The Political Infeasibility of 'Thin' Constitutions: Lessons from 2003-2006 Israeli Constitutional Debates

Abstract

This article questions the constitutional advice commonly offered to societies deeply divided over the vision of their state (e.g., Egypt, Tunisia, Turkey and Israel) to draft a “thin” constitution. According to this liberal constitutionalist approach, the constitution-making process is not expected to interfere with value-ridden conflicts (e.g., minority rights or the role of religious law) but rather to provide an institutional framework for future democratic deliberation and decision-making on divisive issues. While normatively a thin constitution is an attractive ideal, this instrument, I argue, is at odds with social, political, and institutional realities in contemporary societies driven by identity conflicts. Based on a close empirical analysis of the failed attempt to draft a thin constitution in Israel from 2003-2006, this article illustrates two central obstacles to realizing the ideal of a thin constitution: the first stems from an inherent incoherence in that ideal, since in fact thin constitutions have a strong symbolic content in representing a particular type of liberal democracy. The idea of thin constitution rests on widespread public acceptance of the principles of political liberalism, defined by John Rawls in terms of “overlapping consensus,” yet conflicts over liberal rights are usually at the heart of the constitution debate in divided societies. The second problem stems from the effects of existing institutional legacies — particularly judiciary-legislature relation — on the drafting process. The legacy of constitutional dialogue between the judiciary and the legislature hinders the separation between constitutional debates on procedural-institutional and ideational-foundational issues, during the constitution-drafting process. Thus the timing of constitution writing, whether it occurs at the state-building stage or during a transitional phase decades after independence, is of great importance. The article concludes that the difficulties of writing a thin constitution are increasing, rather than decreasing, over the years.

Keywords: Constitutions, Constitution Making, Divided Societies, Israel, Political Liberalism