1. Introduction
American originalism is perceived as a unique legal culture in theory and practice based on the claim that judges apply (or should apply) the original political will of the foundation era of the state as authoritative in present constitutional cases.Footnote 1 This political will may refer to the intentions of the founders, the ratifiers or drafters of the Constitution, or the public meaning or understanding of the Constitution during the foundation era.Footnote 2 The influential Storrs Lectures delivered by Bruce Ackerman in 1983 at Yale Law School strongly contributed to this idea.Footnote 3 For Ackerman, the establishment of the United States created a dualist model of democracy, which is ‘a genuinely distinctive pattern of constitutional thought and practice’.Footnote 4 European thinkers did not imagine such a model, Ackerman contended, as ‘neither Aristotle nor Cicero, Montesquieu nor Locke, Harrington nor Hume, Kant nor Weber will provide the key’.Footnote 5 This dualist model is based on two tracks: the ‘political moment’, which expressed the idea of ‘We the People’ through extra-legality leading to new social and political conditions that control the other ‘normal politics’ track, which expresses the day-to-day politics of the legislators and constitutional law. Ackerman's colleague at Yale, Akhil Amar, developed this dualist model and contended that ‘We the People’ is even able to create constitutional changes, including against Article V at any time, as the original meaning of the Constitution limits only governmental agents and not the will of the people.Footnote 6 Even the Bill of Rights itself, Amar argued, was shaped by the majoritarian original will to protect the states and not individual rights.Footnote 7 Cass Sunstein noted that Amar's creative work makes him ‘the most influential originalist’.Footnote 8
Based on this dualist model, leading normative originalists claim that originalism ensures democracy based on the rule of law.Footnote 9 Keith Whittington asserts that originalism secures ‘democratic structure by enforcing the popular will against the agents of the people’,Footnote 10 and thus judges must ‘uphold the original Constitution – nothing more, but nothing less’.Footnote 11 This belief in the ‘American uniqueness’ model even provides the explanation for American exceptionalism, as Jed Rubenfeld argues that, unlike European democracies, the American foundation created a democracy that accepts laws made only by Americans.Footnote 12
I argue that Carl Schmitt's theory of constitutional law is the first comprehensive and most influential European thesis to articulate the dualistic democratic model, and that it is the paradigmatic theory on originalism.Footnote 13 Already in 1928, Schmitt wrote that ‘[t]oday, the contrary awareness is propagated: that the text of every constitution is dependent on the political and social situation of its time of origin’.Footnote 14 Like American originalism that equates originalism with democracy, where equality is the paradigmatic right as it derives directly from the original scope of ‘We the People’, Schmitt asserted that originalism leads not to the rule of law but to its negation. For him, originalism creates ‘decisionism’: decisions that apply the political will that knows no normativity or reason.Footnote 15 Dred Scott v Sanford is the best example of such decisionism as it applied the founding will in deciding that slaves do not belong to the original meaning of ‘We the People’, despite the constitutionalism that was developed after Marbury v Madison. Footnote 16
The case study examined in this article – Israeli legal thought and practice – affirms Schmitt's theory. It also challenges the contention that originalism is a unique form of American adjudication, as noted by Jack Balkin: ‘In almost no other country do judges of constitutional courts employ this sort of originalism’.Footnote 17 The first influential comparative study, which was authored by Jamal Greene, confirms this perception and concludes, inter alia, that the courts of ‘India, South Africa, and Israel’ are hostile to ‘static historicism’, and most of the leading jurists in these countries subscribe to the idea that ‘the past is authoritative in the present cases is pooh-poohed’.Footnote 18 For Kim Scheppele, while American originalism looks backward, most modern systems follow the living constitutionalism approach, which evaluates the whole history without fragmentations from the ‘now’.Footnote 19
Contrary to this literature, I argue that Israeli legal thought and practice is the paradigmatic case of originalism. Its originalism leads to Schmittian democracy based on decisionism, where the identity of the founding people precedes the popular sovereignty based on common citizenship (those who participated in the parliamentary politics). Further, the evaluation of the whole history of this originalism is also from the ‘now’, as originalism is a form of hegemony. Based on Antonio Gramsci's concept of hegemony, a new regime is successful when the public accepts its founding values to the degree that it becomes their beliefs, their common sense and their philosophy.Footnote 20 To use the originalists’ terminology, the original public meaning of the Constitution is hegemonic.
The case study examines Israeli Supreme Court decisions and academic writings since the enactment of the 1992 Basic Laws, with the focus on the right of equality. While Israeli jurists do not identify their interpretive approach as originalism, I suggest that a scrutiny of the academics’ argumentation, as well as the Court's decisions, reveal the distinctive role of originalism. This inquiry shows that when founding values are hegemonic, Israeli justices apply originalism, as hegemony is their common sense. When founding values contradict the hegemony, the justices may then apply living constitutionalism. As equality is the paradigmatic right for originalism, the case study shows that originalism appears in the cases of Palestinian citizens of Israel. Similarly, the justifications of Israeli academics of the core principle of the 1992 Basic Laws – namely that Israel is a ‘Jewish and democratic state’ – apply the same original meaning of equality, as hegemony is their philosophy.
The article analyses Israeli legal thought through a discussion of the book Israeli Constitutional Law in the Making. This seminal book – edited by Gideon Sapir, Daphne Barak-Erez and Aharon Barak – celebrated the twentieth anniversary of the 1992 Basic Laws. It consists of 25 articles written by Israeli academics, and nine commentaries on the articles authored by leading American and European constitutional scholars.
The first part of this discussion (Section 2) lays out the theoretical basis for the argument. It introduces Schmitt's constitutional theory and its link to American originalism, and Gramsci's hegemony. Section 3 discusses the characteristics of the foundation of Israel in 1948–49. This is followed (in Section 4) by an analysis of the application of the living constitutionalism approach by the Israeli Supreme Court, which challenges founding values. Section 5 illustrates originalism through an examination of the Court's decisions regarding Palestinian equal rights in Israel and writing by Israeli academics. Section 6 discusses why the Israeli case is the paradigmatic case of originalism and what lessons we can learn regarding the normative claim that originalism secures democracy based on the rule of law, followed by a conclusion.
