Israel is more polarized than ever, which is why many are skeptical of the initiative to establish a constitution for Israel. But precisely when we cannot agree on values, we must agree on the rules of the game.
Why now? Of all the questions surrounding the effort to establish a constitution for Israel, this may be the hardest – because even supporters wrestle with it. We have waited 78 years, and for most of that time somehow muddled through.
Today, however, we are more divided than ever. We struggle to agree on almost anything, certainly not on our fundamental values. Wouldn’t it be better to wait for better times, when we can write a full constitution together – one that expresses a shared vision and values?
The answer is no. Polarization is precisely why we cannot wait. To understand why, we need to start with what democracy actually does.
Scholars of democracy define it this way: certainty about the rules, uncertainty about the outcomes. No one knows who will win the next election, but everyone knows the rules by which the game is played – and knows that today’s loser can compete again tomorrow.
That certainty allows losers to accept defeat and winners to govern without fearing that everything they achieve will be erased the moment power changes hands.
In Israel, that formula has been turned on its head. Our basic rules, the Basic Laws, can be changed at any moment, by a simple majority, through a process that itself is not clearly defined. When the rules themselves are uncertain, only one certainty remains: whoever wins can rewrite them at will. Every election then becomes an existential struggle.
If defeat at the polls could be irreversible – if the other side can change the system itself – then it is no longer merely a political rival but a threat. Under such conditions, voters are willing to forgive their leaders for undermining democracy so long as the other side does not win. Polarization feeds on itself, and democratic erosion deepens.
This is not just theory. Israel’s constitutional ambiguity dates back to the 1950 Harari Resolution, which deferred drafting a constitution and called for it to be written chapter by chapter. For decades, that ambiguity lay dormant. But polarization turns constitutional flexibility into a strategic advantage: whoever commands a majority can move the goalposts mid-game.
And the data show that this is happening. Since the first Basic Law was enacted in 1958, the Basic Laws have been amended at an average rate of just over twice a year – not unusual by international standards. A recent study by the Tachlith Institute found that over the past eight years, the pace has more than doubled, to nearly five amendments a year.
Successive majorities rewrite the rules to suit their needs. Once one side moves the goalposts in its favor, the other rushes to do the same. The result is less stability, more polarization, and democratic decline.
That raises an obvious question: a thin, institutional constitution focused chiefly on the rules of the game does not include a bill of rights. So does it protect citizens at all?
A thin or comprehensive constitution - which is better for Israel?
Comparative research points consistently to the same conclusion: strong institutions protect human rights more effectively than lofty constitutional declarations. A parliament capable of checking the government and courts whose authority is clear and broadly accepted protect citizens more effectively than a bill of rights alone.
But this is the missing link in the public debate: strong institutions do not exist in a vacuum; they require stable rules. If the powers of every institution can be changed at any moment by a simple majority, no institution is truly strong. Checks and balances erode, rights protections erode with them, and democracy retreats.
In other words, anyone who wants rights to be protected should start with the rules.
That is precisely what the thin constitution proposes. At its core would be a Basic Law: Legislation, establishing three things: how constitutional rules may be amended, how ordinary laws are enacted, and when and how courts may review legislation.
The existing Basic Laws would be consolidated around it, with amendments – most necessitated by incorporating them into a clearer, more rigid constitutional framework.
So what would we gain by requiring a high threshold – a Knesset supermajority – to change constitutional rules?
First, stability: the rules would stop shifting with every change of government. Second, and more surprisingly – fewer flashpoints between us. Extreme proposals with no prospect of broad support would simply never make it onto the agenda; those that did would have to be tempered through compromise.
The need for broad agreement is not merely an obstacle. It is a mechanism that can produce moderation. In a society as polarized as ours, it is hard to think of anything more urgent.
To be clear, tensions among the Knesset, the government, and the courts will not disappear – and they should not. Such tension is inherent in every democracy. Basic Law: Legislation is not meant to eliminate it, but to establish the rules within which it plays out, so that each branch can perform its role and disputes can be resolved within agreed-upon boundaries.
For those who worry that locking in rules today would entrench the current balance of power, the answer lies in keeping the constitution thin.
A comprehensive constitution requires agreement on values, identity, and vision. And at present, we do not have it. A thin constitution requires agreement on only one thing: that the rules be stable and clear, and that no one be able to change them alone.
Anyone who studies the history of constitutions knows that they are rarely written in moments of harmony. Constitutions are usually born after wars, crises, and upheavals, because that is when societies grasp the price of rules that lack broad agreement.
The moment of perfect consensus – when we all sit together in a spirit of unity and write a complete constitution – is not around the corner. It may never come. Waiting for it, in practice, means preserving the status quo, in which the rules are rewritten with every new Knesset term.
The alternative on the table is more modest, and that is precisely why it is possible: not agreement on who we are, but agreement on how we settle our differences. Over the past 78 years, we have learned the hard way that even this modest agreement cannot be taken for granted.
It is time to put it in writing.
The writer is a professor at the Hebrew University of Jerusalem. She founded and headed the Research Division of the Israeli Judiciary and is a member of the JPPI Thin Constitution Project team.