Behind the Scenes: Israel's Revolutionary Unconstitutional Constitutional Amendment Decision

13 Pages Posted: 12 Jul 2024

See all articles by Rivka Weill

Rivka Weill

Interdisciplinary Center (IDC) Herzliyah - Radzyner School of Law; University of Chicago Law School

Date Written: March 17, 2024

Abstract

On January 1st, 2024, in the midst of Israel's constitutional crisis, the Israeli Supreme Court struck down for the first time a constitutional amendment on grounds of unconstitutionality. The constitutional amendment was central to the government's reform plan and sought to abolish the Court's ability to use the reasonableness doctrine to review ministerial conduct. The Court's unprecedented move was accompanied by perplexing acrobatics of judicial reasoning, in which the justices based their arguments on what seems like originalist reasoning, running counter to Israel's dominant method of purposive interpretation. This Article reads between the lines of the justices' arguments, suggesting that the disagreement over how the reasonableness doctrine developed in Israel masks a deeper debate. In truth, the justices true concern is disagreeing over who is responsible for Israel's constitutional crisis, and whether restraint is the appropriate judicial strategy while judicial independence is under threat. This Article thus analyses the Israeli justices' dilemma in the context of a larger trend of democratic backsliding around the world. Lessons can be drawn from Israel's case study as other courts fight to retain their authority and to protect society from falling into authoritarianism.

Suggested Citation

Weill, Rivka, Behind the Scenes: Israel's Revolutionary Unconstitutional Constitutional Amendment Decision (March 17, 2024). Available at SSRN: https://ssrn.com/abstract=4888550 or http://dx.doi.org/10.2139/ssrn.4888550

Rivka Weill (Contact Author)

Interdisciplinary Center (IDC) Herzliyah - Radzyner School of Law ( email )

P.O. Box 167
Herzliya, 46150
Israel

University of Chicago Law School ( email )

1111 E. 60th St.
Chicago, IL 60637
United States

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