¹ The concepts of “nation” and “the people” are usually perceived as identical with regard to constitution-making power in a democratic society. See Emmanuel, J. Sieyès, Political Writings 93, 136–37 (Sonenscher, Michael ed. & trans., 2003)Google Scholar for an example of the former and 1 Ackerman, Bruce, We the People: Foundations (1991)Google Scholar for an example of the latter. However, as noted by Schmitt, the former is a better phrase since it succeeds in illustrating the idea that a constitution-making power originates in a “political unity”—a unified whole existing independently of its components. See Schmitt, Carl, Constitutional Theory 126–27 (Seitzer, Jeffrey trans., 2008)CrossRefGoogle Scholar.

² Declaration of Independence ¶ 2 (U.S. 1776)Google Scholar. See also Paine, Thomas, The Rights of Man: Part I (1791), in Paine: Political Writings 57, 86 (Kuklick, Bruce ed., 2000)Google Scholar: “Natural rights are those which always appertain to man in right of his existence. Of this kind are all the intellectual rights … and also all those rights of acting as an individual for his own comfort and happiness, which are not injurious to the rights of others.”

³ See Sieyès, supra note 1, at 136. For another fierce attack on constitutionalism—especially on eternity clauses—see Paine, supra note 2, at 63-64. For a more formalistic approach to eternity clauses as any other constitutional norm (i.e., an integral part of the legal system), see Kelsen, Hans, General Theory of Law and State 259–60 (Wedberg, Anders trans., 1945)Google Scholar.

⁴ For a similar insight see Schmitt, supra note 1, at 128.

⁵ On the idea of founding a sovereign (a modern state) based on a social contract in order to escape “the natural condition” (or “the state of nature”), see Hobbes, Thomas, Leviathan 86–129 (Tuck, Richard ed., rev. student ed. 1996)Google Scholar; Locke, John, Second Treatise, in Two Treatises on Government 287–300, 348–71 (Laslett, Peter ed., 1960)Google Scholar. Note that Hobbes' absolutism is very different from Locke's democratic version of a sovereign. Nonetheless, they similarly resort to the social contract metaphor as a methodological tool.

⁶ Aharon Barak perceives eternity clauses and the judicial act of applying them (the unconstitutional constitutional amendment doctrine) as a positive mechanism that reinforces popular sovereignty, as if the challenge addressed in this article were not a real challenge. See Barak, Aharon, The Unconstitutional Constitutional Amendment, in Justice Bach Book 361, 377 (Dahan, David et al. eds., 2011) (in Hebrew)Google Scholar. However, Barak's conclusion presupposes the feasibility of the option to found a new constitutional order (a third track), namely rewriting the constitution from scratch (id. at 377-78). This is precisely where the challenge of reconciling eternity clauses and popular sovereignty lies.

⁷ Compare to Bruce Ackerman's dualism in Ackerman, supra note 1. For a detailed comparison, see infra sections III.A & III.C. In Israel, for the time being, we are only familiar with two decision-making tracks taking place in the Knesset (Israel's parliament)—regular laws and Basic Laws—which both maintain allegiance to the founding narrative of the nation. However, bearing in mind the common understanding (of both the Knesset and the Supreme Court) regarding the Knesset's limited powers as the nation's trustee (see infra section II.C), recognizing a third decision-making track outside the boundaries of the Knesset, which allows for a collective reconsideration process of the nation's particular founding formulas, is absolutely essential for Israel to comply with the DNA of free democratic nations.

⁸ For the use of the founding narrative metaphor in constitutional interpretation, see HCJ 466/07 MK Zahava Gal-On v. The Attorney General (January 11, 2012), Nevo Legal Database (by subscription), at paras. 9-18 of Justice Levy's opinion. For a similar view addressing “a nation's aspirations throughout the course of history,” see HCJ 6427/02 Movement for Quality Government in Israel v. The Knesset (May 11, 2006), Nevo Legal Database (by subscription), at para. 24 of Chief Justice Barak's opinion [hereinafter Movement for Quality Government in Israel case]. For further discussion of the founding narrative and how it relates to the text, see infra section IV. A.

⁹ For an approach to constitutions as evolved identities “further molded by each succeeding generation,” see Rosenfeld, Michel, Modern Constitutionalism as Interplay Between Identity and Diversity, in Constitutionalism, Identity, Difference, and Legitimacy: Theoretical Perspectives (Rosenfeld, Michel ed., 1994)Google Scholar.

¹⁰ On the adoption of the “founding values” terminology, see HCJ 2605/05 Academic Center of Law and Business, Human Rights Division v. The Minister of Finance (Nov. 19, 2009), Nevo Legal Database (by subscription), at para. 20 of Justice Levy's opinion [hereinafter Human Rights Division case]. On the “fundamental values” terminology, see CA 6821/93 United Mizrahi Bank v. Migdal Collective Village 49(4) PD 221 [1995], at para. 47 of Chief Justice Barak's opinion [hereinafter United Mizrahi Bank case]. On the “depth values” terminology, see Movement for Quality Government in Israel case, supra note 8, at para. 10 of Deputy Chief Justice Cheshin's opinion.

¹¹ Compare to Deputy Chief Justice Cheshin's dichotomy between universal and particular constitutional values. See HCJ 7052/03 Adalah—The Legal Center for Arab Minority Rights in Israel v. The Minister of the Interior (May 14, 2006), Nevo Legal Database (by subscription), at paras. 38-39 of Deputy Chief Justice Cheshin's opinion [hereinafter Adalah case]. According to Cheshin, while a universal value can be recognized by the court even without a trace in the constitutional text, the recognition of a particular value requires a specific provision in the constitution that should always be open to reform. Three-track democracy sets the boundaries for the dichotomy quite differently. Both the universal and the particular can be considered founding values and recognized without textual anchoring (as long as they derive from the founding narrative). How-ever, only particular founding values should be left exposed to total revision under the third track.

