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The Paradigm of Originalism: Israeli Constitutional Law and Legal Thought: Review Essay of Gideon Sapir, Daphne Barak-Erez and Aharon Barak (eds), Israeli Constitutional Law in the Making (Hart Publishing 2013)

  • Hassan Jabareen (a1)

Abstract

This review essay challenges three main claims about originalism in American legal thought. While it affirms that originalism could be the Law of a legal system, it first challenges the mainstream idea that American originalism is the paradigmatic case in theory and in practice. Second, the essay confronts the normative justification that originalism ensures democracy based on the rule of law. Third, it interrogates the dichotomy between living constitutionalism and originalism regarding the use of history by arguing that originalism is a form of hegemony. The case study analysed in this article is Israeli legal thought and practice after the enactment of the 1992 Basic Laws, with the focus on the right of equality.

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Copyright

Footnotes

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I wish to thank Barak Medina and Paul Kahn for their thoughtful and challenging comments which helped me to further articulate and clarify the ideas in this article. I also wish to thank my wife Rina for our ongoing valuable discussions throughout the writing of this article, and David Fontana and the anonymous reviewer of the Israel Law Review for their helpful remarks. For transparency, I was the lawyer, together with my colleagues from Adalah, in several of the cases discussed in this article.

Footnotes

References

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1 Balkin, Jack M, ‘Constitutional Interpretation and Change in the USA: The Official and the Unofficial’ (2015) 14 Jus Politicum 21.

2 ibid 20. Sunstein labelled this version ‘hard originalism’, which asks judges to ‘go back in a time machine and ask the Framers very specific questions about how we ought to resolve very particular problems’: Sunstein, Cass R, ‘Five Theses on Originalism’ (1996) 19 Harvard Journal of Law & Public Policy 311, 312–13.

3 Ackerman, Bruce A, ‘The Storrs Lectures: Discovering the Constitution’ (1984) 93 Yale Law Journal 1013–72.

4 Ackerman, Bruce A, We the People, Volume 1: Foundations (Belknap Press 1991) 3.

5 ibid.

6 Amar, Akhil Reed, ‘The Consent of the Governed: Constitutional Amendment Outside Article V’ (1994) 94 Columbia Law Review 457.

7 Amar, Akhil Reed, ‘The Bill of Rights as a Constitution’ (1991) 100 Yale Law Journal 1131.

8 Cass R Sunstein, ‘Originalism for Liberals’, The New Republic, 30 September 1998, https://newrepublic.com/article/64084/originalism-liberals.

9 Prakash, an originalist, noted that ‘[p]rominent originalists claim that only originalism can safeguard the rule of law, protect political democracy from overreaching judges, and defend individual rights’: Prakash, Saikrishna B, ‘Book Review: Overcoming the Constitution’ (2003) 91 Georgetown Law Journal 407, 432. Scalia argued that originalism is more compatible ‘with the nature of and purpose of a constitution in a democratic society’ and it establishes ‘a historical criterion quite separate from the preferences of the judge himself’: Scalia, Antonin, ‘Originalism: The Lesser Evil’ (1989) 57 University of Cincinnati Law Review 849, 862, 864. Solum and Bennett argue that originalism is more compatible with the rule of law based on the fixed meaning of the constitution as put by popular sovereignty: Solum, Lawrence B and Bennett, Robert W, Constitutional Originalism: A Debate (Cornell University Press 2011) 3644.

10 Whittington, Keith E, Constitutional Interpretation: Textual Meaning, Original Intent, and Judicial Review (University Press of Kansas 1999) 159.

11 Whittington, Keith E, ‘The New Originalism’ (2004) 2 Georgetown Journal of Law & Public Policy 599, 609.

12 Rubenfeld, Jed, ‘Unilateralism and Constitutionalism’ (2004) 79 New York University Law Review 1971.

13 Schmitt, Carl, Constitutional Theory (Seitzer, Jeffrey ed and tr, Duke University Press 2008). See the translator's introduction about the influence of this theory on European political and legal thought.

14 ibid 65.

