Paper delivered at the 1997 Annual Meeting of the American Political Science Association, Washington, D. C., August 1997, in response to a paper by Paul Eidelberg: “A Constitution for the State of Israel: A Practical Proposal.” Eidelberg published a book-length version of his argument, along with the text for such a constitution, several years later: Jewish Statesmanship: Lest Israel Fall (Jerusalem: ACPR Publishers, 2000).

 

In advancing arguments for a written Israeli constitution, Paul Eidelberg causes us to think about the problems of constitutionalism that face many countries today, riven with religious and ethnic animosities. For this reason his argument has general and not only specific interest.

For Israel, the matter may be stated this way:

1. The purpose of the Israeli founding a half-century ago was to restore a homeland to the Jews, a people whose very homelessness had been held to be in some measure responsible for their near extermination in Europe only a few years before. European Jews learned, much more disastrously, what Americans had learned in the 1770s: If you want to be governed rightly, do it yourself. No one cares more about your unalienable rights than you do. All things being equal, no one else is likely to defend your rights as effectively as you are.

2. Israel is, or at least is usually said to be, a democracy, with the full panoply of civil rights associated with modern democracies, in addition to a generous selection of the social and economic rights associated with the modern ‘welfare state.’ Self-government in this sense means the government of all by all—justified on the grounds that some of your own people might tyrannize over you as brutally as a foreign people might.

Insofar as Israel is a democracy, a regime that respects the principle of (suitably qualified) majority rule, Israel’s Jewishness is at hazard. An increasingly Arab, largely Muslim population now wields considerable power in national elections. Conceivably, a larger Arab population could end Jewish self-government—government of, by, and for the Jewish people.

Alternatively, the Israeli government, building upon its already extensive state apparatus–an apparatus so extensive that Eidelberg denies Israel status as a true democracy—might become increasingly ‘Hobbesian’ or despotic—securing, or claiming to secure, Jewish rights by imposing Jewish rule ever more forcefully upon Arabs. Eventually, might such a powerful, sovereign state not turn its untender mercies upon Jews as well?

Eidelberg reconciles Israel’s Jewishness with democracy by availing himself of the principle of popular sovereignty required by Jewish law. As the American Founders recognized, popular sovereignty requires a written constitution. If the people are to govern themselves in any territory more extensive than a village, as a practical matter they will need government by elected representatives. But representatives meeting in regular legislative session, not being sovereign, cannot unilaterally enact the fundamental human laws governing the sovereign people. Such fundamental laws may be proposed by representatives, but must be ratified by the people themselves, either directly or by representatives meeting in a convention intended for that purpose alone. Further, if fundamental human laws are not to be merely long-established unwritten customs—if they are to be laws deliberated upon and chosen by the people (as the first Federalist has it)—they will need to be written down. That is, you first need to distinguish between constitutional law and mere statutes; your legislature cannot be, in effect, a continuous constitutional convention. Second, you need a written constitution that rationally limits the powers of the sovereign people over each individual among that people.

The Torah itself is a kind of written constitution—the father of all such. In it, God as Sovereign of sovereigns sets limits on His own conduct as well as the conduct of His people. By analogy, a sovereign people under the sovereignty of God will fit constitutional powers to constitutional duties and rights. But precisely because they are sovereign under God, the Jewishness of this sovereign people cannot be elided by the word, ‘democracy.’

This raises what Spinoza called the theologico-political question. Given the diversity of the (mis)understandings of God’s ‘constitution’ respecting the peoples of the earth, how is endless war to be avoided? If one function of government is to keep the peace, how can a religiously-based government do that? The ‘modern’ answer combines religious toleration with intolerance toward violations of natural rights—the rights of human beings as such, regardless of their religious convictions. In the United States, where this solution was first tried, it has worked fairly well. The current question in America is, Can natural rights be secured despite serious ‘cultural’ differences? (In contemporary language, ‘culture’ means a sort of religiosity without religion.) The answer to this question so far has been that in practice American makes anti-republican aspects of the various ‘cultures’ unattractive to all but a few. Busy with commerce and other forms of self-government, Americans embroil themselves ‘retail,’ but manage to live together ‘wholesale.’

For example, in the United States there is a vigorous and politically significant population of Muslims, including the ‘Black Muslims’ or Nation of Islam. It is not at all clear that Islamic law can be reconciled with modern republicanism; an ‘Islamic Republic’ is no democratic or commercial republic. In the United States, however, American Muslims generally conduct themselves as all other citizens do with respect to their civic duties. Muslims are free to do so because the United States was founded as a natural-rights republic, with civil rights designed to secure those natural rights. Although Americans of the founding generation were usually Christians, often secularists, and never Muslims, they did not found a Christian republic, much less an Episcopal, Quaker, Presbyterian, or Congregational one. This implies that a workable consensus exists with respect to what natural rights are. That is, democratic republicanism does require a certain sort of ‘culture.’ The regime allows substantial cultural pluralism, but it could not sustain thoroughgoing cultural relativism or nihilism. If American Muslims, or members of any other religion, were to reject the workable consensus that exists in America regarding the nature of natural right, they would present a serious problem insofar as they joined that rejection to political action.