2. Schmitt, American Originalism and Gramsci
The American dualistic model makes different distinctions. First, it distinguishes between the founding values and constitutional law. ‘A dualist Constitution’, Ackerman states, distinguishes between two kinds of decision: ‘the first is a decision by the American people’, and ‘the second by their government’.Footnote 21 As Richard Kay, a very prominent originalist, put it, ‘every legal system sits upon a political bottom’, which provides its validity and legitimacy as ‘every legal system is governed, at the end, by principles whose authority can't be found in law’.Footnote 22 Similarly, Paul Kahn claims that American nationalism started before the written Constitution with the sacrifice through the Revolution, and it precedes the constitutional text.Footnote 23
Second, the principles of this bottom or the First Decision are not abstract, as Dworkin claims, but express the concrete will of the sovereign, which precedes liberalism based on the rule of rights and democracy.Footnote 24 Third, for most of the originalists, the rule of the law, as Kay explains, rests on dualist values: ‘the first is the value of certainty’, which refers to clear and abstract rules, and ‘the second is the value of legitimacy’, which ‘is a political value’ that requires rules to follow the founding sovereign's will.Footnote 25 Fourth, the First Decision is democratic and it precedes decisions of the ‘electoral representatives’ of the current popular sovereignty. As Whittington puts it, ‘dualism maintains the distinction between “the sovereign's people” and “regular legislation”’ and thus no organ is authorised to represent the people.Footnote 26
Schmitt's theory is also based on this dualist model and its distinctions. It starts: ‘A concept of the constitution is only possible when one distinguishes Constitution and constitutional law’.Footnote 27 The Constitution is a self-conscious act of a people's free will ‘that determines the form and type of the political unity, the existence of which is presupposed’.Footnote 28 Like Kahn's sacrifice, a religious community or any group becomes a people only when it determines to be a political community based on the political, which means the willingness to struggle and to sacrifice based on the friend-enemy relationship.Footnote 29 The Constitution is the people's founding identity and the state itself. Schmitt's Constitution is like Ackerman's First Decision, and the constitutional law (through a written or unwritten constitution, statutes and court judgments) is ‘valid first on the basis of the Constitution’ as ‘every legal order is based on a decision’.Footnote 30 Like American originalism, legitimacy is equated to validity and not to rights. If there is no constitution, there is no political community, no state, no democracy and no constitutional law.
Schmitt distinguishes between identity and representation, rights and group belonging. Like American originalism, democracy must refer to its original conception, as for Schmitt ‘democracy is the identity of ruler and ruled, government and governed’, where ‘identity’ denotes the homogeneous people ‘whose members are similar to one another’.Footnote 31 Similar to Amar's claim that the Bill of Rights was linked to group unity to protect the states and not individual rights, for Schmitt the basic rights presuppose ‘the political unity of the people’.Footnote 32As a people's democracy, equality is ‘the essence of democracy’ and thus it is a political concept, which relies on a distinction based ‘on belonging to a particular people’.Footnote 33 Democratic equality is the paradigmatic right in order to ensure all other equalities, such as equality in political participation, equality in freedom of expression, and others.Footnote 34 Thus, the right of citizenship must correspond with dualism, as the original meaning of equality is first about who belongs to the homogeneous people and not ‘who is a citizen’ in its legal sense.Footnote 35 The case study of this article affirms the Schmittian meaning of democracy, as well as the original meaning of equality.
Regarding ‘the rule of law’, Schmitt's starting point is similar to that of the American originalists; however, he reached a very different conclusion. Like the American originalists, he argued that ‘the dualist concept of law’ rests on two values: the first requires ‘a norm with certain qualities’; and ‘the second is the political element’, which corresponds with ‘concrete will and command and an act of sovereignty’.Footnote 36 For Schmitt, like Amar, the people's will is able to decide on any constitutional change at any moment, including against articles that determine the procedure of constitutional amendment, and such a decision is valid as the original meaning aimed to limit only governmental agents.Footnote 37 So dualism must lead to decisionism, as the quality of the first decision never leaves the law when will knows no normativity and ‘no other constitutional institution can withstand the sole criterion of the people's will, however it is expressed’.Footnote 38 American originalists claim that originalism requires judges to apply the sovereign will or the political will of the foundation. The case study of this essay shows that judges apply this will, which leads to decisionism and not to the rule of law.Footnote 39
Schmitt did not clarify how the collective will reaches the court. He only explained briefly that the public sphere is the place for the people's will to be expressed.Footnote 40 Gramsci's hegemony completes Schmitt's theory as it brings the power of political culture to the argument.Footnote 41 For Gramsci, although most of the revolutions occurred through violence and dictatorship, in order to succeed the new regimes must build a hegemony. This hegemony is based on general acceptance of the new conditions of the social and political structure, which should be accepted as Rousseau's ‘general will’ serving the national interest and led by an ‘intellectual and moral leadership’.Footnote 42 The hegemonic regime shapes the collective historical memory and creates the link between the past and the present through all the educational institutions, the army, churches, laws, official symbols, holidays, museums and other official bodies.Footnote 43 Hegemony succeeds when philosophy and practice are united.Footnote 44
While this regime is open to some scope for disagreement and rival political parties, the fundamental beliefs in the founding values are outside the public debate, as the public perceives them as universal, moral and as their common sense.Footnote 45 The separation of powers is an important principle for unity, as the ‘unity of the State [is] in the differentiation of powers’ and still ‘all three powers are also organs of political hegemony, but in different degrees’.Footnote 46 Accordingly, judges express their differences and disagreements but with loyalty to the founding values. For this article, the acceptance of these values by judges and intellectuals, regardless of their personal beliefs, is crucial for examining the existence of hegemony.
This case study shows that originalism is a form of hegemony and it does need to use historicist methodology, such as seeking the founders’ intentions or the original public understanding of the values at the time of foundation.
Critics argue that the normative claim of American originalists ignores the fact that the founding decision was of a people of white men that excluded many groups (natives, blacks and women).Footnote 47 Thus, originalists try to maintain the principle of people's homogeneity, as the founding generation is ‘us’, which precedes the current popular sovereignty, which includes many different groups.Footnote 48 This case study confirms this critique.
Before proceeding to the case study and for the sake of comparison, let us outline the main characteristics of American originalism, which arguably make it unique. First, the United States was created by a revolutionary act. Originalism is a unique American phenomenon, Balkin contends, because, unlike most states, ‘the American nation was created by Americans themselves through a self-conscious act of political revolution’, which shapes their identity, national narrative and national memory.Footnote 49 It is so unique, it differs from the case of the French Revolution where, unlike America, ‘there was a French State’, ‘there were French people’ and ‘there was a French nation’ long before the French Revolution.Footnote 50 Second, the meaning of the Constitution was fixed during the foundation.Footnote 51 For comparison, as David Fontana explains, this fixed meaning must be linked to a revolutionary act that created a new political identity.Footnote 52 It could refer to a written constitution that creates the nation, and in the absence of such a written constitution (like Israel) it could refer to key founding national and cultural features.Footnote 53 For example, Ackerman's ‘political moment’, which shaped ‘We the People’ outside the written constitution, and Kahn's sacrifice predated the written constitution. Third, the original meaning of the Constitution constrains judges. What makes American originalism unique is not that judges use history, but rather the claim that they should apply the original meaning of the Constitution.Footnote 54
This case study shows that the Israeli case meets these unique features of originalism. The State of Israel was created by a revolutionary act in 1948–49, which is very similar to the characteristics of the American act. The original meaning of ‘We the People’ fixed the meaning of equal rights in the cases decided after the 1992 Basic Laws; and all of the justices apply this original meaning of equality regardless of their personal values.
