Legislatures and the Quest for a Constitution: The Case of Israel

In most constitutional regimes, legislatures as well as other constitutional powers operate under and within an agreed-upon constitution. Often, they are established by it and, to a large extent, gain their legitimacy and stability from it. The constitution is taken as a given. In rare cases it may itself be amended, but the idea is that the constitution sets the framework of activity of the other organs of government, including the legislature itself. This situation permits intense discussions of the roles of the various powers under the constitution and systems may have constitutional crises when one or another of these powers challenges the limits of the power of the other. But these discussions all take place within the constitutional framework. Indeed, one of its main functions is to make such debates more structured and “safer” than they would be if all the rules of the game were vulnerable to “normal” political exigencies. This explains why stable constitutional regimes can usually contain heated and persistent debates about constitutionalism and its implications. In some systems, however, Israel included, the status and the basic contours of the constitutional regime itself are quite controversial, weakening the legitimacy and stability of constitutional arrangements. In this essay, I argue that the roots of the controversy in Israel as to the legitimacy of the constitutional arrangements stems from the fact that the Israeli legislature has not taken – for a variety of reasons – a clear and firm position on constitutional issues, letting the court be the driving agent of the process.

All constitutions seek to enable governments, structure their powers, and limit them. To do this effectively, constitutions must enjoy a legitimacy that is broader and deeper than that enjoyed by any specific organ of government or any specific policy or piece of legislation. The fundamental nature of the constitution is supposed to provide elements of the “civil religion” that binds all members of society and all major groups within it to the constitutional system. Obtaining the legitimacy needed for fulfilling such a major role in any society depends, to a large extent, on the different roles various organs play in framing and adopting constitutional regimes, and on the roles they play within these regimes.

In Part I of this article I argue that legislatures and courts have different roles in phases of constitutionalism. The role played by legislatures (or, more accurately, by the people’s representatives) is almost exclusive during the constitution-making phase, central when amending the constitution, and diminishes during the application/interpretation of the constitution. The role played by courts is marginal in constitution-making, small when amending the constitution, and central during application/interpretation of the constitution. In addition, when courts participate in the enforcement of the constitution, they should be careful not to replace legislatures in questions relating to the authoritative elaborations of matters relating to ideological and political controversies which are best decided by the political branches. This division of labor follows from the features necessary for constitutions to be able to perform their unique functions. Usually, the legitimacy of the constitution is enhanced if these guidelines as to the roles of legislatures and courts are followed.