Amid the sturm und Drang surrounding the judicial reform proposals put forward by the new Israeli government, which many have called a “constitutional crisis,” the words of the Jewish state’s former attorney general, Avichai Mandelblit, were especially telling. In decrying the proposed reforms and what would happen if they take effect, Mandelblit said, “What remains of the Declaration of Independence? It will just become a piece of paper we can throw in the trash.” Mandelblit’s reference to Israel’s Declaration of Independence sent me back to the text itself in search of answers. Just as I had remembered from my Zionist upbringing, which included regularly listening to David Ben-Gurion’s famous reading of the Declaration on May 15, 1948, Israel actually has no constitution, despite the fact that the Declaration promises one in the future.
A fascinating new book by Neil Rogachevsky and Dov Zigler tells the story of the writing of Israel’s Declaration of Independence and offers some insights into why, 75 years after its founding, Israel still has no written constitution. Israel’s Declaration of Independence offers readers a ringside seat. As in any good story, there is a hero, in this case David Ben-Gurion. Rogachevsky and Zigler tell the stirring story of how Israel’s first prime minister wrestled with earlier drafts of the Declaration in the final hours before he declared Israel’s statehood and, mediating among competing Zionist ideologies, put his own indelible imprint on the final document.
The book builds on the work of Yoram Shachar, who discovered the earliest draft of the Declaration, written in late April 1948 by a young government lawyer named Mordechai Beham. Rogachevsky and Zigler carefully trace the development of the Declaration from Beham’s draft through subsequent versions hastily composed by Tzvi Berenson, Herschel Lauterpacht, Moshe Shertok, and finally Ben-Gurion during the frenzied days before the British Mandate ended. Taken as a whole, the various versions offer readers a tour of the diverse and often competing political philosophies that framed the modern Zionist movement.
The text of the Declaration is infused with the political Zionism of Theodore Herzl and Chaim Weizmann, the socialist views of the Labor Zionism of Berl Katznelson and Ben-Gurion, and it includes emendations redolent of the Revisionist Zionism of Vladimir Jabotinsky and Menachem Begin. It also features accommodations to both religious Zionists and atheist Zionists.
Notably, Beham’s initial draft was inspired by both the Hebrew Bible and the American Declaration of Independence. It opened with an ode to the ancient covenant and a direct quote from Deuteronomy: “This Holy Land has been promised by the Lord God to our fathers, Abraham, Isaac, and Jacob, and to their seed after them.” Then, with a genuflection to the words of Thomas Jefferson, Beham wrote that a primary purpose of the new state would be “to secure and enjoy the inalienable rights to Life, Liberty, and the pursuit of happiness,” and that the state would derive its” just power from the consent of the governed.”
Beham’s merger of natural political rights with the historical Jewish mission of settling the Land of Israel would be omitted from the subsequent drafts of the Declaration—only to be reinserted by Ben-Gurion in the ultimate draft. Still, one of Beham’s literary devices made it through all the drafts of the Declaration, which was his use of the phrase Tzur Yisrael (the Rock of Israel) to refer to divine providence. This compromise deftly elided taking sides in what, until the recent judicial-reform crisis, had always lurked as Israel’s most contentious domestic political issue—the proper role, if any, of official religion in the life of a secular nation.
The second draft, by Tzvi Berenson, a Cambridge-educated lawyer who served as a legal adviser to the Histadrut labor union and who later was a member of Israel’s Supreme Court, was self-consciously a statement of Labor Zionist ideology. As the authors explain, “Beham’s draft had no roots in the theories of Jewish revival through labor—the theories that had propelled thousands to the swamps, deserts, and hard living of Palestine.” In place of abstract rights and religious tradition, Berenson’s draft rooted the legitimacy of the state “in terms of the material progress it delivers to its pop-ulation.” He wrote of the “labor and sacrifice of the pioneers …who made the land’s wilderness bloom.” And he also invoked the political basis of modern Zionism: “to remove the curse of the exile of the Jewish people and its dependence on strangers in almost every land, to ingather the dispersed and promise them a life of work and creativity, freedom and independence, in a state of their own.”
The most significant difference between the Beham and Berenson drafts is how each bases its claim for sovereignty, which is, after all, the necessary justification for statehood. Beham’s focus on natural law led him to believe that the state’s responsibility would be to safeguard the natural liberty of the citizens. Berenson oriented the new country in a very different direction by appealing to a spirit of justice “in accordance with the principles of the Charter of the United Nations.” The UN Charter had been ratified in 1945 and was heavily influenced by President Roosevelt’s Four Freedoms. Rogachevsky and Zigler correctly point out that in its view, the state does not exist “to secure the citizens’ natural and inherent rights” but rather bestows on citizens “by the beneficence of the state” the various privileges and rights of citizenship. As the authors aptly note, Berenson did not seek to orient the state “toward the purpose of securing natural rights.” Instead, “the state is an aim in itself.”
