Haunted by Weimar

During the turbulent years of the Weimar Republic, the idea that there are limits on the people’s power to amend the constitution was raised in public discourse by Adolf Hitler. In preparing for the 1932 presidential election, the parties supporting the Weimar Republic united behind the incumbent President Paul von Hindenburg. However, the 84-year-old ex-general wanted to avoid campaigning for reelection. For this reason, the “Weimar coalition” proposed an amendment to Article 41 of the Weimar Constitution to enable the Reichstag to extend Hindenburg’s term through a simple parliamentary vote. In opposition to this amendment, Hitler argued that there were limits on the ability to amend the Weimar Constitution.

In an open letter to the German public published in January 1932, Hitler wrote that on “purely constitutional grounds,” one must object to this amendment. According to Hitler, the Weimar Constitution’s core was expressed in the democratic principle of Article 1 of the constitution, which spoke of the direct election of the president according to Article 41. In view of this “fundamental pillar” and the constitution’s role as “a real foundation of the state’s life,” a constitutional amendment should not be allowed.

Given the National Socialist Party’s objection, the proposal to amend the Weimar Constitution was abandoned. Hindenburg eventually defeated Hitler in the second round of the 1932 presidential election. However, this almost forgotten episode, told by Alan Bullock in his book Hitler: A Study in Tyranny, reveals an important lesson for current times. Limitations on constitutional amendments are a technology. They are not always—as they are currently presented by judges and jurists in Israel—the last line of defense for those committed to democracy.

There is another reason this tale from the later days of the Weimar Republic is important in the Israeli context. Nowhere else, except perhaps in Germany, are the Weimar lessons as prominent as in the Israeli constitutional debate. With the Holocaust always in the background of any public discussion in Israel, the Weimar lessons have always been part of the constitutional discourse. The recent debate over the Netanyahu government’s attempt to overhaul Israel’s constitutional system was no exception. While the Israeli Supreme Court refrained—for reasons I will explain below—from explicitly referring to the Weimar lessons in its recent judgment invalidating a constitutional amendment, the lessons still influenced the judgment and therefore merit a close historical examination.

The most famous judgment relying on the Weimar lessons during the court’s formative years was the 1962 appeal against the disqualification of the Al-Ard from running in the election to the Knesset. Al-Ard was a socialist Arab-Jewish list that aimed to revolutionize the character of Israel through lawful means so it would cease being a Jewish state. Al-Ard fulfilled all the legal procedural requirements for running in the election. At that time, the law did not give the election committee the authority to disqualify a list based on substantive grounds. And yet, the election committee disqualified the Al-Ard list from participating in the election despite lacking statutory authorization to do so.

The Supreme Court approved the disqualification in the Yardor case by a majority of 2-to-1. A deep jurisprudential controversy erupted between Judges Chaim Cohen and Yoel Sussman, who both studied law in Germany during the years of the Weimar Republic. Both judges agreed that the law did not endow the authority to disqualify parties based on substantive grounds. Judge Cohen, a graduate of Frankfurt University who fled Germany in 1933, adhered to the language of the law and determined that Al-Ard should be allowed to participate in the election.

Judge Sussman—a graduate of Heidelberg University who fled Germany in 1934—recognized, based on the Weimar lessons, the existence of “supra constitutional” principles, which are superior even to a formal constitution. In the name of these principles, a court in a “defensive democracy” can essentially break the law and, in the case of Al-Ard, disqualify the list without authority in the law to do so. In response to Sussman, Cohen wrote in his dissenting opinion that the idea that, in the name of moral principles or an ideology, a judge can break the law was foreign to the nature of the Israeli legal system.

The decisive vote to disqualify Al-Ard was cast by President Shimon Agranat, a graduate of Chicago Law School, who read the law as requiring the parties participating in the election to accept the existence of the state of Israel as a Jewish state. Viewing the law as more plastic than his German-educated counterparts did, Agranat saw the existence of Israel as a Jewish state as a “constitutional premise” in light of which all Israeli laws have to be interpreted. Subsequently, election law must be read as including the authority to disqualify lists that negate Israel’s existence.