3. The Founding Act: 1948–49
Like the United States, the State of Israel was founded through an act of self-creation in 1948–49. Before the founding of the state, there was nothing known as ‘the State of Israel’, and there were no groups called ‘Israeli citizens’, ‘Israeli Jews’ or ‘Israeli Palestinians’.Footnote 55 As Americans are Americans because they created America, Israeli-Jews are Israelis because they created Israel. As America came from nowhere, the State of Israel came into being from no other authority.Footnote 56
As in the American case, Israel came into being with blood and violence and a militaristic victory, and no international norm or agreement determined the territory and its population. According to the United Nations Resolution on the Partition Plan of Palestine (1947), Palestine should be divided into two states: a Jewish state with 55 per cent of the territory and an Arab state with 45 per cent of the territory.Footnote 57 However, the territory that is known as Israel within the Green Line was established after a war which ended with a ceasefire in 1949, with the new state covering 73 per cent of Palestine. The founder of the state, David Ben-Gurion, emphasised that ‘[t]he State of Israel was not established as a consequence of the UN Resolution’.Footnote 58 For him, the boundaries set out in the UN Partition Plan depended on an agreement, but the Arabs rejected this.
The political was already a main factor in shaping the group relationship. While Israel opened itself to Jewish immigration, it rejected the international request for the return of Palestinian refugees. For Ben-Gurion, ‘[t]here are no refugees – there are fighters, who sought to destroy us’.Footnote 59 By this, the founding act led to a Jewish majority. The political also justified the imposition of a military regime from 1948 to 1966 on only the Palestinians who remained and became citizens of the state,Footnote 60 and sanctioned the confiscation of Palestinian property, as enemy property.Footnote 61
In sum, the militaristic achievements of the founding act led to the following new conditions: (i) a Jewish majority within the Green Line; (ii) free Jewish immigration to the new state; (iii) the refusal to return Palestinian refugees; (iv) making Palestinians who remained into second-class citizens (military rule was imposed only on them and not on Jewish Israelis); (v) the confiscation of Palestinian property; (vi) making the Hebrew-Jewish culture dominant in the new state; and (vii) the partitioning of Palestine. This founding act today illustrates the connection between the Israeli celebratory moment of the state's ‘Independence Day’ and the commemoration of Nakba day – the Palestinian catastrophe.Footnote 62
These ‘new conditions’ went far beyond the Zionist movement's original, pre-1948, public understanding of an ‘independent state’. Professor Benjamin Akzin – one of the founders of the Faculty of Law of Hebrew University, who served as assistant to Zeev Jabotinsky, the founder of the Israeli right-wing – wrote in 1966:Footnote 63
It is important to note that even the most radical and extremist of political Zionism did not dream about an independent state as it is perceived today … Weitzman and Jabotinsky … were united with the hope to see the Jewish state as a dominion belonging to Britain. Ben-Gurion, in his testimony before the Peel Committee in 1936, expressed the same wish. Others dreamt to see the future Jewish state as a sector belonging to a federation or confederation within the peoples of the Middle East … I knew Jabotinsky personally and intimately and I can testify to that for him, the Jewish state in its absolute independent state was second-order to be considered as Britain's leaders were not interested in a Jewish dominion. I will go so far and say that even until his last day (4 August 1940), Jabotinsky wished that … Britain will agree to constitute a Jewish State as a form of dominion.
A new history began with the foundation. As a new state, its leaders and intellectuals started intense discussions about its new identity and direction. Tom Segev, a leading historian of the 1948–49 period, noted that ‘the intense confrontation between different values and ideologies gave rise to a tremendous flood of literature’ and ‘everybody talked about “new horizons”’.Footnote 64 Although the majority followed Ben-Gurion's founding political party, some philosophers, authors, poets and journalists started to ask: What is Judaism, what does it stand for, and what is a Jewish state?Footnote 65 They expressed deep concern about the loss of human values as a result of the new conditions; some even worried about ‘self-segregation’ by making Hebrew the language of education.Footnote 66 Baruch Kimmerling, a prominent Israeli sociologist, revealed that many Hebrew University professors were very critical of the new conditions.Footnote 67 For Segev, the real debate was between the ‘establishment literature’ and the ‘Canaanite Movement’, which advocated against building a ‘Jewish nationality’ and for creating an ‘Israeli nation or Hebrew nation’ in a state for all of its citizens, Jews and Palestinians.Footnote 68
The role of Ben-Gurion's founding party was to build a new hegemony. It called on the press and intellectuals to be involved ‘in the shaping of society’ and to ‘guide the people’.Footnote 69 Kimmerling explained that ‘the state bureaucratic apparatus, the education system and the military’ put intensive efforts into building a new hegemony.Footnote 70 As the society perceived itself under threat, the creation and construction of a new hegemony was achieved within a very short time.Footnote 71 The purpose was to shape a political identity that would be accepted ‘as the only legitimate model within the collectivity and as a source of cultural capital’.Footnote 72 Kimmerling explained that ‘[a] new state civic religion, with its own cults, ceremonies, calendar, holidays and commemorations was constructed, first around the military, and later around the Holocaust’.Footnote 73 This model saw the new conditions as justified, final and not as a matter for negotiation; as expressing the true meaning of Zionism; and as embodying the political will of the founding people for sovereignty and freedom in their historical homeland.
Another main feature of the politics of the foundation is the relationship between the state and religion. In 1948 Ben-Gurion reached agreement with religious Jewish groups known as the ‘status quo arrangement’. All of the Israeli Jewish groups (secular, religious, Mizrahi and Ashkenazi, right and left) accepted that the new state should have religious characteristics.Footnote 74 Although the political was already a constitutive factor of the new hegemony, this arrangement included exempting Yeshiva students from army service. The number of exempted Yeshiva students in 1948 was minor, and the main reason for the exemption was the request of the religious leadership to allow these students to spend their time and efforts in renewing the Yeshiva project, which was destroyed in Europe during the Holocaust.
