Interview: The “Thin Constitution” of Prof. Yedidia Stern

Prof. Yedidia Stern, President of the Jewish People Policy Institute (JPPI) and a prominent legal scholar, proposes that Israel, which has no formal constitution at present, enact a “thin constitution” to manage national life at a time when the country is not ripe for the sweeping changes needed to truly stabilize the nation.

In this exclusive interview with Jewish Business News, Professor Stern explains his ideas to help Israel move out of the current political, economic, and social morass it finds itself in.

JBN: Professor Stern, what exactly is a “Thin Constitution” as opposed to a regular or full constitution, and why does Israel need it?

Prof. Stern: Israel’s social and ideological divide makes it impossible to decisively settle the current culture war. But this divide would likely not prevent us from accepting the authority of a thin constitution, which is a mutually agreeable framework for managing our conflicts in the future. Furthermore, the three proposals currently on the national table: comprehensive judicial reform, a full constitution, and canonization are a dangerous illusion, demanding decisive action in an Israeli reality that is not ripe for such sweeping change. 

JBN: Why does Israel need this now and not a full constitution?  

Prof. Stern: A thin constitution, sometimes called a “procedural constitution,” differs from a full constitution in several ways. Unlike a full constitution, it would not include a full human rights bill since Israelis are divided on this issue. It would be limited to the regulation of Israel’s three branches of government – their composition, their powers, and the division of responsibilities between them. It would also codify and regulate such national institutions as the presidency, the state comptroller, the national budget and the military. 

JBN: But judicial reform negotiations are ongoing. How do we know they won’t end in an agreement?

Prof. Stern: It has yet to be determined how the negotiations will end. The prime minister will likely navigate through the minefield in which he has entrapped himself into a position that will spare him from making a tough decision. This way he will preserve his coalition without rekindling the full force of the protest movement that began this past January. But anyone who thinks such avoidance can turn back the clock is mistaken. Even if the prime minister makes it out of the present crisis with no additional damage, things will not return to how they were. The depth of the past six months’ events has already been ingrained into an entire generation’s consciousness.

JBN: You are focused in this effort on Israeli society and its center, the group that makes up the majority of the nation.  

Prof. Stern: Yes, for years our entire national conversation has been swallowed up by a black hole: the question of the territories. Israeli public debate has focused on where the borders should be, not on how the state inside those borders should look. At this time, however, when many Israelis on the right, the center, and even parts of the left see no chance for a peace process vis-à-vis the Palestinians, the black hole’s gravitational pull has weakened. The main axis around which the Israeli political discourse revolved, the future of Judea and Samaria – the debate that defined “right” versus “left” – has rusted out in the past decade. Israel has shifted its attention inward.

JBN: What was the game-changing moment? 

Prof. Stern: January 4, 2023, when Justice Minister Yariv Levin announced the first phase of a four-stage reform with no attempt to clarify the next stops along the way, or about what awaits Israel at the final stop. This roused the Israeli center in a game changing way. It became clear to many that a government unique in Israeli history – a “fully” right-wing government – could decide the Israeli culture war in favor of particular identity groups, those constituting the current ruling coalition. The sheer audacity of the plan, and the aggressive way it was marketed, punched a hole in the fabric of Israeli national life, and through it poured the boiling lava of identity discord. Even if a way is found to patch over the hole – through a compromise arrangement – it will not provide an infrastructural solution to the identity crisis. It is only a matter of time before the lava erupts again. This concern is the driving force behind the creative energy working to devise a broad and principled response to the identity dispute. As mentioned, various proposals have been raised.

JBN: Many voices have called for a constitution to be written and enacted now. What is wrong with that?

Prof. Stern: A constitution is a noble idea. I have dedicated years to the design of a constitution for the State of Israel, and no one would be happier than I to see one enacted. But in the current situation, I must oppose such a move. Today’s identity politics, which is based on differentiation from, and demonization of, the other, is a killing field for constitutional politics, which is based on compromise over fundamental issues. The thought that a broad Israeli consensus on questions of identity and values could be reached at this time is an illusion, and it would be irresponsible to make that idea a political objective. Even the canonical text of the Declaration of Independence – sacrosanct in the secular sense – is unfortunately becoming a subject of controversy in Israeli society.

JBN: What about the idea of federations or what is being called canonization?

Prof. Stern: Canonization is a bad idea. It would provide normative legitimacy and political solidity to the identity dispute. Instead of managing it, it would intensify it. If Israel becomes “a state of all its tribes,” as described by former President Ruby Rivlin, it is likely that the centrifugal forces that drive us apart today would accelerate dramatically. The hope that the tribes– secular Jews, national religious Orthodox Jews, ultra-Orthodox Haredi Jews, and Arabs–would all live side by side in peace, thanks to their autonomy, would be shattered by a reality in which each tribe is organized independently, and with legal backing. The competition that would ensue for control, influence, and dominance in shaping the public ethos would heighten and fortify the walls that already separate us today, unscalable obstacles that would frustrate any attempt at joint action to achieve national goals. 

