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The Religious Community and the Constitution

What Can History Teach Us?

Policy Paper No. 69

For years the religious community in Israel has opposed the establishment of a constitution that is based on anything but the Torah. This study, however, reveals that the majority of religious politicians, as well as many rabbis, never objected in principal to enacting a constitution, and even agreed to the idea at certain stages.

For years the religious community in Israel has completely opposed the establishment of a constitution that is based on anything but the Torah. The religious community believes that this opposition, engendered by its religious leadership since the founding of the state, is the traditional and appropriate response. The accepted approach is that opposition to a constitution is not related to its content or character, but to the very idea of creating any kind of constitution. In contrast to this prevailing assumption, the central argument in this study is that the majority of religious politicians, as well as many rabbis, never objected in principal to enacting a constitution, and even agreed to the idea at certain stages.

Ever since the founding of the State of Israel, there has been a recurring call to establish a written constitution that would regulate governmental activity and determine the character of the state. Over the years, those who have supported the creation of a constitution have felt that the principal impediment they faced was opposition to this idea by the religious community, the rabbis, and the religiously observant politicians. The religious community believes that this opposition, engendered by the religious leadership since the founding of the state, is the traditional and appropriate response. The accepted approach is that opposition to a constitution is not related to its content or character, but to the very idea of creating any kind of constitution.

In contrast to this prevailing assumption, the central argument in this article is that the majority of religious politicians, as well as many rabbis, most of whom were religious Zionists but also included representatives of the haredi community, never objected in principal to enacting a constitution, and even agreed to the idea at certain stages. Moreover, the religious politicians and rabbis were in fact the first to recognize the reality pursuant to the establishment of a Jewish state, and they attempted to grapple with its future constitutional issues as far back as the 1930s. The considerable efforts in the years prior to the establishment of the state, as well as during its first year of existence, to enact a constitution, were led by Zerach Warhaftig, a religious lawyer and politician and a member of the HaPoel Mizrachi. He had the support of several rabbis, the most important among them the Rishon LeZion, Rabbi Ben-Zion Meir Chai Uziel, the Chief Sephardic Rabbi of Israel.

Our second point, which bolsters the first and enhances it, deals with the reasons which in the end brought about the resistance of religious Zionist rabbis and politicians to enacting a constitution. An analysis of available documents reveals that their objections were not to the idea of a constitution itself. Furthermore, we will demonstrate that the objections of these politicians to a constitution stemmed from, among other issues, political considerations which were later given an ideological veneer.

In the end, the attempt to enact a constitution for the young State of Israel failed. The agreed-upon compromise was proposed by Knesset Member Yizhar Harari and it became known as the Harari proposal. According to this proposal the constitution of the State of Israel would be made up of chapters, each of which would constitute a separate basic law. All the chapters together would eventually form the constitution of the state. The blame assigned to the religious representatives in the Knesset for the failure to enact a constitution has been well documented, and there is no doubt that they share in the culpability. But most of those who have studied this issue are in agreement that the role played by the religious representatives was not necessarily the determining one. It seems that the most significant factor in the failure to enact a constitution was the fierce resistance of David Ben-Gurion and the majority of his party’s members.

In 1936, the British Royal Commission of Inquiry, known as the Peel Commission, headed by William Robert Peel, began its activity. The committee’s proposal to the British government in June, 1937, was the division of the country into separate Jewish and Arab states. Subsequently, the mandate government appointed a commission in March, 1938, headed by Sir John Woodhead, to examine the many aspects of implementing the recommendations of the Peel Commission, including the issues of the governing authority and law in the Jewish state.

Those taking an interest back then as to the future government of the Jewish state were the religious political parties, members of Agudat Israel, who anticipated the establishment of a constitution in the future state. At the close of the Third World Congress of Agudat Israel, held in Marienbad, Czechoslovakia in 1937, the Congress determined that "the existence of a Jewish state is possible only if the state recognizes the laws of the Torah as its fundamental constitution." This was, however, a declaration in principle only. The leaders of Agudat Israel understood that a constitution created for the Jewish state would be one based on man-made laws. Agudat Israel convened again in January 1938 to discuss the constitution of the future state. This political party which, more than any other group, was in opposition to the Zionist enterprise, was the first to initiate discourse on the question of a constitution for the Jewish state. At this stage the Haredim did not, in principle, voice opposition to the concept of establishing a constitution. It is clear that their intention was, as evidenced by their suggestions for any possible constitution, to defend against any possible harm to religious-communal life in the future state and to safeguard their rights. They wanted to participate in shaping the constitution since they saw it as a means of protecting their rights.