¹² On the terminology of “original constituent power” (or assembly) and “derivative constituent power,” see Klein, Claude, After the Bank Hamizrahi Case—The Constituent Power as Seen by the Supreme Court, 28 Mishpatim 341, 355–58 (1997) (in Hebrew)Google Scholar; Bendor, Ariel L., The Legal Status of Basic Laws, in 2 Berenson Book 119, 132-36, 142–45 (Barak, Aharon & Berenson, Chaim ed., 2000) (in Hebrew)Google Scholar.

¹³ Even a violent or unilaterally-imposed revolution—changing the basic norm of a legal system—could eventually meet Kelsen's validity via effectiveness criteria, which is clearly the right test from a purely descriptive perspective. See Kelsen, supra note 3, at 118-19. However, based on a normative test (as explained below) such a revolutionary act is totally unacceptable in a functioning democratic society and thus should be regarded as an illegitimate, invalid act.

¹⁴ On the distinction between “constituent power” (or “constitution-making power”), originating in a nation's natural extra-legal right to create a constitution, and “constituted power,” originating in the document itself, see Sieyes, supra note 1, at 136; Schmitt, supra note 1, at 126-28; Preuss, Ulrich K., Constitutional Powermaking for the New Polity: Some Deliberations on the Relations Between Constituent Power and the Constitution, in Constitutionalism, Identity, Difference, and Legitimacy: Theoretical Perspectives 143, 144–45 (Rosenfeld, Michel ed., 1994)Google Scholar; Kay, Richard S., Constituent Authority, 59 Am. J. Comp. L. 715, 717–22 (2011)CrossRefGoogle Scholar.

¹⁵ Three-track democracy follows Carl Schmitt's insight regarding the normally fading out sovereign (or nation) that makes a comeback in rare historical times to form a cycle of full incarnations. However, there is a huge difference between the two: firstly, regarding the constitutional body entitled to speak on behalf of a nation (an extraordinary body of representatives based on equal voice, combined with a referendum, in contrast to Schmitt's procedural void) and, secondly, regarding the preconditions for a nation's legitimate full incarnation (democratic continuity and consensual decision in contrast to Schmitt's normative void). See SCHMITT, supra note 1, at 109-11, 126-28; Kalyvas, Andreas, Carl Schmitt and the Three Moments of Democracy, 21 Cardozo L. Rev. 1525, 1530–45, 1557–62 (2000)Google Scholar.

¹⁶ For a description of a legal system as a hierarchical structure of norms (“pyramid of norms”) whose validity is derived from a single basic norm whose validity cannot be derived from any other norm and must be presupposed, see Kelsen, supra note 3, at 110-11; Kelsen, Hans, Pure Theory of Law 193–95 (Knight, M. trans., 1967)Google Scholar; Raz, Joseph, The Concept of a Legal System: An Introduction to the Theory of a Legal System 97–99 (2d ed. 1980)CrossRefGoogle Scholar.

¹⁷ On the dichotomy between “dynamic system of norms” and “static system of norms,” see Kelsen, supra note 3, at 112-14; Kelsen, supra note 16, at 195-98.

¹⁸ See, e.g., Grundoesetz für die Bundesrepublik Deutschland [Grundgesetz] [GG] [Basic Law], May 23, 1949, BGB1. I, art. 79 § 3 (“Amendments of this basic law … shall be inadmissible”); Turkish Const., 1982, art. 4 (“The provisions of … shall not be amended, nor shall their amendment be proposed”).

¹⁹ S. Afr. (Interim) Const., 1993, arts. 71 & 74, sched. 4. Putting aside the fact that the Interim Constitution of 1993 was framed by the dying Apartheid regime, it is still a masterpiece of constitutional innovation. Unwisely, the final Constitution of 1996 omits from its text both the eternity clause and the strong supremacy clause (see S. Afr. Const., 1996, art. 74). However, since the 1993 Interim Constitution served as the normative base for the final document (as certified in the Constitutional Court's judgment, see infra note 20) and the latter explicitly addresses the former in its Explanatory Memorandum, one can argue that the former is still valid in the sense that future amendments to the 1996 Constitution cannot trump the core of the higher constitutional principles stated in schedule 4 of the 1993 Interim Constitution, thus undermining the basic structure of the Constitution.

²⁰ Certification of the Constitution of the Republic of South Africa 1996 (4) SA 744 (CC). The Constitutional Court of South Africa found several provisions of the 1996 Constitution to be inconsistent with the Constitutional Principles stated in schedule 4 of the 1993 Interim Constitution—which serve to limit the mandate of the Constituent Assembly—on the grounds of failing to protect the right of individual employers to engage in collective bargaining, impermissibry shielding an ordinary statute from constitutional review, under-entrenching fundamental rights and freedoms, and failing to provide an adequate set of powers and functions to the provinces as local governments.

²¹ A “constitutional lacuna” can be defined as any gap in the constitutional text that—if left unfilled—undermines the constitutional system and creates a major setback preventing constitutional courts from fulfilling their role in a free democratic society. On the option to apply the doctrine of lacuna-filling to “constitutional lacuna,” see Barak, Aharon, Proportionality: Constitutional Rights and Their Limitations 82–84 (2010) (in Hebrew)Google Scholar. Note that my definition of “constitutional lacuna” is very broad and does not distinguish between an implied provision—a provision that, although it cannot be found explicitly in the text, seems to have been written between the lines in invisible ink—and a real lacuna. See also Barak, supra note 6, at 378. I believe that both gaps in the constitutional text should be handled similarly to enable courts to fulfill their role in a free democratic society as part of three-track democracy.

