Apple of Gold: Constitutionalism in Israel and the United States

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By comparing the constitutional systems of Israel and the United States, Gary Jacobsohn provides a new view of the essentials of constitutionalism itself--a balanced picture that would have been impossible to achieve by focusing on any one polity. Abraham Lincoln, in likening the Declaration of Independence to the Biblical "apple of gold," and the Constitution to its "picture of silver," illuminated the connections in the United States between political ideas and constitutional government. Jacobsohn applies ...
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Overview

By comparing the constitutional systems of Israel and the United States, Gary Jacobsohn provides a new view of the essentials of constitutionalism itself--a balanced picture that would have been impossible to achieve by focusing on any one polity. Abraham Lincoln, in likening the Declaration of Independence to the Biblical "apple of gold," and the Constitution to its "picture of silver," illuminated the connections in the United States between political ideas and constitutional government. Jacobsohn applies Lincoln's insight to the Israeli experience to develop a deeper understanding of the relationship between political culture and constitutionalism, and the limits and possibilities for constitutional transplantation.By comparing the constitutional systems of Israel and the United States, Gary Jacobsohn provides a new view of the essentials of constitutionalism itself--a balanced picture that would have been impossible to achieve by focusing on any one polity. Abraham Lincoln, in likening the Declaration of Independence to the Biblical "apple of gold," and the Constitution to its "picture of silver," illuminated the connections in the United States between political ideas and constitutional government. Jacobsohn applies Lincoln's insight to the Israeli experience to develop a deeper understanding of the relationship between political culture and constitutionalism, and the limits and possibilities for constitutional transplantation.
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Editorial Reviews

Jewish Book World
A comparative study of the systems of law in the two countries with chapters dealing with civic identity, democracy and speech, jurisprudence and the concept of pluralism, among others.
Edward M. Goldberg
Professor Jacobsohn begins his book by asserting that "[what] I have sought to do in this book is contrast particular features of the constitutional cultures of Israel and the United States that are relevant to an assessment of constitutional transplantation. . . . my hope is to contribute more broadly to an improved understanding of the nature of constitutionalism." (p. 12) The book consists of seven chapters, a short "Afterward" regarding the Israeli election of 1992, an appendix containing "The Proclamation of the State of Israel," an adequate bibliography, and a useful index. The introductory chapter explains the metaphor of the "apple of gold," contrasts the American and Israeli declarations of independence, briefly indicates the different routes that constitutionalism has taken in the United States and Israel and the influence of the American Constitution in the evolution of constitutional discourse in Israel, and discusses how the author intends to develop his discussion. Although both Declarations assert a claim to independence, the American Declaration is based on universalistic concepts of natural right while the Israeli Declaration is based on a particularized historical claim of the Jewish people to the "Land of Israel." Chapter 2, "Alternative Pluralisms," contrasts constitutionalism in the United States and Israel within the framework of differing sociopolitical settings. While both may be described as pluralistic, Jacobsohn describes the differences in Israeli and American pluralism which affect the transferability of constitutional outcomes from one country to the other. These differing pluralisms stem from the political ideas and aspirations of the two declarations of independence. Chapter 3, "The Who and What of Civic Identity," contains an inquiry into Israeli and American conceptions of political identity. The Law of Return in Israel insures that citizenship and nationality have distinctive meanings and legal significance, while in the United States citizenship and nationality are basically indistinguishable. Chapter 3 also discusses the significance of history in the contrasting paths of Israeli and American constitutional development. In Chapter 4, "Constituting the Polity," Jacobsohn argues that the United States, based on certain political principles and ideals as set forth in the Declaration of Independence, required a written constitution in order to establish its identity as a new nation. Israel's Declaration, on the other hand, asserts the "self-evident right of the Jewish people to be a nation . . . in its own sovereign state" and proclaims the establishment of the Jewish State called Israel "by virtue of the natural and historic right of the Jewish people." Jewish nationality having been established historically, a written constitution, while desirable, was not essential in Israel as it was in the United States which had yet to establish its nationality. Nevertheless, Jacobsohn asserts that the claim that Israel does not have a written constitution is "at best a half-truth." It is often considered that a formal, entrenched bill of rights and independent judicial review of legislation are the sine qua non of constitutional government. But Jacobsohn demonstrates that Israel has developed a de facto judicial review and a Supreme Court with a strong commitment to the pursuit of a rights-oriented constitutional agenda. Chapter 5, "Jurisprudence, Education, and the Constitution," pursues the question whether the Supreme Court's strong commitment is sufficient in the absence of formal authority to enforce a list of constitutional rights against the actions of the legislature and other governmental officials. Jacobsohn examines the application of an American rights-based jurisprudence to Israeli Page 112 follows: constitutionalism. He demonstrates that American constitutional theory and doctrine has become increasingly popular for many Israeli judges who see their role as fulfilling the Israeli Declaration's liberal promises. In this sense, judicial activism has a pedagogical mission of educating the citizenry by articulating important democratic political values. The constitutional rights issue in Israel that has relied most heavily on American constitutional theory and doctrine is freedom of speech. In Chapter 6, "Doctrinal Diversions: Speech Democracy, and the American Way," Jacobsohn examines closely the intersection of constitutional doctrine and political culture and addresses directly the conceptual differences between Israeli and American pluralism. He concludes that "[t]he significance of the frequent references to American sources is that they have contributed to the failure of the Israeli Supreme Court to develop a free speech jurisprudence that reflects the character of the larger pluralistic democracy of which it is a part." (p. 225) However, Jacobsohn does not view this as a failure for he views the prospect of having a less than satisfactory fit between doctrine and political culture as desirable in contemporary Israel. The need for an entrenched Bill of Rights and judicial review enforcing those rights as essential for the further development of democratic constitutionalism in Israel is, at least, a debatable issue. In the concluding chapter, Jacobsohn returns to the discussion set forth in the Introduction; consideration of the two founding documents, the American Declaration of Independence and The Proclamation of the State of Israel. While there are important differences between these two documents, there are significant convergences which demonstrate the usefulness of the study of comparative constitutionalism. Professor Jacobsohn has succeeded in his objective. Utilizing comparative constitutional analysis, this book demonstrates an understanding of both the relationship of sociopolitical culture to constitutionalism and the influence of the constitutional principles of one democracy on another. He has made a significant contribution to the literature of constitutional theory. Hopefully, others will follow in his path. The literature of courts and law would be greatly enriched by more truly comparative studies. I have few quarrels with Jacobsohn's book. However, his failure to discuss even briefly the existence of the constitution preceding the current Constitution, the Articles of Confederation, omits a serious chapter in American constitutional development. If the principles of the Declaration are the "apple of gold" and the constitution the "picture of silver" designed to adorn and preserve it, some mention of the failure of the first frame is essential to understanding the necessity of the current Constitution. I also find problematic Jacobsohn's assertion (p. 38) that "anyone suggesting that `we [the United States] are a Christian nation' will most assuredly be dismissed as a crackpot." There are those who argue that position strongly; some of whom have been elected to public office. It is true, however, that few would argue seriously that Israel is not a Jewish nation. I did find one error in the book which leads me to wonder whether there are others that I missed or do not know, particularly with regard to the Israeli cases. On page 180, Jacobsohn attributes the clear and present danger test to Chief Justice Vinson writing in DENNIS V. UNITED STATES (1951) The clear and present danger test was first enunciated by Justice Oliver Wendell Holmes, Jr. in SCHENCK V. UNITED STATES (1919).
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Product Details