The following period in the attempts to enact a constitution was dominated by Zerach Warhaftig, a member of HaPoel Mizrachi, one of the founding fathers of the constitutional effort but also one of its initial victims. Throughout 1947, Warhaftig took upon himself the task of preparing a constitution for the anticipated state. He felt that the state could not be established without a constitution and worked energetically to advance the constitutional enterprise for which he took responsibility. He viewed the constitution as a governmental framework which would in essence deal with the distribution of governmental authority and its structure, and would to a lesser extent address the issues of identity and meaning. He managed to produce two memoranda dealing with constitutional issues. From the earliest stages of his activity toward establishing a constitution, he was aware of the need to receive legitimacy for this enterprise from the rabbinical community. He turned first to the Chief Sephardic Rabbi, Rav Uziel, and sent him his constitutional memoranda. Rav Uziel responded to Warhaftig’s memoranda and offered his own suggestions for the constitution of the State of Israel. In another letter, and from the comments which he forwarded to Warhaftig, it is clear that he did not disapprove of the idea of a constitution at all. On the contrary, his comments highlight the fact that he anticipated Warhaftig’s efforts coming to fruition and outlining the basis of the State of Israel’s constitution. Later on, the task of formulating the constitution was taken over by Leo Cohen, who then drafted the proposal for a constitution which dealt with the institutions of the fledgling state. Warhaftig continued to be involved, although not always within a formal framework, and he prepared two additional constitutional memoranda. He published the fourth memorandum in February, 1948, which contained a type of temporary constitution which would function as the supporting foundation for legislation, framing the structures of government and law. Concurrently, Jewish lawyers in Israel and abroad were involved in drafting the constitution for the future Jewish state.

This stage in Warhaftig’s efforts to establish a constitution leaves no doubt as to his intentions. It is clear that Warhaftig, who dealt with the constitutional issues for many months, was absolutely convinced of the necessity of a constitution. Moreover, his motivating interest was in establishing a constitution worthy of the State of Israel. Issues of religion and state, while they were already then issues which were the focus of serious communal discourse, as well as the provenance of political struggles, did not take center stage for him in his pursuit of a constitution, and attempts to determine the ideology which would characterize the Jewish state also took a back seat to the establishment of a constitution. Furthermore, it is clear that Rav Uziel, like many other rabbis, did not significantly oppose the establishment of a constitution as envisioned by Warhaftig. Religious Zionists were supportive of the idea of enacting a constitution.

The Declaration of Independence of the newly established State of Israel incontrovertibly determined that a constitution would be enacted a few months thereafter. It is worth noting that in drafting the Declaration of Independence, the issue of the constitution was not a divisive issue, and as far as is known today, no religious groups opposed this version of the Declaration of Independence. At the ninth gathering of the Provisional Council of State (on July 8, 1948), a Constitution Committee was chosen, whose role was to consolidate a constitutional proposal to be put to vote by the Provisional Council of State, or the Constituent Assembly. Eight members were elected to the committee, and in their first meeting, Warhaftig was chosen to lead the group. While working with the committee, Warhaftig continued with his pragmatic approach to formulating a constitution.

In the initial stages of their work, the committee determined their agenda and gathered materials to aid them in their work. They had several proposals to choose from, among them Warhaftig’s constitutional memoranda, written before the establishment of the state.

The Constitution Committee met twenty times before it was disbanded, with the dissolution of the Provisional Council of State. At Warhaftig’s initiative the discussions centered on, the proposals set forth by Leo Cohen. The committee dealt primarily with the structure of sovereign rule, the system of law, elections, the president of the state, and government. It pointedly refrained from touching on issues of religion and state and the character of the state.

Initially the committee members demonstrated unity of purpose, believing that establishing a constitution at this time was the right thing to do, but with time, cracks appeared in this wall of consensual agreement. When the voices of opposition began to be heard outside the committee, they also resonated within. Nevertheless, the committee continued with its work until it was disbanded.

Warhaftig continued in his efforts to receive the rabbis’ consent for a constitution. After Cohen’s proposal was presented to the committee, and after it was determined that it would serve as the basis for discussion by the Constitution Committee, Warhaftig forwarded this proposal to many rabbis and members of the Mizrachi movement to solicit their opinions and to involve them in the constitutional proceedings. The rabbis’ responses were, for the most part, pragmatic and focused on the detailed sections. A collection of Torah-related writings issued by the rabbis highlights a more indirect interest of theirs in the constitution and the questions arising from its enactment, and these served as the basis for the internal communal debate which took place in the Zionist-religious public and among the rabbis. At the same time, the public discourse on the constitution and its importance continued to appear in the daily press. The general consensus in the public was that it was only a matter of time before a constitution was enacted and that the process of ensuring this goal was proceeding apace.