While Beham and Berenson wrote their drafts in Palestine, another draft of a Declaration was prepared in New York in the spring of 1948 by Herschel Lauterpacht, another Cambridge-educated lawyer. Lauterpacht, who later served as a judge at the International Court of Justice, affirmed the “natural right” of the Jewish people to national existence, and he also highlighted the Holocaust, which at this point had become an additional justification for statehood. He paid homage to “the inherent right of the Jewish people to national self-determination through statehood” and made clear that such a right “is independent of any express confirmation by an outside authority.” But on this latter point, Lauterpacht betrayed his deference to international law by declaring the state as a “Jewish Republic within the frontiers approved by the General Assembly of the United Nations.”
Lauterpacht’s focus on the United Nations had everything to do with the circumstances surrounding Israel’s founding. In November 1947, the UN had essentially legitimized the idea of Israel by adopting Resolution 181, which recommended the partition of Palestine into independent Jewish and Arab states. Resolution 181 was a dead letter by the spring of 1948, since it had been roundly rejected by Arab leaders and Arab governments. But the prevailing view among the leaders of the Yishuv, the government-in-waiting, in Palestine was that international recognition was so important they needed to demonstrate that they were still enthusiastic about the resolution and about the United Nations in general.
Lauterpacht wrote: “The obligations of the Charter of the United Nations and any international treaty of Bill of Rights adopted in pursuance thereof shall form part of the organic law of the Republic.” The problem with this approach is, as Rogachevsky and Zigler insightfully point out, the inherent tension between the aims of international law and the purpose of Zionism. “Zionism sought safety and peace for Jews via a just state protected by arms and power,” they write, “whereas Lauterpacht’s concept of international law sought to constrain the type of state that both the Labor Zionists and the Revisionist Zionists of the mainstream Yishuv envisaged.”
Enter Moshe Shertok (later Sharett, and also Israel’s second prime minister). With only four days to go before the British planned to pull out of Palestine in May 1948, Shertok returned to Palestine on the evening after a whirlwind diplomatic trip to the United States. Shertok informed the leaders of the Yishuv of the significant discord in Washington. The State Department was dead set against recognition of a Jewish state, Shertok said, “and will do anything to prevent it.” Two issues dominated the Yishuv meeting. The first was whether the new state should delineate its borders at the outset. The second was to what extent the Declaration of Independence should follow the UN’s paradigm, as set forth in Resolution 181, for Israel’s independence. At the conclusion of the meeting, a committee was appointed to come up with a final version of a Declaration, and Shertok, out of its five members, took the lead in drafting the text.
Shertok’s draft included many of the key ele-ments that Berenson had highlighted. The state would be open to Jewish immigration; it would be at peace with its Arab neighbors; and it would guarantee equal rights for all is citizens, “in the spirit of the prophets.” But Shertok was also heavily influenced by realpolitik. He understood that with the nascent Cold War dominating U.S. foreign-policy objectives, American support for Israel was a tough sell. Secretary of State George Marshall was openly hostile to the idea and deeply concerned that alienating the Arabs would imperil the flow of oil from the Middle East. And the Yishuv’s strong socialist leanings, and the fact that the Soviet Union had been more supportive of a Jewish state than Great Britain was, gave rise to fear within the walls of the State Department that “the Jews might in fact ally themselves with the Soviets.”
Shertok sought to orient his draft toward an international audience and, in particular, American statesmen. To that end, he went so far as to emphasize the Yishuv’s membership in the Western Alliance that had defeated the Axis in World War II. As Rogachevsky and Zigler observe, while it may have been a limitation of the prior drafters not to see things through Shertok’s diplomatic lens, it was equally a limit of Shertok’s vision that he could not see past diplomacy. In reality, as Ben-Gurion understood and would soon make clear, Israel’s independence would have to be full independence. It could not rely upon economic unions or internationally mandated frontiers. And as the authors observe, the state “would be won finally in war and not in the halls of the UN.”
In the end, it was Ben-Gurion, and only Ben-Gurion, who had the political vision and the practical wisdom to shape the final text of the Declaration. He sat down on May 13 to work on what became the final text. His text begins with a reference to Israel as the birthplace of the Jewish people and the place where they “first attained to statehood … and gave to the world the eternal Book of Books.” History is paramount, but Ben-Gurion’s language allows the reader to decide whether the history should be understood as secular or religious. He then acknowledges Jewish exile from the land and the unbroken 2,000-year yearning “for the restoration in it of their political freedom.”