15 Hirst, Paul, ‘Carl Schmitt's Decisionism’ in Mouffe, Chantal (ed), The Challenge of Carl Schmitt (Verso 1999) 7.

16 Kahn, Paul W, ‘Reason and Will in the Origins of American Constitutionalism’ (1989) 98 Yale Law Journal 449.

17 Balkin (n 1) 22.

18 Greene, Jamal, ‘On the Origins of Originalism’ (2009) 88 Texas Law Review 1, 3.

19 Scheppele, Kim Lane, ‘Jack Balkin Is an American’ (2013) 25 Yale Journal of Law & the Humanities 23, 25.

20 Gramsci, Antonio, Selections from the Prison Notebooks (Hoare, Quintin and Smith, Geoffrey Nowell eds and trs, International Publishers Co 1971).

21 Ackerman (n 4) 6.

22 Kay, Richard, ‘The Illegality of the Constitution’ (1987) 4 Constitutional Comment 57, 58.

23 Kahn, Paul, ‘The Question of Sovereignty’ (2004) 40 Stanford Journal of International Law 259, 270.

24 Ackerman (n 4) 10–16.

25 Kay, Richard, ‘Originalist Values and Constitutional Interpretation’ (1996) 19 Harvard Journal of Law and Public Policy 335, 335–38.

26 Whittington (n 10) 75.

27 Schmitt (n 13) 73.

28 ibid.

29 ibid 263–64.

30 Schmitt, Carl, Political Theology: Four Chapters on the Concept of Sovereignty (Schwab, George tr, University of Chicago Press 1985) 10.

31 Schmitt (n 13) 264.

32 ibid 200.

33 ibid 58.

34 ibid 259.

35 ibid 207.

36 ibid 187.

37 ibid 153–55.

38 Schmitt, Carl, The Crisis of Parliamentary Democracy (Kennedy, Ellen tr, The MIT Press 1985) 15.

39 To justify originalism, Whittington describes the quality of the sovereign's decision: ‘The gap between chaos and order can be bridged only through a singular act of will’. By this, Whittington highlights Schmitt's exception that to prohibit chaos ‘a normal situation must exist’ and ‘the sovereign is he who decides on the exception’ to protect the order: Whittington (n 10) 144; Schmitt (n 13) 13. Following Schmitt's dualist concept of law, Kahn argues that between the written legal norm and the judicial decision, there is a gap and free will fulfils it. We know the concrete content of the norm only when it is decided by the court. For Kahn, ‘[d]ecision determines norm’ and ‘[t]he rule of law is the will of the sovereign … because the decision is the locus of sovereign presence’: Kahn, Paul, Political Theology: Four New Chapters on the Concept of Sovereignty (Columbia University Press 2011) 90.

40 Schmitt (n 13) 242–43.

41 Kalyvas, Andreas, ‘Hegemonic Sovereignty: Carl Schmitt, Antonio Gramsci and the Constituent Prince’ (2000) 5 Journal of Political Ideologies 343, 365.

42 Gramsci (n 20) 57–58.

43 Carnoy, Martin, The State and Political Theory (Princeton University Press 2014) 6588.

44 Williams explained that Gramsci's hegemony is ‘a ‘moment’ in which the philosophy and practice of a society fuse or are in equilibrium; an order in which a certain way of life and thought is dominant, in which one concept of reality is diffused throughout society in all its institutional and private manifestations, informing with its spirit all taste, morality, customs, religious and political principles and all social relations, particularly in their intellectual connotation’: Williams, Gwyn A, ‘The Concept of “Egemonia” in the Thought of Antonio Gramsci: Some Notes on Interpretation’ (1960) 21 Journal of the History of Ideas 586, 587.

