—Barak Medina, Landecker-Ferencz chair in the Study of Protection of Minorities and Vulnerable Groups, the Faculty of Law, the Hebrew University of Jerusalem
In the article On Constitutional Identity, Democratic Legitimacy, and Judicial Review in Times of Democratic Backsliding: The Case of Israel, I advance a central argument, stated in the penultimate sentence: “While procedural legitimacy is important, it is not considered absolute.” This argument is applied to resolve two types of hard cases: (1) when there is doubt as to whether an enacted norm is constitutionally binding; and (2) when the validity of a constitutional amendment is in question.
The Israeli Supreme Court has addressed both types of cases. In 1995, it ruled that the Basic Law: Human Dignity and Liberty—enacted by the Knesset, Israel’s legislature—is constitutionally binding, along with all other Basic Laws enacted by the Knesset. In 2024, it declared invalid an amendment to the Basic Law: The Judiciary, which sought to limit the Court’s power of judicial review. I suggest that both decisions can be explained and justified based on the idea that procedural legitimacy is important but not decisive.
In evaluating a body’s power to enact constitutional norms and amend them, one must consider the scope of democratic legitimacy of each enactment. It is measured by taking into account both the scope of its procedural legitimacy, and its alignment of the relevant norm with the existing set of values and principles that characterizes the state. This set of values and principles is commonly referred to as the state’s “unwritten constitution,” determined by its constitutional or national identity.
It is according to this model that the Israeli Supreme Court held, in 1995, that the Basic Laws enacted by the Knesset—including the Basic Law: Human Dignity and Liberty—are constitutionally binding, because they draw legitimacy from both procedural and substantive sources. Similarly, the Court was justified in striking down the 2024 amendment, as the combined procedural and substantive legitimacy fell short of the necessary threshold.
The Court has thus opted not to set formal procedural requirements—such as a qualified majority—to amend Basic Laws, which are lacking in Israel. Rather, it has developed a flexible, sliding-scale approach. Under this framework, a simple majority may suffice to enact or amend constitutional norms, provided these do not contradict Israel’s unwritten constitution or constitutional identity. The more an amendment deviates from these foundational values, the more demanding the procedural threshold becomes. Within this framework, the Court has developed the concept of democratic legitimacy, acknowledging that while procedural legitimacy is essential, it is not absolute.
Issi Rosen-Zvi and Meir H. Yarom, in their thoughtful and detailed response titled Constitutional Methodology and the Perils of Positivity: A Reply to Barak Medina, raise several critiques of my thesis. Before addressing their three main criticisms, two preliminary remarks—one descriptive and one normative—are in order.
First, as previously noted, my argument primarily seeks to explain the approach adopted by the Israeli Supreme Court. While the Court has not articulated its reasoning in precisely the terms I offer, the theory aligns with the rationale expressed in its decisions. Rosen-Zvi and Yarom appear to overlook this descriptive element, focusing solely on the normative implications of my thesis. As such, it remains unclear whether they accept my descriptive account of what the Court has done.
Second, on a normative level, Rosen-Zvi and Yarom appear to suggest that applying my proposed model is undesirable. Their primary concern is that it may grant the Knesset excessive power, enabling it to enact or amend Basic Laws in ways that further erode Israel’s already fragile commitment to liberal democratic values. I share their concern regarding democratic backsliding—an issue not unique to Israel but one that plagues other liberal democracies as well. Accordingly, assuming that the aim of constitutional law is to preserve liberal democracies, the model that I suggest is imperfect. That said, the possibility of abuse does not, in itself, render the proposed model undesirable.
In constructing a legal doctrine, one must weigh not only the risks posed by political overreach but also the institutional limits of courts and legal doctrines. These limits include both normative aspects and pragmatic considerations, such as maintaining public trust. Rosen-Zvi and Yarom do not offer a concrete alternative doctrine against which my model can be measured. I assume that they endorse a model in which constitutional law consists of a fixed set of liberal democratic values that constrain both legislative and constituent powers. I find this alternative more problematic. It fails both descriptively—by not accurately reflecting the Court’s jurisprudence—and normatively—by lacking sufficient democratic legitimacy. In a world shaped by both political and normative constraints, legal doctrines should be assessed comparatively, not idealistically. The fact that a model is imperfect in protecting from the risks of democratic backsliding is insufficient to prove that it is undesirable, given its relevant alternatives.
At the same time, Rosen-Zvi and Yarom raise several concerns about my suggested theory, which I find valid, and I’m grateful to them for the opportunity to further clarify my position. In what follows I briefly address three critiques.
First, they question the efficacy of the procedural constraint I propose—namely, that amendments contrary to the unwritten constitution must enjoy broad bipartisan and public support. They argue this may not be sufficient to prevent the enactment of discriminatory norms, especially those targeting the Arab-Palestinian minority in Israel.
