1. Ben-Gurion, David, Rebirth and Destiny of Israel (New York: Philosophical Library, 1954), p. 370.Google Scholar

2. Rabinovich, Itamar and Reinharz, Jehuda, eds., Israel in the Middle East: Documents and Readings On Society, Politics and Foreign Relations, 1948–Present (New York: Oxford University Press, 1984), p. 42.Google Scholar His opponents, including Menachem Begin of the opposition Herut movement, saw a more politically based reason underlying the appeal for delay: absent a constitution the government would be free to do as it chose.

3. The Jerusalem Post, 19 March 1988Google Scholar (International Weekly Edition). In a 1984 Supreme Court opinion, Justice Shamgar previewed this preference when he reflected on “the importance and value of a written constitution, and [that] its absence in our system is conspicuous each time a constitutional issue arises in a legal proceeding.” Naiman and Avneri v. Chairman of the Central Elections Committee of the Eleventh Knesset, 39 P.D. 225 (1984).Google ScholarBarak, A., Goldstein, J., and Marshall, B., Limits of Law (unpublished casebook), p. 1–46.Google Scholar Unless otherwise indicated all references to Israeli Supreme Court cases are from this text.

4. The Jerusalem Post, 3 October 1987.Google Scholar

5. Ibid., 6 June 1987.

6. Safran, Nadav, Israel: The Embattled Ally (Cambridge: Harvard University Press, 1981), p. 128.Google Scholar

7. For helpful discussions of this history see Shapira, Amos, “Judicial Review Without A Constitution: The Israeli Paradox,” Temple Law Quarterly 56 (1983): 405;Google ScholarEdelman, Martin, “Politics and the Constitution in Israel,” The Swedish Journal of Political Science 3 (1980): 171;Google ScholarAlbert, Jeffrey M., “Constitutional Adjudication Without a Constitution: The Case of Israel,” Harvard Law Review 82 (1969): 1245;CrossRefGoogle ScholarShamgar, Meir, “On the Written Constitution,” Israel Law Review 9 (1974): 467.Google Scholar It should be pointed out that Israel has its own version of Marbury v. Madison. In the 1969 case of Bergmann v. Minister of Finance, 23 P.D. 693 (1969),Google Scholar the High Court of Justice declared an act of the Knesset void for violating a Basic Law. In doing so, however, the Court did not, as did Marshall in Marbury, establish a broad basis for invalidating enactments of the legislative branch.

8. S. Zalmon Abramov has made the point that as long as there was no constitution, the Orthodox could in good faith participate in public life. “They would respect the laws of the Knesset but would regard them as provisional, to be eventually superseded by Halakhah-based laws” (Abramov, , Perpetual Dilemma: Jewish Religion in the Jewish State [Rutherford, NJ: Fairleigh Dickinson University Press, 1976], p. 385Google Scholar).

9. The Jerusalem Post, 2 January 1988.Google Scholar The author, David Kretzmer, enumerates the ways in which the Court has protected rights. Mainly they involve interpreting statutes in a manner consistent with an expansive view of individual liberties. With respect to the prestige of the Court, it is interesting to note that a new Supreme Court building is being erected at a place whose elevation is higher than the Knesset and other government offices — symbolic testimony to the official Israeli view that no one is above the law. The Jerusalem Post, 19 May 1987.Google Scholar Fundamental liberties are protected, according to Justice Barak of the Supreme Court, by the existence of a “judicial bill of rights” (Kaplan et al. v. The Prison Service 34 P.D. 294 [1979], p. 11–177).Google Scholar It should be noted, however, that Justice Barak has recently indicated that it would be desirable for Israel to adopt a formal constitution with judicial review (Barak, Aharon, Judicial Discretion [New Haven: Yale University Press, 1989], p. 202).CrossRefGoogle Scholar

10. The Jerusalem Post, 13 October 1984.Google Scholar

11. Cohn, Haim H., “The Spirit of Israel Law,” Israel Law Review 9 (1974): 459.Google Scholar

12. The Papers of Alexander Hamilton, ed. Syrett, Harold C., vol. III (New York: Columbia University Press, 1961): 548.Google Scholar

