David Bourget (Western Ontario)
David Chalmers (ANU, NYU)
Rafael De Clercq
Jack Alan Reynolds
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Consider a country where American-style judicial review is applied to primary legislation, yet its constitutional documents are enacted haphazardly and in the British-style, using procedures applied to regular legislation. For nearly half a century, this country has acted as if it had a sovereign legislature, yet its highest court decided in 1995 that its most basic norm is that of a limited legislature constrained by a formal Constitution, the existence of which comes as a surprise to constitutional scholars and citizens alike. How then was the country’s Supreme Court able to revolutionize its constitutional system in one tangled decision? The fascinating answer is that the Court succeeded by relying both on legislative enactment and more heavily on comparative constitutional experience to suggest that principles of democracy, the rule of law, and respect for individual rights require a formal Constitution. This is the story of Israel’s version of the U.S. Marbury v. Madison decision. The story, detailed in this article, presents three conflicting yet complementary traditions: monism in the British-style; dualism in the American-style; and foundationalism in the German-style. It is a story of how and whether legislative self-entrenchment may create a higher norm. It reflects a dualist approach, despite the lack of a distinct legislative track for the formation of constitutional law. It reveals aspirations for law higher than even the Constitution in the form of foundationalism. This article’s narrative of Israel’s constitutional story throws new light on recent American debates regarding the constitutionality of legislative entrenchment; the exploitation of comparative constitutional law to decide one’s own constitutional dilemmas; and the legitimacy of judicial constitution-making.
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