienable rights” and so forth—the U.S. Declaration of Independence is not used by courts as a guide to constitutional interpretation. Leading constitutional treatises, starting with Justice Joseph Story’s seminal 1833 Commentaries on the Constitution, barely mention the Declaration. It is understood to be a foreign-policy instrument, not one of domestic law.

Yet the Declaration has been embraced by reformers for some of the same reasons as Israel’s: it contains a reference to “equality,” missing from the U.S. Constitution. This led critics of slavery, most eloquently Abraham Lincoln, to invoke it in demonstrating that the institution contradicts America’s founding principles.

Yet Lincoln did not appeal to the Declaration as a basis for judicial power as much as for popular and political action—living up to its spirit by not extending slavery through legislation to new territories or in any other way. Indeed, it ultimately required the ratification of a new constitutional amendment, the fourteenth, to enshrine a principle of equality in the Constitution. The Supreme Court still does not strike down legislation for violating such “unalienable rights” as the “pursuit of happiness.” These rights are underspecified, and their invocation in the Declaration was never meant to make the American people subject to the whims of the judiciary rather than of King George.

Israel’s declaration, eloquent though it is, was drafted much more hurriedly and by authors lacking the stature of Thomas Jefferson. There is no reason it should have greater authority as a legal document than its famous model.

———

Yonatan Green

 

In the final installment of his seven fine essays on the Israeli declaration of independence, Martin Kramer concludes with an illuminating and nuanced introduction to the declaration’s constitutional nature, or lack thereof. What is the relationship between the declaration and Israel’s future constitution? Does the declaration have any binding legal force? How have attitudes toward this document changed over the years? Perhaps most fundamentally, what would it mean to grant the declaration constitutional status? Kramer’s examination of these issues and others seems a natural and appropriate extension of the detailed historical and cultural account presented in his essay series.

In what follows, I will expand upon a few of the points raised in Kramer’s final installment and offer some observations that I consider crucial to understanding the complexities, challenges, and indeed dangers inherent in elevating the declaration of independence to a constitutional status. I will ultimately argue that there are strong reasons, grounded both in principle and in practice, to oppose such a transformation.

As a general matter, it’s worth recognizing that the debate regarding the declaration’s legal power may never be resolved. Just look at the United States. Kramer rightly points out in his first essay that the American Declaration of Independence had the clear purpose of independence, and that it can be distinguished easily from the later Constitution and Bill of Rights. Nevertheless, to this day scholars debate the proper legal weight jurists ought to grant the American Declaration—and let us recall that it is indeed embedded within the United States Code, under “Organic Laws.” Perhaps it seems strange that a fundamental text, capturing the spirit of a nation, should possess only symbolic force. I’ll return to this comparison further on.

Kramer relays the historical background surrounding the Israeli declaration and its aftermath, including possible reasons why David Ben-Gurion ultimately did not pursue the formation of an actual constitution. He emphasizes Ben-Gurion’s other priorities at the time, such as waging war and building a nation, as well as his concern about stirring controversy among various political factions. He also notes Ben-Gurion’s realist (and somewhat pessimistic) view of law on the whole. I believe two additional factors should be considered.

First, Ben-Gurion argued persuasively against a constitution as a matter of principle on a number of occasions. In 1950, he appeared before a Knesset committee and asked, “Why should we give one statute power over another statute?. . . . Why should we prevent a regular majority of a future Knesset from changing a certain clause? By what right? Every law is the product of its time. There is no eternal law. . . . We have no greater wisdom than those who will come in our stead.” He further argued against judicial review of legislation based on such eternal law: “Will our people make their peace with a state of affairs in which seven judges—with all due respect to them—can invalidate statutes that the people desire?”

Of course, as a master of realpolitik, Ben-Gurion likely had other considerations in mind. We may reasonably assume that he simply didn’t like the idea of state power (wielded by him and his allies) being limited by a formal textual instrument enforced by wayward courts. Some historical accounts support this view. Be that as it may, it’s clear that Ben-Gurion was capable of articulating many of the broad, typical arguments against a written constitution.

Second, the failure to enact a written constitution was hardly a departure from tradition, since the Israeli legal system was modeled roughly on that of Great Britain. As the British seemed to get along just fine without a modern, written constitution, it should not be surprising that the Knesset and the public seemed fairly indifferent to the absence of such a document. In this sense, Ben-Gurion’s arguments were, at the very least, not outlandish or alien to many Israelis.