45 Litowitz, Douglas, ‘Gramsci, Hegemony, and the Law’ (2000) 2 Brigham Young University Law Review 515, 519.

46 Gramsci (n 20) ch 2, subsection on Hegemony (Civil Society) and Separation of Powers 507.

47 Kapczynski, Amy, ‘Historicism, Progress, and the Redemptive Constitution’ (2005) 26 Cardozo Law Review 1041.

48 Post explains the sameness and the homogeneity principle of originalists: ‘Historical interpretation can be understood implicitly to assert an identification, a community of interest, with the framers or ratifiers of those provisions. “Their” consent, so the implicit assertion would go, is “our” consent; they spoke “for” us’: Post, Robert C, ‘Theories of Constitutional Interpretation’ (1990) 209 Faculty Scholarship Series 13, 29.

49 Balkin, Jack M, ‘Why are Americans Originalist?’ in Nobles, Richard and Schiff, David (eds), Law, Society and Community: Socio-Legal Essays in Honour of Roger Cotterrell (Routledge 2016) 309, 315.

50 Balkin (n 1) 24.

51 Solum argues that almost all originalists agree with what he calls the fixation thesis’, namely that the original meaning of constitutional rights was fixed during the time of the constitution-making process: Lawrence B Solum, ‘What is Originalism? The Evolution of Contemporary Originalist Theory’ (2011) Georgetown Law Faculty Publications and Other Works 1353.

52 Fontana, David, ‘Comparative Originalism’ (2010) 88 Texas Law Review 189.

53 ibid 196–97. On the rise of originalism without a written constitution, see Tew, Yvonne, ‘Originalism at Home and Abroad’ (2014) 52 Columbia Journal of Transnational Law 780; Coan, Andrew, ‘The Irrelevance of Writtenness in Constitutional Interpretation’ (2010) 158 University of Pennsylvania Law Review 1025.

54 Balkin (n 1) 22.

55 The name of the state was introduced for the first time in the Declaration of Establishment of the State of Israel in May 1948: ‘We … declare the establishment of a Jewish state … to be known as the State of Israel’: Provisional Government of Israel, ‘Declaration of Independence’, Official Gazette No 1 (Tel Aviv), 14 May 1948.

56 The Israeli Supreme Court supports the idea that the authority of the first temporary legislator came from nowhere: ‘For the authority to give itself this power, there is no previous reference. This is the beginning of a self-creation process that was created from nowhere, which characterizes the start of a new political regime. Its existence was not derived from any other previous political regime’: CA 6821/93 United Mizrahi Bank Ltd v Migdal Cooperative Village 1995 PD 49(4) 221, 359–60.

57 UNGA Res 181 (II) (29 November 1947) (UN Partition Plan for Palestine).

58 This text was written by David Ben-Gurion to US President Truman, who had requested the return of the Palestinian refugees: see Tom Segev, 1949: The First Israelis (Owl Books 1998) 35.

59 Ibid.

60 On the military regime, see Jiryis, Sabri, The Arabs in Israel (Inea Bushnaq tr, Monthly Review Press 1976).

61 Michael Kagan, ‘Destructive Ambiguity: Enemy Nationals and the Legal Enabling of Ethnic Conflict in the Middle East’ (2007) 38 Columbia Human Rights Law Review 263.

62 The law that is known as the ‘Nakba Law’, which was passed in 2011, illustrates this connection. The law imposes sanctions on any state-funded institution that commemorates Israeli Independence Day as a day of mourning as a result of the Nakba or challenges the Jewishness of the state. The Court has refused to intervene, thereby upholding the constitutionality of the law: HCJ 3429/11 Alumni Association of the Arab Orthodox High School in Haifa v Minister of Finance (5 January 2012) (Nakba Law case).

63 Benjamin Akzin, Topics on Law and Politics (Magnes 1967) 65–66 (in Hebrew).

64 Segev (n 58) 290.

65 ibid 287.

66 ibid 287–89.

67 Baruch Kimmerling, Immigrants, Settlers, Nations: The State and Society in Israel – Between Multiculturalism and Culture Wars (Am Oved 2004) 152 (in Hebrew).

68 Segev (n 58) 291.

69 ibid 288.

70 Kimmerling, Baruch, The Invention and the Decline of Israeliness: State, Society and the Military (University of California Press 2001) 6.

71 ibid 148.

72 ibid 97.