13. The Federalist, ed. Cooke, Jacob E. (Middletown, CT: Wesleyan University Press, 1961), No. 84, p. 581.Google Scholar

14. At a comparable period in Israeli constitutional development David Ben-Gurion made a similar argument against the proposed constitution: “The liberty of the subject and the liberty of the people depend not on any pronouncements of freedom, nor on the finest of Constitutions but uniquely on the rule of law” (Ben-Gurion, , Rebirth and Destiny, p. 370Google Scholar). Ben-Gurion's point is actually closer to the British view as perhaps best expressed in Dicey's classic commentary: “The matter to be noted is, that when the right to individual freedom is a result deduced from the principles of the constitution, the idea readily occurs that the right is capable of being suspended or taken away. When, on the other hand, the right to individual freedom is part of the constitution because it is inherent in the ordinary law of the land, the right is one which can hardly be destroyed without a thorough revolution in the institutions and manners of the nation” (Dicey, A.V., Introduction To the Law of the Constitution [London: St. Martin's Press, 1961], p. 201).Google Scholar

15. The Federalist, No. 84, p. 579.Google Scholar

16. Quoted in Wood, Gordon S., The Creation of the American Republic, 1776–1787 (Chapel Hill: University of North Carolina Press, 1969), p. 538.Google Scholar

17. The Collected Works of Abraham Lincoln, ed. Basler, Ray, vol II (New Brunswick, NJ: Rutgers University Press, 1953), p. 406.Google Scholar For the contrary view that holds that the “prophets of Israel” were anti-egalitarian illiberals see Eidelberg, Paul, “Foundations of the State of Israel: An Analysis of Israel's Declaration of Independence” Judaism 36 (1987): 391.Google Scholar

18. Barak, , Judicial Discretion, p. 266.Google Scholar

19. Quoted in Gorney, Uriel, “American Precedent in the Supreme Court of Israel,” Harvard Law Review 68 (1955): 1197.CrossRefGoogle Scholar

20. Naiman and Avneri v. Chairman of the Central Elections Committee for the Eleventh Knesset (1984), p. 1–65.Google Scholar For some scholars, the commonly held view that Israel lacks a written constitution is much too simple. For them the Declaration of Independence is one of the written texts that provides the nation with an operative consti tution. See, for example, Elazar, Daniel J., The Constitution of the State of Israel (Jerusalem: Jerusalem Center For Public Affairs, 1987), p. 1.Google Scholar

21. Kurland, Philip B. and Lerner, Ralph, eds., The Founders' Constitution, vol. I (Chicago: University of Chicago Press, 1987): 457.Google Scholar

22. Ben-Gurion, , Rebirth and Destiny, p. 377.Google Scholar

23. Elazar, Daniel J., “Constitution-making: The Pre-eminently Political Act,” in Redesigning the State: The Politics of Constitutional Change, ed. Banting, Keith G. and Simeon, Richard (Toronto: University of Toronto Press, 1985), p. 233.Google Scholar

24. Ibid., p. 234.

25. Ibid., p. 237.

26. Huntington, Samuel P., American Politics: The Promise of Disharmony (Cambridge: Harvard University Press, 1981), p. 24.Google Scholar For an insightful critique of Huntington's argument, see Smith, Rogers M., “The ‘American Creed’ and American Identity: The Limits of Liberal Citizenship in the United States,” Western Political Quarterly 41 (1988): 225.CrossRefGoogle Scholar Smith argues that ethnic and cultural factors have historically been important in understanding American national identity, and that Huntington exaggerates the significance of shared political ideas.

27. Ibid., p. 30. An essay in The New York Review of Books by the Israeli Arab author, Anton Shammas, argues, on the other hand, that the absence of a constitution in Israel reflects the lack of an Israeli national identity. “The really bad news is that there are no Israelis in Israel in the sense that there are Americans in the US., and that the State of Israel has not been established yet” (31 March 1988, p. 9).