But divisions were growing in the support for a constitution, and even Warhaftig, its godfather, understood that this constitution, which he had envisioned in his mind’s eye and strove to bring about, would not be enacted, and that in its place there would be an ideologically defined constitution, one that was not to his liking and which would not reflect his views.

The "burial" of the effort to enact a constitution was as long and drawn-out a process as the attempts to give birth to this legislative document. Warhaftig was active in this phase as well, though the power behind the effort to defeat the constitution was Ben-Gurion, who found willing partners in the religious political parties who joined his attempts at preventing a constitution from being written. He even occasionally used them as scapegoats, blaming them for the failure to enact a constitution. By the end of 1948, the initial fissures in the attempt to create a constitution appeared, when Ben-Gurion began to question the necessity of a constitution. Nevertheless, the committee continued to meet until its dissolution. At a press conference called by the committee to mark the end of its activity, Warhaftig announced that "during the 25 meetings of the committee for a constitution, we successfully dealt with about 60% of the proposal for the constitution."

At about the same time (according to his reports), Warhaftig wrote an article casting doubt on the need for a written constitution. In this article he did not yet express a later opinion, in which he categorically rejects legislation of a written constitution; here he merely raised the question of its necessity. He was attempting to undermine the relative certainty which characterized the discussions then being held on the need for a constitution.

The Provisional Council of State disbanded in January, 1949, and elections were held for the Constituent Assembly. An examination of the political platforms before the elections reveals that even then the establishment of a constitution was taken for granted. The political platforms dealt with constitutional issues and detailed their approach to these issues.

Immediately after the elections, the Constituent Assembly became the first Knesset, thereby reserving for itself the authority to enact a constitution, but also opened the door to shaping the laws of the state without a founding constitution. The Constitution Committee established by the first Knesset became the Constitution, Law and Justice Committee, and its authority extended beyond preparing the foundations for a constitution.

From that point on, the Knesset, and the Constitution, Law and Justice Committee dealt with the question of whether it was necessary to legislate a written constitution which would be ratified by the first Knesset, or whether it was preferable to put off enacting a constitution for several years while in the meantime, laws regulating the activities of governmental institutions could be enacted. Representatives of religious Zionism recanted and – alongside the Haredim in their faction – led the battle against creating a constitution. Their actions were the result of submission to the demands of their haredi colleagues as well as other political coalition issues. Warhaftig also objected to the constitution at this time, primarily because he understood that the constitution would (also) be a type of declarative document, or what he termed “an educating constitution.”

Throughout 1949, this issue was discussed during the meetings of the Constitution, Law and Justice Committee and in the press. The turning point in the discussion came about in the summer of 1949. During this period, on several occasions, Ben-Gurion expressed determined and detailed opposition to the creation of a constitution which would possess normative superiority. He delivered a lengthy speech in front of the committee, expressing his opposition to a constitution. From that moment on, he led the opposition to enacting a constitution in his party, in the government, and afterwards in discussions in the Knesset. There were, as previously mentioned, religious Knesset members who supported him in his opposition, employing religious ideological arguments. These discussions continued until June 13, 1950, when Knesset member Yizhar Harari’s proposal was accepted, stating that the constitution would be comprised of chapters which would then be ratified by the Knesset as basic laws. This decision was not at all clear. It did not define what constitutes a basic law and how it would be ratified; it did not determine a timetable for ratifying basic laws; it did not delineate the topics worthy of being included in the basic laws. At the same time it brought an end to the possibility of , creating a constitution in the foreseeable future.

In hindsight from a five-decade perspective and even less, as demonstrated by the last part of this policy paper which deals with criticisms voiced by leading thinkers on political activity on this issue – it is possible to determine that at least in terms of its benefit to the Jewish character of the state, the failure to legislate a constitution in the beginning days of the state was a missed opportunity. Even a compromise on the Jewish elements of the constitution, which could have been achieved in those early days, would have been beneficial in protecting the basic Jewish values linked to the character of the state and its public image. All this could have been accomplished then, since a significant number of secular Knesset members were ready to incorporate them, to a certain extent, in the constitution. Moreover, even if Leo Cohen’s proposal had been accepted, this would have been a more significant and effective accomplishment in preserving the Jewishness of the State than the current arrangement which rests on a slim status quo, devoid of meaning and lacking in legislative and constitutional defense mechanisms.

We cannot entertain ourselves with "what if" questions, and despite this, when it comes to constitutional issues, the answer appears to be relatively simple: constitutional protection would serve to anchor Jewish values as superior ones, so that they would not be heedlessly trampled, as it seems they are to many people today.