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
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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).
"Gary J. Jacobsohn's book is among the most astute and far-seeing of the current batch of books on comparative constitutional issues. In fact, it is hard to overstate the importance of his book because its significance transcends its immediate subject. He compares Israel and the United States, but his comparison speaks powerfully to the identity crisis of liberalism in a multicultural era."—-Graham Walker, American Political Science Review
"Jacobsohn's comparative study of constitutionalism in the United States and Israel is a model of comparative constitutional analysis, and the best book of its kind in a very, very long time."—-John E. Finn, The Review of Politics