28. Murrin, John M., “A Roof Without Walls: The Dilemma of American National Identity,” in Beyond Confederation: Origins of the Constitution and American National Identity, ed. Beeman, Richard, Botein, Stephen, and Carter, Edward C. II (Chapel Hill: University of North Carolina Press, 1987).Google Scholar

29. Sandel, Michael, “The Political Theory of the Procedural Republic,” in Constitutionalism and Rights, ed. Bryner, Gary C. and Reynolds, Noel B. (Provo, Utah: Brigham Young University Press, 1987), p. 141.Google Scholar

30. Schochet, Gordon, “Introduction: Constitutionalism, Liberalism, and the Study of Politics,” in Constitutionalism-Nomos XX, ed. Pennock, Roland and Chapman, John W. (New York: New York University Press, 1979), p. 11.Google Scholar

31. Storing, Herbert J., What the Anti-Federalists Were For (Chicago: University of Chicago Press, 1981), p. 5.CrossRefGoogle Scholar In this regard, see also Pangle, Thomas L., The Spirit of Modem Republicanism: The Moral Vision of the American Founders and the Philosophy of Locke (Chicago: University of Chicago Press, 1988), pp. 28–40.Google Scholar

32. Liebman, Charles S., “Conception of ‘State of Israel’ in Israeli Society,” Jerusalem Quarterly 47 (1988): 102.Google Scholar

33. Shamir, Michal and Sullivan, John L., “The Political Context of Tolerance: The United States and Israel,” American Political Science Review 77 (1983): 911.CrossRefGoogle Scholar The authors found general support for minority rights among 89 percent of Americans and only 63 percent of Israelis (p. 914). Israeli civil libertarians often talk about their countrymen's passivity about rights. One says, for example, “Aside from the fact that we don't have a constitution in Israel, it would be rare to hear a citizen defending himself against the government by arguing in terms of his rights” (Interview with Avigdor Feldman, The Jerusalem Post, 6 December 1986).Google Scholar On the other hand, Daniel Elazar argues that Jewish political culture is a republican and constitutionalist one that, even in the absence of a written constitution, resists arbitrary impositions on individual rights (Elazar, Daniel J., Israel: Building A New Society [Bloomington: Indiana University Press, 1986], p. 200Google Scholar). For a contrary view that claims that no definitive political philosophy is present in Judaism, see Rackman, Emanuel, Israel's Emerging Constitution, 1948–51 (New York: Columbia University Press, 1955), p. 48.Google Scholar

34. Interview with Hart, Herbert L.A., in Israeli Democracy, Winter 1987, p. 28.Google Scholar

35. This is of course an exceedingly complex question. Perhaps the best discussion of the idea of a Jewish state may be found in Abramov, Perpetual Dilemma. Abramov points out that while Israel is widely regarded as a secular state, a total separation of state and religion is an impossibility, since that would also entail a separation from Jewish culture. Indeed, for most secularists, features of traditional Judaism that are commonly viewed as a religious rite, such as the act of circumcision, are regarded as important aspects of the national culture (p. 328).

36. Ibid., p. 28.

37. 320 U.S. 118 (1943).

38. Schneiderman v. United States, 320Google Scholar U.S. 118, at 121.

39. Ibid., at 172. For an insightful discussion of the Schneiderman case and its importance to the concept of civic obligation see Levinson, Sanford, Constitutional Faith (Princeton: Princeton University Press, 1988),Google Scholar chap. 4.

40. Ibid., at 128. Over the years, members of the Court have argued about whether a willingness to fight for the country is good evidence for establishing a person's attachments to the principles of the Constitution. There has been agreement, however, that such a demonstration is central to acquiring and (in certain instances) retaining American citizenship.

