The Challenge of Reconciling Constitutional Eternity Clauses with Popular Sovereignty: Toward Three-Track Democracy in Israel as a Universal Holistic Constitutional System and Theory

Abstract

Since the concept of democracy made its premiere, popular sovereignty has always been one of its fundamental characteristics. Nevertheless, many democracies have adopted eternity clauses (non-amendable constitutional provisions) as well as the unconstitutional constitutional amendment doctrine (the judicial power to strike down amendments to the constitution on substantive grounds), seemingly betraying the established democratic tradition. Including eternity clauses in a constitution certainly poses a challenge to any democracy, namely that of resolving the tension between their freezing effect on the legal system and the democratic notion of popular sovereignty. The intuitive question is why bother? Why address this challenge in the first place rather than uprooting eternity clauses from the constitutional system altogether, thereby resolving the inner tension they generate? One answer is that eternity clauses are presumably here to stay. More to the point, however, is that their presence in a legal system is desirable, since their absence would leave a modern democracy vulnerable to irresponsible normative acts by an incompetent body of representatives. Although Israel's Basic Laws do not include formal eternity clauses, its legal system tends to limit the scope of amending power where the Zionist project is concerned, thereby freezing the imperfect founding formula of the Jewish state. As a result, Israel as a Jewish democratic state faces the same challenge of resolving the tension between the freezing effect and popular sovereignty. This article argues that this challenge can be successfully met as soon as eternity clauses are integrated within a three-track democracy—a holistic constitutional system and theory. As a constitutional system, it distinguishes between three decision-making tracks and identifies the basic norm of the legal system with a nation's collective will or dynamic founding narrative. As a constitutional theory, it justifies constitutionalism and judicial review mainly for the purpose of regulating a nation's evolution. Eternity clauses play a pivotal role in three-track democracies by blocking the first decision-making two tracks in order to force revolutionary movements to engage in the consensual third track. This protects society from a unilaterally-imposed revolution—an act liable to be detrimental to the delicate evolutionary process.