I offer two responses—one pragmatic, the other principled. The novelty of the model presented in the article lies in the flexibility of the procedural constraint. Since it is not grounded in a formal provision but in an interpretation of the Knesset’s constituent power, the threshold for sufficient procedural legitimacy is context-dependent. Traditionally, bipartisan support refers to the inclusion of opposition parties, particularly when amendments serve the interests of the ruling coalition (e.g., electoral reform or exempting the government from legal constraints). But where the proposed amendment affects interests in conflict between Jewish and Arab citizens, the procedural requirement could—indeed should—be interpreted to include support from parties representing the Arab-Palestinian minority.
On a principled level, this model should again be assessed against its alternatives. One is to rely on formal procedural constraints, which in Israel are minimal. Another is to read into the Basic Laws an “eternity clause” protecting core liberal-democratic values. While this could provide stronger safeguards, enforcing judge-made eternity clause risks undermining public trust in the judiciary, particularly in a system lacking both an explicit eternity clause and a widely accepted written constitution. A more balanced approach—recognizing the Knesset’s authority to redefine constitutional identity only if it acts in a way akin to enacting a new constitution—may offer greater normative and democratic legitimacy. Reading into the existing norms robust procedural requirements, which are set in accordance with the requirement of substantive legitimacy, may well be a superior alternative.
The second and third critiques concern the identification of substantive constraints. On a theoretical level, Rosen-Zvi and Yarom—drawing on Dworkin—argue that a state’s fundamental values must be derived solely from legal norms. I don’t find this position justified. Sociological and moral factors are essential in forming a state’s core values. It is clearly inevitable to refer to these “external” resources in interpreting the formal legal norms (and, as Dworkin suggested, in employing judicial discretion). This practice is common in identifying national and constitutional identity (e.g., Schnettger, p. 14, 20).
Lastly, Rosen-Zvi and Yarom challenge the characterization of Israel’s constitutional identity as that of a liberal democracy. Their criticism is that this identity is inferred primarily from three formal sources, ignoring conflicting norms, most notably the Basic Law: Israel—The Nation State of the Jewish People (“Basic Law: Nation-State”). I offer four responses. First, while the article highlights three key sources—Israel’s Declaration of Independence, Article 7A of the Basic Law: The Knesset, and the Basic Law: Human Dignity and Liberty—are chief among the relevant formal sources, but definitely not exclusive ones. Israel’s constitutional identity is determined based on various other laws, which entrench the state’s commitment to protect human rights and treat all citizens as equals, government policies that implement this commitment, and numerous judicial precedents, determining that Israel’s characterization as a Jewish and democratic state means an absolute commitment to equality and to the values of liberal democracy.
Second, Israel’s constitutional identity has evolved. As Rosen-Zvi and Yarom rightly observe, Israel’s early legal and political landscape was not that of a liberal democracy. However, as I elaborate in the article, the 1992 enactment of the Basic Law: Human Dignity and Liberty—along with contemporaneous policy shifts and changes in public sentiment—marked a constitutional transformation toward a more liberal identity.
Third, Rosen-Zvi and Yarom argue that the 2018 Basic Law: Nation-State, which they suggest is “plainly valid,” should have prompted a recalibration of Israel’s constitutional identity. However, in its 2021 Hasson decision, the Court effectively neutralized this law (Hebrew version here). It is in this case that the Court, fully aware of the fact that this Basic Law contradicts fundamental aspects of Israel’s constitutional identity, has developed its unique form of the “unconstitutional constitutional amendment” doctrine. Though it refrained from formally invalidating this Basic Law, the Court interpreted it in a way that rendered it functionally irrelevant, including by affirming the state’s obligation to treat all citizens as equals. Rather than undermining my thesis, this development supports it.
Finally, I concede that Israel’s legal and political system remains far from the liberal democratic ideal. Several pre-1992 laws—still in effect—are inconsistent with the current constitutional identity. Moreover, prolonged occupation of the West Bank and recent policies during the Gaza war challenge the Court’s liberal democratic framing. These and related aspects create a real challenge to the Court’s position that Israel’s identity is that of a liberal democracy. Nevertheless, I find this approach justifiable. Constitutional identity is shaped not only by practices and policies but also by ideals, self-perception, and normative commitments. The Court’s insistence that the government act as if Israel is a liberal democracy rests on a plausible—albeit contestable—reading of the relevant sources. Giving the sources a morally favorably reading is justified.
This morally aspirational reading is not limitless. If a broad political consensus emerges to abandon liberal democratic values, and the Knesset enacts accordingly, the constraint of constitutional identity will lose its efficacy. For now, however, the Court’s approach has successfully stalled efforts to undermine judicial independence. It has bought time for civil society and grassroots movements committed to liberal democracy to regain political momentum. This is an important achievement of the Israeli Supreme Court.
Suggested citation: Barak Medina, Democratic Legitimacy and Constitutional Identity—A Rejoinder, Int’l J. Const. L. Blog, Jul. 1, 2026, at: http://www.iconnectblog.com/legitimacy-and-constitutional-identity-a-rejoinder/