JBN: So a thin constitution is the answer?

Prof. Stern: Rather than aiming for a unifying constitution or a divisive canonization, it would be more appropriate to pursue this relatively modest but reasonably feasible thin constitution. 

A thin constitution does not deal with identity-related matters, but it sets the rules of the game for the operation of the state.  

JBN: But doesn’t Israel have Basic Laws that regulate the government?

Prof. Stern: Some Basic Laws regulate the government but stand on shaky ground because a coalition can cancel or amend them without any special procedure, with a few exceptions. A simple Knesset majority can also enact new Basic Laws in a routine legislative proceeding.

This flaw places Israeli democracy on a slippery and dangerous slope. The Basic Laws, which aspire to be part of the Israeli constitution, are putty in the hands of the Knesset and easy prey for the whims of the governing coalition, which can advance revolutionary changes of all sorts, such as divesting the Supreme Court of its authority, restricting the voting rights of some citizens, altering the state’s Jewish character or modifying the state’s democratic character. Additionally, if it is decided that the Supreme Court lacks the authority to conduct judicial review of Basic Laws, there would be no legal backstop to a determined majority’s desire to change Israel as it sees fit.

This is not a theoretical concern: all of Israel’s recent prime ministers chose to amend Basic Laws in accordance with their immediate political exigencies, such as the “rotation government” whereby the premiership changes hands part way through its term. The judicial reform currently proposed is just another step, although an extraordinarily extreme one, along a path already charted by others.

In constitutional democracies, the rules of the game cannot be changed casually – with a simple parliamentary majority. Because of their vital importance, the rules are embedded in an entrenched constitution, meaning that they can only be changed in accordance with strict requirements, such as a parliamentary supermajority, consent of both houses of a bicameral legislature, approval by all or most of the states in a federal framework or by public referendum, among others. Further, in most countries a constitutional culture prevails that precludes changing the rules to suit momentary convenience. 

JBN: Can you sum up why a thin constitution is the answer of the moment and could help move the country in the right direction?

Prof. Stern: The social and ideological divide within Israel makes it impossible to settle the current culture war decisively. But this divide would not prevent us from accepting the authority of a thin constitution – a mutually agreeable framework for managing our conflicts in the future. We are likely to reach a consensus on the game’s rules, as they do not deal with the different value systems that fuel the culture war. True, at this moment in time, the Knesset is regarded as a body where sensitivity to the state’s Jewishness is strong. At the same time, the Supreme Court is perceived as more acutely sensitive to the state’s liberal character. That is why the current coalition, which is not liberal, wants to transfer power from the judiciary to the political arena. But this is a shortsighted calculation; the present situation is not a law of nature.

Thus, for example, there is no safe bet on who will win the next election and form a governing coalition. Therefore, everyone is interested in optimally stabilizing the system, as every party could potentially find itself sitting in the opposition. Entrenched rules would protect them. This is also true regarding the composition of the Supreme Court: at one time, a large majority of its justices could be classified as liberals, but today the balance of power is changing; at least a third of the justices are conservatives. If the selection method for the chief justice remains unchanged, a conservative judge will inevitably be appointed to lead that respected institution. The Supreme Court of the United States already provides us with an example of a leopard changing its spots: the Court has radically changed in recent years, becoming the nation’s bastion of conservatism. There is no way to know whether something similar will or will not happen here.

The uncertainty regarding the future composition of the Knesset and the Supreme Court is an excellent basis for conducting a discussion on the game’s rules that will lead to an optimal result. This ensures that the discussion will be conducted impartial and unbiased. Although the opponents in today’s culture war have well-known ideological preferences, they are superfluous to refiguring the separation of the branches of government and the complex relations between them and offer neither side an escape from the proper position for making fair decisions.

Yedidia Stern is President of the Jewish People Policy Institute (JPPI), a professor emeritus of law, and co-editor of the new book 75 Faces of a Jewish State (published by Yedioth Books and JPPI).

The Jewish People Policy Institute (JPPI) is an independent center of thought and planning for shaping strategy and action-oriented policy for the Jewish people, in Israel and the Diaspora. JPPI’s core objectives are to ensure the continuity and prospering of the Jewish people; to preserve and cultivate pluralistic Jewish identity as a culture, nation, and religion; and, in the spirit of peoplehood, to bolster cohesion in Israel, among Diaspora Jews, and between Israel and the Diaspora.