In solving the problem of the apparent but not necessarily real contradiction between Jewishness and democracy in Israel, Paul Eidelberg must therefore address two further problems. Political solutions always exchange one set of problems for another, and the sensible question usually is, Are the new problems better problems to have than the old ones?

First: How can Israelis in a constitutionally democratic-Jewish regime ensure natural rights to non-Jews, without granting full citizenship rights to non-Jews? Eidelberg seems to propose a sort of Locke-like religious toleration, as distinct from the American system of religion as a natural right. How can Arabs be assured that stated guarantees will not be mere ‘paper’ guarantees? How will Arabs in an Israel with a written constitution that ‘establishes’ Judaism defend themselves legally, without the need of taking to the streets and having “a little rebellion now and then”? Given the comprehensive character of Islamic law, would Israeli Muslims in principle comply with Section E, Article 9 of the Eidelberg constitution, which stipulates that “Residents of Israel shall have the right to establish their own religious and educational institutions, provided that these are consistent with loyalty to the Jewish State”?

Second: Given the constitutionally-guaranteed Jewishness of the new Israel, two other questions from pre-modern times emerge. Who is a Jew? To answer this question you need to answer another: What is a Jew? In any regime where citizenship rights attach to a religious category, the definition of the category will become politically contentious, as seen in the history of Europe, which saw catastrophic warfare over the questions, Who is a Christian? and What is a Christian? Just as Eidelberg’s constitution would settle Israel’s “crisis of the house divided” in part by narrowing the citizenship rights of non-Jews, future factions within the Jewish population would surely attempt to draw those lines more narrowly still, for the sake of political advantage. Can a means be devised to prevent or at least dilute the problem of schism in a religiously-based polity?

In conclusion, the Eidelberg proposal consists of several elements, each of which deserves serious consideration. There is the proposal for a written constitution for Israel. I am inclined to think this an excellent idea. Israelis are not Englishmen, with the long, more or less unbroken tradition of self-government which enables the English to govern themselves with no written constitution. Although (as any American knows) a written constitution remains susceptible to interpretive manipulation, it does give citizens a more precise understanding of their rights and duties as members of a sovereign people.

Eidelberg also proposes to reconfigure the structure of the Israeli government, moving it away from parliamentary republicanism toward an American-style republic with separation of powers, including a strong executive branch. I am inclined to think this an excellent idea as well, on the grounds Charles de Gaulle invoked in his critique of French parliamentarism. Again, Israel is no island nation, like Britain. Executive dispatch will prove useful.

Finally, there is the proposal to make Israel a more exclusively Jewish country than it now is. Here is where the problems will arise. I want to learn more about how this would be done in a manner that would contain the bitter factionalism which will surely result. To say that Israel already is wracked by bitter factionalism is true but insufficient. Will the new factionalism be in some way preferable to the old factionalism it replaces? The old factionalism has proved sustainable for half a century. If it really is no longer sustainable, how sustainable will the new factionalism be? This is a question for Israeli citizens to answer, not some American commentator. Theirs are the lives that are on the line.

Albert Speer: Inside the Third Reich. Richard and Clara Winston translation. New York: Macmillan, 1970. Reissued by Simon and Schuster, 1997.

 

No founder of the American republic would not instantly have recognized Lenin, Stalin, and Hitler as loathsome tyrants. Albert Speer was less discerning. Speer could tell himself, and his prosecutors, that he did not know about Nazi death camps because he so much did not want to know that his knowledge stayed penumbric, a whiff of ash from distant crematorium. “Would you help me become a different man?” Speer asked the priest, not without reason but rather too late.

The Americans had been bred to politics, a politics of self-government jealous of encroachments, alert to the designs of despots. Speer grew up among a sort of gentry rendered useless by modern life. An apolitical youth left him susceptible to an all-consuming politics in maturity—precisely because he’d never matured at all. Had he been fortunate, he might have found his ‘missing’ father in God, but such wholesome devotion was less likely in the new Europe, the Europe of the Church Militant of Modern Ideology. Father Hitler—who so cared for, so loved, German youth, who had such power, omniscience, and glory—fulfilled Speer’s longings. Chesterton (whose record on these matters was far from spotless) writes that when men stop believing in God they don’t start believing in nothing; they believe in anything. Or (more relevantly here) anyone—even the implausible little Austrian with a suggestion of syphilis in his eyes. Hitler won Eva Brann too, that Gretchen with her sense of danger pithed, vulnerable to Mephistophelian seduction, and therefore not sufficiently good to save her Faustian friend, Speer. Speer’s real father sensed the evil on contact. Like most German liberals of the time, like the Weimar Republic itself, he shuddered and withdrew.