Let us now turn to the core issues at stake: the actual, and desirable, legal status of the Israeli declaration of independence.

It’s worth starting out by specifying what is actually meant by granting constitutional status to the declaration. If our meaning is that the declaration enjoys paramount symbolic status as a deep and lasting expression of the Israeli and Zionist spirit, especially as captured in those foundational moments of 1948, then of course the declaration already meets this description. The more common and realistic meaning, however, is that the declaration’s text ought to be granted binding legal power as the “supreme law of the land” (to quote the U.S. Constitution). It would guide public decisions and be fully enforceable by the courts. Today, it is almost taken for granted that such a constitutional status would also allow for the invalidation of duly enacted primary legislation. We’ll keep this in mind as we proceed.

Kramer describes the way in which perceptions of the declaration gradually evolved, from the early and total rejection of its constitutional status to its incorporation by reference in the two Basic Laws of 1992, which themselves served as the basis for the 1995 court-led “constitutional revolution” (dubbed by some detractors the “judicial coup”). While this version of events has its allure, there remain strong reasons to reject any attempt to attribute constitutional force to the declaration.

Let’s start with objections based on principle. On its face, the declaration is simply not a constitution—it bears none of the traditional hallmarks of a constitutional document. As Kramer compellingly illustrates, the declaration was not the product of considered public deliberation and debate (such as the one that the authors of the Federalist Papers conducted in the press with their anti-Federalist opponents); nor was it submitted or affirmed through a political mechanism attesting to broad public support or reflecting notions of popular sovereignty, such as a national referendum. Instead, it was drafted in secret by a handful of powerful figures embedded in the Zionist ruling elite, presented to the People’s Council as a fait accompli, and then crudely redacted and heavily edited by one man—Ben-Gurion himself.

In other words, nothing in its formation or aftermath reflects the conscious, calculated, and deliberate effort of a sovereign people to limit their own powers of government—the very foundation of any republican constitution. The dubious circumstances surrounding the drafting process are indeed sufficient for a declaration, but woefully inadequate for anything approaching a constitution. Are we to accept that the last-minute, arbitrary (even if wise) phrasing whims of Ben-Gurion ought to be transformed into an irrevocable, enforceable “supreme law of the land”?

Of course, as Kramer points out more than once, Ben-Gurion said this himself on many occasions—and the declaration’s own text disavows any constitutional character by mandating the later creation of a different, distinct constitution. The fact that this was also clarified in no uncertain terms to the People’s Council means that the only democratic involvement in the entire process (the approval of the People’s Council) was contingent on the express understanding that they were not approving a constitutional or legal text of any kind. To put it more bluntly, had it been touted as a constitution, the declaration would likely not have been approved. How can such a text aspire to then become an instrument superseding democratic legislation?

The declaration is also unsuitable as a legal text, being overly vague and ambiguous. Most constitutions require some level of specificity; they prescribe detailed limitations on government, define particular individual rights, and so on. As Kramer explains in detail in his sixth essay, the content, scope, and application of most rights mentioned in the declaration are unclear and open to debate. To take just one example, what meaning can be ascribed to “freedom of religion, conscience, language, education, and culture”? The answer is just about any meaning, or no meaning at all. Even the broad language of the U.S. Constitution is far more precise.

Kramer puts his finger on this issue by identifying similarities between the Israeli declaration and the vaguely worded UN Charter. Even the UN understood that its broad phrasing in the Charter couldn’t really serve as a basis for enforceable legal norms, which is one reason it ended up advancing the UN Covenant on Civil and Political Rights.

All this was perfectly clear to the state’s founding generation, and to the Supreme Court since 1948 until at least the late ’70s. In this sense, the early judges on the court did not fail to recognize some inherent significance that would manifest itself only over time—rather, they were merely stating the obvious: that the declaration was not a constitutional text and that no amount of wishful thinking could make it serve as one.

It’s worth noting that even in the 1995 Hamizrachi case marking the “constitutional revolution,” in which the Israeli Supreme Court held it had the authority to annul a law passed by the Knesset on the basis of its unconstitutionality, at no point did the court refer to the declaration as having been endowed with its own independent constitutional status. Rather, the court discussed the declaration only when contemplating whether the declaration granted constitution-making powers exclusively to the Constituent Assembly of 1948 (later renamed the “first Knesset”), or also to any future Knesset.

