A Primer on Constitutional Democracy for the Citizens of Israel

The Constitution, which sets forth the principle of rule of law, defines what is unconstitutional, and guarantees freedom of speech and other liberties of a Constitutional republic, and also describes the impeachment power. (How many know of the Jewish roots of this document?) Hypocrisy threatens Constitutional government. Could Israel use a constitution like this? More to the point: would a Convention of States save it, or destroy it? (Example: civil asset forfeiture violates the Constitution.) Quick fixes like Regulation Freedom Amendments weaken it. Furthermore: the Constitution provides for removing, and punishing, a judge who commits treason in his rulings. Furthermore, opponents who engage in lawfare against an elected President risk breaking the Constitution.
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To simplify matters, let us ignore the controversy as to whether the original Constitution of the United States exemplifies a “Democracy” or a “Republic.” True, Article IV, Section 4, of the Constitution guarantees to every State of the Union a “Republican Form of Government.” But for present purposes, let us yield to contemporary terminology, which designates the U.S. as a Constitutional democracy.

The ethical principles of constitutional democracy

In theory, constitutionalism, and therefore constitutional democracy, is rooted in ethical principles. The source of these ethical principles is none other than the Bible of Israel. Protestant social reformers, especially the Puritans of New England, saw in the Mosaic Law models for modern government. The Puritans tried to emulate the “Old Testament” legislation in organizing their own colonial regimes. Many New England divines agreed with Harvard president Samuel Langdon when he declared, in his election sermon of 1775, that “the Jewish government, if considered merely in a civil view, was a perfect republic.” Yale president Rev. Ezra Stiles, who studied the Talmud and conversed with rabbis, agreed with Langdon that the American Constitution was based on the Ten Commandments.

Although constitutionalism is rooted in ethical principles, no explicit reference to the cultivation of virtue or righteousness appears in most constitutions, including that of the United States. In fact, with the waning of aristocratic and religious values which still influenced democracy at its birth in the 18th century, but which today have been undermined by moral relativism, constitutional democracy has become increasingly normless. Nevertheless, in this essay, I shall present constitutional democracy at its best. The reader should bear in mind, however, that constitutional democracy, at its best, approaches Jewish democracy.

The Idea of an Ethical Community

Constitutional democracy implies the idea of an ethical community, one that transcends such ethically neutral principles as universal suffrage and majority rule. In a constitutional democracy, the authority of the majority is limited by legal and institutional means to safeguard the rights of individuals and minorities and thereby promote justice and fairness.

Although based on popular sovereignty, constitutional democracy implies recognition on the part of the people that there is a need to protect themselves from their own impulses. Whether written or unwritten, a constitution is a check on arbitrary human will. It regulates popular voting, terms of office, divisions of power, and how these rules can be changed only by sustained effort rather than by the whim of the people or their representatives.

To ensure careful and sober deliberation, an extraordinary majority is required for amending a constitution. This requirement has an extraordinary implication. It places in question the idea that a numerically superior portion of a people is entitled to greater influence over public decisions than a numerically inferior one—at least on constitutional issues, which, after all, may affect a people’s way of life or national identity.

Unlike plebiscitary democracy, which ignores the necessity of moral restraints on the people, constitutional democracy places checks on the tendency of groups and individuals to impose their own ideas of what is politically desirable on others. Constitutionalism is therefore an expression of man’s own moral will, his capacity for self-restraint, his concern for justice and the common good.

Not that constitutionalism ignores the egotistical side of human nature. It recognizes politics as an area of group conflict and self-aggrandizement. But constitutional democracy attempts to purge politics of the egotism that would crush everything in its way.

Limits on government powers

First, it limits the powers of government to prevent majority as well as minority tyranny. As may be seen in the American Constitution, the powers of government are divided among different branches, those responsible for legislative, executive, and judicial functions. Each branch of government has adequate power to check the powers of other branches. Checks and balances may include the power of judicial review. The courts may declare actions of other branches of government to be contrary to the constitution and therefore null and void. However, the American Constitution empowers the legislature to limit the appellate jurisdiction of the Supreme Court—in theory, at least, a check against judicial imperialism.

The principle of institutional checks and balances translates the self-restraint taught in the family to the public domain. What began as family morality metamorphoses into public morality. The fundamental values of constitutional democracy reflect a paramount concern with human dignity and the worth of each individual. Individual rights to life, liberty, and property are protected by law (as they are in the Torah, which emphasizes men’s duties). Constitutional democracy includes among its highest purposes the protection of freedom of conscience and freedom of expression. These freedoms have value both for the healthy functioning of constitutional democracy and for the full development of the human personality (which surely includes wisdom and virtue, of which even constitutional democracy, unlike Judaism, fails to emphasize).

Freedom of debate and petition

In constitutional democracy, citizens are free not only to debate the actions and policies of their elected officials but also to express their thoughts about politics, art, religion or any other topic without fear of recrimination. Citizens have access to unbiased information from independent publishers, radio, television, and other means of communication. There is an established process to detect and correct errors in procedures used in the gathering of information and the making of governmental decisions.

Constitutional democracies recognize and protect the integrity of a private and social realm comprised of family, personal, religious, and other associations and activities. This space of uncoerced human association is the basis of a civil society free from unfair and unreasonable intrusions by government.

Life, liberty and property

Individuals have the right to acquire and own property. They are free to establish private businesses free from unreasonable government regulation. The political system protects and promotes equality of political, economic, and social opportunity, a precondition of which is reduction of gross disparities of wealth.

Women are accorded the same political, economic, and legal protections as those accorded to men. All persons are entitled to the equal protection of the law. They are free from discrimination based on gender, age, race, ethnicity, religious beliefs, class or socio-economic status.

All persons are entitled to due process of law. Law-enforcement agencies are required to use procedures that protect the rights of those suspected of crimes. Individuals are free from arbitrary arrest and detention. They are secure in their homes and property from arbitrary search and seizure. Arrested individuals are informed of their rights and brought promptly before a judge to be informed of charges against them. Individuals have the right to have a court or other impartial body determine the legality of their arrest and detention. The accused have the right to refrain from testifying against themselves. They have the right to counsel for assistance in their defense. Government is required to provide counsel for those who cannot pay for legal assistance.

Constitutional democracy, a government for a moral people

Clearly, constitutional democracy presupposes a highly civilized people, an ethical community in which justice dwells with fairness and compassion. It should also be clear, however, that not all peoples have the moral and intellectual qualifications required for constitutional democracy. This fact should significantly affect the foreign policy of a country like Israel, which, although it falls far short of being a constitutional democracy, nonetheless boasts of being a democracy.☼

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