“All I wanted was for this great man to dominate the globe.” With so many good works behind him—the resurrection of German pride, a reinvigorated economy, a rebuilt military—and surely so many more ahead of him, to culminate in the reunification of the Germanic peoples at the geopolitical center of the World Island–only a fool or a coward would demur, yes? For who would oppose him? The decadent French? The slavish Slavs? The Bolsheviks? The nation of shopkeepers?

As for doubts, Hitler himself made “an absolute refusal to listen to bad news.” Neither does “the authoritarian state” itself seek to hear criticism. Nor do its subjects. Even the very minimally realistic Speer—who wondered, in 1943, whether it might be better to put the German economy on a war footing—could make little headway. (Fortunately so. Their mindset kept Hitler and his I-venture-to-say eccentric band well away from the potential applications of Einstein’s ‘Jewish physics.’) As for the Germans, “If we couldn’t believe in Hitler, what was there for us?” a woman asked, I suppose rhetorically.

He left the Germans behind, Speer among them. The Prince of War attaches his followers to himself by implicating them in the crimes that underlie his new modes and orders. When that regime crumbles and the Prince dies, so much of the worse—if, ultimately, much better—for the survivors. What there was for the Germans after Hitler was the potential to recover the self, in pain, or to find some new formula for self-deception. They did both. Speer did both. Thanks to the common sense of their conquerors from the west, they did so in the stable and decent regime of the German Federal Republic. From the east, conquerors came who were not so sensible.

Are we all Albert Speer? We all tend to believe what we want to believe, and to disbelieve things that reflect poorly on ‘our own.’ A main justification for the commercial republican regime is to make it harder for its citizens to do that, by making them know that they will do it, and by checking them from acting too comprehensively when they do. So we all are, and are not, Albert Speer. We share his inclinations but are less likely to act upon them so unimpededly.

Daniel J. Mahoney: De Gaulle: Statesmanship, Grandeur, and Democracy. Westport: Praeger, 1996.

Originally published in Interpretation: A Journal of Political Philosophy. Volume 25, Number 2, Winter 1997. Republished with permission.

 

Unlike so many things in political life, commercial republicanism delivers on its promises. Splendid but exhausting, the martial aristocracies and monarchies that dominated Europe into the nineteenth century finally collapsed into the arms of the people, who confidently asserted that they could do better. Locke, Montesquieu, and the other great republicans looked forward to a world in which commerce and representative government would stanch the flow of blood and treasure caused by rulers who would find quarrel in a straw, when honor’s at the stake.

The republicans were right. Commercial republics don’t fight—amongst themselves. They have attracted the warlike attentions of those who mistake their peaceableness for weakness. As a result, two centuries are strewn with the wreckage of regimes that underestimated the productive/economic power that to some extent makes up for the unsteady military virtues of those republics.

What theorists could not fully anticipate was the dissatisfaction commercial republics would generate among their own most ambitious citizens. For some human beings all the time, and for most some of the time, peace and prosperity do not suffice. What the ancient Greeks called thumos—the spirited part of the soul, the part that gets angry, makes us courageous or rash, faithful or blindly loyal—does not rest content in a commercial republican regime. Thumos wants not only liberty but heroism, conspicuous preferment instead of conspicuous consumption, the ways of the lion and the eagle. Thumotic souls pose a profound political and spiritual problem at any time, but never more than here and now, in our ’embourgeoisified’ modern times.

No statesman understood this better than Charles de Gaulle. As a young military officer in the years between the world wars, de Gaulle saw thumos pushed to the point of madness in neighboring Germany, while deploring, at serious cost to his own career, the poor-spirited response of his countrymen, including a military elite rotted with complacency and cowardice. After the war, he opposed the shallow, bureaucratized internationalism of the new-republican, ‘Wilsonian’ United States and its Euro-sycophants. He faced down President Roosevelt, whose envisioned postwar order did not include any very independent Frenchmen. Throughout, de Gaulle proclaimed and embodied the virtues of political life and civil society—self-government—against the dehumanizing forces of technocracy and consumerism. National sovereignty conceived as patriotism, not reactive ‘nationalism,’ remained his political guide throughout; what looks like a Catholic-Christian Stoicism remained his moral compass.

