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Noah R. Feldman says constitutional questions are causing Israel to face a national identity crisis at UHLC’s annual Yale Rosenberg Lecture

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May 06, 2024 — Legal scholar and columnist Noah R. Feldman dissected Israel's constitutional challenges during this year's Yale L. Rosenberg Memorial Lecture in April at the University of Houston Law Center.

“I’m asserting that how Israel decides its domestic constitutional questions is going to turn out to have major, major consequence for how Israel’s geopolitical position operates in the world,” said Feldman.

Feldman began his lecture, titled, “To Be Jewish and Democratic: Constitutional Challenge and the Future of Israel,” by tracing the conflict back to a clause in Israel's Declaration of Independence which states "that the State of Israel will be a Jewish and democratic state.”

Feldman navigated the audience through the historical and political context of Israel's legal system, which lacks a formal written constitution.

For this reason, Feldman said that Israel has “a bootstrapped constitutional approach created in large part by a judicial system that sees itself still and has long seen itself for about the last 24 to 30 years as trying to fill the gaps that occur when a modern state doesn’t have a single written constitution.”

In 2023 the Knesset, Israel’s unicameral legislature passed a bill aimed at restraining the power of the Israeli Supreme Court, “the High Court of Israel, effectively its Supreme Court, will no longer be allowed to overrule government decisions on the grounds that those decisions were unreasonable.”

“When the legislature passed this law, they were effectively saying we’re trouble, very much troubled by the court’s role in creating constitutional norms and we want to change that,” said Feldman.

According to Feldman, a larger percentage of the public went to the streets to protest.

“Millions of people showed up to protest in favor of democracy in favor of the judicial power of review,” said Feldman. “To say that this was a polarizing moment in Israeli public life is a gross understatement. This represented one of the greatest internal divisions in Israeli public life ever made manifest at a national level.”

In 2024 the court struck down the bill. The crux of the debate, according to Feldman, lies in divergent interpretations of Israel's dual identity.

"The resolution of Israel's constitutional challenges," Feldman said "will not only shape its domestic landscape but also influence its geopolitical alliances and relations."

Feldman also highlighted that the meanings of "Jewish" and "democratic" have evolved since Israel's founding in 1948. His lecture drew from his latest book, "To Be A Jew Today: A New Guide to God, Israel and the Jewish People."

Feldman is the Felix Frankfurter Professor of Law and Director of the Julis-Rabinowitz Program on Jewish and Israeli Law at Harvard Law School.

This year marks the 20th anniversary of the Rosenberg lecture series named after Yale L. Rosenberg. The Yale Rosenberg Memorial Lecture served as a platform for critical dialogue and intellectual exploration, reaffirming its commitment to excellence and scholarly inquiry in the legal community.

Click to view this lecture and other CLE On Demand programs.

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