The proposal for a "Constitution by Consensus" that is being promoted by the Israel Democracy Institute is a conservative document. On a declarative level, it contains innovations, in the very initiative to legislate a constitution, in the formal institutionalization of the concept "the Jewish state" and in the status to be afforded to civil rights. But on a practical level, the Constitution by Consensus attempts to preserve the social and government order - to reinforce the institutions, the election system and the Judicial Appointments Committee, in their current format; and to perpetuate the inferior status of Arab citizens, who will be compensated by being recognized as a "national minority" with collective rights.
Here and there, they have added a small improvement, some constitutional whitewash; but not much more. Anyone who wants to pass a constitution in divided Israel tries to avoid clashes with the establishment.
Only in one area, religion and the state, does the Constitution by Consensus really try to innovate. The motivation of its architects is clear: The dispute between the religious and secular communities has, to date, prevented the introduction of a constitution in Israel. Now, the Israel Democratic Institute is proposing a package deal. The secular community will get a "partnership covenant" along a track that bypasses the Chief Rabbinate when it comes to the issue of religious marriages, in exchange for the closing of stores and shopping centers on the Sabbath. "Culture, leisure-time activities and entertainment" will be permitted even on the Sabbath and Jewish holidays, but "commercial activity" will be prohibited, with the exception of permits for a "small and limited" number of gas stations, pharmacies and small grocery stores. An enforcement mechanism will be instituted, and transgressors will be punished. Religious legislation will benefit from a special constitutional exemption, which will protect it from the intervention of the High Court of Justice.
The Shabbat Law is an old dream of the religious parties that was never fulfilled, and is now enjoying a belated revival. In an attempt to soften claims of religious coercion, the architects of the Constitution by Consensus looked for other reasons - the protection of small business owners, nationalist reasons ("the Sabbath has preserved the Jewish people"), and, the strangest explanation of all, "preventing an expansion of the consumer culture to the Sabbath."
Commercial activity on weekends and Jewish holidays is relatively new, explains the IDI, "so that ending it does not change a rooted Israeli custom."
This is the place to say to the writers of the document: No, thank you. Observing the Sabbath is a way of life, and not a matter for constitutional coercion and criminal punishment. On Yom Kippur, traffic comes to a standstill, even in the most secular neighborhoods, only because of consensus and tradition, without supervisors and tickets. We can ensure fair commerce by imposing high fees on businesses that operate on the Sabbath. The consumer culture is not a matter for the legislator, who should not interfere in the leisure-time habits of the citizens, and force "entertainment and culture" on them, instead of consumer activity with the children at the mall.
It is easy to imagine "a coerced Sabbath." When the minister of national infrastructure wears a skullcap, there will be a limited number of permits for gas stations. When the Ministry of Industry, Trade and Labor is in the hands of Shinui or Meretz, the definition of "a small grocery" will suddenly be expanded. Here is a paradise for corruption, for those with the right political connections and for the wheeler-dealers. That is why we have to leave the Sabbath and holidays to the judgment of the citizens. The Sabbath preserved the Jewish people even without legislation and policemen, and the situation should remain like that. Let every community live its life according to its habits, without disturbing the others.
There is nothing new in the debate over religion and the state, which is as old as Zionism. But the ideas of the Constitution by Consensus have a current context. They look like an attempt to appease the religious community for the destruction of the settlements. They gave up Gush Katif, and now the secular community will give up the stores at Kibbutz Ga'ash. This is not a localized problem: In the coming years, Israel will apparently have to resettle tens of thousands of religious settlers who will be evacuated from the West Bank. Surrendering a secular lifestyle should not be part of their compensation package, not even in exchange for a Constitution by Consensus.
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