Hybrid Constitutionalism: The Israeli Case for Judicial Review and Why We Should Care
63 Pages Posted: 16 Jan 2011 Last revised: 1 Nov 2012
Date Written: January 13, 2011
Fifteen years after the Israeli Supreme Court decided in Mizrahi that Israel's "Basic Laws" amount to Israel's formal Constitution and it enjoys the power of judicial review, the debate about Israel's constitutional development is far from over. This essay makes the following four propositions: First, the Israeli political branches have been debating the wrong question. Rather than lingering on the threshold question of whether or not Israel has a formal Constitution at all, they should be discussing what kind of Constitution is developing in Israel. Second, the consensus among scholars who recognize Israel’s formal Constitution is that its existence is best explained by the Constituent Authority theory. But they have adopted a myopic understanding of Israel’s constitutional development. Like so many other aspects of Israel’s national evolution, a single theory cannot adequately explain the existence of its formal constitution. Rather, this national rite of passage occurred incrementally, supported by four different, and at times conflicting, constitutional theories, each with its own strengths and weaknesses as suitable analytical frameworks. Third, depending on the theory one ascribes to Israel's constitutional development, present and future constitutional debates may be resolved differently. As examples, I illustrate how the theories diverge when applied to two contemporary constitutional matters: (1) whether referenda can be used to decide territorial concessions; and (2) whether Ultra-Orthodox Yeshiva students may be singled out for special financial treatment. Broader questions of judicial power are even more pressing, and I further explore how the various theories may affect the use of the legislative override power to overcome judicial review. Last, underlying my discussion is the assertion that there is a strong nexus between the process of enactment of a constitution and the kind of judicial review - whether strong or weak - that may emerge. This thesis deviates from the conventional view that the nature of judicial review is solely dependent on the mechanisms adopted in the constitutional document itself, rather than on the processes by which the constitution was adopted. I pursue this scheme in discussing the ramifications of the Israeli case study for Commonwealth constitutionalism in particular and comparative purposes more broadly.
Keywords: Judicial Review, Commonwealth Constitutionalism, Commonwealth model, Parliamentary Sovereignty, Popular sovereignty, Constituent Assembly, Manner and form, Common-law Constitutionalism, Foundationalism, Monism, Dualism, Mizrahi, Aharon Barak
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