41. 23 P.D. 477 (1969). The decision is to be found in Landau, Asher F., ed., Selected Judgments of the Supreme Court of Israel (Jerusalem: Israel Bar Publishing House, 1971).Google Scholar

42. Ibid., p. 60.

43. See, for example, Gleason, Philip, “American Identity and Americanization,” in Concepts of Ethnicity, ed. Paterson, William, Novak, Michael, and Gleason, Philip (Cambridge: Harvard University Press, 1982).Google Scholar

44. Ibid., p. 29.

45. Liebman, Charles S., “The ‘Who Is a Jew?’ Controversy: Political and Anthropological Perspectives,” in Conflict and Consensus in Jewish Political Life, ed. Cohen, S.A. and Don-Yehiya, E. (Tel Aviv: Bar-Ilan University Press, 1985), p. 202.Google Scholar For an insightful discussion of the significance of the distinction between descent and consent as far as the concept of citizenship is concerned see Sollors, Werner, Beyond Ethnicity: Consent and Descent in American Culture (Oxford: Oxford University Press, 1986).Google Scholar Sollors' consideration of the United States is particularly relevant to the contrast at hand: “In America we may feel ‘filiopietism,’ but we pledge ‘allegiance’ to the country. To say it plainly, American identity is often imagined as volitional consent, as love and marriage, ethnicity as seemingly immutable ancestry and descent” (p. 151).

46. Rufeisen v. Minister of Interior, 16 P.D. 2428 (1962).Google Scholar

47. Ibid., Selected Judgments of the Supreme Court of Israel, p. 18.Google Scholar

48. Yardor v. Chairman of the Control Election Committee for the Sixth Knesset, 19 P.D. 365 (1965), p. 1–15.Google Scholar The Law of Return recognizes the right of any Jew to immigrate to Israel and (in concert with the Nationality Law) automatically to receive Israeli citizenship. In terms of its role in giving definition to the Israeli national identity, there is no question that this law possesses a special constitutional status. Or, as expressed on the Supreme Court, “[T]here can be no doubt and this is clearly learnt from the statements in the Declaration of the Establishment of the State that Israel is not only a sovereign, independent and peace-loving state characterized by a regime of the people's government, but was also established as ‘a Jewish State in Eretz-Israel.’” Yardor v. Chairman of the Control Election Committee for the Sixth Knesset, p. 1–21.Google Scholar

49. The Jerusalem Post, 2 December 1988.Google Scholar

50. Quoted in Abramov, , Perpetual Dilemma, p. 375.Google Scholar Yossi Sarid, one of the leaders of the Citizens Rights Movement, the political force in Israel that is most sympathetic to the suppositions of American liberal individualism, wrote at the time of the controversy: “A Jew is anyone who sincerely identifies himself as a Jew, anyone who truly wants to be a Jew even though it's difficult” (The Jerusalem Post, 1 December 1988).Google Scholar

51. 7 P.D. 871 (1953).

52. Lahav, Pnina, “American Influence on Israel's Jurisprudence of Free Speech,” Hastings Constitutional Law Quarterly 9 (1981): 61.Google Scholar

53. The Jerusalem Post, 8 April 1984.Google Scholar

54. See, for example: Saar v. Minister of Police, 34 P.D. 169 (1980);Google ScholarLaor v. Film and Play Supervisory Board, 41 P.D. 421 (1986);Google ScholarZitrin v. Disciplinary Board of the Israel Bar 41 P.D. 337 (1986);Google Scholar and Zichroni v. Broadcasting Authority, 37 P.D. 757 (1982).Google Scholar

55. Ibid., 5 August 1984.

56. Ibid., 22 December 1984. In fact, however, the Israeli Supreme Court has not adopted the specific Holmesian test, adopting instead the standard of “near certainty.”

57. Kahane v. Broadcasting Authority, 41 P.D. 255, p. 111–103.Google Scholar

58. Naiman and Avneri v. Chairman of the Central Elections Committee for the Eleventh Knesset, p. 1–58.Google Scholar

59. Quoted in Patar, Raphael, “Western and Oriental Culture in Israel,” in Israel: Social Structure and Change, ed. Curtis, Michael and Chertoff, Mordecai (New Brunswick, NJ: Transaction Books, 973), p. 307.Google Scholar

60. Lissack, Moshe, “Pluralism in Israeli Society,” in Curtis and Chertoff, Israel: Social Structure and Change, p. 364.Google Scholar