The creation of a democracy also belonged to the founding era. The first Knesset elections were conducted in January 1949, even before the ceasefire. All residents participated in this election and three Arabs out of 120 representatives were elected. The election created for the first time a popular sovereignty based on a common citizenship of ‘Israeli-Jews’ and ‘Israeli-Palestinians’.Footnote 75
Another significant founding decision, which the book under review highlights, is that the political parties in the first Knesset refused to enact a bill of rights and agreed that instead of a written constitution, the Knesset would enact ‘basic laws’. The nine Basic Laws enacted up to 1992 concerned institutional matters and lack constitutional supremacy. The book celebrates the twentieth anniversary of the two Basic Laws enacted in 1992: Basic Law: Human Dignity and Liberty, and Basic Law: Freedom of Occupation.Footnote 76
4. Living Constitutionalism
This section analyses the judicial approach to living constitutionalism after the enactment of the 1992 Basic Laws, as discussed in the book under review. The enactment of these Basic Laws in 1992 came about following crucial political compromises. First, although the original draft proposed by ‘liberal lawmakers’ defined Israel as a ‘democratic state’, as a result of ‘substantial concessions’ the final draft added the term ‘Jewish’.Footnote 77 The first time that the phrase ‘Jewish and Democratic’ appears in any piece of legislation is in the Basic Laws. Second, the Basic Laws enumerated very few rights and, as Tamar Hostovsky Brandes explains, the omission of leading rights was intentional, with ‘the right to equality being the paradigmatic example’.Footnote 78 Finally, it was stipulated that the ‘status quo arrangement’ regarding religion-state and all laws that were enacted before the Basic Laws would remain valid.Footnote 79 Although no public discussion accompanied the passage of these laws, the legal community labelled the enactment a ‘constitutional revolution’.Footnote 80
The 1995 Bank Mizrahi case, in which the Supreme Court decided for the first time that the Basic Laws had constitutional status, is the most cited case in the book under review.Footnote 81 Some scholars consider it to be one of the few revolutionary decisionist cases in the world, as it does not follow the existing rule of recognition.Footnote 82 Indeed, Chief Justice Barak ruled that ‘the rule of recognition is decided by the Court’,Footnote 83 and today the Court ‘identifies and declares that the Knesset is the constituent assembly and the legislature’.Footnote 84 Thus, all Basic Laws limit the Knesset's power as a legislator. Justice Cheshin was the only justice who challenged this approach; as he stated in his opinion, ‘[w]e did not hear yet about a legal question … whether a constitution was given or not’.Footnote 85
Like Scheppele's description, the Court's use of history in the Bank Mizrahi case is from ‘now’ and looking forward. The Court was keenly aware of the founders’ intent, as referred to by Chief Justice Barak: ‘It is well known that the Prime Minister, Ben-Gurion, was against having a constitution’.Footnote 86 However, he added, ‘the judge must ask himself what is the perception of the Israeli public today?’Footnote 87 He reasoned, ‘the best interpretation of our national history’ is to see that the Knesset has the power to give a constitution.Footnote 88 For him, history must be viewed as a whole without fragmentation.Footnote 89 The public understanding of its laws must look forward towards a constitutional democracy as ‘the lessons of World War II – where the Holocaust is central and human rights were oppressed by totalitarian regimes – put human rights on the agenda of the world’.Footnote 90
The drafting of the Yeshiva students’ case, which challenged the 1948 ‘status quo arrangement’, is the second most-cited case in the book (Yeshiva case).Footnote 91 It marks the first Supreme Court decision to declare equality as a constitutional right. During the 1970s and 1980s, the Court rejected challenges to the arrangement of exempting Yeshiva students from army service, ruling that it was ‘a political question’. However, after Bank Mizrahi, the Court decided that this exemption is against the rule of law, as there is no legislation to support it.Footnote 92 Eight years later, in 2006, an 8:1 majority of the Court further decided that a new statute, which postponed the drafting of these students, is unconstitutional as it violates the right of equality. The state argued that the legislator intentionally excluded the right of equality from the 1992 Basic Laws and thus the case did not raise a constitutional question. However, Justice Barak ruled that ‘human dignity’ should consider ‘fundamental values’, and therefore it includes equality.Footnote 93 Justice Gronis wrote a minority opinion upholding the new law, following John Ely's theory,Footnote 94 which justifies judicial review when the democratic process fails because of a negative perspective against the minority.
The Yeshiva case indicates that the political determines the boundaries of belonging. The question of who must share the burden is relevant to the Israeli Jewish community as the political grouping and not to all citizens. Justice Cheshin's opinion articulated Schmitt's Constitution: the state's political character rests on its ability to defend itself. If there is no sacrifice by all Israeli Jews, there is no Jewish state; there is no existence and no constitutional law; and therefore there is no need even to discuss whether equality is enumerated or not as the question is a matter of existence.Footnote 95
As in the Bank Mizrahi case, the ‘now’ was the dominant factor in the Yeshiva case. The judgment indicates that the dramatic increase in the numbers of young persons who were potentially exempt from army service was crucial: in 1948 there were very few exempted Yeshiva students but by 2005 it had reached 11 per cent of the total number of persons who could be drafted. As Justice Barak stated, ‘[t]here is a limit … the quantity makes the quality’.Footnote 96
Like the claims of the American originalists, several authors in the book under review criticise the Court's use of history to promote ‘fundamental values’.Footnote 97 Hostovsky Brandes argues that the short period of time since the enactment of the 1992 Basic Laws ‘could not on its own justify interpreting the right to human dignity contrary to legislative intent’, especially on the right of equality which intentionally was not enumerated.Footnote 98 Gideon Sapir argues that ‘fundamental values’ become judicial values and by this ‘the Court writes the Constitution, interprets it and thereby decides in disputes concerning values that were gagged in the past by the political system’, especially on the ‘status quo arrangement’.Footnote 99 Joshua Segev sees the Court's approach as pursuing a ‘very radical methodology’, as it avoids ‘tradition and long standing practices’.Footnote 100 Ariel Bendor worries about ‘political judging’ based on ‘values’.Footnote 101 For Moshe Cohen-Eliya, the Court ‘has always been the flag-bearer of liberal, democratic humanistic values’, but its judicial activism led to a backlash, so he suggests following Ely's approach.Footnote 102
So far, we have seen the Court's use of the living constitutionalism approach, which challenged founding values mainly in two seminal cases – Bank Mizrahi and the Yeshiva case – which have a direct connection with the founding act of 1948–49. In the following section, I discuss the case of the Palestinian citizens of Israel.
5. Originalism
Although the three editors of the book under review state that ‘Israel's particular raison d’être as a State [is] defined in its Basic Laws as “Jewish and democratic”’,Footnote 103 the book does not discuss cases concerning the equal rights of Palestinian citizens. As I will explain and argue, these cases constitute the leading decisions in which the Court articulated the constitutional interpretation of this raison d’être. This section is presented in two parts: (i) originalism in legal practice by examining Supreme Court decisions, and (ii) originalism in Israeli legal academic writing.
5.1. Supreme Court Decisions
The landmark Ka'adan case, decided in 2000, is the first case in which the Supreme Court provided its interpretation of the values of a ‘Jewish and democratic state’ in order to set out the scope of equal rights for Palestinian citizens of Israel.Footnote 104 In this case, the authorities denied an Arab family's request to purchase a house in a new small town, arguing that the ‘history of settlement’ since 1948 is to build the ‘Jewish state’, and that accepting the petition would negate the history of the foundation. The Court used both approaches in this judgment: living constitutionalism and originalism. Chief Justice Barak rejected the state policy of racial segregation in housing and ruled that ‘Jewish and democratic’ does not mean that ‘the state will discriminate among its citizens’.Footnote 105 For Justice Barak, the ‘Jewish state’ is a state with a Jewish majority, which is open for immigration for Jews only and which possesses dominant Jewish-Hebrew cultural characteristics.Footnote 106 He emphasised that accepting the petition does not negate the founding identity, including the ‘history of settlement’: ‘The petitioners do not discount the Jewish foundations of the state of Israel's identity, nor the history of settlement in Israel. Their petition is future-oriented’.Footnote 107
While conservatives initially perceived Ka'adan as anti-Zionist, they later started to use its interpretation of ‘Jewish state’ in arguments against equal rights for Palestinian citizens. In 2002, in the run-up to the Knesset elections, the Attorney General requested the disqualification of an Arab political party list and its leader, contending that their platform of ‘a state for all of its citizens’ negates the Jewishness of the state based on Ka'adan (the Disqualification case). Justice Barak, in this case, decided that while the concept of ‘a state for all of its citizens’ or advocacy for the return of Palestinian refugees negates the Jewishness of the state, these positions should be balanced with the characteristic of Israel as a ‘democratic state’ which ensures wide political participation.Footnote 108 Although all 11 justices in this case agreed with Barak's interpretation of ‘Jewish state’, they disagreed with its applicability. In a split 7:4 decision, the Court dismissed the disqualification request, reasoning that the Attorney General did not provide evidence to show that the political party's main activity directly targeted the features that define the ‘Jewish state’.
