In response to:

Whose Constitution, Whose Democracy? from the May 11, 2023 issue

To the Editors:

Joshua Leifer [“Whose Constitution, Whose Democracy?,” NYR, May 11] writes that in the 1947–1948 period, “Zionist forces were fighting a war of expulsion” against “the Palestinians.” This is not inaccurate—except that omission sometimes is inaccuracy.

The 1948 Arab-Israeli War began on May 15, 1948—the day after Israel declared independence—when Egypt bombed Tel Aviv and five Arab armies invaded Israel. Their goal was not a Palestinian state (which the partition plan sought to establish), and certainly not a binational one. Their goal, openly and proudly proclaimed, was to crush the institutions of the Yishuv and kill the people who built it. Abd al-Rahman Azzam Pasha, head of the Arab League, promised that the coming invasion would be a “war of extermination”—this, less than three years after the last miserable remnant had been liberated from the death camps. (The 1948 war was preceded by a shorter civil war between Palestinians and Jews in 1947, which the historian Benny Morris notes was characterized by “vicious cycles of terror and retaliation.”) The Israelis were fighting a war of conquest, but also one of survival.

The origin of a war is usually regarded as of some importance in understanding it. World War II began on September 1, 1939, when Nazi Germany invaded Poland. The Iraq War began on March 20, 2003, with the US bombing campaign and invasion. The latest iteration of the Ukraine War began on February 24, 2022, when Russia invaded and partially occupied its neighbor. Only in the case of the 1948 Arab-Israeli War are the original aggressors and their annihilationist program erased or, at best, considered irrelevant.

And no, this is not to deny the catastrophe of the Nakba or to “excuse” it, whatever that might mean. It is to say that radically incomplete history is bad history, which is the handmaiden of bad politics.

Susie Linfield
Professor of Journalism
New York University
New York City

Michael Walzer
Professor Emeritus
Institute for Advanced Study
Princeton, New Jersey

Jeffrey Herf
Distinguished University Professor Emeritus
University of Maryland at College Park

To the Editors:

Joshua Leifer’s “Whose Constitution, Whose Democracy?” aptly frames Israel’s eternal dilemma between a privileged national Jewish identity and liberal democracy. However, Leifer is mistaken, or lacks critical context, on two important points, which does an injustice to the potential of Israel to become democratic.

First, he dismisses the draft constitution written by Dr. Leo Kohn beginning in 1947 as merely an attempt to codify Jewish supremacy while projecting liberal democracy. Kohn’s constitution did establish the Jewish national character and homeland, but the bulk of the text is an unambiguous commitment to liberal democratic values and institutions. Israelis can only envy the progressive and comprehensive nature of that constitution today. Leifer argues that Kohn’s true aim is evident in the opening words of the preamble, “We, the Jewish people.” (In fact, Kohn’s draft begins with “We, the sons of Israel.”)

It is unfortunate that Leifer does not venture beyond the preamble. The very first articles of Kohn’s constitution establish the country’s name and, to be sure, reiterate that all Jews would be allowed to settle in the homeland. But Article 2 states: “Israel is a sovereign, independent, democratic republic,” going beyond the Declaration of Independence, which never used the term “democracy.” Article 4.1 establishes that “there will be one law for all residents of Israel. The state will not discriminate between people based on race, religion, language or sex.” Article 4.2 states, “All citizens of Israel will have equal civil and political rights.” The next items in Article 4 prohibit discrimination in public office and property expropriation without compensation. Palestinian Arabs in Israel, then living under a cruel military regime in place for approximately the next twenty years, while their land and properties were summarily plundered, could have had a very different history under such a constitution.

Critically, Kohn’s constitution also provided immediate citizenship for all non-Jews who had been subjects of “the land of Israel” prior to the constitution—something the state would fail to do for another four years in practice. Arabs in Israel were left with little recourse, vulnerable to life under draconian colonial laws rather than regular Israeli laws for citizens.

