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Alternative Pluralisms: Israeli and American Constitutionalism in Comparative Perspective

Published online by Cambridge University Press:  05 August 2009

Gary J. Jacobsohn
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Constitutional transplantation, the process by which the constitutional practice of one society becomes an important source for the legal development of another, has figured importantly in the institutional evolution of new politics. In this article, I examine the constitutional experience of Israel and the United States, two societies that share a language of jurisprudential discourse while differing significantly in a number of polically relevant ways. In particular, the fact that both societies can be described as pluralistic only conceals the fact that they represent alternative models of pluralism that may render problematic the the transferablity of constitutional outcomes from one place to another. Thus, the literature of modern constitutionalism, which has tended to emphasize the rights-based liberal ethic of individualism, is arguably more compatible with an American model in which the principles of the “procedural republic” are more unproblematically embraced. To pursue this question, I look at two issues—the advisability of adopting a bill of rights and the appropriate stance of the regime on the question of free speech—that allow us to reflect upon the limits and possibilities of constitutional transplantation.

Type
Research Article
Information
The Review of Politics , Volume 51 , Issue 2 , Spring 1989 , pp. 159 - 189
Copyright
Copyright © University of Notre Dame 1989

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References

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20. Naiman and Avneri v. Chairman of the Central Elections Committee for the Eleventh Knesset (1984), p. 1–65.Google Scholar For some scholars, the commonly held view that Israel lacks a written constitution is much too simple. For them the Declaration of Independence is one of the written texts that provides the nation with an operative consti tution. See, for example, Elazar, Daniel J., The Constitution of the State of Israel (Jerusalem: Jerusalem Center For Public Affairs, 1987), p. 1.Google Scholar

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27. Ibid., p. 30. An essay in The New York Review of Books by the Israeli Arab author, Anton Shammas, argues, on the other hand, that the absence of a constitution in Israel reflects the lack of an Israeli national identity. “The really bad news is that there are no Israelis in Israel in the sense that there are Americans in the US., and that the State of Israel has not been established yet” (31 March 1988, p. 9).

28. Murrin, John M., “A Roof Without Walls: The Dilemma of American National Identity,” in Beyond Confederation: Origins of the Constitution and American National Identity, ed. Beeman, Richard, Botein, Stephen, and Carter, Edward C. II (Chapel Hill: University of North Carolina Press, 1987).Google Scholar

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36. Ibid., p. 28.

37. 320 U.S. 118 (1943).

38. Schneiderman v. United States, 320Google Scholar U.S. 118, at 121.

39. Ibid., at 172. For an insightful discussion of the Schneiderman case and its importance to the concept of civic obligation see Levinson, Sanford, Constitutional Faith (Princeton: Princeton University Press, 1988),Google Scholar chap. 4.

40. Ibid., at 128. Over the years, members of the Court have argued about whether a willingness to fight for the country is good evidence for establishing a person's attachments to the principles of the Constitution. There has been agreement, however, that such a demonstration is central to acquiring and (in certain instances) retaining American citizenship.

41. 23 P.D. 477 (1969). The decision is to be found in Landau, Asher F., ed., Selected Judgments of the Supreme Court of Israel (Jerusalem: Israel Bar Publishing House, 1971).Google Scholar

42. Ibid., p. 60.

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44. Ibid., p. 29.

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48. Yardor v. Chairman of the Control Election Committee for the Sixth Knesset, 19 P.D. 365 (1965), p. 1–15.Google Scholar The Law of Return recognizes the right of any Jew to immigrate to Israel and (in concert with the Nationality Law) automatically to receive Israeli citizenship. In terms of its role in giving definition to the Israeli national identity, there is no question that this law possesses a special constitutional status. Or, as expressed on the Supreme Court, “[T]here can be no doubt and this is clearly learnt from the statements in the Declaration of the Establishment of the State that Israel is not only a sovereign, independent and peace-loving state characterized by a regime of the people's government, but was also established as ‘a Jewish State in Eretz-Israel.’” Yardor v. Chairman of the Control Election Committee for the Sixth Knesset, p. 1–21.Google Scholar

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51. 7 P.D. 871 (1953).

