Equity is a roguish thing; for law we have a measure, know what to trust to; equity is according to the conscience of him that is chancellor; and as that is larger or narrower, so is the equity. It is all one as if they should make the standard for the measure a chancellor’s foot; what an uncertain measure would this be? One chancellor has a long foot, another a short foot, a third an indifferent foot: it is the same thing in the chancellor’s conscience.
— John Selden
Equity is a term with a history. Ever since there have been laws, people have recognized that even the best of laws cannot always deliver fair solutions. Equity introduces a principle meant to remedy that problem, a meta-legal concept of fairness.
England developed a special court system that would judge by equity, the courts of chancery. Its chief magistrate was called the Keeper of the King’s Conscience. The king had a duty before God to rule fairly and to step in when the laws were not enough. The power of pardon that the president has here is a remnant of this idea, a last resort beyond the law.
Blinken’s State Department is a proud sponsor of Israel’s Movement for Quality Government (MGQ), a group that is trying to get the court to remove Netanyahu from office.
There is a certain problem, though, with a state power as undefined and imprecise as this: there is no check to it. Equity can become a license for unlimited assertion of power, because it allows the one who dispenses it to define it as it seems to him. There is no other standard.
By Selden’s day, the king used courts like the Court of Chancery and the Star Chamber, courts originally designed to provide fairness in the last resort. Now, as Selden and the champions of Parliament saw it, equity was just a screen for the king’s grasp at limitless power free from any accountability. After years of civil war and of a military dictatorship, Selden’s concepts triumphed, the Star Chamber was abolished, and the kings of Britain accepted constitutional limits to their powers.
Israel’s current constitutional crisis is much like the one Selden faced, though it isn’t a king asserting undefined and unlimited power but a regal judiciary. The judiciary doesn’t use the term “equity,” but bases its power on a concept equally vague and unaccountable — reasonableness. The law may say this, the people have said this through their vote, but we, the supreme judges, say that this is unreasonable — and poof!, it is gone.
Because the modern State of Israel succeeded Britain’s thirty-year mandate, its system of governance is strongly influenced by British law. Its head of state is largely powerless, like the British monarch; its legislature elects the Prime Minister, who can be dismissed by the legislature on a vote of no confidence. And like Britain’s, the Israeli constitution is unwritten.
The unwritten British constitution, though, never granted courts the power to overturn law. On what basis would they do it? As the magisterial Blackstone wrote:
If [the legislature] will positively enact a thing to be done, the judges are not at liberty to reject it, for that were to set the judicial power above that of the legislature, which would be subversive of all government.
Even in our American written constitution, judicial review is not explicitly stated. It took the superb discipline and extraordinary persuasion of John Marshall to establish that power more than a decade after the Constitution’s ratification. Note also that the first laws overturned after review was established in Marbury were all laws made restricting the spread of slavery — the infamous Dred Scott decision. Judges are human and very fallible, as Selden knew by bitter experience.
Israel’s high court has done exactly what Blackstone warned against. Based only on their sense of what is reasonable, subject to no review, they have asserted supreme power over both parliamentary law and the vote of the people.
Jerome Marcus, an Israeli lawyer and Fellow of the Kohelet Policy Forum, describes just how far the judges have gone and how far they seem poised to go further:
[T]he Israeli Supreme Court has reversed or asserted the power to reverse not only statutes enacted by the Knesset but even military decisions made in the heat of battle. It has sat in judgment on exactly where the separation barrier that divides Israel from its neighbors should go. It has reviewed the reasonableness of appointments by the prime minister to government ministries, reversing the decisions that didn’t suit the Court. It has even asserted the power to strike down a Basic Law.
Let’s consider that a moment. A leader of one of the coalition partners in the new Netanyahu government was appointed to a cabinet position in the new government. But relying on the justices’ assertion of it being unreasonable, the Court denied the will of the representatives the people had elected to form the government they had campaigned for before the voters. They struck down laws passed to be of the highest order, Basic Laws, the closest thing Israel has to a written constitution, purely on the basis of what seems reasonable to them.
Consider further: the current proposed judicial reforms address the startling fact that justices have a veto on any new appointee to the Court; lawyers have a major say in selecting before whom they will argue; and the elected representatives of the people form only a minority of those who select.
What is more appalling is the prospect of what the Court may rule on soon: that the judicial reforms that Netanyahu promised voters in his successful campaign will be ruled unreasonable and therefore invalid by the Court that would be affected by those changes. Sounds reasonable, eh?
Is that not the dream of every tyrant? To claim final say on any law that restricted their power. To be accountable to nothing except what they find reasonable — the people and the law be damned!
So what if they wear judges’ robes instead of an emperor’s crown or a dictator’s generalissimo uniform? The reality of what they stand for is the same.
It should come as no surprise that the Biden administration sees fit to side with the court in what would have been considered a shocking intrusion into the sovereign business of another country — at least until Obama/Biden took power. In a Stalinesque inversion, Biden and Blinken call this “defense of democracy,” much as the North Koreans call their nation a Democratic Peoples’ Republic. Blinken’s State Department is a proud sponsor of Israel’s Movement for Quality Government (MGQ), a group that is trying to get the court to remove Netanyahu from office. Their rhetoric embraces the use of violence to overthrow the government, an Israeli Antifa without the black masks and anonymity.
The power of democracy is universal. It is built on the idea that God has made us in the divine image — we are intrinsically worthy, endowed with rights (and responsibilities!) that no human should dare to infringe. Evaluate beyond the words to see who is standing for the people and who merely uses democratic rhetoric. Make common cause with all who stand for the divine in our lives and our nations. May government of the people, by the people, and for the people be triumphant.