The second point relates to the modern era, where Leifer repeats a damaging and historically incorrect narrative favored by Israel’s illiberal populist right wing. In this view, former Supreme Court chief justice Aharon Barak singlehandedly devised and implemented the pernicious “constitutional revolution” of the 1990s. Leifer observes that Barak declared a “constitutional revolution” in 1995; in fact, Likud’s then justice minister Dan Meridor used the term in 1992, in his enthusiasm after the Knesset passed critical human rights legislation—as Meridor has repeatedly reminded Israelis. Worse, Leifer mistakenly attributes one of the most significant bases for the constitutional changes to Barak, quoting the justice’s 1995 decision that established judicial review of legislation:

A law could violate the rights protected by the Basic Laws only if, Barak wrote, it “befits the values of the State of Israel, it was passed for a worthy purpose and the harm caused to the constitutional Human Right is proportional to the purpose.”

Barak did not write these words, nor did he establish these principles; Israel’s lawmakers did. The famous 1995 court decision was quoting Article 8 of the flagship 1992 Basic Law: Human Dignity and Liberty, adopted by Israel’s elected representatives, under a right-wing government. As noted, the legislation was proudly supported by the ruling Likud. Article 8 was heavily debated at the time, primarily because of its opening words, which Leifer also neglects to cite: “The basic rights of this law shall not be violated. These words formed the heart of today’s controversy, since the legislators were well aware that they empowered the Supreme Court—not Barak, but the institution—to strike down legislation.

Israel’s ultranationalist, theocratic right wing has worked feverishly to convince Israelis that liberal democracy is a personal crusade of Barak, in an undemocratic, one-man constitutional coup. The historical record exposes that claim as a fraud. Not only were the 1992 laws passed by a Likud-led government; they were supported by parties of the opposition and the coalition. The Knesset amended and passed them again in 1994 with a resounding majority of all legislators. Amnon Rubinstein, a legal scholar and one of the architects of the legislation while serving as the leader of an opposition party at the time, observed that in the 1990s Israeli lawmakers were increasingly exposed to and inspired by trends in liberal democratic countries, such as a growing adoption of formal judicial review.

The overall conflict between Jewish dominance and equal citizenship that Leifer portrays is real. But dismissing the authentic efforts by the very same Jewish leadership of the country to establish the pillars of democracy diminishes Israel’s actual potential for democratization, misstates the historical facts, and legitimizes false statements of the right-wing leadership. The fact is that Israel can do better, and therefore has the responsibility to become a true democracy.

Dahlia Scheindlin
Policy Fellow
Century International
Tel Aviv, Israel

Joshua Leifer replies:

Susie Linfield, Michael Walzer, and Jeffrey Herf marshal Arab League leader Abd al-Rahman Azzam Pasha’s now infamous quote—that the 1948 war would be “a war of extermination”—to charge that I neglected the “annihilationist program” of the Arab armies that invaded after Israel declared independence. Certainly many Israelis felt themselves to be fighting a war of “survival.” Yet recent scholarship has cast doubt not only on the common Zionist narrative that Israeli forces were the underdog in 1948 but also on the “annihilationist program” often ascribed to the Arab forces.

First, as Tom Segev observed in his Haaretz article “The Makings of History: The Blind Misleading the Blind” (October 21, 2011), the date of Azzam’s quote was not the eve of the 1948 war, as many Zionist historians have claimed, but October 11, 1947, not long after he met with Abba Eban, later Israel’s foreign minister, and David Horowitz, later governor of the Bank of Israel, at the Savoy Hotel in London to discuss the looming threat of war. The full text of the quote by Azzam reads, “Personally, I hope the Jews do not force us into this war, because it would be a war of extermination and momentous massacre.”

Still, Azzam was not necessarily the genocidal villain of contemporary Zionist imagination. (David Ben-Gurion referred to him in 1947 as “the most honest and humane among Arab leaders.”) As Segev also points out, Azzam gave a later interview—on May 21, 1948—to The Palestine Post in which he said, “Whatever the outcome, the Arabs will stick to their offer of equal citizenship for Jews in Arab Palestine and let them be as Jewish as they like.” That does not sound annihilationist.

