Despotism or Judicial Craftsmanship? Narrative Wars in Israel’s 'Marbury v. Madison'

Rivka Weill

Reichman University

The United Mizrahi Bank decision has attracted interest world-wide, as the Israeli equivalent of Marbury v. Madison. Both Courts used their respective decisions to establish the power to judicially review primary legislation, though neither constitution explicitly granted this. This, however, shouldn’t blind us to the differences. When Marbury was decided in 1803, not only did a formal US Constitution exist, but it even included an explicit supremacy clause. Thus, Chief Justice Marshall made only one albeit immensely powerful move, asserting the Constitution’s supremacy is devoid of meaning unless protected through judicial review. In contrast, Mizrahi involved three bold moves. In a single decision, the Israeli Supreme Court decided that the Basic Laws amount to Israel’s formal Constitution; that this newly recognized Constitution is supreme over ordinary laws, though the Basic Laws are enacted via the same legislative process; and, thus, the courts can judicially review primary legislation.

Though courts around the world have issued revolutionary decisions, bolstering their judicial power, none matches the magnitude of the Mizrahi decision. Many hail this decision as the epitome of judicial craftsmanship, ushering greater liberty and protection of rights. Others denounce it as despotic, denying the people and their representatives the power to decide their own constitutional fate.  

Mizrahi is by far the most important decision of the Israeli Supreme Court. Before Mizrahi, Israel operated under the premise that the legislature (the Knesset) was sovereign. The Court exercised judicial review over primary legislation only when laws violated the norm guaranteeing equal parliamentary elections. An absolute majority of legislators could and did override this judicial review power. The Court also developed a common law bill of rights, but the Knesset could override it too with explicit statutes. The Knesset did enact Basic Laws to deal with government structure, intending initially in the 1950s to gradually adopt them instead of creating a formal constitution at once, but left their constitutional status vague. However, by Mizrahi, it was clear that the Knesset as well as the Court didn’t grant Basic Laws special constitutional status in and of themselves, as they enabled their amendment via regular laws. 

Rebooting Israel’s Constitutional System

The Mizrahi decision recognized Israel’s Basic Laws as its supreme Constitution and established the Court’s power to protect them through judicial review. Going forward, in an outstanding move, the Court determined for the Knesset the procedure for constitutional amendment: it may amend Basic Laws only through other Basic Laws, rather than ordinary law. Since Basic Laws are passed through the same legislative track, this merely required the Knesset to grant a statute the proper title. Furthermore, the Court left itself the option to expand use of judicial review in the future to review the Constitution’s content, by determining that there was a misuse of constituent power or that a constitutional amendment was unconstitutional. The Knesset has accepted the Mizrahi constitutional regime and began substantively amending statutes to comply with judicial rulings of unconstitutionality.

To accomplish a revolution of this scale, the Court’s President Barak framed the Court’s move as merely acknowledging the validity of a constitutional revolution created by the Knesset in its enactment of two Basic Laws three years prior (1992): Basic Law: Human Dignity and Liberty and Basic Law: Freedom of Occupation. 

What was so unique about these Basic Laws? Until 1992, Basic Laws dealt only with the separation of powers, enumerating among others the powers of the Knesset, the Court, and the Government. Numerous attempts to enact a bill of rights had failed to obtain even the support of a simple majority in the Knesset. Then MK (Member of Knesset) Amnon Rubinstein, a prominent constitutional law professor, decided that a partial bill of rights was better than none. Thanks to this new strategy, the Basic Laws passed in 1992 explicitly protected individual rights for the first time in Israel’s history, including the rights to human dignity, life, liberty, bodily integrity, freedom of occupation, privacy, right of entry to and exit from Israel. They didn’t explicitly protect rights like equality, freedom of movement, freedom of religion, and free speech because they were controversial. 

In another unprecedented move, these Basic Laws included a limitation clause, requiring statutes to align with Israel’s values as Jewish and democratic, serve a proper purpose and be proportional. However, when the Knesset discussed whether this clause implied judicial review power, the head of the Constitution, Law and Justice Committee replied that “the power remains with the Knesset.”

In sharp contrast to the Court’s rhetoric, many MKs did not view the passage of these Basic Laws as revolutionary, focusing on campaigning, with many not even present for their enactment. Thus, in the final votes, this “constitutional revolution” passed with the support of 32 to 21 MKs for Basic Law: Human Dignity and 23 to 0 for Basic Law: Freedom of Occupation, out of the 120 members of the Knesset. 

