Justice Minister Ayelet Shaked went too far in her attack on the High Court of Justice, a classic case of overplaying her hand. Shaked spoke at the Kohelet Policy Forum on Monday and criticized arguments backing up the Supreme Court's authority to reject amendments to laws as unconstitutional. She said that not only was the argument an incompetent one, it was also dangerous.
According to Shaked, supporting that claim could wind up bringing down the rule of law and the principle of separation of powers, which is the basis of our democratic system – all because of what she called a "constitutional delusion."
The entire legacy and body of jurisprudence of the Israeli legal system stands in the way of the new invention of what is being termed "the unconstitutional constitutional amendment," as law professor Menachem Mautner called it in a piece he published in Haaretz Tuesday.
Those who oppose the nation-state law are in a lose-lose situation. If the High Court repeals Basic Law: Israel as the Nation-State of the Jewish People, it will cause the same crisis of separation of powers that President Reuven Rivlin warned about and Shaked is constantly cautioning against.
But beyond that, rejecting the law would set the Right on fire, and spur a widespread political uprising that will clearly benefit the Right come election time. It might entail significant gains for Habayit Hayehudi, Shaked's own party.
Most likely, the High Court will let the nation-state law stand. Legal scholars from the Left, out of a kind of hubris, are flooding the court with petitions against the legislation. If the High Court allows the law to stand, the ruling will strengthen the national-Zionist side in comparison to the side that wants a "state of all its citizens."
For those who are guided by true, liberal values, it would be best if the Left laid off the nation-state law. Its existence will not prevent the High Court from handing down consistently liberal rulings.
In contrast to Shaked, Zionist Union MK Tzipi Livni has attacked both Shaked and the law itself in the name of the Declaration of Independence.
She and others talk about the declaration in its "constitutional" context without having studied or understood it. Because if the Declaration of Independence were still used by the legal system as a basis for principle overriding constitutionality, we wouldn't be seeing those same controversial rulings that spurred politicians to pass the nation-state law in the first place.
The greatest justice in the history of the nation was probably Shimon Agranat, who based two of his most significant rulings – one liberal and the other illiberal – on the Declaration of Independence.
Former Chief Justice Aharon Barak was apparently looking for something other than the Declaration of Independence to use as a basis for rulings. Therefore, he declared time and again that the Basic Laws enacted in 1992 were a "constitution" or a "constitutional revolution." That created a crisis, and now Barak is going back to the Declaration of Independence.
And based on the Declaration of Independence, the High Court might approve the Basic Law: Israel as the Nation-State of the Jewish People. If it bases its ruling on the Declaration of Independence, it will restore the document to its key status and allow it to be used as a future basis for rulings because of the obvious liberal, democratic principles that exist in it.