The idea that the judiciary can annul any legal material that judges view as a threat to democracy had already appeared in Judge Aharon Barak’s writing before he declared in 1992 that a “Constitutional Revolution” had occurred. Already in his 1990 dissenting opinion in the Laor Movement case, Barak ruled that, in principle, the court could strike down a law that contradicts the basic and fundamental principles of the legal system absent the legal authority to do so. Yet, as opposed to Sussman, who saw this possibility as an extralegal matter, left to only the most extraordinary cases, Barak soon started establishing this as a legal authority that would become part of the court’s constitutional doctrine. Barak wanted the last—indeed, the final—word to be that of the court, and his reasoning was based in part on the Weimar lessons.

In 1992, following the legislation of Basic Law: Freedom of Occupation and Basic Law: Human Dignity and Liberty, Barak declared that a “constitutional revolution” had occurred in Israel. According to Barak, these two Basic Laws—which created a partial bill of rights—together with nine previous Basic Laws that regulated the system of governance now constituted Israel’s constitution. While the Knesset had never intended in 1992 to transform the Basic Laws into a constitution, according to Barak, Israel went from a system of an uncodified constitution similar to that of the United Kingdom to a system of a codified constitution similar to Germany’s. For this reason, Barak titled this development “the constitutional revolution.”

In 1995, the constitutional revolution theory was adopted by the Supreme Court in the Bank Hamizrachi judgment. At that period, Barak began to explicitly connect the lessons of Weimar with the need to endow the court with the power to strike down Knesset legislation. For example, in the Bank Hamizrachi judgment, he writes, “One of the lessons of the Second World War was that constitutional supremacy and judicial review of constitutionality are potent weapons against the enemies of democracy.”

While not a product of Germany’s educational system, Barak—a Holocaust survivor—began to frequently deduce lessons from the Weimar failure and the subsequent Holocaust. Yet, as Michael Mandel and I have shown, the historical accuracy of Barak’s reliance on the Weimar lessons to establish judicial review over legislation is dubious, as judicial review over primary legislation existed in the Weimar Republic, but to no avail.

A few years after the Bank Hamizrachi judgment, Barak began inserting the idea of the court as the guardian of the constitution (in Hebrew: Shomer H’Hocka). The concept of the guardian of the constitution is identified with the debate on “Who is the guardian of the constitution?” between two of Weimar’s great legal minds: Hans Kelsen and Carl Schmitt.

Today, the Kelsen-Schmitt debate is often used as part of the Weimar lessons narrative to claim that Kelsen was proven correct. After all, Kelsen claimed that the constitutional court is the guardian of the Weimar Constitution, and currently, courts worldwide are viewed as exactly such guardians. Moreover, a few years after this debate, Schmitt—who promoted the idea that the president is the guardian of the constitution—became a member of the Nazi Party. Surely, history has proven that the person who served until 1936 as the “Crown Jurist of the Third Reich” had been wrong all along. However, after the end of the Second World War, democracies worldwide adopted the shell of Kelsen’s guardian—the constitutional court—but endowed it with the authorities of Schmitt’s guardianship. Nowhere is this more evident than in the recent judgment of the Israeli Supreme Court in which the court endowed itself with the authority to strike down constitutional amendments.

In 1929, Kelsen discussed what a democrat should do when the majority wishes to destroy democracy. According to Kelsen, posing this question already means answering it. A democracy that tries to assert itself against the majority’s will has ceased to be a democracy. The rule of the people cannot continue to exist against the people. So how should the democrat behave? As Kelsen wrote in “Defense of Democracy”: “One must remain true to his colours, even when the ship is sinking, and can take with him into the depths only the hope that the ideal of freedom is indestructible and that the deeper it has sunk, the more passionately will it revive.” Kelsen was well aware that “his” guardian—the constitutional court—is not “an absolutely effective guarantee under all conceivable circumstances.” He wrote that “[a] constitutional court is indeed a wholly useless instrument to prevent the turn toward the total state.”One must remain true to his colours

Barak, who adopted Kelsen’s idea that the court is the guardian of the constitution, never accepted that judges should trust the people to protect democracy. Already in his dissenting opinion in the 1994 Velner judgment, Barak emphasized that an attempt to “bypass democracy” by overruling the court’s rulings in legislation must be stopped even if that means intervening in politics. Barak explained that “[t]his is an expression of the defensive democracy (in the words of Judge Sussman in Yardor). … We should not recoil. We are the guardians of the constitutional wall. We must block this breach. Otherwise, the whole wall will be in danger.”