61. This policy has roots in a broader Middle Eastern context in which the preservation of a corporate identity has historically been a matter of high official priority. As Daniel J. Elazar has pointed out, the millet system, which sought to insure the maintenance of quasi-autonomous ethnic communities, was a continuing presence within the various empires holding power in the area through the centuries (Israel: Building A New Society, p. 38Google Scholar). The British Mandate continued the millet system's respect for the principle of cultural autonomy in its Article 15, which provided for “the right of each community to maintain its own schools for the education of its members in its own language, while conforming to such educational requirements of a general nature as the Administration may impose, shall not be denied nor impaired” (quoted in Abramov, , Perpetual Dilemma, p. 93).Google Scholar See also, Rackman, , Israel's Emerging Constitution, p. 121.Google Scholar For a lucid discussion of the important role of religious courts in matters of personal status (including exclusive jurisdiction over marriage and divorce), see Rubinstein, Amnon, “Law and Religion In Israel,” 2 Israel Law Review 1967.Google Scholar

62. Shamir, and Sullivan, , “The Political Context of Tolerance,” p. 915.Google Scholar

63. Smooha, Sammy, Israel: Pluralism and Conflict (Berkeley: University of California Press, 1978), p. 258.Google Scholar

64. Ibid., p. 259.

65. Ibid., p. 260. In this regard see also Arend Lijphart's discussion of Israel as a “semiconsociational regime” (Lijphart, , Democracy in Plural Societies [New Haven: Yale University Press, 1977]Google Scholar).

66. Richards, David A. J., Toleration and the Constitution (Oxford: Oxford University Press, 1986).Google Scholar

67. On this point see Garret, Ronald, “Community and Existence: The Rights of Groups,” Southern California Law Review 56 (1983): 1001;Google Scholar and Fiss, Owen M., “Groups and the Equal Protection Clause,” Philosophy and Public Affairs 5 (1976): 107.Google Scholar

68. Muhammad Sa'id Burkaan v. Minister of Finance, 32 P.D. 800 (1978),Google Scholar p. V–9.

69. I am grateful to Daniel J. Elazar for suggesting this point to me. It should be noted here, however, that in interviews conducted with a number of Israelis connected to the legal profession, the author heard repeatedly the view that this decision by the Court was in fact anomalous, dictated more by the peculiar cir-cumstances of the case than by the requirements of Israeli law.

70. Shipler, David K., Arab and Jew: Wounded Spirits in a Promised Land (New York: Penguin Books, 1986), p. 273.Google Scholar Shipler elaborates: “Nationhood in the American concept may transcend race, creed, and ethnic origin, but in the Middle East the nation attempts to serve as an embodiment of those traits not to promote harmony among diversity but to emphasize and express those differences” (p. 274).

71. Ely, John Hart, Democracy and Distrust: A Theory of Judicial Review (Cambridge: Harvard University Press, 1981), p. 80.Google Scholar

72. Ibid., p. 112.

73. Ibid., p. 116.

74. I am grateful to Sanford V. Levinson for originally suggesting this point to me.

75. Laor et al. v. Film and Play Supervisory Board, 41 P.D. 421 (1986),Google Scholar IV–97.

76. Kahane v. Broadcasting Authority, p. 111–113.Google Scholar

77. Sullivan, John L., Shamir, Michal, Welsh, Patrick, and Roberts, Nigel S., Political Tolerance in Context: Support for Unpopular Minorities in Israel, New Zealand, and the United States (Boulder: Westview, 1985), p. 111.Google Scholar

78. Ibid., p. 142.

79. Tribe, Laurence H., American Constitutional Law (Mineola, NY: Foundation Press, 1978), p. 618.Google Scholar

80. Lahav, , “American Influence on Israel's Jurisprudence of Free Speech,” p. 36.Google Scholar

81. 32 P.D. 337 (1977).

