Vol. 3, No. 11 (November, 1993), pp. 111-12
APPLE OF GOLD: CONSTITUTIONALISM IN ISRAEL AND THE UNITED STATES
by Gary Jeffrey Jacobsohn. Princeton: Princeton University Press,
1993. 284 pp.
Reviewed by Edward M. Goldberg, California State University, Los
Angeles
Professor Jacobsohn begins his book by asserting that
"[what] I have sought to do in this book is contrast
particular features of the constitutional cultures of Israel and
the United States that are relevant to an assessment of
constitutional transplantation. . . . my hope is to contribute
more broadly to an improved understanding of the nature of
constitutionalism." (p. 12)
The book consists of seven chapters, a short
"Afterward" regarding the Israeli election of 1992, an
appendix containing "The Proclamation of the State of
Israel," an adequate bibliography, and a useful index.
The introductory chapter explains the metaphor of the "apple
of gold," contrasts the American and Israeli declarations of
independence, briefly indicates the different routes that
constitutionalism has taken in the United States and Israel and
the influence of the American Constitution in the evolution of
constitutional discourse in Israel, and discusses how the author
intends to develop his discussion. Although both Declarations
assert a claim to independence, the American Declaration is based
on universalistic concepts of natural right while the Israeli
Declaration is based on a particularized historical claim of the
Jewish people to the "Land of Israel."
Chapter 2, "Alternative Pluralisms," contrasts
constitutionalism in the United States and Israel within the
framework of differing sociopolitical settings. While both may be
described as pluralistic, Jacobsohn describes the differences in
Israeli and American pluralism which affect the transferability
of constitutional outcomes from one country to the other. These
differing pluralisms stem from the political ideas and
aspirations of the two declarations of independence.
Chapter 3, "The Who and What of Civic Identity,"
contains an inquiry into Israeli and American conceptions of
political identity. The Law of Return in Israel insures that
citizenship and nationality have distinctive meanings and legal
significance, while in the United States citizenship and
nationality are basically indistinguishable. Chapter 3 also
discusses the significance of history in the contrasting paths of
Israeli and American constitutional development.
In Chapter 4, "Constituting the Polity," Jacobsohn
argues that the United States, based on certain political
principles and ideals as set forth in the Declaration of
Independence, required a written constitution in order to
establish its identity as a new nation. Israel's Declaration, on
the other hand, asserts the "self-evident right of the
Jewish people to be a nation . . . in its own sovereign
state" and proclaims the establishment of the Jewish State
called Israel "by virtue of the natural and historic right
of the Jewish people." Jewish nationality having been
established historically, a written constitution, while
desirable, was not essential in Israel as it was in the United
States which had yet to establish its nationality.
Nevertheless, Jacobsohn asserts that the claim that Israel does
not have a written constitution is "at best a
half-truth." It is often considered that a formal,
entrenched bill of rights and independent judicial review of
legislation are the sine qua non of constitutional government.
But Jacobsohn demonstrates that Israel has developed a de facto
judicial review and a Supreme Court with a strong commitment to
the pursuit of a rights-oriented constitutional agenda.
Chapter 5, "Jurisprudence, Education, and the
Constitution," pursues the question whether the Supreme
Court's strong commitment is sufficient in the absence of formal
authority to enforce a list of constitutional rights against the
actions of the legislature and other governmental officials.
Jacobsohn examines the application of an American rights-based
jurisprudence to Israeli
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constitutionalism. He demonstrates that American constitutional
theory and doctrine has become increasingly popular for many
Israeli judges who see their role as fulfilling the Israeli
Declaration's liberal promises. In this sense, judicial activism
has a pedagogical mission of educating the citizenry by
articulating important democratic political values.
The constitutional rights issue in Israel that has relied most
heavily on American constitutional theory and doctrine is freedom
of speech. In Chapter 6, "Doctrinal Diversions: Speech
Democracy, and the American Way," Jacobsohn examines closely
the intersection of constitutional doctrine and political culture
and addresses directly the conceptual differences between Israeli
and American pluralism. He concludes that "[t]he
significance of the frequent references to American sources is
that they have contributed to the failure of the Israeli Supreme
Court to develop a free speech jurisprudence that reflects the
character of the larger pluralistic democracy of which it is a
part." (p. 225) However, Jacobsohn does not view this as a
failure for he views the prospect of having a less than
satisfactory fit between doctrine and political culture as
desirable in contemporary Israel. The need for an entrenched Bill
of Rights and judicial review enforcing those rights as essential
for the further development of democratic constitutionalism in
Israel is, at least, a debatable issue.
In the concluding chapter, Jacobsohn returns to the discussion
set forth in the Introduction; consideration of the two founding
documents, the American Declaration of Independence and The
Proclamation of the State of Israel. While there are important
differences between these two documents, there are significant
convergences which demonstrate the usefulness of the study of
comparative constitutionalism.
Professor Jacobsohn has succeeded in his objective. Utilizing
comparative constitutional analysis, this book demonstrates an
understanding of both the relationship of sociopolitical culture
to constitutionalism and the influence of the constitutional
principles of one democracy on another. He has made a significant
contribution to the literature of constitutional theory.
Hopefully, others will follow in his path. The literature of
courts and law would be greatly enriched by more truly
comparative studies.
I have few quarrels with Jacobsohn's book. However, his failure
to discuss even briefly the existence of the constitution
preceding the current Constitution, the Articles of
Confederation, omits a serious chapter in American constitutional
development. If the principles of the Declaration are the
"apple of gold" and the constitution the "picture
of silver" designed to adorn and preserve it, some mention
of the failure of the first frame is essential to understanding
the necessity of the current Constitution.
I also find problematic Jacobsohn's assertion (p. 38) that
"anyone suggesting that `we [the United States] are a
Christian nation' will most assuredly be dismissed as a
crackpot." There are those who argue that position strongly;
some of whom have been elected to public office. It is true,
however, that few would argue seriously that Israel is not a
Jewish nation.
I did find one error in the book which leads me to wonder whether
there are others that I missed or do not know, particularly with
regard to the Israeli cases. On page 180, Jacobsohn attributes
the clear and present danger test to Chief Justice Vinson writing
in DENNIS V. UNITED STATES (1951) The clear and present danger
test was first enunciated by Justice Oliver Wendell Holmes, Jr.
in SCHENCK V. UNITED STATES (1919).