Harel Alon

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.