Are Constitutional Limits on the High Court of Justice Democratic?

Daniel J. Elazar

　

Public debate being what it is, especially when "hot" issues are involved, it is not surprising that the newspapers have been filled with attacks on Prime Minister Rabin's agreement with Shas to limit the authority of the High Court of Justice to change matters regarding the religious status quo. Feature writers, columnists, and editorialists have been hot under the collar denouncing the agreement as undemocratic. This is somewhat ironic.

Only a few years ago in Israel any suggestion that a constitutional court could declare actions of the Knesset to be invalid was considered to be the height of "undemocratic," since Israeli opinion-molders had embraced the theory of parliamentary supremacy as the essence of democracy, lock, stock and barrel. Now we hear just the opposite, that Knesset-imposed limits on the High Court are the height of "undemocratic."

In fact, both judicial review and parliamentary limitations on judicial review are fully in accord with democracy and, indeed, are both necessary to preserve democracy. The preservation of democracy requires that no single source of governmental authority have full or exclusive powers. Even if in theory the source is the most democratic possible, unless its powers are limited, checked and balanced, in practice, democracy cannot survive. That is why judicial review is important, especially in the field of human rights.

On the other hand, empowering the courts in an unrestricted manner vitiates the role of the people and their representatives, itself a different kind of undemocratic act but just as undemocratic. That is why constitutions and constitutionalism have become the basis of democratic government. Constitutions can both empower and limit the organs of government, executive, legislative, and judicial.

There is nothing undemocratic about the legislature of a state empowering a constitutional court or limiting the power of a constitutional court, as long as it is done in a constitutional manner. Recently the Supreme Court of the United States, the country where modern constitutionalism, with checks and balances, was first designed and effectively implemented, handed down decisions of constitutional interpretation on matters affecting relations between religion and state in that country which alarmed various groups including the Jewish community. The latter combined to press the U.S. Congress to reverse those decisions, which the Congress did. Of course there was a debate over whether they should do so or not but the debate did not hinge on questions of democracy but on the substantive issues involved.

It is agreed in the United States that the Supreme Court has jurisdiction, but in many areas of jurisdiction that jurisdiction can be modified or new legislation can be adopted by Congress that, for all intents and purposes, reverses the Supreme Court's decision or limits the Court's power to decide on constitutionality. The balance between the two is never permanently fixed since the court, to a degree, can review that legislation, but it is limited and it accepts its limitations. Moreover, the constitution itself is a limiting device. While, for example, the U.S. Supreme Court may interpret its understanding of the system of apportionment of Congressional districts, it has no authority whatsoever to determine how many Senators or Representatives a state may have. Those matters are fixed in the U.S. Constitution and can only be changed by constitutional amendment adopted by a two-thirds vote in Congress and by three-quarters of the states. Those special majorities are considered constitutional protections, not limitations on democracy by a people that has had over two hundred years of experience living under its constitution, nearly two hundred more developing their democratic principles, and are heirs to a tradition that goes back at least to Magna Carta in 1215.

Thus if the Knesset decides by constitutional amendment, for that is what changing the Basic Law involves, to limit judicial review, it can do so, just as two years ago it could formally empower the High Court of Justice to undertake judicial review without in any respect impairing "democracy."

The real philosophic issue regarding Rabin's agreement with Shas is, of course, how to understand democracy. Abroad in the land is a particular conception of democracy as only involving individual rights and a view that Israel's character as a Jewish state should not stand in the way of protecting the rights of individuals to do whatever they please in a whole host of areas in which they have been limited by the effort to preserve the state's special character. Ironically, that character rests upon the world's oldest constitutional tradition, that of the Jewish people, which has been based upon checks and balances for the past 3,000 years. It is a tradition that had developed elaborate theories of republican government centuries before Magna Carta and had implemented them in practice in Jewish communities throughout the world. It is true that the traditional Jewish understanding of what are today called individual rights is different from the modern understanding. One can freely choose the latter over the former, a matter which is at the heart of the opposition to the Rabin-Shas deal. But that is a matter of competing conceptions of democracy and perhaps competing conceptions of Judaism as well, which is a very different issue.