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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
by Daphne Barak-Erez
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
*   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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