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56. Ibid., 22 December 1984. In fact, however, the Israeli Supreme Court has not adopted the specific Holmesian test, adopting instead the standard of “near certainty.”

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61. This policy has roots in a broader Middle Eastern context in which the preservation of a corporate identity has historically been a matter of high official priority. As Daniel J. Elazar has pointed out, the millet system, which sought to insure the maintenance of quasi-autonomous ethnic communities, was a continuing presence within the various empires holding power in the area through the centuries (Israel: Building A New Society, p. 38Google Scholar). The British Mandate continued the millet system's respect for the principle of cultural autonomy in its Article 15, which provided for “the right of each community to maintain its own schools for the education of its members in its own language, while conforming to such educational requirements of a general nature as the Administration may impose, shall not be denied nor impaired” (quoted in Abramov, , Perpetual Dilemma, p. 93).Google Scholar See also, Rackman, , Israel's Emerging Constitution, p. 121.Google Scholar For a lucid discussion of the important role of religious courts in matters of personal status (including exclusive jurisdiction over marriage and divorce), see Rubinstein, Amnon, “Law and Religion In Israel,” 2 Israel Law Review 1967.Google Scholar

62. Shamir, and Sullivan, , “The Political Context of Tolerance,” p. 915.Google Scholar

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65. Ibid., p. 260. In this regard see also Arend Lijphart's discussion of Israel as a “semiconsociational regime” (Lijphart, , Democracy in Plural Societies [New Haven: Yale University Press, 1977]Google Scholar).

66. Richards, David A. J., Toleration and the Constitution (Oxford: Oxford University Press, 1986).Google Scholar

67. On this point see Garret, Ronald, “Community and Existence: The Rights of Groups,” Southern California Law Review 56 (1983): 1001;Google Scholar and Fiss, Owen M., “Groups and the Equal Protection Clause,” Philosophy and Public Affairs 5 (1976): 107.Google Scholar

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69. I am grateful to Daniel J. Elazar for suggesting this point to me. It should be noted here, however, that in interviews conducted with a number of Israelis connected to the legal profession, the author heard repeatedly the view that this decision by the Court was in fact anomalous, dictated more by the peculiar cir-cumstances of the case than by the requirements of Israeli law.

70. Shipler, David K., Arab and Jew: Wounded Spirits in a Promised Land (New York: Penguin Books, 1986), p. 273.Google Scholar Shipler elaborates: “Nationhood in the American concept may transcend race, creed, and ethnic origin, but in the Middle East the nation attempts to serve as an embodiment of those traits not to promote harmony among diversity but to emphasize and express those differences” (p. 274).

71. Ely, John Hart, Democracy and Distrust: A Theory of Judicial Review (Cambridge: Harvard University Press, 1981), p. 80.Google Scholar

72. Ibid., p. 112.

73. Ibid., p. 116.

74. I am grateful to Sanford V. Levinson for originally suggesting this point to me.

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77. Sullivan, John L., Shamir, Michal, Welsh, Patrick, and Roberts, Nigel S., Political Tolerance in Context: Support for Unpopular Minorities in Israel, New Zealand, and the United States (Boulder: Westview, 1985), p. 111.Google Scholar

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79. Tribe, Laurence H., American Constitutional Law (Mineola, NY: Foundation Press, 1978), p. 618.Google Scholar

80. Lahav, , “American Influence on Israel's Jurisprudence of Free Speech,” p. 36.Google Scholar

81. 32 P.D. 337 (1977).