²² Marbury v. Madison, 5 U.S. 137 (1803). In a famous judgment regarded as the beginning of judicial review in the United States, the Court recognized the supremacy of the Constitution over any congressional legislation despite a lacuna in the text.

²³ United Mizrahi Bank case, supra note 10. This courageous decision was one of the most important milestones in Israel's constitutional revolution. Led by Chief Justice Shamgar and newly appointed Chief Justice Barak—along with a famous dissenting opinion by Justice Cheshin—the Supreme Court managed to place Israel in line with other constitutional democracies by laying the groundwork (albeit obiter dictum) to what later evolved, after strong controversy in the academic sphere, into a well-established tradition of judicial review. Based on two (then) new basic laws—Basic Law: Human Dignity and Liberty and Basic Law: Freedom of Occupation—and in light of the absence of a supremacy clause, the Court convincingly based its judgment on the language and purpose of these Basic Laws, as well as on a comprehensive theory recognizing the constituent power of the Knesset (Israel's parliament). For a more skeptical viewpoint, see Gavison, Ruth, The Constitutional Revolution: A Reality or a Self-Fulfdling Prophecy?, 28 Mishpatim 21 (1997) (in Hebrew)Google Scholar; Segev, Joshua, Why Israel Does Not and Will Not Have a Constitution (at Least Not in the Near Future)? On the Merits of “the Decision not to Decide,” 5 Netanya Academic College L. Rev. 125 (2006) (in Hebrew)Google Scholar.

²⁴ For the Brazilian eternity clause, see Constituição Federal [C.F.] [Federal Constitution] art. 60 § 4 (Braz.). For the Supreme Court's understanding of its supremacy, see Maia, Luciano, The Creation and Amendment Process in the Brazilian Constitution, in The Creation and Amendment of Constitutional Norms 54, 73 (Andenas, Mads ed., 2000)Google Scholar.

²⁵ Although in its decision of March 3, 2004 the Federal Constitutional Court of Germany ruled not to strike down the amendment of article 13(3) that authorizes electronic eavesdropping, due to its alleged inconsistency with the eternity clause in article 79(3) addressing human dignity, the way has nevertheless been paved for such a move in the future. See Nohlan, Nicolas, Germany: The Electronic Eavesdropping Case, 3 Int'l. Const. L. 680 (2005)Google Scholar. See also Limbch, Jutta, The Role of the Federal Constitutional Court as the Guardian of the Constitution, 28 Mishpatim 5, 5–6 (1997) (in Hebrew)Google Scholar.

²⁶ For the French eternity clause, see 1958 CONST, art. 89 (Fr.). For the French position regarding amendments ratified by a national referendum, see Boyron, Sophie, From Abolition to Amendment: Life and Death of Constitutions in France, in The Creation and Amendment of Constitutional Norms 133, 147 (Andenas, Mads ed., 2000)Google Scholar.

²⁷ On the civic perception, see infra section III.C.2.

²⁸ On the different models of nationalism, see Smooha, Sami, Israel's Regime: Civic Democracy, Non-Democracy or Ethnic Democracy?, 2(2) Israeli Sociology 565, 568–84 (2000) (in Hebrew)Google Scholar. The civic republican model (referred to as “republican liberal democracy” by Smooha), which is associated with France and Turkey, postulates that all citizens of the state are part of one happy national group, thereby denying the existence of national minorities. For an illuminating comparative discussion of the different models, see Yakobson, Alexander & Amnon Rubin Stein, Israel and the Family of nations 286–413 (2004) (in Hebrew)Google Scholar.

²⁹ For an approach treating an amendment ratified in a referendum like any other amendment—and therefore subject to judicial review under the unconstitutional constitutional amendment doctrine—see Barak, supra note 6, at 376-78 esp. n. 78. For the role of judges as guardians of the constitutions, see Barak, Aharon, The Judge in a Democracy 77–80 (2004) (in Hebrew)Google Scholar.

³⁰ Among many other examples, see Grundgesetz art. 79 § 3 (Ger.); 1958 Const, art. 89 (Fr.); Federal Constitution art. 60 § 4 (Braz.); Turkish Const, art. 4.

³¹ Norwegian Const, art. 112.

³² Barak, Aharon, Unconstitutional Constitutional Amendments, 44 Isr. L. Rev. 321 (2011)Google Scholar.

³³ Any judicial eternity clause can be accused of being—in Alec Stone Sweet's words—a “juridical coup d'état” (or juridical revolution) since, formally speaking, any court that creates such a clause seemingly changes the basic norm of the legal system. See Sweet, Alec Stone, The Juridical Coup d'État and the Problem of Authority, 8 German Law Journal 915 (2007)Google Scholar. This accusation may not always be justified, as it all depends on the specific constitutional system. In a three-track democracy, the court may rightfully associate the basic norm with the original will of a nation converted into a dynamic founding narrative instead of the written constitution. Accordingly, a judicial eternity clause could actually be a declarative act reinforcing the basic norm rather than undermining it.

³⁴ See supra note 21.

³⁵ For the full story, see Abrahams, Mathew, Judicial Role in Constitutional Amendment in India: The Basic Structure Doctrine, in The Creation and Amendment of Constitutional Norms 195 (Andenas, Mads ed., 2000)Google Scholar.

