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26 Colum. Hum. Rts. L. Rev. 309 (1994-1995)
From an Unwritten to a Written Constitution: The Israeli Challenge in American Perspective

handle is hein.journals/colhr26 and id is 317 raw text is: FROM AN UNWRITTEN TO A WRITTEN CONSTITUTION: THE ISRAELI CHALLENGE IN AMERICAN PERSPECTIVE by Daphne Barak-Erez I. INTRODUCTION Constitutional adjudication raises the most fundamental questions with which a legal system must grapple - questions about forms of government and ways of life. The basic difficulties faced by different systems are similar: defining the relative power of the judiciary vis-A-vis other branches of government and protecting a sphere of personal autonomy from the state. However, different legal systems may deal with these difficulties in different ways, particularly in light of their political histories and legal cultures. For this reason, lessons learned from the experiences of another legal system may be misleading in part. On the other hand, freedom from one's immediate national context may permit a fresh perspective for enlightening constitutional discussions. With these considerations in mind, I venture to look at the constitutional change evolving now in Israel - a change which is unique in many respects - as enacted gradually and not as an outcome of revolutionary events. I will try to view the debates that this change is about to bring forth within the Israeli legal system, as well as within Israeli society, in the context of the American constitutional experience.' At the same time, I hope, the Israeli perspective may add some insight into the bitter controversies in American constitutional theory, specifically the controversies over limits of judicial review and the correct approach to constitutional interpretation.2 * Lecturer, Faculty of Law, Tel-Aviv University; LL.B., LL.M., J.S.D., Tel-Aviv University. This Article was written during the time I spent as a Visiting Researcher at Harvard Law School (1993-94), to which I am grateful for its hospitality. I want to thank especially Prof. Richard Fallon for his helpful comments. I also thank Michael Davis, Cait Clarke and Kerry Rittich for reading former drafts of this Article. 1. For the purposes of the current comparison, it will suffice to discuss the history of the federal constitution, although in the American context state constitutions are of significance, too. See William J. Brennan, Jr., State Constitutions and the Protection of Individual Rights, 90 Harv. L. Rev. 489 (1977); Ronald I-L. Collins, Peter J. Galie & John Kincaid, State High Courts, State Constitutions, and Individual Rights Litigation Since 1980: A Judicial Survey, 13 Hastings Const. L.Q. 599 (1986). 2. See infra Part VII. An early discussion comparing the evolution of judicial review in Israel and the United States is found in Robert A. Burt, Inventing Judicial Review: Israel and America, 10 Cardozo L. Rev. 2013 (1989). That article had a different

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