Daniel J. Mahoney’s scholarship allies itself with civic virtue in a world not conspicuously receptive to it. In his previous book, The Liberal Political Science of Raymond Aron, Mahoney displayed a rare ability to take ample, rich materials and concentrate them into their essence, saying thing at once helpful to the novice and illuminating to the specialist. He has now written the best first book to read on Charles de Gaulle’s political thought. Those fascinated by his account will want to go on to Jean Lacouture’s generous biography, Stanley Hoffmann’s Decline or Renewal? France Since the 1930s, André Malraux’s Anti-Memoirs and Felled Oaks (both published in ampler versions as parts of Les Temps du Limbes), perhaps to Jean Dutourd’s novel, The Springtime of Life. Above all, they will turn to the writings of the statesman himself, who wrote six books and several volumes of speeches.

The man of character, de Gaulle teaches, is a born protector. Without abandoning his critical independence, Mahoney guards de Gaulle’s memory against a variety of cavils advanced in the spirit of smallness of soul: that he was a mystic or a Bonapartist, a crypto-fascist or a communist sympathizer, a Machiavellian, a Nietzschean, or a man of Weberian ‘charisma.’ None of the above, Mahoney firmly reminds us, but what can one expect from the denizens of an academic demi-culture who have forgotten Aristotle’s portrait of the great-souled man? Realist who know nothing of the realities, de Gaulle and Mahoney say of them, rightly.

Mahoney emphasizes de Gaulle’s indebtedness to a real culture, a cultivation afforded by the France of de Gaulle’s youth, with its fruitful if acrimonious tensions among Roman Catholicism, the Enlightenment, and post-Enlightenment ‘German’ ideology. He had integrated the classical elements of French culture into his heart and mind: In retirement, de Gaulle came upon a grandson trying to read Cicero in the Latin. After glancing at the passage, de Gaulle raised his eyes and recited the passage from memory. Looking down at the astonished boy, he intoned, “You should read Livy. He is much more grand.“  Although the exact character of de Gaulle’s religious convictions remains obscure—as it had to, given his political intention to unite the French—Mahoney shows beyond dispute that de Gaulle understood France as part of the Europe that had been Christendom, and worth defending for the sake of the virtues Christendom cultivated. As Mahoney writes, de Gaulle combined a “Catholic recognition of moral boundaries and political limits and classical commitment to a life of honor.” “His was a moralized ambition“: De Gaulle himself uses the striking formulation, “the good prince,” who aims to re-found republicanism in the modern world.

De Gaulle “wanted to keep democracy and greatness together,” Mahoney writes. No narrow democrat or egalitarian, de Gaulle saw what France lost when the Old Regime fell: moderation and the genuine courage moderation enforces. A century and a half of too much and too little ensued. This was true even in the two parliamentary republican regimes de Gaulle saw in the France of his lifetime, which favored too many play-acting talkers, too few real defenders of the country. In founding the more balanced regime of the Fifth Republic, with the strong executive the French needed, de Gaulle re-endowed French politics with stability, without sacrificing (Gaullists would say, by enhancing) genuine popular sovereignty. In aspiring to inculcate habits of civic participation in his countrymen, de Gaulle left them a legacy of resistance not only to the ‘hard’ tyrannies of fascism and communism, but to what Tocqueville had called the ‘soft despotism’ of bureaucracy and merely economic life, a legacy that might well be taken up by citizens who want to remain citizens and not subjects, in any country. At the same time, he firmly reminded the French that not everything is political, that political life, to be made worthy of participation, must subordinate itself to civilization and even to “a certain conception of man.” As Mahoney shows, that conception owes more to Charles Péguy than it does to Friedrich Nietzsche.

“L’Europe des patries”: De Gaulle opposed European integration precisely upon the grounds of civilization and of human nature—which, to be truly itself, must take responsibility, must govern itself. Dante, Goethe, and Chateaubriand were good Europeans because they were Italian, German, and French. The real Europe is Latinity filtered through the vernaculars, the languages by which the peoples govern themselves. The Gaullist voice is largely absent from “the present European conversation,” Mahoney observes; “his partisanship for the greatness of Europe and a Europe of nations does not seriously inspire our contemporaries,” who too often associate nationalism with its racialist deformations of the last two centuries. “Nonetheless, de Gaulle himself, and his vision of a Europe of nations stand as permanent reminders of the political and even spiritual qualities without which any future Europe could only call itself impoverished.”

Perhaps most significantly, de Gaulle’s life and writing show how a thumotic soul, the soul of a man or woman of character, might strengthen republicanism instead of subverting it, transcending the sterile adversarianism of modern elites, tending as they do to manipulation and tyranny, rule or ruin. Daniel Mahoney is a new kind of American scholar, one who views grandeur without malice, envy, or derision, one who can see de Gaulle.