73 ibid.

74 Kimmerling (n 67) 149.

75 On the influence of the first election on the hegemony, see Jabareen, Hassan, ‘Hobbesian Citizenship: How the Palestinians Became a Minority in Israel’ in Kymlicka, Will and Pföstl, Eva (eds), Multiculturalism and Minority Rights in the Arab World (Oxford University Press 2014) 189218, and in Theory and Criticism (Van Leer Institute 2014) 13–46 (in Hebrew).

76 See the Knesset's website for the English translation of the two Basic Laws: The Knesset, ‘Basic Laws’,  https://m.knesset.gov.il/EN/activity/Pages/BasicLaws.aspx.

77 See Cohen-Eliya, Moshe, ‘The Israeli Case of a Transformative Constitutionalism’ in Sapir, Gideon, Barak-Erez, Daphne and Barak, Aharon (eds), Israeli Constitutional Law in the Making (Hart 2013) 173, 177.

78 Tamar Hostovsky Brandes, ‘Human Dignity as a Central Pillar in Constitutional Rights Jurisprudence in Israel: Definitions and Parameters’ in Sapir, Barak-Erez and Barak (n 77) 267, 273.

79 Karp, Yehudit, ‘The Basic Law: Human Dignity and Freedom: Biography of Power's Struggle’ (1992) 1 Mishpat Umimshal [Law and Government] 323, 343 (in Hebrew).

80 As Justice Barak wrote, ‘the public is not aware that lately a revolution occurred in Israel. This is a constitutional revolution’: Barak, Aharon, ‘The Constitutional Revolution: Protected Fundamental Rights’ (1992) 1 Mishpat Umimshal [Law and Government] (in Hebrew).

81 United Mizrahi Bank (n 56) 359–60.

82 Barber and Vermeule survey the ‘exceptional cases’ in which courts decide on the Constitution itself. They argue that this Israeli judicial decision is one of the rare cases in the world where what they call ‘constitutional decisionism’ appears. The decision ‘runs contrary to the rules of the existing legal order’: Barber, NW and Vermeule, Adrian, ‘The Exceptional Role of Courts in the Constitutional Order’ (2016) 92 Notre Dame Law Review 817, 818.

83 United Mizrahi Bank (n 56) 357.

84 ibid 391.

85 ibid 475.

86 ibid 364.

87 ibid 397.

88 ibid 396.

89 ibid 395.

90 ibid 352.

91 HCJ 6427/02 Movement for Quality Government v Knesset 2005 PD 61(1) 619 (Yeshiva case).

92 HCJ 3267/97 Rubinstein v Minister of Defence 1998 PD 52(5) 481.

93 ibid para 32.

94 Ely, John, Democracy and Distrust (Harvard University Press 1980).

95 For Justice Cheshin, the law that postpones the Yeshiva students’ army service contradicts ‘the basic values that constitute our organic life, our truth, our wishes, all the hopes that the new state of Israel is built on … these values that give life to Knesset's laws’: Yeshiva case (n 91) opinion of Justice Cheshin, para 6. He continued: ‘Thus the Israeli Defense Forces (IDF) is the body that secures the continuation of the Jewish state … If there is no IDF, there will not be a Jewish state … the duty to serve in the IDF aims to secure the right of individuals and the state – the right to survive and self-defence. This duty applies to every person who can carry arms with his hands’: ibid para 17.

96 Yeshiva case (n 91) opinion of Justice Barak, para 28.

97 Scalia, for example, criticises the use of ‘fundamental values’ as it is the ‘judicial personalization of the law’. For him, in a democratic society the elections take care of ‘current values’ very well: Scalia, Antonin, ‘Originalism: The Lesser Evil’ (1988) 57 University of Cincinnati Law Review 849, 862.

98 Hostovsky Brandes (n 78) 273.

99 Gideon Sapir, ‘Why a Constitution – in General and in Particular in the Israeli Context?’ in Sapir, Barak-Erez and Barak (n 77) 9, 23.