³⁶ Golaknath v. State of Punjab, A.I.R 1967 S.C. 1643. This understanding of the inherently limited scope of the “amendment” concept was first presented by Schmitt, supra note 1, at 74: “The authority to undertake constitutional amendments resides in the framework of the constitution, is established through it, and does not extend beyond it. This authority does not include the power to establish a new constitution.”

³⁷ Kesavananda Bharati Sirpadagalvaru v. State of Kerala, A.I.R 1973 S.C. 1461.

³⁸ Minerva Mills Ltd v. Union of India, A.I.R 1980 S.C. 1789.

³⁹ For the autonomous collective enslavement act paradox that follows Mill's individual autonomous enslavement act paradox, see infra note 170 and accompanying text.

⁴⁰ The unconstitutional constitutional amendment doctrine is clearly tied up with judicial legitimacy issues, such as the “counter-majoritarian difficulty.” See Blckel, Alexsander, The Least Dangerous Branch: The Supreme Court and the Barof Politics 16–23 (1962)Google Scholar. However, in a three-track democracy (see infra section III), it is precisely these independent, counter-majoritarian and unaccountable aspects that render the court competent to bravely stand in the way of a majority illegitimately promoting a unilaterally-imposed revolution. For a different approach calling for further accountability of constitutional courts in direct proportion to their judicial review powers, see Dotan, Yoav, Judicial Review and Accountability—A Comparative Analysis 10 Mishpat Umimshal 489 (2007) (in Hebrew)Google Scholar.

⁴¹ Supra note 31.

⁴² HCJ 142/89 Laor Movement v. Speaker of the Knesset 44(3) PD 529 [1990], paras. 25-30 of Justice Barak's opinion; CA 733/95 Arpal Aluminum Ltd. v. Klil Industries Ltd 51(3) PD 577 [1997], paras. 31-32 of Justice Cheshin's opinion; Human Rights Division case, supra note 10, at para. 3 of Justice Hayut's opinion; HCJ 4908/10 Bar-On v. The Knesset (Apr. 7, 2010), Nevo Legal Database (by subscription), at paras. 31-35 of Chief Justice Beinish's opinion [hereinafter Bar-On case]. For a more skeptical approach, see Human Rights Division case, supra note 10, at paras. 18-20 of Justice Levy's opinion.

⁴³ Deferment of Military Draft for Yeshiva Students Whose Occupation Is the Study of Torah Law, 5762-2002, SH No. 5762 p. 521.

⁴⁴ Movement for Quality Government in Israel case, supra note 8, at paras. 14-18, 31-33, 60 & 74 of Deputy Chief Justice Cheshin's opinion. For Chief Justice Barak's critical comment, see id. at paras. 72-74.

⁴⁵ CFH 7015/94 Attorney General v. Unidentified Person (Female) 50(1) PD 48 [1995], paras. 21-23 of Justice Cheshin's opinion (regarding the right of parents to raise their biological child); Adalah case, supra note 11, at paras. 46-47 of Deputy Chief Justice Cheshin's opinion (regarding the right to family life). For a classic reference to natural rights, see PAINE, supra note 2, at 85-86.

⁴⁶ For the general “rule of recognition,” see Hart, H.L.A, The Concept of Law ch. 5 (Raz, Joseph & Bullock, Penelope eds., 2d ed. 1994)Google Scholar. For Barak's “rule of recognition” for Israel's binding constitutional norms, see United Mizrahi Bank case, supra note 10, at paras. 55-58 of Chief Justice Barak's opinion. Barak's doctrine was subsequently adopted by Chief Justice Beinish. See Bar-On case, supra note 42, at paras. 10-30.

⁴⁷ On the approach according to which the Knesset is at most a derivative constituent assembly bound to the nation's founding narrative, see infra section II.C.

⁴⁸ A nation cannot be totally natural by definition. Firstly, the process of designing its original written constitution or its dynamic founding narrative did not really involve all members of society. For instance, one can argue that the American nation and its written constitution is a product of the collective will of rich white protestant men (see McConnell, Michael W., Textualism and the Dead Hand of the Past 66 Geo. Wash. L. Rev. 1127, 1127 (1998)Google Scholar). Secondly, a nation's founding narrative often includes mythical and edited biographical details imagined by its members for the sake of their unity, glorifying their heroic collective past and, at the same time, covering its dark corners (see Anderson, Benedict, Imagined Communities: Reflections on the Origin and Spread of Nationalism 187–206 (rev'ded. 1991)Google Scholar).

⁴⁹ Placing man above nation follows Kant's philosophy asserting that the morality of any act in our society (including founding a nation) should be tested against its ability to place man's humanity at the center of the universe—as an end in its own right rather than a means to achieve external ends. See Johnson, Robert, Kant's Moral Philosophy, in The Stanford Encyclopedia of Philosophy (Zalta, Edward N. ed., 2010), available at http://plato.stanford.edu/archives/sum2010/entries/Kant-moral Google Scholar.

⁵⁰ On the cultural conception of a nation, see Preuss, supra note 14, at 150.

⁵¹ On the civic conception of nation, see Sieyès, supra note 1, at 97.

⁵² On the superiority of a nation, see Sieyès, supra note 1, at 97; Schmitt, supra note 1, at 128.

⁵³ Although nation and state are both dependent on their organs, there is a big difference between the two. A state is a totally artificial and abstract entity that by definition cannot be a source of authentic human will, whereas a nation can express its collective will as a quasi-natural entity.