Issues Left Open

In Mizrahi, the Justices struggled with a challenge familiar to jurisdictions adopting the British model of parliamentary sovereignty: how to transition to a model that better protects rights (such as the US model) without paying the price of a combined constitutional and political revolution. This was a constitutional crossroads. They could either deny the supremacy of the Basic Laws, possibly requiring a true break with the past with far-reaching implications if Israel did desire a constitution. Alternatively, they could attempt to leverage this opportunity to create a model for Israel that better protected rights.

Commentators have mostly concentrated on what was accomplished in Mizrahi, but the issues left open are no less interesting. Eight Justices out of nine on the panel believed that their judicial review power hinged on the recognition of the Basic Laws as Israel’s formal supreme Constitution. Only Justice Cheshin held that the two issues may be disentangled: until the people speak, Israel would lack a formal supreme Constitution, but the Court may still exercise judicial review.

Among the eight Justices, there was no majority as to which theory best explains why the Basic Laws amount to Israel’s formal supreme constitution. Three Justices concurred with the incoming Court’s President Barak. Three other Justices were undecided between Barak and the Court’s retiring President Shamgar.

Shamgar believed that a version of British parliamentary sovereignty allowing parliament to bind its successors (self-entrenchment) was better than the traditional Diceyan approach, which denies this. The Knesset could create a formal supreme Constitution through legislative self-entrenchment, and the Court could exercise judicial review to enforce the Knesset’s self-imposed limits. This theory best aligned with Israeli precedents, as the Court had previously exercised judicial review only to compel the Knesset to abide by its self-entrenchment regarding equal elections. 

Barak offered an alternative theory, which he believed created a stronger basis for judicial review. His theory relied on a higher authority binding a lower one, as in the US. He stated that the Knesset had enjoyed the powers of both a Constituent Assembly and an ordinary legislature since Israel’s establishment. When enacting Basic Laws, the Knesset was exercising its constituent authority, and could thus limit its legislative power. If, as an ordinary legislature, it tried to entrench enactments, the Court may invalidate them as non-democratic. Barak ‘low-keyed’ the fact that the Knesset used the same legislative process to enact both regular and constitutional law, which is very different from the US model and makes his jurisdictional distinction artificial. Thus, according to his theory, the very question whether entrenchment is democratic or not depends on whether the Knesset titles the statute as a ‘Basic Law’ or not.

Justice Cheshin, on the other hand, held that even without a Constitution, the Court could use judicial review to ensure that the Knesset abides by its own procedural restrictions, adapting the British theory of “manner and form.” Like Barak, he believed that the creation of a constitution demanded the involvement of a higher authority than the legislature. But that led him to the opposite conclusion: since no higher authority was involved, the Basic Laws did not amount to Israel’s formal supreme Constitution. Although he shared Shamgar’s view that Israel’s constitutional development was best explained by a version of British theory, he disagreed that the sovereign legislature could relinquish its sovereignty through self-entrenchment. Since the legislature had to retain its sovereignty, he translated every content-based restriction into a procedural restriction. The Knesset could then choose whether to abide by the restriction or explicitly override it. In Mizrahi, he thus interpreted the limitation clause in Basic Law: Human Dignity and Liberty as presenting an implied option to the legislature to either abide by proportionality or explicitly override the Basic Law. Absent explicit legislative override, Cheshin could join the Court in finding statutes unconstitutional if they were not proportional. 

The Missing Case Study on the Intermediate Commonwealth Model

Israel’s constitutional development is the missing case study on the intermediate Commonwealth model. Though not part of the Commonwealth, it too attempts to strike a middle ground between legislative sovereignty and constitutional supremacy. Israel’s story suggests that it is not the constitutional text that determines the nature of constitutionalism, as suggested by scholars of the Commonwealth model. Ultimately, the text alone doesn’t have the power of the last word. There are no shortcuts and no substitutes to societal processes. The Justices in United Mizrahi Bank understood that the narrative societies develop to explain their constitution has real-life consequences. They were interpreting the same constitutional text, but their theories had different ramifications. Although Mizrahi garnered global attention for deciding whether Israel has a constitution and whether the Court can exercise judicial review over primary legislation, the truly interesting questions it raised concern the type of constitution a country has and the form of judicial review it justifies. Mizrahi has not resolved these issues and they remain a subject of an ongoing struggle within Israeli society.

Professor Rivka Weill is a faculty member at Harry Radzyner Law School, Reichman University. She clerked for President Barak at the time Mizrahi was decided

Suggested Citation: Rivka Weill, ‘Despotism or Judicial Craftsmanship? Narrative Wars in Israel’s Marbury v. Madison’ IACL-AIDC Blog (9 June 2022) https://blog-iacl-aidc.org/globallandmarkjudgments/2022/6/9/despotism-or-judicial-craftsmanship-narrative-wars-in-israels-marbury-v-madison.