Five Approaches to Constituent Power: Reflections on the Israeli Reasonableness Ruling

Abstract A year defined by the judicial reform-overhaul in Israel reached its legal climax when the Government amended a constitutional law to abolish the courts’ ability to make use of the reasonableness doctrine, a common-law doctrine which allows courts to review administrative actions based on their “reasonableness”. Petitions to the Israeli Supreme Court were immediately filed, leading to a revolutionary ruling. For the first time in its history, all fifteen justices of the Supreme Court convened and struck down a constitutional amendment in an eight to seven decision. While a majority was reached, a deeper inspection of the different opinions uncovers substantial differences in the justices’ theoretical approaches. This Article provides an analysis of the five major theoretical approaches utilized in the reasonableness ruling to justify or reject the existence of a limitation on constituent power in Israel: constitutional data, constitutional self-entrenchment, declarations of independence, natural law, and limitless constituent power. The Article presents the unique insight that despite the unprecedented outcome of the ruling, none of the justices relied on the ubiquitous distinction between the primary and secondary constituent powers. As such, contradictory to common perception, the Supreme Court of Israel didn’t adopt the unconstitutional constitutional amendment doctrine in the reasonableness ruling. Instead, it adopted a much more radical doctrine according to which the Court may strike down any constitutional law–whether the product of the primary or secondary constituent power–so long as it is convinced that the constituent power’s authority was exceeded.