100 Joshua Segev, ‘Justifying Judicial Review: The Changing Methodology of the Israeli Supreme Court’ in Sapir, Barak-Erez and Barak (n 77) 105, 114.

101 Ariel L Bendor, ‘The Purpose of the Israeli Constitution’ in Sapir, Barak-Erez and Barak (n 77) 41.

102 Cohen-Eliya (n 77) 178.

103 Gideon Sapir, Daphne Barak-Erez and Aharon Barak, ‘Introduction: Israeli Constitutional Law at the Crossroads’ in Sapir, Barak-Erez and Barak (n 77)  1, 5.

104 HCJ 6698/95 Ka'adan v Israel Land Administration 2000 PD 54(1) 258.

105 ibid para 31.

106 As Justice Barak put it, ‘Hebrew, for instance, is necessarily the state's main language, and its primary holidays will reflect the national renewal of the Jewish nation. Jewish heritage constitutes a central component of Israel's religious and cultural heritage and it includes also other characteristics which we do not need to state’: ibid.

107 ibid para 7.

108 EA 11280/02 Central Elections Committee to the Sixteenth Knesset v Tibi 2003 PD 57(4) 1 (Disqualification case).

109 HCJ 840/97 Sbeit v Government of Israel 2003 PD 57(4) 803 (Iqrit case).

110 ibid para 6.

111 HCJ 6354/03 Sbeit v Government of Israel (18 June 2004), para 5 (Iqrit case, request for further hearing).

112 CA 4067/07 Jabareen v State of Israel (3 January 2010), para 35.

113 HCJ 7311/02 Association for Support and Defense of Bedouin Rights in Israel v Municipality of Beer Sheva (22 June 2011), opinion of Justice Naor, para 21 (Big Mosque case).

114 HCJ 10532/04 Sheikh Abdullah Nimr Darweesh v Minister of Religious Affairs (9 March 2009) (Holy Sites case).

115 See the state's response submitted before the Court, para 16, available in the case file at Adalah.

116 Akzin (n 63).

117 UNGA Res 181 (II) (n 57) Part 1, B, art 10(d): ‘Guaranteeing to all persons equal and non-discriminatory rights in civil, political, economic and religious matters and the enjoyment of human rights and fundamental freedoms, including freedom of religion, language, speech and publication, education, assembly and association’.

118 ibid, Part 1, C, Ch 2, art 8: ‘No expropriation of land owned by an Arab in the Jewish State (by a Jew in the Arab State) shall be allowed except for public purposes. In all cases of expropriation, full compensation as fixed by the Supreme Court shall be paid previous to dispossession’.

119 ibid, Part 1, C, Ch 1, arts 1 and 2: ‘1. Existing rights in respect of Holy Places and religious buildings or sites shall not be denied or impaired. 2. In so far as Holy Places are concerned, the liberty of access, visit and transit shall be guaranteed, in conformity with existing rights, to all residents and citizens … without distinction as to nationality, subject to requirements of national security, public order and decorum’.

120 Declaration of the Establishment of the State of Israel (n 55). The Declaration provides that the new state ‘will foster the development of the country for the benefit of all its inhabitants; it will be based on freedom, justice … it will ensure complete equality of social and political rights to all its inhabitants irrespective of religion, race or sex; it will guarantee freedom of religion, conscience, language, education and culture; it will safeguard the Holy Places of all religions; and it will be faithful to the principles of the Charter of the United Nations’.

121 Although the political discourse heavily emphasises that Jerusalem, which was occupied in 1967, is the capital of the state, the Court never identified it as a factor of the ‘Jewish state’. Note that the Palestinians in Jerusalem are not citizens and do not participate in elections.

