Apple of Gold: Constitutionalism in Israel and the United States.

• Author: Rosenfeld, Michel

What is the difference between constitutionalism and constitution? Does constitutionalism embody universal norms that transcend differences in historical experiences and in political culture? Is adherence to constitutionalism possible without a written constitution? Can constitutions be transplanted from one political culture to another? These are important and topical questions in the wake of the dramatic contemporary turn towards constitutionalism and recent proliferation of constitutions.(3) Indeed, as more and more countries rush to embrace constitutionalism, one wonders whether its meaning is becoming so diluted as to transform it into a mere fashionable slogan capable of accommodating a broad array of disparate and even antagonistic ideals, norms and practices, or whether we are witnessing the advent of a global convergence towards a new democratic order. Moreover, as constitutionalism spreads, opportunities and temptations to transplant constitutions seem to multiply, while at the same time, an increasing diversity of home-grown constitutional arrangements vie for a lasting place in the political firmament.

The embrace of constitutionalism and the spread of constitutions call for the systematic examination of constitutionalism on a comparative basis. Under these circumstances, comparative constitutionalism becomes imperative for at least two important reasons: first, to assess whether, and to what extent, constitutions may be successfully transplanted from one political culture to another; and, second, paradoxically, to gain a better position from which to evaluate one's own constitutional order. Indeed, as the variety of constitutional norms and practices greatly expands, one becomes more prone to realize--and this is particularly urgent for Americans who, by and large, tend to focus exclusively on their own constitution(4)--that one's own constitutional solutions are by no means the only available ones or the only ones capable of meeting with success. thus, by focusing on how foreign constitutional norms and practices fare in dealing with issues similar to those confronted at home, one can gain a broader and better vantage point from which to evaluate the virtues and limitations of one's own constitutional norms and practices.

Good work on comparative constitutionalism, however, is hard to come by, because it requires a solid grounding in at least two different constitutional orders and at least two political cultures. Accordingly, Gary Jacobsohn's rich and nuanced comparison of constitutionalism in Israel and the United States is a remarkable achievement, which provides scholars in the growing field of comparative constitutionalism with a framework for analysis that is well worth emulating. Moreover, Jacobsohn's focus on Israel and the United States is particularly felicitous, as it brings together not only a country with a written constitution and one without, but also two approaches to constitutionalism and two political cultures that yield an optimal mix of similarities, contrasts, and points of contact to shed useful light on the relationships between constitution and constitutionalism, between constitutionalism and cultural identity, and between constitutionalism and democracy. In addition, because of the significant influence of the American constitution on Israeli constitutional thought and practice, Jacobsohn's focus on these two countries affords insight into the scope and limits of successful constitutional transplantation. Finally, Jacobsohn skillfully invokes the contrast between the United States' predominantly individualistic political culture and Israel's primarily communitarian one to sharpen our understanding of American constitutional developments.

Jacobsohn's principal focus is on the comparison of particular features of the constitutional cultures of Israel and the United States, but his ultimate objective is more ambitious, as he aims "to contribute more broadly to an improved understanding of the nature of constitutionalism." In this latter endeavor, Jacobsohn is not entirely successful, as some of his generalizations are questionable, either because they are not sufficiently supported by the particular comparisons from which they are drawn, or because they are parasitic on concepts that remain undefined or underdefined, most notably the very concept of "constitutionalism."(5) In the last analysis, however, these shortcomings should not detract from the importance or the overall success of his subtle and incisive analysis. Even if one disagrees with some of Jacobsohn's conclusions, his comparative examination of Israel and the United States certainly provides the reader with a wealth of materials for fruitful thought and discussion on these crucial yet difficult subjects.

Jacobsohn's comparative analysis sharpens our grasp of many of the key issues confronting constitutions and constitutionalism. These issues include: the relationship among constitutions, citizenship, and national and group identity; the relationship among constitutionalism, liberal democracy, republicanism, and pluralism; the tension between a constitution's mission to bind future generations and the broad interpretive latitude characteristic of the actual practice of judicial review; and, the important pedagogic function of the constitution and of judicial elaborations of the meaning of the constitution. Furthermore, taking good advantage of the particularly strong influence of American free speech jurisprudence on the elaboration of Israeli doctrine on this subject, Jacobsohn provides an in-depth examination of a concrete example of constitutional transplantation and explores the relationship between a transplanted constitutional norm and the evolution of constitutional doctrine to adapt the transplanted norm for use in its adoptive land.

It is of course impossible, within the scope of the present review, to do justice to Jacobsohn's discussion of all the abovementioned issues. Consequently, I shall focus in the remainder of this review on the following subjects: the relationship among constitutionalism, pluralism, and identity; constitutionalism, constitution, and judicial review; and constitutional transplantation, constitutional norms, and constitutional doctrine.

I

Constitutionalism makes little sense in the absence of any pluralism. In a completely homogeneous community with a single-minded collective purpose and without a conception of the individual as having any legitimate rights or interests separate from those of the community as a whole, constitutionalism--broadly conceived as requiring limitations on the powers of government, adherence to the rule of law, and the protection of fundamental rights--would be superfluous. Indeed, in such a community there would be no palpable need to separate the governors from the governed, or lawmaking from interpreting or enforcing the law, and the relevant normative universe would be exclusively based on duties rather than on rights.(6) By contrast, once pluralism enters the scene--in the broad sense of any dividsion of the collectivity along the axes of self and other, whether in terms of ethnic, cultural, or religious differences or in terms of an individualism driven by the recognition of a multiplicity of values and objectives--constitutionalism not only makes sense but also looms as perhaps the best means to safeguard the integrity of the various parts in harmony with the pursuit of the objectives of the polity as a whole. With the advent of pluralism, however, identity tends to become problematic to the extent that the constitutional identity of the polity must remain distinct from the identity of the diverse groups that comprise the nation or from the pre-constitutional identity of the nation or of its people.(7)

Jacobsohn draws on the most salient contrasts between American and Israeli pluralism in order to provide a vivid illustration of how different conceptions of the relation between the individual and the group and between cultural and political identity bear on the shaping of constitutional identity. Both Israel and the United States are pluralist societies marked by differences that pit individual against group and that render the nation distinct from the state. Moreover, the particular brand of pluralism prevalent respectively in each of the two countries plays a critical role in determining the form, scope, and limits of constitutionalism in that country.

American pluralism, as Jacobsohn emphasizes, is primarily individualistic in nature.(8) Israel's pluralism, on the other hand, is, in Jacobsohn's portrayal, primarily, though by no means exclusively, communitarian. Indeed, although the communitarian bonds embedded in the historical, cultural, and religious traditions of the Jewish people play a predominant role in defining the identity of the Israeli polity, commitment to civil rights also plays an important role in the constitutional aspirations of the state of Israel.(9) Moreover, notwithstanding differences in American and Israeli pluralism, both polities have experienced conflicts that have variously pitted the individual against other individuals, the individual against the group, and one group against another. The difference between the American and the Israeli brand of pluralism becomes manifest, however, in the ways in which their respective political and constitutional cultures approach such conflicts.

To take one of the most telling examples, that of the place of religion in the polity, the...