Let us see the link between Ka'adan, the Disqualification case and the foundation. All the justices in these cases agreed that the interpretation of ‘Jewish state’ means that the state must retain the following elements: (i) a Jewish majority; (ii) denial of the return of Palestinian refugees; (iii) furtherance of the Law of Return; (iv) rejection of ‘a state for all of its citizens’; (v) domination of Jewish group rights (e.g., language, culture, religion); and (vi) ensuring the history of settlement. I will explain that this particularity is linked to the revolutionary founding acts of 1948–49. Before I do so, I will first discuss cases that clarify the scope of the ‘history of settlement’, as referred to in Ka'adan.
After Ka'adan, the political will started to appear clearly in Palestinian rights cases. In one well-known case, Palestinian Christian villagers from Iqrit – who had been evacuated from their village by the Israeli army in 1948 – were promised permission to return after the end of the war. In 1997, almost fifty years later, they were still displaced and again they brought their case before the Supreme Court. As citizens, they argued that the 1992 ‘constitutional revolution’ concerning the rights of property and human dignity must allow them to return to their village.Footnote 109 The Prime Minister at the time, Ariel Sharon, in responding to the petitioners’ case, made a link between their case and the Palestinian refugees’ claim for return, arguing that the petition raises ‘diplomatic matters’. The Court accepted his position in 2003:Footnote 110
[T]he Palestinian people are again raising their claim for the right of return, and returning the uprooted villagers may create a precedent which will damage the high interests of the State. This subject refers to diplomatic matters, where the government enjoys very wide discretion.
This case marked the first occasion on which the Court clearly articulated that political will trumped constitutionalism. The petitioners asked for a second hearing and Justice Matza agreed that ‘[i]t seems that this is the first time that the [state] authority raised before the Court and asked to be released from its promises based on pure political and diplomatic reason’.Footnote 111 Despite this, Justice Matza denied the request and explained that this case raises ‘unique political-diplomatic reasons’, which probably will not come before the Court again.
Contrary to Justice Matza's prediction, a similar case did come before the Court involving other villagers, who also asked to return to their land which had been confiscated in 1948. Here, the Court decided that cases related to the 1948 War are exceptional and thus ‘the influence of the Basic Law: Human Dignity and Freedom … if it does exist, is minimal’.Footnote 112 This decision is the first after Bank Mizrahi in which the Court ruled that the 1992 Basic Laws have no influence on a legal question simply because it belongs to the foundation era.
These two cases concerning uprooted villages exemplify decisionism, where political will trumps constitutionalism in order to ensure the achievements of the state's foundation, even if the claimants are citizens of the state.
This political will also appears in cases concerning the use of Muslim holy sites. In 2002, Arab Muslim citizens requested the reopening of a unique historical mosque for prayer which the state had declared as absentee property in 1948. The petitioners argued that God cannot be an absentee and the authorities’ plan to convert the Big Mosque to a museum infringed their equal rights to religion. The authorities made a link between this request and the foundation era, and contended that ‘the relevant considerations for the authorities should be political and diplomatic considerations’.Footnote 113 While Justice Salim Jubran, the only Palestinian justice, found that prohibiting Muslims from praying in the Big Mosque carries racist messages and that the mosque should be a place of prayer, his final decision rejected the petitioners’ request and ordered that the future museum should also give respect to Islamic heritage, a remedy that was against the petitioners’ demands.
The ‘diplomatic reasons’ appear in another case concerning holy sites. In Darweesh, the petitioners challenged the state's implementation of the Protection of Holy Sites Law (1967), which provides that the Minister of Religious Affairs will declare the holy sites of all religious communities.Footnote 114 The Minister declared only Jewish holy sites as holy places. In 2004, Palestinian Muslim citizens requested the equal implementation of the law by also declaring the list of Muslim holy sites. The state raised the history of the foundation and claimed that this request ‘might lead to diplomatic consequences’.Footnote 115 The Court dismissed the petition by explaining in a short paragraph that there is no need to enact bylaws to protect Muslim holy sites. According to this ruling, there is no official recognition for the existing Muslim holy sites, as the only holy sites named by the state are Jewish sites.
The cases concerning the uprooted villages, the Big Mosque and holy sites clarify the scope of the ‘history of settlement’ noted in Ka'adan, which applied the original will. As decisionist cases, the Court perceives the militaristic achievements of the foundation as final and not as a matter of constitutionalism, and it continues to treat the land and holy sites of Palestinian citizens as enemy-alien property. The book under review does not discuss these cases; this presents a challenge to the main theme of the book that following the enactment of the 1992 Basic Laws, the only approach of the Israeli Supreme Court is living constitutionalism.
Let us now examine originalism. First, with the exception of the Law of Return, the other elements delineated by the Court, mentioned above, in interpreting the meaning of ‘Jewish state’ do not rely on legislation or any legal norm. Second, these conditions go far beyond the public meaning of the ‘Jewish state’, as articulated by the Zionist movement before 1948, as Professor Akzin explained.Footnote 116 Third, the Court's interpretation differs sharply from the first two official constitutive documents that use the term ‘Jewish state’, namely the UN Partition Plan (1947) and the Declaration of the Establishment of the State of Israel (1948). The UN Partition Plan provided that two states – one Arab and one Jewish – should be created; they must be democracies without any sort of discrimination,Footnote 117 and with special protection for land rightsFootnote 118 and holy places.Footnote 119 The Declaration of the Establishment of the State of Israel, while pronouncing that the ‘Jewish state’ will be open to Jewish immigration, does not include the other above-mentioned elements.Footnote 120
These judicial decisions indicate that the original public meaning espoused by Ben-Gurion's party regarding the new conditions in 1948–49 became authoritative as the hegemonic understanding of ‘We the People’. To recap, the factors of the founding act led in 1948–49 to a denial of the return of Palestinian refugees; free Jewish immigration to the new state; a Jewish majority within the Green Line; second-class citizenship for Palestinians who remained; and confiscation of Palestinian property based on the ‘enemy-alien’ doctrine.
We can see the elements that indicate the existence of hegemony. First, all the justices accept these specific factors as constituting the meaning of a ‘Jewish state’. The Court's understanding of ‘territory-citizens’ belongs to the territory achieved by the state in 1949. The Disqualification case also indicates that Israel is a ‘Jewish state’ as it refers to the founding people of 1948, and it is a ‘democratic state’ as there was no Knesset, since the first elected legislature in 1949, without the political participation of all citizens.Footnote 121 Second, this original meaning constrains the Court's judgments, regardless of legal changes or the justices’ political opinions, gender or ethnic origin (as liberal, conservative, secular or religious, man or woman, Ashkenazi, Mizrahi or Palestinian Arab). Third, the hegemony allows for disagreement regarding the application of the elements but not their legitimacy, as seen in the Disqualification case.