122 Ka'adan (n 104) para 37.

123 Bendor (n 101) 41.

124 While there are many other possibilities regarding the scope of the ‘Jewish state’, the Court chose only its originalist meaning. For example, one may accept the characteristics of the State of Israel as a Jewish state without agreeing to any aspect of discrimination. The State is the only Jewish state in the world, as it is the only state that carries a Jewish-Hebrew name and declares Hebrew as its official language, and the only state that recognises Jewish holidays as official holidays. In addition, the State of Israel could also be a bi-national state and at the same time be the only Jewish state in the world, as it would be the only state where Israeli Jews – as Jews – have the right of self-determination, which includes the right to govern. Although these possibilities have nothing to do with discriminating against Palestinian citizens in land allocation and citizenship, the Court chose very specific factors that fit only within the meaning of Ben-Gurion's party in 1948–49. The originalist version explains why the Court dismissed all the petitions and also explains why these decisions enjoy legitimacy from the public as it falls within the hegemony.

125 Schmitt's theory could also answer the question of why the Court overturned founding politics regarding the drafting of Yeshiva students. For Schmitt the Constitution is the ‘principle of dynamic emergence of political unity, of the process of constantly renewed formation and emergence of this unity from a fundamental or ultimately effective power and energy’. The state is something ‘always arising anew’ and the political unity ‘must form itself daily’: Schmitt (n 13) 61.

126 As Kahn's thesis, which follows Schmitt, posits that the norm is abstract and we do not know its substance until it is decided. The decision determines the norm and not the opposite. Kahn provided the example where most Americans agreed with slavery, while at the same time believing in the moral norm of equality: Kahn (n 39) 90.

127 HCJ 7052/03 Adalah v Minister of Interior 2006 PD 61(2) 202 (Family Unification case).

128 Beside the Nakba Law case (n 62) and the Family Unification case (n 127) mentioned above, on 5 June 2013, the Court dismissed a petition against Amendment 113 of the National Insurance Law, enacted in 2010, which reduces child allowances by 60% for families that have not had their children vaccinated. The petitioners argued that the law has adverse effects mainly for Arab Bedouin residents of the unrecognised villages in the Negev: see HCJ 7245/10 Adalah v Minister of Welfare and Social Affairs (5 June 2013) (Vaccinations case). On 17 September 2014, the Court dismissed petitions against a statute that allows small Israeli Jewish communities to reject applicants for housing based on the criteria of ‘social suitability’ and the ‘social and cultural fabric’ of the town: HCJ 2311/11 Sabah v Knesset (9 September 2014) and HCJ 2504/11 Sabah v Knesset (17 September 2014) (Admissions Committees case). These criteria work in fact to exclude Arab families. On 14 January 2015, the Court rejected a petition to cancel an amendment to the Electoral Threshold Law enacted in 2014, which raises the threshold percentage of votes needed to gain seats in the Knesset from 2% to 3.25%: HCJ 3166/14 Gutman v Attorney General (14 January 2015) (Electoral Threshold case). Raising the threshold forces radically different Arab political parties to run together, such as secular and religious groups, thereby harming political pluralism.

129 With regard to creating hegemony, Ackerman argued that ‘the basic unit is The Generation’. We, the living, accept the meaning of the ‘historical events’ of the creative generation who struggled for ‘the war for independence, war between states, struggle between capital and labor’, which led to ‘big constitutional changes in public values’, and we ‘convert our lived experience into the next generation's monuments in our history books and statute books, songs and public holidays’: Bruce Ackerman, ‘A Generation of Betrayal?’ (1997) 65 Fordham Law Review 1519, 1524.

130 Amar (n 7) 1210.

131 Kahn, Paul, Putting Liberalism in its Place (Princeton University Press 2005) 261.

132 Siegel, Reva, ‘Heller and Originalism's Dead Hand – In Theory and Practice’ (2009) 56 UCLA Law Review 1399.

133 Siegel, Reva, ‘Dead or Alive: Originalism as Popular Constitutionalism in Heller’ (2008) 122 Harvard Law Review 191.

134 Chaim Gans, ‘Jewish and Democratic: Three Zionisms and Post-Zionism’ in Sapir, Barak-Erez and Barak (n 77)  473.

135 Aviad Bakshi and Gideon Sapir, ‘A Jewish Nation-State: A Discussion in Light of the Family Reunification Case’ in Sapir, Barak-Erez and Barak (n 77) 487. Gila Stopler wrote a critical analysis in the book under review about the Jewishness of the state as it refers to religion-state relations and not Arab-Jewish relations: Gila Stopler, ‘National Identity and Religion-State Relations: Israel in Comparative Perspective’ in Sapir, Barak-Erez and Barak (n 77) 503.