Having addressed the historical basis for Jewish sovereignty, Ben-Gurion next addresses “the natural right of the Jewish people to be masters of their own fate, like all other nations, in their own sovereign state.” He made explicit reference to Theodore Herzl, the first time Herzl’s name had appeared in one of the drafts, thus squarely framing the national vision of the Jewish state in the camp of political Zionism. As others had done in prior drafts, Ben-Gurion also invokes Resolution 181. But cognizant that many of the steps contemplated by the UN had not occurred and never would, he also put down a marker by making clear that “recognition by the United Nations of the right of the Jewish people to establish their State is irrevocable.” Finally, consistent with the earlier drafts, Ben-Gurion promises that the State of Israel will “be open for Jewish immigration.… It will guarantee freedom of religion, conscience, language, education and culture… and it will be faithful to the principles of the Charter of the United Nations.” In this last passage, however, Ben-Gurion made a subtle change from Shertok’s draft, embracing, as Beham had, natural rights. Instead of the state “bestowing” rights, Ben-Gurion writes that the state will “guarantee” rights.
Ben-Gurion also departed from Shertok’s draft in one other key respect. Shertok had taken great pains to define the state “on the basis of the decision of the General Assembly of the United Nations.” That formulation raised the key question of the state’s borders. And on this issue there was a heated debate within the Yishuv. The diplomats, like Shertok, wanted to reassure the international community that the state would adhere to the vision of the UN’s Partition Plan. But Menachem Begin wanted no such limitations. As the leader of the opposition and a vocal and sometimes militant critic of Ben-Gurion, Begin gave a radio address on May 14 ostensibly to make clear to his supporters in the Irgun militia that they should accept the authority of the newly established government. But he also emphasized that the goal of the state should be the “restoration of the whole Land of Israel to its God-covenanted owners.”
Ben-Gurion, again reflecting the voice of reason and pragmatism, decided to leave the question of borders out of the Declaration. He understood that borders evolve and that the objective of the Declaration was to announce Israel’s status as a sovereign state, not to constrain Israel at its founding in a way that would impose any limits on sovereignty. Dismissing the calls to define the borders of the state, Ben-Gurion pointed out that in “the Declaration of Independence of the United States,” there is “nothing therein on territorial arrangements.”
Finally, Ben-Gurion made one other change. Going back to the Lauterpacht draft, which had made reference to a constitution that the new state would adopt, he doubled down, not only declaring that a constitution would be adopted, but pledging that it would occur “not later than the 1st October 1948.” It is puzzling that Ben-Gurion included this in the Declaration, and it’s a minor omission in the book that the authors do not provide any context for its appearance. Ben-Gurion never took any steps to prepare a Constitution and, as Rogachevsky and Zigler point out, throughout his career was adamantly opposed to such an initiative, claiming it would distract from the more pressing objectives of the young nation.
The failure to follow through on the Declaration’s commitment to adopt a constitution haunts Israel today. Great Britain, as Ben-Gurion was fond of pointing out, has a well-functioning political, legislative, and judicial system without one. The United States, by contrast, has a Constitution that clearly articulates the responsibilities and limitations of each branch of the federal government. An Israeli constitution could have set forth a process for selecting judges, one of the contentious issues in the current brouhaha, as the U.S. Constitution does. It could also have addressed the issue of judicial review of legislative action—something not addressed in the U.S. Constitution but that developed in the United States through the Supreme Court’s jurisprudence. Alas, at this point, it seems unlikely that Israelis, with all of their political and social divisions, will be able to coalesce around a constitution. But even if the doomsayers in Israel today are correct that Israel is facing a “constitutional crisis,” Avichai Mandelblit is surely wrong that Israel’s Declaration of Independence “will just become a piece of paper we can throw in the trash.”
As Ben-Gurion once remarked, the Declaration’s solitary purpose was “to declare a Jewish state which would be, by its very nature, independent and sovereign.” Unlike ours, he observed, it “did not have to be recited by schoolchildren in one hundred years.” In reality, the document so captures the essence of the State of Israel that nearly every Israeli is familiar with its essential statement—that we, “by virtue of our natural and historic right and on the strength of the resolution of the United Nations General Assembly, hereby declare the establishment of a Jewish state in Eretz-Israel, to be known as the State of Israel.” Readers of the Declaration, and of Rogachevsky and Zigler’s history of the document, will surely learn a great deal about the conflicts and contradictions inherent in Zionism, as well as among those farmers, warriors, and statesmen who envisioned the state, fought for it, and saw it become a reality.
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