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

• Author: Stroman, Cynthia A.M.

In his earlier work, The Supreme Court and the Decline of Constitutional Aspiration,(2) Professor Gary Jacobsohn(3) compared a number of modern theories(4) of constitutional interpretation with natural law premises such as Lincoln's theory that the Constitution cannot be interpreted without considering the goals of the Declaration of Independence.(5) He asserted that modern scholars' failure to "relat[e] the exercise of judicial power to the broader purposes and aspirations of the [American] polity"(6) was a weakness undermining the validity of their theories. Lincoln's theory, he argued, was more honest and more in tune with Professor Jacobsohn's own theories.(7) Jacobsohn concluded his work by encouraging judges to "ask themselves how it is possible for them, as judges, to interpret - understand and apply - our fundamental law if they reject, or simply are ignorant of, its presuppositions."(8) In Apple of Gold, an analysis of constitutionalism in Israel, he follows the attempts of the Israeli Supreme Court to develop its own constitutional interpretive theory and suggests that the attempt, at least, comports with Lincoln's, and Jacobsohn's, natural law ideals.

Apple of Gold compares Israeli and American constitutionalism and evaluates efforts to transplant American principles to Israel. Professor Jacobsohn uses the Declarations of each nation to provide the framework for analyzing the similarities and differences between the two polities. The American Declaration of Independence embodies the "ethos of individualism" (pp. 4-5). In contrast, the 1948 Israeli Declaration of Independence affirms the existence of the Jewish people as a nation (p. 7). This contrast between individualism and national identity provides the framework for Jacobsohn's reflections.

In the first two chapters, Professor Jacobsohn lays the foundations for his comparisons. In "Two Declarations" (pp. 3-9) and "Two Constitutions" (pp. 9-17), he describes the fundamental distinctions between the two political systems. The American Declaration provides for natural justice principles that "are effectively the basis of nationhood" (p. 9). Those principles, he asserts, officially achieve authority in the Constitution, thereby giving both documents a singular purpose (p. 9). The Israeli Declaration embodies a similar commitment to individual rights principles,(9) but they are not the sole vision of that document. Instead, they share space with the vision of the Jewish people as a nation. The competition between its two visions is why, Jacobsohn asserts, Israel has not achieved a written constitution (p. 9). Consequently, constitutional development has taken place in the courts and, on a parallel track, in the Knesset.(10) In "Alternative Pluralisms" ch. 2), Jacobsohn argues that, although both states contain subgroups of diverse origins, the difference in national vision leads to divergent constitutional processes (pp. 18-54). The American process leads to assimilation, and the Israeli process begets stratification. Professor Jacobsohn poses "the one great American counterexample, Native Americans" as a comparison (p. 52). He describes the development of the Indian Civil Rights Act of 1968(11) as a noble effort, but one doomed to unsatisfactory results because it was "grounded on premises that ignored the essential fact that Native Americans were a minority who did not fit the prevailing model of constitutional and political pluralism" (p. 19). Protecting group autonomy, a "constitutional anomaly" in America, is the norm in Israel (p. 23). Not only does Israel recognize group identities, its government supports their continuing vitality. Accordingly, Israel has a strong sense of community (pp. 35-44) and departs from traditional American-style republicanism (pp. 44-52).

These themes provide the undercurrent for the next four chapters, in which Professor Jacobsohn describes the development of constitutionalism in Israel. In early efforts, the Israeli Supreme Court attempted to define who is a Jew. Jacobsohn infers that, in deciding that a Jew who converted to Catholicism is no longer a Jew for the purposes of the Law of Return(12) but the children of a Jewish father and a non-Jewish mother are,(13) the Court tried to balance the twin bases of Jewishness - religion and individual choice. Although the decisions appear somewhat contradictory,(14) they represented a compromise which chose an objective, secular definition of nationality (pp. 64-66). While the American perspective would demand this effort (p. 71), the Israeli vision rejected it(15) and refused to diminish the religious element of Jewish...