136 Bakshi and Sapir (n 135) 500.

137 Gans (n 134) 478.

138 Gans explains that Palestinians who are citizens of Israel ‘often side with their ethno-cultural group and not with the state in which they are citizens. As long as the conflict remains … the Jews must rely on their strength. In other words, they must continue to live within the framework of a state within which they enjoy hegemony and in which they have military power. Even when an agreement, which would end the current state of war between the parties, is reached, many years will have to pass before relations predicated on mutual trust can be established’: Gans, Chaim, A Just Zionism: On the Morality of the Jewish State (Oxford University Press 2008) 7879.

139 Gans (n 134) 480.

140 ibid.

141 Bakshi and Sapir (n 135) 501.

142 ibid 488.

143 See the articles in Ahmad Sa'di and Lila Abu-Lughod (eds), Nakba: Palestine, 1948 and the Claims of Memory (Columbia University Press 2007).

144 Susanna Mancini and Michel Rosenfeld, ‘The Dilemmas of Identity in a Jewish and Democratic State: A Comparative Constitutionalist Perspective on Bakshi and Sapir, Gans, and Stopler’ in Sapir, Barak-Erez and Barak (n 77) 517, 524.

145 ibid 528.

146 ibid 519.

147 ibid 522.

148 Frank Michelman participated in this conference for the twentieth anniversary of the 1992 Basic Laws. He claimed that if the idea of a Jewish state means ‘a state where people of Jewish cultural identity and religious faith are assured of being able to live as authentically Jewish, safely and with full social respect’, then there is no clash with liberal theory ‘but this does not hold true if it includes a component of domination’: Frank I Michelman, ‘Constitutional Essentials’ (2011) Harvard Public Law Working Paper 8.

149 Gans (n 134) 479.

150 The Nation-State Law provides that self-determination in the State of Israel, including immigration and group rights, is exclusively for the Jewish people, and ‘[t]he state views Jewish settlement as a national value, and will act to encourage, promote and consolidate its establishment’: see the Knesset website (n 76).

151 Short articles about this new Basic Law are published on Verfassungsblog, ‘An Israel of, for and by the Jewish People?’, Verfassungsblog: On Matters Constitutional, https://verfassungsblog.de/category/debates/an-israel-of-for-and-by-the-jewish-people.

152 For example, the former Chief Justice Aaron Barak stated in a public lecture on 19 December 2018 that the Nation-State Law is very important and ‘indeed there is no real dispute in Israeli society among left or right, regarding most of its articles’. He added that contrary to what the legislator advocates, he and ‘the Court never gave priority to democratic values over the Jewish values of the state’. For him, the law lacks reference to the right of equality on the individual level: see Bat El Binyamin, ‘Aharon Barak: The Nation-State Law is an Important Statute Poorly Enacted’, Arutz 20, 18 December 2018, https://www.20il.co.il/אהרון-ברק-חוק-הלאום-הוא-חוק-חשוב-שנחקק/ (in Hebrew).

153 Aviad Bakshi, ‘Does the Nation Law Violate Equality?’, ICON-S-IL Blog, 21 October 2018, https://bit.ly/2P9mHDH.

154 HLA Hart, The Concept of Law (Oxford University Press 2012) Ch VI.

155 ibid 89.

156 Justice Jubran's decision in the Big Mosque case (n 113) is a good example. He provided very strong justifications for why the petition must be accepted, as not opening the mosque for prayer infringes the human dignity of Muslim citizens and discriminates against them. However, his final decision complies fully with the politics of the foundation.

