Abtreibung, 2023, Heft 2, S. 158 - 166, recht & gesellschaft

Why the Israeli Constitutional Putsch is Unconstitutional

This article defends the claim that the constitutional proposals made in the 25th Knesset are unconstitutional and should be invalidated by the Israeli Supreme Court (the Court). I defend this claim on the basis of three grounds. First, I show that normatively speaking, every liberal democracy has principles, which bind the legislature and to do so effectively, these principles must be defended by courts. Second, I show that in other legal systems, courts have participated in the very construction of the Constitution, and that contrary to a common view, courts are partners in the very creation of the Constitution. This is true both in countries with a written constitution, such as the US, and countries, which have no such constitution, such as Britain and other common law jurisdictions. Last, I show that established Israeli precedents support the claim that the proposed constitutional amendments are unconstitutional. Hence, I conclude by arguing that the Court should declare that these proposals are invalid.