⁵⁴ See supra note 5. On the assimilation of the modern state formula based on the social contract metaphor into Israel's constitutional law in order to strike down a law establishing a privatization program of state prisons, see Human Rights Division case, supra note 10, at para. 23 of Chief Justice Beinish's opinion, para. 2 of Justice Arbel's opinion, Deputy Chief Justice Rivlin's opinion, paras. 4 & 12 of Justice Prokachia's opinion, para. 2 of Justice Hayut's opinion, and para. 29 of Justice Naor's opinion. For a more skeptical approach, see id. at paras. 12-13 of Justice Levy's opinion.

⁵⁵ For the existence of the state as part of natural law, see Justice Sussman's opinion in EA 1/65 Yeredor v. Chairman of the Central Elections Committee to the Sixth Knesset 19(3) PD 365 [1965] [hereinafter Yeredor case]. Any aspect of the state that is fundamental to the extent that uprooting it from society would endanger the legal entity's natural universal role—that of rescuing the individual from the state of nature—should enjoy the legal status of natural law that is identical to embedding it in eternity clauses. For a further discussion of natural law, see supra notes 2 & 45 and accompanying text.

⁵⁶ On the basic norm as an extra-legal norm, see supra note 16. On the dichotomy between the formal institutional process and the spontaneous process as methods for expressing a nation's collective will, see infra note 150 and accompanying text. Note that state organs like parliament can play a pivotal role in the spontaneous process of expressing a nation's collective will. However, any such legislative body is inherently inferior to a direct expression of a nation's will—by shifting from the spontaneous method (governed by various social agents including parliament) to the formal institutional method that directly involves the members of a nation.

⁵⁷ For the quotations, see Sieyès, supra note 1, at 136.

⁵⁸ Holmes, Stephen, Precommitment and the Paradox of Democracy, in Constitutionalism and Democracy 195 (Elster, Jon & Slagstad, Rune eds., 1989)Google Scholar.

⁵⁹ Parnes, Eric, They the People: A Third-Party Beneficiary Approach to Constitutional Interpretation, 43 Santa Clara L. Rev. 495, 500–502 (2003)Google Scholar. On “inter-temporal difficulty” terminology, see Ackerman, Bruce, Storrs Lectures: Discovering the Constitution, 93 Yale L. J. 1013, 1045–46 (1984)CrossRefGoogle Scholar.

⁶⁰ McConnell, supra note 48, at 1127.

⁶¹ One famous manifestation of this concern can be found in Letter from Jefferson, Thomas to Madison, James (09 6, 1789), in 15 The Papers of Thomas Jefferson 392 (Boyd, Julian P. ed., 1958)Google Scholar (suggesting a constitutional expiration date in every generation, specifically every nineteen years).

⁶² For similar concerns, see Paine, supra note 2, at 63-64; Preuss, supra note 14, at 159-60.

⁶³ On the pillars of the Jewish state, see EA 11280/02 The Central Elections Committee to the Sixteenth Knesset v. Tibi 57(4) PD 1 [2003], at paras. 11-13 of Chief Justice Barak's opinion [hereinafter Tibi case]. On the controversy in Israel with regard to its characteristics, see Gavison, Ruth, A Jewish and Democratic State: Political Identity, Ideology and Law, in A Jewish and Democratic State 169, 180–84 (Rosen-Zvi, Ariel ed., 1996) (in Hebrew)Google Scholar.

⁶⁴ Most Basic Laws are easy to amend with an absolute majority of Knesset members (61 out of 120). See Basic Law: Freedom of Occupation, 5754-1994, SH No. 1454, § 7; Basic Law: The Knesset, 5718-1958, SH No. 244, § 4; Basic Law: Jerusalem the Capital of Israel, 5740-1980, SH No. 1980, § 7. Outrageously, two of the most important Basic Laws—Basic Law: Human Dignity and Liberty and Basic Law: The Judiciary—can even be amended by a regular majority (even by three votes against two).

⁶⁵ Yeredor case, supra note 55.

⁶⁶ Basic Law: The Knesset, 5718-1958, SH No. 244, § 1.

⁶⁷ United Mizrahi Bank case, supra note 10.

⁶⁸ Basic Law: The Knesset, 5718-1958, SH No. 244, § 7A.

⁶⁹ On the judicial limitation clause that sets strict cumulative court-determined tests in order to drastically narrow down the possibility of banning candidates from national elections, see EA 1/88 Neiman v. The Central Elections Committee to the Twelfth Knesset 42(4) PD 177 [1988]; Tibi case, supra note 63; EA 561/09 Balad (The National Democratic Party) v. The Central Elections Committee to the Eighteenth Knesset (Mar. 7, 2011), Nevo Legal Database (by subscription).

⁷⁰ Section 7A grounds for banning a list of candidates from national elections were duplicated by the Knesset for other purposes, for example to deny a request to establish a new political party (Political Parties Law, 5752-1992, SH No. 190, § 5), to limit MPs' immunity (Immunity, Rights and Duties of Knesset Members Law, 5711-1951, SH No. 80, § 1(a1)), or to bury a private legislative proposal by the Knesset presidency (Knesset Regulations, 1973, KT 3059, § 75(e)).

⁷¹ In the dispute over the scope of the Knesset's powers, I add my voice in favor of the narrow approach according to which the Knesset is at most a derivative constituent assembly bound to the nation's founding narrative (see Barak, supra note 6, at 379-81, Bendor, supra note 12) and not an original constituent assembly (see Klein, supra note 12). The main argument of this article (which is developed further in part III) is that the Israeli parliament, like any other parliament, is not competent to operate the third track in a three-track democracy on behalf of the nation in relation to revolutionary decisions.

