The Utility of a Written Constitution: Free Exercise of Religion in Israel and the United States

The Utility of a Written Constitution 35 THE UTILITY OF A WRITTEN CONSTITUTION: FREE EXERCISE OF RELIGION IN ISRAEL AND THE UNITED STATES by Martin Edelman Martin Edelman is a Professor (and chair) of the Political Science Department at the Rockefeller College of Public Affairs and Policy of the University at Albany. He is the author of Democratic Theories and tbe Constitution and of many articles dealing with American constitutional law and Israel's court systems. In 1987, while at Peking University, Professor Edelman taught the first course on Israeli politics in the People's Republic of China. He has also been a visiting professor at the University of liverpool and Tel Aviv University. Professor Edelman is currently the President/Convenor of the Research Committee on Comparative Judicial Studies of the International Political Science Association. Public policy is all too frequently debated and resolved in the total absence ofempirical evidence. Judicial policy-making is rarely an exception to this social science truism. Even "analyses" of such vital matters as human rights proceed on the basis of unexamined ideological premises. Take, for example, the utility of a written constitution to protect the rights of minority religious sects against the hostility and/or indifference of the majority. In the United States it is universally assumed, by judges and commentators alike, that the First Amendment's Free Exercise Clause provides that essential protection. Yet historically the religious liberty of minority sects has not always been legally protected; it may not even be true in the democratic, pluralistic, tolerant, and enlightened America of the 1990s. By way of contrast, the Jewish State of Israel, without a written constitution, provides strong legal protections for minority religious sects. 36 SHOFAR Summer 1993 Vol. 11, No.4 By contrasting the experience of religious minorities in Israel and in the United States, this paper seeks once again to reopen the question of the utility of written constitutions in democratic societies. I. In the United States all discussions of public policies concerning religion have automatically involved the Constitution. For in a very real sense, the Constitution of 1787 created the American polity and has helped to mold its political culture.1 The Constitution was expected to be the measure of legitimacy for all governmental acts. But it was expected to do more. A written constitution was to perform an architectonic function: it was to shape and direct the government and thereby the entire polity. To quote James Wilson, a prominent player at the Constitutional Convention, "by the invigorating and overruling energy of a constitution, the force and direction of the government are preserved and regulated; and its movements are rendered uniform, strong, and safe.,,2 The product of human reason, an artifice, was to mold American society. In large measure, the expectations of the founding generation have been fulfilled. In the United States, political debate and judicial interpretation of the Constitution are closely intertwined. As Alexis de Tocqueville noted a century and a half ago, "Scarcely any political question arises in the United States that is not resolved, sooner or later, into a judicial question. Hence all parties are obliged to borrow, in their daily controversies , the ideas and even the language, peculiar to judicial proceedings."3 Nowhere is this more true than on issues involving religion and the state. The framers of the First Amendment to the Constitution plainly intended to constitutionalize the relationship of the national government to religion: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; ..." In the United States, by design and long accepted political tradition, it is impossible to disentangle public policy toward religion and religious practices from constitutional interpretation. IS. Levinson, Constitutional Faith (1988); Edelman, "The Constitution and the American Nation," in A. Gutfeld, ed., The American Nation (1986), pp. 9-23 (in Hebrew). 2J. Andrews, ed., The Works ojJarnes Wilson (1896), p. 374. The same idea is expressed by Thomas Paine in The Rights ofMan (Dolphin ed., 1961), pp. 420-445, and by Alexander Hamilton in The Federalist (#81). 31 Democracy in America (Vintage ed., 1960), p. 290. The Utility of a Written Constitution 37 But crafting the appropriate constitutional limitations on public policies...