Issues & Insights: Why The U.S. Still Remains A Model For The Rest Of The World

This summer, Israelis mobilized into rival factions in a contentious battle over Prime Minister Benjamin Netanyahu’s judicial reform proposals. These reforms would limit the Israeli court’s power to invalidate laws and give lawmaker’s greater control over judicial appointments.

Proponents believe these reforms are needed to prevent the courts from blocking legislation from the Israel’s democratically elected lawmakers, while opponents decry the reforms as undermining liberal democratic principles.

Both sides claim that they represent the mantle of democratic virtue. But watching from afar, Americans should be struck by how lucky we are to have a Constitution that divides the powers of our government among three distinct branches — each with its own critical (and well defined) role to play in preserving American liberty.

Unlike America, Israel has no written Constitution. Instead, it has “basic laws,” which spell out certain protections for individual liberties and the role of Israel’s government institutions. But basic laws are not the kind of immutable pillars we would recognize in our own Constitution, like freedom of speech or the separation of powers.

Israel’s quasi-constitutional basic laws can be changed whenever a single party (or coalition of like-minded parties) garners enough votes in the Knesset, Israel’s elected legislature. Imagine if Congress could change the Constitution with just a bare majority vote. We would have much to fear because the ruling party in Congress could do anything unchecked.

Basic laws face a threat from more than just the Knesset. In recent years the Israeli Supreme Court has claimed the authority to overturn basic laws if it believes them to be “unreasonable.” That is wildly different from the American system, where the Constitution binds all three branches of government.

The Framers of the American Constitution recognized an important truth. The concentration of all power — legislative, executive, and judicial — is, as James Madison once said, “the very definition of tyranny.”

That is why we should be fear any breakdown in the separation of powers here at home — whether it’s Congress creating unaccountable regulatory czars, or a president overstepping his constitutional bounds.

The separation of powers, as Justice Antonin Scalia once pointed out, is the key to a free society. When power is concentrated in one department, liberty is always in danger.

There are compelling arguments that both the Knesset and the Israeli courts have become too powerful. And now they are in a sort of stand-off. But because Israel lacks the separation of powers that our Constitution imposes on government, there are no real limits on either institution. The result is a threat to liberty and constant factional conflict while the courts and the legislature compete for power.

This op-ed was originally published at Issues & Insights on September 18, 2023.