On constitutional identity, democratic legitimacy, and judicial review in times of democratic backsliding: The case of Israel

Abstract The Israeli Supreme Court’s recent decisions to invalidate constitutional amendments that were part of the government’s attempt at the so-called “Legal Reform” rely on the concepts of democratic legitimacy and constitutional identity. Explaining these decisions through these concepts contributes to a better understanding of the developing doctrine of unconstitutional constitutional amendment and helps justify the Israeli Supreme Court’s approach. Israel’s constitution is a hybrid of written and unwritten elements. The Basic Laws are constitutionally binding based on two cumulative conditions: (i) they were enacted by the legislature, which enjoys partial procedural legitimacy to enact constitutional norms; and (ii) their content entrenches Israel’s existing unwritten constitution, which is determined through the concept of constitutional identity, formed primarily by reference to positive law and only in part by reference to society’s culture and to universal ideals. Importantly—and this is the main novelty of the interpretation offered here—the weight of the legislature’s procedural legitimacy is not fixed, but operates on a sliding scale: an amendment that entrenches a norm already part of the unwritten constitution is constitutionally valid even if it enjoys only minimal procedural legitimacy, whereas an amendment adopted with overwhelming political and public support enjoys substantial procedural legitimacy, which may be sufficient even if it contradicts the unwritten constitution.