In 2006, after the constitutional revolution was well-established in the court’s adjudication, Barak raised the idea in one of his last major constitutional judgments that the court holds the authority to strike down constitutional amendments that negate the character of Israel as a Jewish and democratic state. Here, Barak followed Schmitt’s footsteps and endowed the guardian with this exceptional authority. Moreover, as Schmitt did with the Weimar Constitution, Barak identified the basic ideological core in Israel’s constitutional documents and endowed it with an absolute status. According to Barak, “Jewish and democratic” is the core of the Israeli state that cannot be changed by a constitutional amendment or any legal means.

The idea that the judiciary would take the liberty to strike down constitutional amendments in the name of eternal values was antithetical to Kelsen’s thinking. Like Schmitt, Barak is willing to break all constraints of legality to protect the state’s basic political decision. Like Schmitt, Barak leaves the people only one choice to overcome his interpretations: a revolution, and not one that is constitutional.

The Netanyahu government’s plan to overhaul the constitutional regime brought the Weimar lessons to the fore of public debate. Comparisons to Weimar became prevalent, and with them came critique of Barak’s unfounded use of the Weimar lessons. If Israel is Weimar Germany, who are the National Socialists in this analogy? It is therefore no surprise that there is no mention of the Weimar lessons in the court’s judgment invalidating the constitutional amendment, which aimed to limit the ability to challenge governmental actions based on reasonableness. And yet, the majority judgment invalidated the amendment that applied Barak’s ideas on the unamendable core of the Israeli constitution and the role of the court as a guardian of the constitution. Both ideas relied on Weimar jurisprudence.

One of the less acknowledged ironies of the Weimar lessons is that courts may have become the guardians of the constitutions in many countries as Kelsen predicted, but they have assumed the authorities that Schmitt attributed in his vision of the guardian. Yet Schmitt rejected the idea that the judiciary can serve as a guardian, as it could not rely on public support as its source of legitimacy. In the face of elected institutions that can always speak in the name of the people, Schmitt thought that the judiciary will always be weaker as it can only speak in the name of its legal expertise. Astonishingly, Schmitt considered in the late 1920s the possibility that a technological shift may allow courts to view their public support and its effect on their ability to serve as guardians. Such a shift did occur in the 1930s with the invention of public opinion polling that measures public support for the courts.

For years, public opinion polling demonstrated that the Israeli Supreme Court enjoys the support of 70 to 90 percent of the public, more than any other institution. In view of this data, it was not surprising that the Supreme Court was one of the first courts in the world to seize the idea that the judiciary’s source of legitimacy is public confidence.

Barak inserted this idea into the court’s jurisprudence by distorting Alexander Hamilton’s famous quote from The Federalist No. 78. Hamilton said that the judiciary does not have the sword or the purse, only judgment. Barak replaced judgment in Hamilton’s vision of judicial legitimacy in terms of legal expertise with public confidence and legitimacy in terms of public support. During the 1990s and the beginning of the 2000s, the court repeated over and over again the argument that its source of authority was public confidence.

Yet, this statement started disappearing from the court’s judgments in recent years as opinion polls showed that its public support has dwindled. Unsurprisingly, in striking down the reasonableness constitutional amendment, the majority of judges do not speak anymore in the name of public confidence. Only the dissenting judges mention it. While the mass demonstrations against the reform showed strong support for the court among certain parts of Israeli society, the mass demonstrations against the court showed that it has lost its consensual status.

Without legal doctrines allowing it to strike down legislation and constitutional amendments, Sussman’s court’s use of the alarm bells by breaking the law would be regarded as more credible than the current court’s. After more than 30 years in which the court time and again has seized more and more tools to intervene in the majority decisions in the name of saving Israeli democracy from the fate of the Weimar Republic, the current court is at its weakest point in its history in terms of its ability to speak in the name of the law in its attempt to avoid the fate of the Weimar Republic.