The simmering conflict between the Israeli government and Supreme Court is coming to a head. In January, the court overruled the ministerial appointment of Aryeh Deri, a party leader with a checkered legal history, on the grounds that the appointment is “extremely unreasonable”. In response, the governing coalition amended a law to abolish the court’s (seldom exercised) prerogative to apply its reasonableness doctrine. The ball is now back in the Supreme Court, where an unprecedented 15-judge panel will soon decide on petitions to invalidate the law.
Were the court to overturn the law — thereby abolishing the abolishment of the doctrine it used to overrule Deri’s appointment — the upshot would likely be a constitutional crisis. So far, Prime Minister Benjamin Netanyahu has refused to commit to obeying the court should it rule against him. This is “uncharted territory”, he said during a CNN interview, “and I hope we don’t get to that”.
We use the term “constitutional crisis” with a touch of irony, as Israel doesn’t have a formal constitution. The Israeli Declaration of Independence, dated May 14, 1948, mandated the creation of a constitution by Oct. 1, 1948. This task was entrusted to a constituent assembly, which belatedly convened on Feb. 14, 1949. But it took all of two days for the assembly to shake off its historic duty. The constitutional debate ended with a compromise: A process of incremental accumulation of separate “basic laws” would form a constitution. Netanyahu’s coalition is taking advantage of this system: Its legislation is dressed up as basic laws in an attempt to shield it from judicial review. Prefacing laws with “basic” has become the grown-up version of prefacing commands with “Simon says”.
The silver lining is that a constitutional crisis can also be a constitutional moment. Public polls indicate that a majority of Israelis support drafting a constitution based on the principles of the Israeli Declaration of Independence. And that same document might hold the key to the creation of a new constitution, in that it originally called for the establishment of a constituent assembly. Such an assembly should be convened today.
However, if the assembly were to be appointed by the Knesset — the Israeli legislature — it would likely reflect the chamber’s current composition and thus inherit its divisions and lack of broad public legitimacy. To get the job done, we believe a constituent assembly must be populated by random people.
This isn’t a random idea: It’s rooted in the practice of convening citizens’ assemblies, which has emerged in recent years as a way of addressing thorny policy questions. A citizens’ assembly brings together a group of ordinary people who are selected by lot from volunteers. The dice are loaded (in a benign sense), however, so that the composition of the assembly mirrors the population along salient dimensions such as gender, ethnicity, age and level of education. Members of a citizens’ assembly are informed about the topic at hand and discuss it over weeks or months before delivering their conclusions.
These features lend the assembly a level of legitimacy that elected bodies in modern democracies rarely enjoy. In recent years, hundreds of citizens’ assemblies have addressed issues that politicians had failed to resolve. For example, national assemblies in Ireland have led to the legalization of abortion and the institutionalization of same-sex marriage. And a recent national assembly in France has given rise to new laws to combat climate change.
The success of citizens’ assemblies with topics such as the environment or even specific constitutional questions is encouraging. But can an assembly largely made up of laypeople really guide the creation of a viable constitution? There is a hopeful precedent. Iceland used citizens’ assemblies in its 2010-2013 constitutional reform process, which led to a new draft of its constitution. That document was then approved by a large majority of Icelanders in a nonbinding referendum in 2012. The new constitution has not yet come into full force because it has not passed the Icelandic Parliament. Still, this precedent shows how drafting a constitution can be a process that bypasses traditional representative institutions and places the writing of the social contract directly in the hands of the people.
A major challenge for such an idea in Israel is that neither the government nor the Knesset majority is likely to support a constituent assembly along the lines we proposed. That’s not a dealbreaker: We envision a grass-roots process whose outcome is not legally binding, at least at first. Israel’s social reality creates the perfect momentum for such an initiative, and the outcome will be hard to ignore — all the more so if the initiative is endorsed by widely approved public figures such as President Isaac Herzog, who has been frantically looking for solutions to the current problem.
Let’s be realistic: Creating and passing a constitution will always be an exceptionally ambitious endeavor. It is doubly so in today’s deeply divided Israel. But given that the country is on the brink of a constitutional crisis, a randomly selected constituent assembly is a worthwhile roll of the dice for our democracy.
Liav Orgad is co-director of the Rubinstein Center for Constitutional Challenges at Reichman University in Herzliya, Israel. Ariel Procaccia is Gordon McKay professor of computer science at Harvard University.