April 27, 2010

Michael Wyschogrod, First Things

Israel is a Jewish state but has not succeeded in defining just what that means in a national constitution. Although the 1948 Declaration of Independence called for the enactment of a constitution within months of the state’s inception, nothing has been achieved beyond a fragmentary “Basic Law.” Israel finds itself in the uncomfortable position of fighting for its status as a Jewish state without a clear vision of what that entails.

There appears to be an unbridgeable gap between three millennia of Jewish religious thought and the exigencies of modern governance. Yet Judaism’s defining concept, the covenant, is inherently political, and a proper understanding of biblical and rabbinic theology might identify a solution to Israel’s constitutional vacuum.

To discuss theological criteria for the constitution of a secular republic runs against the grain of modern political thought, even though constitutional restrictions on popular sovereignty imply reliance on an authority that is greater than human. In a republic the people are sovereign, yet the purpose of a constitution is precisely to restrict the power of any future majority. If popular sovereignty is absolute, what right has a constitution to frustrate a future majority by, for example, imposing some form of supermajority? In the extreme case, suppose a majority of the delegates to a constitutional convention enacts a constitution that forbids any change forever, or requires a 98 percent majority of the future legislature to enact any constitutional change.

This is no different in principle from the two-thirds supermajority that the United States requires for constitutional amendments. The only basis for a polity to accept severe restrictions on popular majority rule is the conviction that the founding constitution derives its power from a higher form of sovereignty than the voters in any given legislative session. Without such a theological foundation, a republic cannot feel bound by the rules laid down by its founders. A purely secular republic would self-destruct because it could not protect its constitution from constant amendment.

To propose a constitution, in other words, is to ask the question: What form of sovereignty is higher than that of the present voters? America’s Founders appealed to “nature and nature’s God.” Judaism has an answer to this question, elaborated in the oral and written Torah—however remote they appear, at first consideration, from the practical requirements of the state of Israel.

Judaism is founded on a covenant between God and Israel. Instead of unilaterally imposing his will on Israel, God enters into a relation of mutual obligations with a people. This relation is, in content, not only religious but political and legal, and it is understood in this fashion in the Bible and rabbinic literature, where God is called “the King of all Kings” perhaps more often than by any other appellation.

God, moreover, exercises his kingship through proxies. There are three religious institutions and persons in the biblical polity who are divinely sanctioned: the king, the prophet, and the high priest. But of these three offices, only the term king is routinely applied to human beings as well as to God. This is noteworthy because, of the three, the prophet and high priest hold religious functions while the office of king is largely secular. In the presence of a human king, the following blessing is recited: “Blessed are You, Hashem, our God, King of the Universe, Who has given of His glory to flesh and blood.” A human king thus participates in the glory of God. To see a human king is, in a sense, to see a proxy for God.
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