  • ISBN-13: 9780691029535
  • Publisher: Princeton University Press
  • Publication date: 10/17/1994
  • Pages: 294
  • Product dimensions: 6.10 (w) x 9.25 (h) x 0.74 (d)

Table of Contents

Acknowledgments
Ch. 1 Introduction 3
Two Declarations 3
Two Constitutions 9
Ch. 2 Alternative Pluralisms 18
Pluralism and the Anomaly of Native Americans 18
Autonomy 25
Community 35
Republicanism 44
Conclusion 52
Ch. 3 The Who and the What of Civic Identity 55
Two Elections 55
"The Love of a Distant Brother": Membership and the Claim of History 63
Pluralism, Peoplehood, and Positivism 70
"Citizenship Means Something" 80
Conclusion 92
Ch. 4 Constituting the Polity 95
A Constitution by Any Other Name? 95
Binding the Future 100
Looking Anew at Judicial Review 110
Conclusion 132
Ch. 5 Jurisprudence, Education, and the Constitution 136
The Property of Enlightened Nations 136
Theory and Practice 143
The "Spacious View": Access to the Political Process 150
The "Republican Schoolmaster" Revisited and Transposed 162
Conclusion 173
Ch. 6 Doctrinal Diversions: Speech, Democracy and the American Way 177
The Rabbi and the Survivor's Son 177
Lessons from the First Amendment 182
Free Speech and the "Vision and Creed of the People" 205
Conclusion 225
Ch. 7 Conclusion 228
Constitutionalisms 232
Borrowings 238
Afterword 249
Appendix: The Proclamation of the State of Israel 251
Bibliography 255
Index 271
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