In its reasoning in these cases, the Court did not use a historicist methodology (such as the founders’ intent, the Declaration, or the original public understanding). Ka'adan evaluates the whole past without fragmentation, from the present and looking forward, as Justice Barak praised the history of settlement and then stated: ‘It is always important to know not only from where we came, but also where we are heading’.Footnote 122 At the same time, Justice Barak set out the elements of a ‘Jewish and democratic state’ without citing any legal references. Similarly, in the ‘history of settlement’ cases – namely those involving the uprooted villages, the Big Mosque and the holy sites judgments – the Court did not engage with any historical references. In these cases, the hegemony does the work; it became the justices’ ‘common sense’.
Following Schmitt's theory that originalism is about the founding identity that determines the scope of equality, for the Israeli Supreme Court, the whole meaning of the founding act is about equality based on ‘We the Jewish People’. None of the justices expressed the need to uphold the 1948 ‘status quo agreement’. None of them voiced concern about Ben-Gurion's position against drafting a written constitution. After more than 25 years, Bank Mizrahi still enjoys legitimacy and, as Bendor explains, ‘[i]t is accepted in practice, not only by the Supreme Court but also by the Knesset’.Footnote 123 However, following the Ka'adan ruling against racial segregation in housing, the Knesset enacted the 2011 Admissions’ Committee Law, which allows each small town to reject applicants based on ‘social suitability’, and mostly Arab families are excluded.Footnote 124 This legislation, which legalised the existing practice, in many ways undermines the Court's decision in Ka'adan.
Contrary to the positions of the Israeli authors as articulated in the book under review, the Court was originalist in its application of the 1992 Basic Laws in the cases concerning Palestinian rights. While the legislator was worried primarily that protecting the right of equality would reach the ethnic privileges and domination by the Jewish majority created since 1948, the Court shows that it (the Court) is the guardian of this intention. The book focuses on the Yeshiva case but we can see easily that as a result of the increase in the number of exempted Yeshiva students, the Court rejected the 1948 ‘status quo agreement’ to protect today the original meaning of the political. Here, both living constitutionalism and originalism appear as a form of hegemony.Footnote 125
The question is not whether equality is enumerated in the 1992 Basic Laws, but how it is decided. For the duality of the law, the content of the norm, written or not, is determined only after the decision, on which the will is its locus.Footnote 126 A good example is the case concerning the ban on family unification, in which the Court upheld the constitutionality of a law that prohibits Palestinian family unification in Israel. In this case, both approaches, living constitutionalism and originalism, coexist. While the Court, in this 2006 case, decided for the first time that the right to equality based on nationality and the right to family life are constitutional rights, it justified the prohibition, using its originalist approach based on the political, finding the Palestinians to have the status of ‘enemy aliens’.Footnote 127 In fact, after Bank Mizrahi and as of the time of publication of the book under review, the Court had dismissed all cases brought by Palestinian citizens against discriminatory laws.Footnote 128
Both claims – Gramsci's thesis on hegemony and Schmitt's theory that equality is the paradigmatic right for originalism – find support indirectly among some American scholars, with Yale Law School professors taking the lead. Through Ackerman's ‘political moment’, the American elites built a political culture, which determines equality based on the values of ‘We the People’. The foundation era supported slavery, the Reconstruction era resulted in racial segregation, and the New Deal era, by emphasising civil rights, led to Brown v Board of Education. Like Gramsci's hegemony, during ‘normal politics’ justices express differences between themselves as well as with the legislator; however, they maintain loyalty to originalism.Footnote 129 Amar emphasised that the Founders and the first US Presidents understood the significance of building public opinion about the power of the people's will: ‘The idea of popular education resurfaces over and over in the Bill of Rights’ and ‘church, militia and jury’ were understood ‘as devices for educating ordinary Citizens about their rights and duties’.Footnote 130 For Kahn, nationalism started with the call for sacrifice and, as he contended, ‘[w]e know who we are when we know the concerns for which we are willing to sacrifice’.Footnote 131 Here, the core of hegemony is the original meaning of the political that shapes who are the equals. Reva Siegel explains that the historicist methodology does not explain the practice of originalism, but rather it is the link between history, public opinion and national memory.Footnote 132 For her, this practice of originalism is a form of living popular constitutionalism,Footnote 133 meaning that originalism is a form of hegemony. According to these scholars, discovering the link between originalism and equality is not about the use of a particular historicist methodology. It is about understanding the political identity through political imagination, national memory and education, which captures the whole meaning of ‘We the People’ in the present.
To summarise, the Israeli case answers the core of originalism. First, like the American case, Israel has a unique revolutionary founding act. Second, the meaning of equality based on the understanding of the scope of ‘We the People’ was fixed during the foundation in 1948–49. It became hegemonic within a very short time as a result of the efforts of the political elite and state institutions. Third, this original meaning of equality is authoritative, as even after the 1992 Basic Laws it has led to absolute judicial constraint.
If originalism is a form of hegemony in legal practice, this hegemony must also become the ‘philosophy’ of the intellectuals. This subject is the focus of the next section.
5.2. The Role of the Intellectuals
Although many Israeli Jewish intellectuals in 1948–49 were against ‘the new conditions’, they nonetheless represented the hegemonic belief of that generation. Two articles contained in the book in Part 9 ‘Israel – “Jewish and democratic”’ illustrate that understanding. The first article is that of Chaim Gans, a prominent legal philosopher who is affiliated with the Zionist left;Footnote 134 the other is authored by Aviad Bakshi and Gideon Sapir, who are known to be affiliated with the Zionist right wing.Footnote 135 We will see that their ideas follow the hegemony created by Ben-Gurion's party and they attempt to frame these notions as philosophy.
Gans claims that there are three Zionist versions that justify the ‘Jewish and democratic state’: proprietary, hierarchical and egalitarian. The proprietary view holds that the Jewish people have a right of ownership over the ‘Land of Israel’, which was given by God. The ‘hierarchical’ represents the view of the mainstream Israeli academics, which is based on cultural superiority; the contribution by Bakshi and Sapir belongs to this version. Bakshi and Sapir open with a universal claim: every nation-state is entitled to preserve its culture. They then define the ‘nation’ as referring to an ‘ethno-cultural’ group, and thus the State of Israel has a legitimate interest in protecting Jewish cultural rights. From this perspective, they justify the prohibition of Palestinian family unification in Israel ‘for preserving the Jewish majority’.Footnote 136 For Gans, this version advocates Jewish domination in almost every field.Footnote 137
Gans replaces the God of the proprietary version and the cultural reasoning of the hierarchical view with reasoning based on security. He sees Jews as a minority in the Middle East who are surrounded by the Arab enemy, and thereby directly applies the ‘enemy alien’ doctrine to Palestinian citizens of the state.Footnote 138 ‘In the case of the Jews in Palestine’, Gans argues, Jewish domination should apply ‘only to spheres of security and demography’.Footnote 139 For him, as American natives have the right to control the demography in their area, ‘Jewish hegemony’ is justified for the exercise of Jewish self-determination.Footnote 140
For both versions – the hierarchical and Gans’ view – the partitioning of Palestine is key.Footnote 141 It helps to support the claim that group rights of Palestinians should be exercised in the Palestinian state when it is established and to reject the idea of a bi-national state in Israel, including the claim of the Palestinian refugees for return. Bakshi and Sapir believe that their ideas follow ‘liberal premises’;Footnote 142 Gans thinks that his version is egalitarian.