⁷² The Supreme Court suggested that section 7A should serve as a legal basis for limiting other aspects of political life, for example as a basis for limiting MPs' immunity (HCJ 620/85 Miari v. Knesset Speaker 41(1) PD 169 [1985], Chief Justice Shamgar's opinion), for declaring a political agreement null and void (see HCJ 5364/94 Velner v. Chairman of Israeli Labor Party 49(1) PD 758 [1995], opinions of Chief Justice Shamgar and Justice Cheshin [hereinafter Velner case]), or as a basis for the chairmen of the Central Election Committee's power to disapprove of a propaganda broadcast (HCJ 212/03 Herut National Movement v. Chairman of the Central Election Committee for the Sixteenth Knesset 57(1) PD 750 [2003], Justice Matza's opinion).

⁷³ See supra section I.B.2.

⁷⁴ See supra notes 42 & 44. See especially Chief Justice Barak's clear statement that the Knesset was never authorized by the people to eliminate Israel's fundamental principles or character as a Jewish democratic state (see Movement for Quality Government in Israel case, supra note 8, at paras. 73-74).

⁷⁵ More recently, Chief Justice Beinish left pending the question whether to adopt an Israeli version of the unconstitutional constitutional amendment doctrine—following Aharon Barak's suggestion (see Barak, supra note 6, at 379-81)—as a legal base for striking down amendments to the Basic Laws. However, she seems to concur with the general conclusion drawn by Chief Justice Barak and Deputy Chief Justice Cheshin that the Knesset holds limited powers and cannot undermine the core of the Jewish-democratic narrative. See Bar-On case, supra note 42, at paras. 31-35.

⁷⁶ For the definition of a “constitutional lacuna,” see supra note 21.

⁷⁷ Aharon Barak raised some serious doubts regarding the relevance of the “constitutional lacuna” doctrine to the Israeli constitutional project, since—by definition—it is an incomplete project that should only be completed by the constituent authority (see Barak, supra note 21, at 82-84). This article's perspective is somehow different. Since the creation of the Israeli nation and its founding narrative can be described, in George W. Bush's words, as “mission accomplished,” the current stage of the written constitution (as a pale copy of the narrative) is less relevant to the adoption of a full-fledged three-track democracy in Israel.

⁷⁸ Addressing the challenge portrayed here, Ruth Gavison concluded that—in terms of a political movement that aspires to change Israel's Jewish identity by peaceful means—the authority of section 7A cannot be reconciled with democracy (see Gavison, supra note 63, at 184-87, 193-94). In the next part of this article, I argue that embracing three-track democracy could ease the inner tension within the Israeli legal system.

⁷⁹ On the importance of continuity in constitution-making—thus favoring a process based on the founding generation's achievements and ground rules—see Elster, Jon, Constitutional Bootstrapping in Philadelphia and Paris, in Constitutionalism, Identity, Difference, and Legitimacy: Theoretical Perspectives 57, 82–83 (Rosenfeld, Michel ed., 1994)Google Scholar.

⁸⁰ Note that some mutations are obviously essential to the very essence of evolution. On the evolutionary process of ideas (based on a memes-genes analogy) and its field of science (memetics), see Blackmore, Susan, The Meme Machine (1999)Google Scholar. The founding narrative of a nation is a powerful memeplex, a body of ideas on how to ideally organize the political community, duplicating itself with the help of social agents, among others constitutional courts.

⁸¹ Ackerman, supra note 1, at 6-16, 266-94.

⁸² For similar criticism, see Barshack, Lior, Constituent Power as Body: Outline of a Constitutional Theology, 56 U. Toronto L.J. 185, 216–18 (2006)CrossRefGoogle Scholar.

⁸³ U.S. Const, art. V.

⁸⁴ Compare to the complexity of higher lawmaking during the New Deal (see Ackerman, supra note 1, at 47-50), which required four different stages of political arm twisting for the minor constitutional reform of a dubious constitutional norm based on a clear mistake by the Supreme Court in the Lochner era (Lochner v. New York, 198 U.S. 45 (1905)).

⁸⁵ Ackerman himself does not rule out three or more levels of public engagement (Ackerman, supra note 1, at 299-300); he even encourages his fellow citizens to embark on a higher lawmaking project to secure some individual rights in a German-style eternity clause (id. at 320-21). However, until the wheels of the second track start turning, Americans are stuck with dualism. Once we start thinking of three-track democracy as a normative system designed to secure the true essence of popular sovereignty, recognizing inalienable rights by introducing judicial eternity clauses (see supra section I.B.2) can become a legitimate option for the judiciary. Moreover, the American system already has its own formal eternity clause embedded in the amendment clause—“provided that … no state, without its consent shall be deprived of its equal suffrage in the Senate” (U.S. Const, art. V)—which serves as a strong indication of a three-track democracy.

⁸⁶ Clearing the channels for a third track could mean protecting basic rights and liberties—be they enumerated or unenumerated in the constitutional text—that are closely connected to the future operation of a third track, such as freedom of speech, freedom of association, free access to information, free access to courts as the supervisors of a third track, the right to equality in general, the right to equal voice in the extraordinary ad hoc representative body that dominates the third track, and so forth.

⁸⁷ This is the first track in Ackerman's dualism, namely “normal lawmaking.” See Ackerman, supra note 1, at 6-7.

⁸⁸ Examples of universal and particular founding values can be found infra in section IV.B.

⁸⁹ These imperfections can be described as the failure of the current constitution “to transform the unfathomable power of the ethnos into responsible authority of the demos.” See Preuss, supra note 14, at 164. Three-track democracy is designed to ensure that the next incarnation of the constituent power marks true progress—a nation's triumph—not just a grim trade-in of the untamed power of one ethnos for another.

