Inventing Judicial Review: Israel and America

Abstract

In American constitutional law, the existence of a constitutional text appears essential for the derivation of judicial review. This textual derivation is considered either direct because the founders' expectation of judicial review is explicitly inscribed in the Constitution, or indirect because the written character of the document itself implicitly establishes the text as a "law" that judges are both qualified and obliged to enforce against the other branches of government.' In either case, the textuality of the Constitution is the key for the conventional justifications of American judicial review. Israel, by contrast, has no written constitution. Israeli judges and legal scholars deduced from this fact that legislative supremacy was the operative constitutional rule and that courts could not justifiably invalidate legislative acts. During the past two decades, however, a series of Israeli Supreme Court decisions have raised increasingly extensive doubts about this deduction. Legislative supremacy is still the hornbook rule in Israeli constitutional jurisprudence; but this rule now appears more grudgingly than complacently applied. Following Thomas Jefferson's dictum that each generation should compose its own constitutional regime-and his calculation that for this purpose a generation was thirty-four years2-we might say that the second generation of Israeli judges has cautiously moved toward inventing a practice of judicial review. The contemporary Justices of the Israeli Supreme Court have not openly announced a new rule justifying judicial review; but, in the time-honored fashion of common law judges, their practices are increasingly in tension with the old rule. A new rule for judicial review might therefore emerge from these practices.