Despite the differences in political affiliations among these authors, they agree that the Jewish state must retain very particular elements: (i) ‘Jewish hegemony’ on demography; (ii) denial of the right of Palestinian refugees to return; (iii) the Law of Return; (iv) Jewish domination in security matters; (v) rejection of a bi-national state/a state for all of its citizens; and (vi) domination of Jewish group rights. They also see that Palestine must be divided into two states. These elements also appear in the Palestinian literature as constituting the Palestinian catastrophe – the Nakba.Footnote 143
The views of ‘outsiders’ are often helpful in inquiring into claims of the universality of a ‘hegemonic group’, as they are closer to a situation of being behind a ‘veil of ignorance’. Susanna Marcini and Michael Rosenfeld, American legal scholars, responded to the two articles referred to above. They argue that these ideas are ‘radically incompatible with human rights standards and with the understanding of democracy as a system which treats each individual with equal respect and concern’.Footnote 144 For them, Gans ‘represents a serious deprivation of equality in the context of collective constitutional approach’,Footnote 145 and thus his version ‘is not egalitarian as he presents it to be’.Footnote 146 Further, these interpretations of a ‘Jewish state’ are not universal as the Israeli authors claim, as ‘[o]ne can fully support Israeli statehood and its Jewish “character” without accepting the idea that any nation-state can disregard the legitimate cultural and identity-related rights of sub-national groups, or worse, establish a system of differentiated citizenship’.Footnote 147 Also, for Frank Michelman, such a particular interpretation of the ‘Jewish state’ is neither universal nor belongs to liberal philosophy.Footnote 148
I argue that these Israeli authors express the original public meaning of Ben-Gurion's party in 1948–49, which is linked to the founding acts of 1948–49. With the exception of the Law of Return, these ideas do not rely on any legal norm or the Zionist perspectives held before 1948; nor do they belong to a universal philosophy based on reason. The imagined territory of a ‘Jewish and democratic state’ is not that designed by the UN Partition Plan, and not that which was under Israeli control at the time of the 1948 Declaration of the Establishment of the State of Israel or that which is under Israeli control today. It is that territory that was determined by the 1949 ceasefire.Footnote 149
Like the Supreme Court, these Israeli academics do not use a historicist methodology. Simply, the hegemony now appears as philosophy. The disagreement between them is about what is the ‘best justification’ for the above elements and not about the legitimacy and the acceptance of such elements. Still, their mission is impossible as it attempts to provide a philosophy of reason to the founding act, which is a result of concrete decisionism and, by definition, knows no reason but only political will. Even the Court could rely only on political will and not reason in the ‘history of settlement’ cases.
Indeed, their ‘philosophy’ appears like faith in a civil religion. If there is no Jewish majority, there is no state; if there is no Law of Return, there is no Jewish self-determination; the return of the Palestinian refugees is the end of the state's existence; a bi-national state is the end of Zionism; and returning property to Palestinians is the end of Jewish settlement.
The tragedy of intellectuals like Gans is the enactment of the infamous 2018 Basic Law: Israel – The Nation State of the Jewish People (the Nation-State Law), which clearly sets out the polity of the state as solely ‘We, the Jewish People’.Footnote 150 Although the values of ‘Jewish and democratic’ were regulated in the 1992 Basic Laws, based on a compromise with the right-wing camp, the ‘liberal Zionists’ started to use it as a sword against the right wing in advocating that to keep the Jewishness of the state, Israel must end the 1967 occupation. Now the right wing has legislated for its main beliefs in the Jewish Nation-State Law, which has been condemned locally and internationally as anti-democratic and racist.Footnote 151
The debate around the Nation-State Law also indicates that originalism is a hegemonic belief. The Zionist liberal camp does not advocate against the law's substance but against what it does not include – the right of equality.Footnote 152 The response of the right wing is that this law simply states the legal tradition since the state's foundation, and equality is already ensured as a constitutional right (as the book's authors emphasise).Footnote 153
As we have seen in this section, the founding values regarding the ‘new conditions’ of 1948–49 were accepted by the Israeli Supreme Court and by the intellectuals, which again explains that originalism is a form of hegemony. These insights will help us to see in the next section why the Israeli case and not the American case is the paradigmatic case of originalism.
6. The Paradigm of Originalism and its Lessons
I contend that the Israeli, rather than the American case is the paradigmatic case of originalism, and that originalism leads to Schmittian democracy based on decisionism and not to the rule of law. For this discussion, we need criteria for examining the legal system of originalism. As has been mentioned, for originalists, rules must correspond with dualist values: certainty and legitimacy. We can imagine the latter value as something that follows the conditions of the rule of recognition as put forward by HLA Hart. Indeed Hart's rule of recognition is similar to the quality of the founding decision as it is valid because it exists as a social fact and because of its acceptance by the public and officials. For Hart, the rule of recognition is the ultimate and supreme criterion which was accepted as a common public standard by the officials to identify the validity of other rules.Footnote 154 This rule must be examined from ‘the internal point of view’ of the officials by accepting it without necessarily being identified with it morally.Footnote 155
Following the dualist model, a legal system that is based on originalism must rest on two kinds of rule of recognition: one is the ‘regular rule of recognition’, which takes care of the value of certainty; the other can be called ‘the sovereign rule of recognition’, which takes care of political values. The sovereign rule of recognition provides that every decision that interprets or applies constitutional rights is valid only if it complies with the political will that is linked to the revolutionary founding act (such as Ackerman's First Decision, Schmitt's Constitution, the founders’ intent or the original public understanding). Our test is the right of equality as it is the paradigmatic right for originalism, for it is the only right which derives directly from the scope of ‘We the People’ and identifies the nationalistic character of the regime by determining who is ‘in’ and who is ‘out’.
I argue that originalism is the Law of the Israeli legal system as this system is identified by these two kinds of rule of recognition. The regular rule of recognition was identified and declared by the Court in Bank Mizrahi, while the other, the sovereign rule of recognition, is linked to the hegemony. This sovereign rule of recognition answers Hart's conditions. First, all the Israeli justices accept the original meaning of equality. Second, as a social fact, the Court declared it in Ka'adan. Third, the internal point of view approves the acceptance by all the Israeli justices of the original meaning of equality regardless of their personal views as to the result of its applicability, whether or not it makes justice.Footnote 156 Needless to add, Israeli Zionist academics also accept it regardless of their political affiliation, as we saw in the previous section. As hegemony itself is a matter of acceptance, this sovereign rule of recognition is the Israeli hegemonic value.Footnote 157
Stephen Sachs and William Baude argued that the debate on originalism should be moved from the conceptual and the normative claims to the question of whether originalism is the American law.Footnote 158 For this purpose, they were the first to rely on Hart's rule of recognition. They concluded that originalism is the American law as it follows the founding law of the Constitution regarding the rules of change, such as Article V, precedents and the common law. In other words, they reduce the politics of revolution and nationalism to universal procedural rules of change. However, what makes American originalism a unique phenomenon, as Balkin noted, is the claim that the national values of the foundation control constitutional law.Footnote 159 While the characterisation of Hart's rule of recognition is helpful in examining originalism as the Law, its content should be about the substance of the founding political identity, which determines the scope of constitutional rights, and not about procedures which carry universal characteristics. Bank Mizrahi changed the founding regular rule of recognition with regard to procedures by providing the Court with the power of judicial review, but the sovereign rule of recognition that refers to the substance, which is first of all about the concrete meaning of equality, remains. A similar relationship can be seen between Marbury v Madison and Dred Scott v Sanford, which both coexisted during the same period.