⁹⁰ Grundgesetz art. 79 § 3 (“Amendments of this basic law … shall be inadmissible”).

⁹¹ Grundgesetz art. 146. This article, which could have been interpreted as a limited option referring only to the anticipated unification process, is now—since the Basic Law has remained intact—a feasible (albeit abstract) third track for the unified German people.

⁹² An explicit third track can also be found in the provisions distinguishing “total” revision from a “partial” one. See, e.g., Bundesverfassung [BV] [Constitution] Apr. 18, 1999, SR 101, arts. 192-195 (Switz.); Constitución Española [C.E.] [Constitution], B.O.E. n. 311, Dec. 29, 1978, arts. 167-168 (Spain); Bundes-Verfassungsgesetz [B-VG] [Constitution] BGB1 No. 1/1930, as last amended by Bundesverfassungsgesetz [BVG] BGB11 No. 2/2008, art. 44 (Austria). Similar potential lies in the American amending process (U.S. Const, art. V) if one recognizes the supremacy of the “convention” method of proposing amendments over the congressional one. See Kay, supra note 14, at 725-26.

⁹³ This was the French Constitutional Court's move (see supra note 26), singling out amendments ratified in a referendum as a legitimate operation of the third track capable of overpowering eternity clauses. For my criticism, see supra section I.B.2.

⁹⁴ The order of events in Israel was, first, acceptance of the premises of three-track democracy with regard to the inherently limited powers of the Knesset—both by the Knesset itself and the Supreme Court (see supra section II.C)—followed by a variety of judicial eternity clauses stemming from the bench (see supra section I.B.2). Conversely, the Indian Supreme Court's actions (see supra notes 36-38) seem to encompass both steps at once, since the recognition of parliament's limited amending power emerged at the same time as the judicial eternity clause of the basic structure doctrine. However, the secret to accommodating any eternity clause—the recognition that another constitutional body (not parliament) can effect the basic structure of the constitution and even rewrite it from scratch (through a third track)—came later in India and is still to come in Israel.

⁹⁵ For an introduction to comprehensive (classical) liberalism, see Dworkin, Ronald, A Matter of Principle 188–91 (1985)Google Scholar. On political liberalism, as an advanced moral commitment striving to avoid imposing the liberal conception of the “good” on others b y adherence to the neutrality of the state principle, see Larmore, Charles E., Patterns of Moral Complexity 40–66 (1987)CrossRefGoogle Scholar; Nagel, Thomas, Moral Conflict and Political Legitimacy, 16(3) Phil. & Pub. Aff. (1987)Google Scholar; Ackerman, Bruce, Political Liberalism, 91 J. Phil. 364–71 (1994)CrossRefGoogle Scholar.

⁹⁶ On this argument, see Marmur, Andre, Judicial Review in Israel, 4 Mishpat Umimshal 133, 144–52 (1997) (in Hebrew)Google Scholar. For a counterattack asserting that majority rule was democracy's pick for reasons of efficiency rather than morality (since in divided societies only a consensual process can meet substantial equality standards), see Salzberger, Eli M. & Kedar, Sandy, The Secret Revolution: More on the New Basic Laws, Their Interpretation by the Supreme Court and on Judicial Review in Israel, 4 Mishpat Umimshal 489, 495–501 (1998) (in Hebrew)Google Scholar.

⁹⁷ On this argument, see Salzberger & Kedar, supra note 96.

⁹⁸ There are several individual interests tied up with culture. On culture and autonomy, see Kymlicka, Will, Multicultural Citizenship: A Liberal Theory of Minority Rights 83–84 (1995)Google Scholar; Raz, Joseph, Ethics in the Public Domain: Essays in the Morality of Law and Politics 161–62 (1994)Google Scholar. On culture and adhering self-identity, see RAZ, supra, at 163; Gans, Chaim, The Limits of Nationalism 43 (2003)CrossRefGoogle Scholar; Tamir, Yael, Liberal Nationalism 35–36 (1993)Google Scholar. On culture and the survival of personal efforts and effects, see Gans, supra, at 52-54.

⁹⁹ I wish to thank Re'em Segev for drawing my attention to the normative argument.

¹⁰⁰ For a classification of group conflicts and the importance of establishing a platform for dialogue and compromise, especially in identity (“joint symbols”) shaping conflicts, see Benvenisti, Eyal, National Courts and the Protection of National Minorities, 3 Alei Mishpat 463, 472–74, 492–94 (2003) (in Hebrew)Google Scholar.

¹⁰¹ Rawls, John, A Theory of Justice 12 (1971)Google Scholar.

¹⁰² On self-restricted dialogue, either by suppressing partial suspected arguments or escaping to neutral ground as part of the “universal norm of rational dialogue,” see Ackerman, supra note 95, at 368-71; Larmore, supra note 95, at 53.

¹⁰³ LARMORE, supra note 95, at 53.

¹⁰⁴ Rawls, John, Political Liberalism 145–46 (1993)Google Scholar.

¹⁰⁵ On Schmitt's famous dichotomy between the “constitution” (i.e., the inviolable decision of a “political unity” that forms the core of the constitutional order) and “constitutional law” (i.e., procedures and institutions anchored in the written document, which cannot be derived from the founding decision itself and thus can be suspended during the battle of the spirit of the constitution), see Schmitt, supra note 1, at 75-81.

¹⁰⁶ On Schmitt's perception of sovereignty as the democratic power of the people to introduce a new constitutional order through a cycle of incarnations, see Schmitt, supra note 1, at 126-28; Barshack, supra note 82, at 185, 185-90, 197-204.