Second, as Benny Morris writes in 1948: A History of the First Arab-Israeli War (2008), the Arab armies “appear not to have had an agreed plan when they invaded Palestine on 15 May, even of a most general kind,” let alone an “annihilationist” one. In his book Dear Palestine: A Social History of the 1948 War (2021), the historian Shay Hazkani draws on Arab Liberation Army (ALA) materials to argue that “contrary to wartime Zionist propaganda that the Arab war objective was to kill Palestine’s Jews in a systematic or organized manner, there was no instruction to this effect.” There were, of course, pamphlets that “traded in antisemitic themes,” but Hazkani notes that these were “largely self-published, and not officially endorsed by the AHC [Arab Higher Committee], the Arab League, or the ALA itself.”

Dahlia Scheindlin’s criticisms of my article center on claims that I mistakenly attributed quotes to Dr. Leo Kohn and former chief justice Aharon Barak or left out “critical context.” I hope to clarify matters here.

First, my source for the text of Kohn’s draft of the constitution is an article in Hebrew by the Israeli legal scholar Yoram Shachar, “The Early Drafts of the Declaration of Independence.” Shachar quotes the first line of Kohn’s draft preamble for the constitution in English as “We, the Jewish people.” Scheindlin is right to point out that in Hebrew, the wording is anachnu b’nei Yisrael—literally, “We, the children of Israel.” Since this is the liturgical and even colloquial term for “the Jewish people,” I saw no reason to quibble with Shachar’s translation.

It is also because of the implications of the preamble that I found it unnecessary, given the space constraints, to elaborate further about Kohn’s draft. The “people” who call the state into being are not its citizens (the demos) but the Jewish people (the ethnos). This is no foundation for a liberal democracy. As Shachar observes, even as Kohn’s draft went on to enumerate principles such as equal civil and political rights for all citizens, there was “no expectation that the Arab citizens of the state could accept a constitutional document with such a preamble.” In other words, there was no real intention that this document was to serve as a constitution for a multiethnic, democratic state.

Second, Scheindlin mischaracterizes my argument when she charges that I repeat “a damaging and historically incorrect narrative favored by Israel’s illiberal populist right wing” about former Supreme Court chief justice Barak’s role in the “constitutional revolution.” My article clearly states that the Basic Laws were passed by the Knesset and not “singlehandedly” the work of Barak. But it was Barak’s jurisprudence in United Mizrahi Bank v. Migdal Cooperative Village that not only established the court’s power to exercise judicial review of legislation but also determined that the Basic Laws had formal constitutional status.

After the court established judicial review in United Mizrahi Bank, its justices, especially Barak, further elaborated the process of evaluating the constitutionality of legislation that might conflict with the values enumerated in the Basic Laws. Scheindlin is correct that Article 8 of the 1992 Basic Law: Human Dignity and Liberty contains the “limitation clause,” which asserts that the rights enumerated in the law cannot be violated except under certain conditions. I should, I agree, have stressed that Barak did not write the limitation clause, and that he was paraphrasing and elucidating its meaning in the passage that I quote.

But that does not change the fact that it was Barak who made the clause the foundation for the court’s exercise of judicial review. The source for my quote of Barak was not the Mizrahi decision but an article he published two years later in the Israel Law Review, “The Constitutionalization of the Israeli Legal System as a Result of the Basic Laws and Its Effect on Procedural and Substantive Criminal Law.” There he argued that because the 1992 Basic Law contains the limitation clause, Israel with its passage “became a constitutional democracy”—a determination that does not appear in the law. Barak also asserted that the clause would serve as the basis for the tests that the court would later develop and apply as “guardian” of the values the Basic Laws enshrined—again, a responsibility that the 1992 law does not designate as the court’s. At no point do I say that Barak arrogated the power of judicial review to himself rather than to the court, as Scheindlin implies. And while I give an account of the contemporary right’s hostility to Barak, nowhere do I endorse the right-wing view.

I suspect that at the heart of Scheindlin’s disagreement with my piece is more than just the matter of quotations and context. Scheindlin considers the “constitutional revolution” an important step toward making Israel a liberal democracy. I argue instead that the “constitutional revolution” formalized Jewish supremacy even as it allowed human rights to sometimes trump prerogatives of state security. That may be “liberal” Zionism—in contrast to that of the Israeli right, which now believes that the prerogatives of Jewish supremacy must win out in every case. But it is not liberal democracy.