This is why the Israeli legal system, rather than the American legal system, is the paradigmatic case, as originalism is the Israeli Law. This fact explains many different aspects of the law. First, unlike American academic writing on constitutional law, where there is debate about the legitimacy of originalism, Israeli constitutional thought mainly illustrates the Zionist hegemonic consensus, which covers a very wide range of ideas of conservative to liberal Zionist scholars. Second, unlike the US Supreme Court, where it is rare to find a final originalist judicial decision, originalism is the hegemony of Israeli Supreme Court justices and it appears in a very wide range of decisions.Footnote 160 Third, and most importantly, while American legal thought discusses Ackermanian constitutional moments, Israeli legal thought is devoid of serious debate as to whether the 1992 ‘constitutional revolution’ led to a constitutional moment. In order to ask this question, one must have different perspectives about the past, but when the present is itself embedded in the past and the past is transferred to the law, it is impossible to even raise the question. David Fontana, who provided a short commentary in the book under review, noticed that Israeli constitutionalism is unique in the world as one that lives in ‘perpetual revolution’ for a long period without moving to a new constitutional moment.Footnote 161
Schmitt's theory is also the paradigm for originalism because its meaning for equality fits the Israeli practice as the paradigmatic case. Like Schmitt, Gans’ version, including the Family Unification and the Yeshiva decisions, all see the Israeli Jewish community as the relevant political community for equal rights and apply the political against the Palestinian citizens. Like Schmitt, Bakshi and Sapir do not accept citizenship as a factor for belonging as they define the ‘nation-state’ as it belongs to a people ‘that share common ethnic origin, or another component of identity that is not dependent upon common citizenship’.Footnote 162 Similarly, for the Court, the ‘fixed identity’ of the founding people precedes the popular sovereignty based on citizenship, as seen in the Disqualification case. Like Schmitt, the Court rejected the idea of a ‘nation-state’ based on common citizenship and followed the position of Ben-Gurion's party against the ‘Canaanite Movement’ in 1948–49 by refusing to recognise ‘Israeli nationality’ as a legitimate category for Israeli citizens on their identity cards.Footnote 163
The paradigmatic case (Israel) and the paradigmatic theory (of Schmitt) shows clearly that originalism is about maintaining a people's homogeneity. The articulation of views by the Israeli academics in this regard appears in the book's debate about judicial review, as such a discussion is always one about ‘We the People’. When Ariel Bendor advocates ‘professional judging’ and his only exceptional case is judging that defends ‘Jewish and democratic’ values, he defends originalism as a rule of a people's democracy.Footnote 164 When Sharon Weintal advocates a three-track democracy in which the Court acts as ‘the nation's trustee loyal to its founding narrative’,Footnote 165 she sees originalism as a democratic track. While Sapir argues against judicial review, as there is no consensus on ‘fundamental values,’ he then switches and advocates judicial review to defend the values of a ‘Jewish and democratic state’ as democracy is about ruling by ‘the founding people’.Footnote 166
These ideas of originalism that see the founding people as preceding popular sovereignty invite the question of whether Israel is a democracy, as a democracy is about the sovereignty of the ‘popular sovereignty’. The Israeli Constitution is Schmitt's Constitution, as the founding people's identity is itself the state's identity, and thus its democracy is a people's democracy and not its citizens’ democracy. Thus, for Israeli Zionists, the ‘Jewish state’ is a ‘democratic state’, as both identities live legitimately together without contradiction.
As a result of the dualist distinction of originalism between identity and representation, parliamentary laws are not always allowed to decide, as political participation based on common citizenship is not the ultimate expression of the political will of the ‘fixed identity’. Thus, there is a need in many cases for a decision. The sovereign rule of recognition could appear at any moment, as it depends on the concrete circumstances of each case. Its power collapses the distinction between normal politics and a political moment, certainty and will, and regularity and exception. Taking originalism seriously creates a legal culture of decisionism. All the cases discussed here – including Bank Mizrahi, and those concerning the uprooted villages, the Big Mosque and holy sites – are clearly decisionist cases derived from a legal culture that was created during the foundation. In his article in the book under review, Barak Medina explains that, historically, the Israeli parliament has played a marginal role in decision-making, even in the absence of an immediate threat.Footnote 167 Daphne Barak-Erez, a current Supreme Court justice, expresses satisfaction with this situation in her article, as she perceives that the Court always reaches the relevant balances.Footnote 168 The fact that a liberal justice like Barak-Erez sees such a phenomenon as normal is because decisionism is part of the normality. When the rule of law rests on dualist values, decisionism becomes normal and the rule of law becomes very situational.
7. Conclusion
Both Schmitt's theory and Israeli legal practice are the paradigmatic models of originalism in theory and practice. These models show that the conception of democracy based on originalism is about the case in which the founding political identity precedes the popular sovereignty. For maintaining the principle of sameness, decisionism and not the rule of law becomes part of the normality, as the content of the decisions that follow the founding identity is the matter for such a people's democracy and not the legality based on parliamentary laws or constitutionalism based on the rule of rights. For this reason, the foundation is the sacred moment, as it is the only significant time in which the particular ethnic homogenous people appear in full, concrete clarity. The analysis of non-normative originalism, as developed by Yale Law School professors – in particular, Amar, Ackerman and Kahn – are the closest to Schmitt's theory.
The link between political identity and hegemony is very significant for studying originalism. The founding values are not sacred in themselves, as only those values that become hegemonic and linked to the understanding of the political identity are matters for originalism, while others could be challenged through living constitutionalism. Hegemony links the past with the present and through it the relevant founding values continue to live. Originalism is a form of hegemony and not a matter of the use of a particular historicist methodology that attempts to discover the political identity through dictionaries.
Still, it is not easy to discover the power of hegemony. In general, hegemonic groups are not aware of its effects, as it is their ‘common sense’, philosophy, faith and culture. This difficulty explains the problem of Greene's comparative study, in which he concluded that Israeli jurists are hostile to historicist methodology. Indeed, while Zionist Israeli jurists are originalists, not one of the Israeli authors in the book or the justices who delivered the judgments mentioned here defines himself or herself as an originalist.
Hegemony also explains the problem of the book. With its 33 contributors, not one of whom is Palestinian, the book discusses Israel as a constitutional democracy with an activist Supreme Court committed to living constitutionalism and human rights, and not a ‘Jewish democracy’ based on originalism and decisionism. As the values of the ‘Jewish and democratic state’ are the raison d’être of the state, studying constitutional law must start with the cases concerning Palestinian rights. However, as the book itself embodies the hegemonic discourse, its discussion of equality will obviously focus on the political community, and the Yeshiva case will serve as the example. By this, the book does not succeed in reaching the substance of Israeli constitutionalism.