It is here that we ought to dispel one common but critical misconception in support of “constitutionalizing” the declaration. Some argue, directly or implicitly, that Israel’s failure to enact an actual constitution in October 1948, and indeed ever since, somehow justifies turning to the declaration’s text as an acceptable substitute. This position misses the mark; it reverses the rationale by which similar texts have received any legal status at all. Indeed, the absence of a written constitution is an argument against granting elevated status to the declaration, not in favor of it.

Had an Israeli constitution been enacted as originally envisaged, the declaration could surely have served as an important tool to guide interpretation and examination of the formal constitution—reflecting “the vision of the people and its faith” (as noted by the Israeli Supreme Court), but also the mindset of the Zionist founding fathers and the public mood at the time. By extension the declaration could influence interpretation of ordinary law and government action. In other words, the declaration could have gained some legal status by association with an existing, legitimate constitution—one crafted with legal validity and rooted in popular support. Without any such constitution to be had, the declaration loses any claim to quasi-constitutional legal standing.

This is precisely where the comparison with the United States is useful. In the U.S., the Declaration of Independence serves to supplement the legitimate existing constitution; in Israel, the declaration is being exploited to supplant a nonexistent constitution, with no legal basis.

In addition to the objections based on principle listed above, the practical problems with elevating the declaration to constitutional status are readily discernible. One glaring objection lies in the fact that the declaration is a static, eternal document—there is no process for amendment or correction. What is the nation to do with such a semi-constitutional document, vested with enforceable norms, which remains out of reach of any change desired by the sovereign people? What happens when the “vision of the people” shifts or even requires clarification? It is precisely for this reason that formal constitutions contain clear provisions for change and amendment.

Another key practical objection is the slippery slope of enhanced judicial power necessitated by such an elevation of the declaration’s legal status. As Kramer’s historical reconstruction demonstrates, first the declaration was considered merely symbolic; then it served to guide judicial interpretation and application of existing statutes; then it achieved near-constitutional status by being referenced in the 1992 Basic Laws, such that it now possibly binds Knesset legislation.

Today, some have gone even further (including Justice Aharon Barak, Israel’s judicial arch-activist) by touting the declaration as some kind of super-constitution—ostensibly limiting the Knesset’s discretion in enacting constitutional provisions (i.e., Basic Laws). Such limits are to be enforced by the Supreme Court, purportedly granting it the authority to strike down even Basic Laws that, in its view, are inconsistent with the Declaration.

In light of all this, the proposal to constitutionalize the declaration suffers from fundamentally anti-democratic flaws. The vague, unchangeable text of the declaration, drafted with little public transparency, let alone public support or validation, may now grant courts the power to invalidate legislation that is duly voted upon and enacted by the public’s elected representatives in the Knesset. The Israeli electorate would be powerless to change this.

I use the term “legislation” and not “amendments,” as even the most optimistic view of Israeli constitutional law grants that the Israeli constitution is still very much in the making—new Basic Laws and amendments to existing ones are not mere tweaks to an existing constitution, but rather new stages in the prolonged formation of the Israeli constitution. Of course, this makes the notion of courts invalidating Basic Laws all the more egregious.

The nation-state law discussed by Kramer illustrates this point well. While a full discussion of the matter is beyond the scope of this response, it is sufficient to say that the Supreme Court’s willingness to engage in judicial review of Basic Laws enacted by the Knesset—a practice that has now gained hold in a series of unprecedented rulings—has thrown Israel into a full-fledged constitutional crisis, about which I have written elsewhere. This willingness is enabled, inter alia, by the general claim that the declaration of independence holds independent legal power as a mega-constitution, constraining the people’s power to shape their own constitution.

Let us not mince words. The debate surrounding the legal force of the Israeli declaration of independence is not taking place in a vacuum. Rather, it ties into the much larger and more bitter struggle between courts and other unelected bureaucrats, and the elected branches of government in Israel. It also relates to fundamental questions of democratic self-rule and the rule of law. Each subsequent expansion of the declaration’s legal force grants greater legislative authority and discretion to what is perhaps already the most powerful judiciary in the Western world, further imperiling the precarious balance of powers between Israel’s competing branches of government. All this has a deeply and gravely destabilizing effect on Israeli society in its entirety. If the citizens of Israel are to remain truly independent, let the declaration remain as it ever was—a bold and masterful expression of a people’s vision and ambition, but nothing more.

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More about: Israel & Zionism, Israeli Declaration of Independence, Martin Kramer on the Israeli Declaration of Independence