82. Lahav, , “American Influence on Israel's Jurisprudence of Free Speech,” p. 101.Google Scholar

83. Ibid., p. 103.

84. Ibid., p. 104.

85. Ibid., p. 105.

86. Ibid., p. 105. In his opinion in the Broadcasting Authority case, Justice Barak, perhaps with the Skokie case in mind, indicated: “I believe that it would be justified to prevent a demonstration of Petitioners, if it intends to pass through Arab populated areas, and a near certainty of a real injury exists because of the racist content of Petitioner's message” (Kahane v. Broadcasting Authority p. 111–127).Google Scholar The injury referred to here is not physical violence but the offended “feelings of a religious or ethnic minority.”

87. Collin v. Smith, 447 F. Supp. 676 (1978).Google Scholar

88. Ibid., at 689.

89. Ibid., at 686. For a careful examination and critique of the libertarian view see Kretzmer, David, “Freedom of Speech and Racism,” Cardozo Law Review 8 (1987): 445;Google Scholar and Lasson, Kenneth, “Racial Defamation As Free Speech: Abusing the First Amendment,” Columbia Human Rights Law Review 17 (1985): 11.Google Scholar

90. Kalven, Harry Jr. The Negro & the First Amendment (Chicago: University of Chicago Press, 1965), p. 13.Google Scholar

91. Arkes, Hadley, The Philosopher in the City: The Moral Dimensions of Urban Politics (Princeton: Princeton University Press, 1981), p. 26.Google Scholar One might note here the argument that Montesquieu made on behalf of civility. “[Civility] is a barrier which men have placed within themselves to prevent the corruption of each other” (The Spirit of the Laws [New York: Hafner Publishing Co., 1966], p. 301).Google Scholar To see how this might apply to the Israeli scene, consider what Montesquieu had to say about law and religion. “It is necessary … that the laws require from the several religions, not only that they should not embroil the state, but that they shall not raise disturbances among themselves” (ibid., bk. 2, p. 52).

92. 403 US. 15 (1971).

93. See in particular, Downs, Donald Alexander, Nazis in Skokie: Freedom, Community, and the First Amendment (Notre Dame: University of Notre Dame Press, 1985).Google Scholar Downs argues: “The extension of Cohen's logic to move severe cases of verbal assault could harm the basic communitarian norms of civility and protection which also legitimate values of the polity” (p. 11). Downs sympathizes with the survivors in Skokie, who had “asked the courts to heed the claims of substantive justice in the case rather than limiting their legal considerations to the issue of procedural justice, or equal protection in the public forum” (p. 5).

94. For a good example of the First Amendment position extending from the logic of this theory of liberal constitutionalism see Karst, Kenneth L., “Equality As a Central Principle in the First Amendment,” University of Chicago Law Review 43 (1975): 20.CrossRefGoogle Scholar Karst's theory is applicable to the controversy over Meir Kahane's presence on the ballot. “If the first amendment principle of equal liberty underlies the right to vote, then it unquestionably underlies the rights of those seeking a place on the election ballot, the supreme political forum” (p. 59).

95. For an insightful comparison of American and West German approaches to the issue of defamation see Kommers, Donald P., “The Jurisprudence of Free Speech In the United States and the Federal Republic of Germany,” Southern California Law Review 53 (1980): 657.Google Scholar Kommers finds that “the pluralism [envisioned by the US. Supreme Court to be] less integral than that envisioned [by the German Court].” As a result, “In the American view [as contrasted with the German], the community has no valid claim upon the individual person, particularly in the domain of mind and morals” (p. 694).

96. The Jerusalem Post, 16 September 1984.Google Scholar

97. de Tocqueville, Alexis, Democracy In America, ed. Bradley, Phillips (New York: Vintage, 1945), p. 48.Google Scholar

98. Barzilai v. Government of Israel, et al., 40 P.D. 505 (1986), p. 111–277.Google Scholar

99. Kahane v. Broadcasting Authority, p. 111–107.Google Scholar

100. The issue of transplantation is also relevant in the field of legal education. “The American experience can indeed be very enriching and extremely stimulating. But one must never lose sight of the important differences that exist between these two countries which lead to necessary differences in legal education” (Weisman, Joshua, “The Relevance of the American Experience to Legal Education in Israel,” Tel Aviv University Studies in Law 5 [1980–1982]: 55).Google Scholar