Israel’s Marbury Moment

This article was drafted prior to the leak of the Israeli Supreme Court’s Draft Decision on the Reasonableness Bill.

Before I begin, I must admit that the idea for this article was inspired by Professor Pamela Laufer-Ukeles amazing article on Marbury v. Madison.

What most people forget to mention about Marbury v. Madison, is the two core ideas that Justice Marsall relied on to justify his Court’s usurpation of Judicial Review.  First, “That the people have an original right to establish, for their future government, such principles as, in their opinion, shall most conduce to their own happiness, is the basis on which the whole American fabric has been erected.”  This idea, that the Constitution is the product of the will of the “people” was further fleshed out in another, slightly less famous case, McCollough v. Maryland.  In that case, Justice Marshall argued that the Constitution’s legitimacy stemmed not from the States, but from the people themselves.  While he conceded that the Constitution was ratified in State Constitutional Conventions, “This mode of proceeding was adopted, and by the convention, by Congress, and by the State legislatures, the instrument was submitted to the people. They acted upon it in the only manner in which they can act safely, effectively and wisely, on such a subject — by assembling in convention.”  So here we see, as most people can agree, that the people as whole, though divided by their States, were the ones whose assent legitimized the newly ratified constitution.

The second concept, that is often overlooked, is the idea that the Constitution, being a legitimate expression of the will of the people, is a legally self-executing document, and the Court’s use of Judicial Review is merely acting as the mechanism by which that self-execution is expressed.  “If, then, the courts are to regard the constitution, and the constitution is superior to any ordinary act of the legislature, the constitution, and not such ordinary act, must govern the case to which they both apply.”  If the Constitution is truly to be the “Supreme law of the land,” then in cases where the legislature passes a law “repugnant” or “hostile” to the Constitution, those laws must be null and void.  If they are not, then the Constitution itself, is necessarily, null and void.

These two concepts, the idea that the legitimacy of the Constitution relies on its ratification by the people within the States, not the States themselves, and the idea that the Constitution is necessarily a self-executing document, are incredibly illuminating for Israel’s current judicial crisis.

First, it must be stated, that the Coalition is not merely trying to pass an act of legislation.  The Coalition is trying to pass a number of Basic Laws.  A Basic Law is an Amendment to the Constitution.  “It is a constitution which [they] are expounding,” and as such, should be treated with the same reverence, and the same scrutiny with which any Constitutional Amendment should be granted.  So, what is the process by which this Coalition managed to finally pass its Reasonableness Bill?

The Coalition unquestionably constitutes a majority in the Knesset.  As such, it used that majority to pass both regular legislation and changes to the Basic Laws.  However, that majority does not reflect an electoral majority of the singular state in question.  Currently, that majority represents approximately 48% of the electorate, given that approximately 80,000 votes (of a total of about 4,763,694 votes cast) were discarded.  Those votes were discarded because two likely anti-coalition parties, Meretz and Balad, got close to the threshold to enter the Knesset, 3.25% or enough for 3 seats per party, but failed to reach that mark.  Regardless of the fairness of those rules, the Coalition did, unequivocally win a right to govern.  However, a right to govern, to pass legislation, is not the same as the legitimacy necessary to amend a constitution, or to pass a Basic Law.  I know of no other time in Israeli history when a Basic Law was passed by a Coalition representing less than 50% of the electorate.  Additionally, the election which swept the Coalition into power was not billed as a referendum on the Constitutional makeup of the State, but as a referendum on Benjamin Netanyahu, and whether he should be returned to power.  As the fourth of such referendums, the idea of remaking the Judiciary was not the focal point of the arguments made during the election.

Which brings us back to Marbury’s second point- the Constitution, ANY Constitution, is necessarily a self-executing document.  The Court’s job is to facilitate that execution.  When a law is passed that is repugnant to a Constitution, the Court must strike down that law.  Yet, in this case, the Coalition has passed a Basic Law, and Amendment to that very Constitution!  Should the Court not be bound by that Constitutional change?  Not in this instance.  A Constitutional Amendment passed without the support of even a majority of the electorate, is necessarily null and void, since the will of the people of the State as a whole, not only of the government in which the people reside, is necessary to ratify such a change.  The current Coalition inherently lacks that legitimacy.

Frankly, there are incredibly interesting and hard questions in determining the process by which a Country should ratify its Constitutional Amendments.  But no Amendment can be valid without even majority support within the actual building blocks of the Country in question.  The Supreme Court should strike down the Reasonableness Bill, along with any other changes to the Basic Laws the Coalition proposes on this principle alone:  Only a Coalition constituting an electoral majority has the democratic legitimacy necessary to make a change to Israel’s Constitution.