Constitutional methodology and the perils of positivity: A reply to Barak Medina

Abstract This Reply critically examines Barak Medina’s recent proposal for constraining constitutional amendments in Israel, where the Knesset—lacking procedural checks—can amend Basic Laws by a simple majority. Medina argues that the Israeli Supreme Court has adopted a novel interpretive framework, subjecting the Knesset’s constituent power to what can be understood as an “equilibrium” requirement: the more a Basic Law aligns with Israel’s unwritten constitution, the less procedural legitimacy it requires, and vice versa. Grounding this model in Dworkin’s interpretive theory, Medina develops the concept of Israel’s constitutional identity to bring liberal safeguards to bear on the Knesset’s constituent power. We argue, however, that a misalignment in his reliance on Dworkin’s methodology undermines his analysis, leading him to define Israel’s con­stitutional identity ambiguously and to selectively incorporate legal materials—privileging liberal sources while sidelining nationalist ones. Moreover, the equilibrium model’s procedural criteria are empirically and normatively indeterminate, casting doubt on their utility. Ultimately, despite identifying an important difficulty with the Knesset’s power, Medina’s proposal risks legitimizing rights-infringing amendments under conditions of majoritarian consensus, thereby undermining the very minority groups it seeks to protect.