157 We saw that in a case such as Ka'adan (n 104), in which both originalism and living constitutionalism appear, the Court decided that the result does not contradict the sovereign rule of recognition. Indeed, the space of freedom for the will of the justices runs between fully applying the sovereign rule of recognition to the point at which they follow it without contradiction. This range is the space of disagreement in which the justices can dispute issues of applicability, but with loyalty to the hegemony in ad hoc cases such as the Disqualification case (n 108). Again Gramsci's hegemony helps us to understand the relationship between the two rules.

158 Sachs, Stephen, ‘Originalism as a Theory of Legal Change’ (2015) 38 Harvard Journal of Law & Public Policy 817; Baude, William, ‘Is Originalism Our Law?’ (2015) 115 Columbia Law Review 2349.

159 For Sachs, the focus should be on whether the changes in American law follow the founders’ law for changes as ‘originalism is all about procedures not substance’ (Sachs (n 158) 879). Similarly, Baude decided that the rule of recognition of the founding also refers ‘to the validity of other methods of interpretation or decision’, which includes precedents and the common law (Baude (n 158) 2352).

160 For example, American originalists celebrate Heller with regard to the Second Amendment (the use of firearms by citizens), in which a deeply divided US Supreme Court issued a 5:4 decision upholding an individual's right to possess a firearm. Many scholars refer to the approach of Justice Scalia in this case as a form of living constitutionalism or popular constitutionalism: see references in Siegel (n 133) and District of Columbia v Heller 554 US 570 (2008).

161 David Fontana, ‘Perpetual Constitutional Moments: A Reply to Hostovsky Brandes and Weintal’ in Sapir, Barak-Erez and Barak (n 77) 303, 304. Although only 70 years have passed since the founding of Israel and not over 200 years like the US, this difference in time has nothing to do with the relevance of originalism. The passage of time is not a matter for examining whether originalism is the sovereign rule of recognition. In addition, originalism itself does not accept the passage of time as a matter for change, as the fixed meaning of the Constitution should be valid after 70, 100 or 200 years. Kahn's work, which examined US Supreme Court decisions during the first 65–70 years of the foundation era, shows this clearly. The Israeli case is similar to his thesis in that both indicate how ‘political will’ and ‘reason’, originalism and living constitutionalism, coexist. As Marbury v Madison and Dred Scott v Sanford coexisted, Bank Mizrahi lives together with the cases concerning the uprooted villages and the holy sites: Kahn, Paul W, ‘Reason and Will in the Origins of American Constitutionalism’ (1989) 98 Yale Law Journal 449.

162 Bakshi and Sapir (n 135) 489.

163 The Court dismissed a petition by citizens to register ‘Israeli’ instead of ‘Jew’ as their nationality on their identity cards, explaining that there is no such category: HCJ 8573/08 Ornan v Minister of Interior (2 October 2013).

164 Bendor (n 101).

165 Sharon Weintal, ‘The Inherent Authority of Judges in a Three-Track Democracy to Recognise Unenumerated Constitutional Rights: The Israeli Story of a Judicial Mission with No Ammunition’ in Sapir, Barak-Erez and Barak (n 77) 285, 293.

166 Sapir (n 99).

167 Barak Medina, ‘The Role of the Legislature in Determining Legitimate Responses to Security Threats: The Case of Israel’ in Sapir, Barak-Erez and Barak (n 77) 445, 446.

168 Daphne Barak-Erez, ‘The National Security Constitution and the Israeli Condition’ in Sapir, Barak-Erez and Barak (n 77) 429.

I wish to thank Barak Medina and Paul Kahn for their thoughtful and challenging comments which helped me to further articulate and clarify the ideas in this article. I also wish to thank my wife Rina for our ongoing valuable discussions throughout the writing of this article, and David Fontana and the anonymous reviewer of the Israel Law Review for their helpful remarks. For transparency, I was the lawyer, together with my colleagues from Adalah, in several of the cases discussed in this article.

Keywords

The Paradigm of Originalism: Israeli Constitutional Law and Legal Thought: Review Essay of Gideon Sapir, Daphne Barak-Erez and Aharon Barak (eds), Israeli Constitutional Law in the Making (Hart Publishing 2013)

  • Hassan Jabareen (a1)

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