82. Lahav, , “American Influence on Israel's Jurisprudence of Free Speech,” p. 101.Google Scholar

83. Ibid., p. 103.

84. Ibid., p. 104.

85. Ibid., p. 105.

86. Ibid., p. 105. In his opinion in the Broadcasting Authority case, Justice Barak, perhaps with the Skokie case in mind, indicated: “I believe that it would be justified to prevent a demonstration of Petitioners, if it intends to pass through Arab populated areas, and a near certainty of a real injury exists because of the racist content of Petitioner's message” (Kahane v. Broadcasting Authority p. 111–127).Google Scholar The injury referred to here is not physical violence but the offended “feelings of a religious or ethnic minority.”

87. Collin v. Smith, 447 F. Supp. 676 (1978).Google Scholar

88. Ibid., at 689.

89. Ibid., at 686. For a careful examination and critique of the libertarian view see Kretzmer, David, “Freedom of Speech and Racism,” Cardozo Law Review 8 (1987): 445;Google Scholar and Lasson, Kenneth, “Racial Defamation As Free Speech: Abusing the First Amendment,” Columbia Human Rights Law Review 17 (1985): 11.Google Scholar

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91. Arkes, Hadley, The Philosopher in the City: The Moral Dimensions of Urban Politics (Princeton: Princeton University Press, 1981), p. 26.Google Scholar One might note here the argument that Montesquieu made on behalf of civility. “[Civility] is a barrier which men have placed within themselves to prevent the corruption of each other” (The Spirit of the Laws [New York: Hafner Publishing Co., 1966], p. 301).Google Scholar To see how this might apply to the Israeli scene, consider what Montesquieu had to say about law and religion. “It is necessary … that the laws require from the several religions, not only that they should not embroil the state, but that they shall not raise disturbances among themselves” (ibid., bk. 2, p. 52).

92. 403 US. 15 (1971).

93. See in particular, Downs, Donald Alexander, Nazis in Skokie: Freedom, Community, and the First Amendment (Notre Dame: University of Notre Dame Press, 1985).Google Scholar Downs argues: “The extension of Cohen's logic to move severe cases of verbal assault could harm the basic communitarian norms of civility and protection which also legitimate values of the polity” (p. 11). Downs sympathizes with the survivors in Skokie, who had “asked the courts to heed the claims of substantive justice in the case rather than limiting their legal considerations to the issue of procedural justice, or equal protection in the public forum” (p. 5).

94. For a good example of the First Amendment position extending from the logic of this theory of liberal constitutionalism see Karst, Kenneth L., “Equality As a Central Principle in the First Amendment,” University of Chicago Law Review 43 (1975): 20.CrossRefGoogle Scholar Karst's theory is applicable to the controversy over Meir Kahane's presence on the ballot. “If the first amendment principle of equal liberty underlies the right to vote, then it unquestionably underlies the rights of those seeking a place on the election ballot, the supreme political forum” (p. 59).

95. For an insightful comparison of American and West German approaches to the issue of defamation see Kommers, Donald P., “The Jurisprudence of Free Speech In the United States and the Federal Republic of Germany,” Southern California Law Review 53 (1980): 657.Google Scholar Kommers finds that “the pluralism [envisioned by the US. Supreme Court to be] less integral than that envisioned [by the German Court].” As a result, “In the American view [as contrasted with the German], the community has no valid claim upon the individual person, particularly in the domain of mind and morals” (p. 694).

96. The Jerusalem Post, 16 September 1984.Google Scholar

97. de Tocqueville, Alexis, Democracy In America, ed. Bradley, Phillips (New York: Vintage, 1945), p. 48.Google Scholar

98. Barzilai v. Government of Israel, et al., 40 P.D. 505 (1986), p. 111–277.Google Scholar

99. Kahane v. Broadcasting Authority, p. 111–107.Google Scholar

100. The issue of transplantation is also relevant in the field of legal education. “The American experience can indeed be very enriching and extremely stimulating. But one must never lose sight of the important differences that exist between these two countries which lead to necessary differences in legal education” (Weisman, Joshua, “The Relevance of the American Experience to Legal Education in Israel,” Tel Aviv University Studies in Law 5 [1980–1982]: 55).Google Scholar