Israel can teach the U.S. a lesson on law

www.americanthinker.com

The prime minister of Israel is creating some renewed controversy over his government’s defiance of an Israeli supreme court ruling involving a key regulatory matter that hampers its ability to operate, and throws into uncertainty the ability to assert national unity.

This isn’t the first time that Benjamin Netanyahu has defied his judiciary as part of a larger effort aimed at judicial overhaul.

As he put it, “We are continuing with our judicial amendments. Is there anybody who doesn’t think there is a need for them?” He might as well be talking about the U.S. Netanyahu has also been tackling the ways that his country’s judges are picked for the bench.

The more you look at these judicial issues, the more you see an almost identical problem shared among the two countries.

It is not just about internal partisan differences, but a major structural problem of their respective governments, and their respective, and jointly contingent, national security. Other countries are facing the same fundamental problem of judicial excess and corruption, but few of their leaders are willing to do anything about it.

That’s largely because it is always asserted for public consumption, that the law is a "corrective;" that judicial review ensures legal integrity in government. But suppose it’s the other way around?

What happens if the judicial system is violating the laws, and the law needs an “executive review?”

Suppose the “least dangerous branch,” becomes the “most dangerous branch?”

Alexander Hamilton described in Federalist 78 that the judicial branch would be the “least dangerous” because in his view it was strictly a “reactive” institution that responds to legal controversy created elsewhere.

What he may not have considered, as Jefferson did, is that the judiciary could itself become activist, and a branch of government that becomes not just a legislature, but itself an unchecked power that perverts the assumptions of legal integrity. Law “acting pure” is a fallacy, but one that serves the legal machinery and its pretense to power. This is how “lawfare” derives the deception of legitimacy, and why stacking the SCOTUS is a DNC priority.

Critics claim that if a government’s executive branch dares to defy its judicial branch, an eventual “constitutional crisis” will ensue, and democracy is undermined. As Netanyahu put it, “Democracy is not in danger, it is the power of the bureaucrats that is in danger.”

It’s also an interesting hypocrisy of the Left, because in the U.S., we already have a constitutional crisis: our borders were illegally opened; election laws were corrupted; and the SCOTUS has in both instances made recent rulings that protect the prior administration's law-breaking.

The Court caved on the SAVE America Act, letting voters show up at elections, or through unregulated mail-in ballots, without any proof of voter qualificatio. The Court also caved on birthright citizenship, sanctioning birth tourism, and giving an open invitation to the world to create millions of fraudulent U.S. citizens with no U.S. allegiance; indeed, often with hostile contempt toward it.

If that isn’t a “constitutional crisis,” then what is?

And yet, nearly everyone in government, in the legal system, and in the law academy, will assert that the Court’s rulings must be automatically respected as a matter of course; that it creates something called “law” that obligates compliance and obedience.

But does it?

I’m not suggesting lawlessness, but a more careful assessment about what law is, and how law can itself be lawless.

If so, especially in the context of national interest supported by the Constitution and statute, then isn’t it an executive duty to refuse judicial rulings that violate national security, and solve the bureaucratic causes? That’s what Netanyahu is doing in my judgement, and what Trump instinctively understands as well.

This problem of granting the judiciary an unquestioned legitimacy, also comes from a basic flawed assumption about what law is, and how law works.

Defining what “law” means, is an old argument in jurisprudence. Some of the most provocative thinkers about this subject have come from Scandinavia. So-called “Swedish realists” posed the question — one the British rarely stopped to consider in their history — about why we obey the law, and what assumptions we make about whether it is something real, or something merely imagined, and how it is separate from politics.

The celebrated scholar Dr. Hermann Kantorowicz went further in the 1958 “The Definition of Law,” and described how courts and judges, through rulings, create a mass of judicial facts posing as a body of rules; but that those facts can themselves be illegal and unjustifiable, yet are still considered real, and the “law.”

He blamed trust in mere words, and criticized the excesses of American progressivism. He drew a distinction among words and consequences, and so pointed to legal pragmatism, which looks at the effects of decisions (that is exactly what Justice Samuel Alito recently did in his minority opinion on birthright, by focusing on the ways that ruling undermines national security).

By asking this vital question about what law is, it forces a consideration about what good law is, and why the effects of bad law must be corrected, and not just blindly accepted.

If so, then it may become a mandate for the executive branch to openly defy bad laws that undermine national integrity; to correct those bad laws, and to act as an effective legal branch itself. In the case of elections and birthright, among other issues, the executive branch must undertake the role of chief national legal enforcer. That includes using the legislative branch as a more assertive check on the judiciary.

When Benjamin Netanyahu next visits President Trump, they have a lot to talk about. Joint judicial reform should be on the agenda. It is another key point of contact creating further U.S.-IL solidarity. But it is more than that. The U.S.-IL relationship is normally framed in how the U.S. can aid Israel’s interests. It is also important to ask how Israel can help the U.S. By demonstrating the will to challenge its judiciary, Israel can embolden the U.S. and provide a model of government reform.

The reform of their respective judiciaries is mutually reinforcing because in each country, the judicial system can become not just counter-majoritarian, but counter to maintaining an intact, secure, national identity. It can become counter-national.

In a supreme irony, the judicial branch can assume the form of an effective domestic enemy. Neither Israel or the U.S. is invincible, because they can be undermined by their own governments. In the wrong hands, those governments can also respectively undermine each other, by the progressive left gaining control of the judiciary and using it as a form of radical progressive government. The U.S. is already too far down that path.

Matthew G. Andersson is a former CEO and law and policy author. He has testified before the US Senate and is a graduate of the University of Chicago.

Image: Defense Visual Information Distribution Service, via Picryl // public domain