¹⁰⁷ we therefore ought to dismiss Schmitt's characterization of constitution-making power as an unlimited and illegal force in our democratic society: “However, for the act itself, for the exercise of this will, there can be no procedural provisions. This applies no less to the content of the political decision. … The people, the nation, remains the origin of all political action … without ever subordinating itself … to a conclusive formation.” Schmitt, supra note 1, at 128. Similarly, we should dismiss Schmitt's characterization of the extraordinary constituent assembly as a “sovereign dictator.” Id. at 109.

¹⁰⁸ On the argument that establishing a new constitutional order is doomed to fail if the revolutionary movement tries to completely disconnect itself from the old order or ignore fundamental constitutional principles, see Barshack, supra note 82, at 198-200. The new revolutionaries of Eastern Europe seem to embrace this idea, trying hard to keep up an the appearance of continuity, see Arato, Andrew, Dilemmas Arising From the Power to Create Constitutions in Eastern Europe, in Constitutionalism, Identity, Difference, and Legitimacy: Theoretical Perspectives 165, 179–81 (Rosenfeld, Michel ed., 1994)Google Scholar.

¹⁰⁹ Ackerman, supra note 1, at 6-16, 266-94.

¹¹⁰ Id. at 44-50.

¹¹¹ Id. at 14-16. Even when dualism itself (the universal notion for popular sovereignty) is put on the line (see supra note 109 and accompanying text), Ackerman still hesitates whether to embrace the unconstitutional constitutional amendment doctrine advocated here as part of three-track democracy.

¹¹² This argument follows Arendt's famous observation on revolutions, separating an American-style revolution—as admirable collective effort to reshape a joint citizenship—from a French-style revolution dominated by the poor masses preoccupied with improving their socioeconomic status until they lose sight of their political mission. See Arendt, Hannah, On Revolution 61-68, 90-95, 104-105, 164–68 (1965)Google Scholar. For a critical view of Arendt's dichotomy, see Ackerman, supra note 1, at 204-12.

¹¹³ On the idea of using the same Knesset as a special constitutional organ to form a constitutional draft submitted to a national referendum, see Weill, Rivka, Shouldn't We Seek the People's Consent? On the Nexus Between the Procedures of Adoption and Amendment of Israel's Constitution, 10 Mishpat Umimshal 449, 469–80 (2007) (in Hebrew)Google Scholar. Since all projects for a new constitution in Israel intend to reliably duplicate the founding narrative, as a declarative act, Weill's suggestions are suitable. However, in revolutionary decisions, placing the constituent power in the extreme majoritarian institution (the Knesset) and process (national referendum) will fail to secure the requirements of the third track.

¹¹⁴ For a grim assessment of democratic institutions, see Arato, supra note 108, at 172: “all types of democratic institutions in public life have built-in forms of exclusion, constraints of discussion, and probable asymmetric among participants … thus … it is highly desirable to combine different types of democratic institutions and processes … in a given constitutional framework.” The ideal description of the third track applies Arato's suggestion, combining a special constituent assembly and a national or communal referendum.

¹¹⁵ I believe that designing the third track as an integral part of a three-track democracy system is an important response to Sujit Choudhry's call for deeper involvement of comparative constitutional law in the effort to meet the challenge of constitutional design for divided societies. See Choudhry, Sujit, Bridging Comparative Politics and Comparative Constitutional Law: Constitutional Design in Divided Societies, in Constitutional Design for Divided Societies: Integration or Accommodation? 3, 3–14 (Choudhry, Sujit ed., 2008)Google Scholar.

¹¹⁶ Such a mechanism was put in place in the process of constitution-making in South Africa. On the unique preventive judicial control based on the constitutional principles in schedule 4 of the Interim Constitution, see supra section I.A. See also Kay, supra note 14, at 753-55.

¹¹⁷ On the unprecedented (albeit desirable) certification judgment of the Constitutional Court of South Africa rejecting several provisions in the Final Constitution due to their inconsistency with the constitutional principles of the Interim Constitution, see Certification of the Constitution of the Republic of South Africa 1996 (4) SA 744 (CC).

¹¹⁸ On the dichotomy between regular supreme courts as an integral part of the legal system and constitutional courts as an outsider associated with the political system (to ensure a higher level of accountability), see Dotan, supra note 40. In my opinion, supreme courts and constitutional courts play more or less the same pivotal role in a constitutional democracy. Thus, they cannot be separated no matter how they have been selected for the task.

¹¹⁹ The Turkish Constitutional Court, which is part of Atatiirk's legacy (as the nation's founding narrative) and stands in the way of Islamic revolutionary majority (see Barak, supra note 6, at 363-65), is an example of the determination of constitutional courts to serve as guardians of the constitution. I believe that strong indications of a “new deal” in Turkish society (a successful operation of the third track) would finally persuade the court to let go of the old constitutional order.

¹²⁰ Sieyés, supra note 1, at 97.

¹²¹ Preuss, supra note 14, at 150.

¹²² In Israel's Declaration of Independence, the nation's biography starts in biblical times. Other examples include the preamble to the Constitution of Croatia, which stretches the nation's founding narrative back to the seventh century CE, and the preamble to the Constitution of the Republic of Poland, which glorifies a heritage dating back more than 1,000 years.

¹²³ On the dichotomy between statist and cultural nationalism and the two meanings of self-determination, see Preuss, supra note 14, at 147-55; Gans, supra note 98, at 7-26; Tamir, supra note 98, at 69.

¹²⁴ While France and Turkey, which adhere to the civic republican model, have enshrined territory in eternity clauses (see supra notes 18 & 26), Israel has not yet determined its final boundaries. Though the return of the Jews to their historical homeland is pivotal to the Zionist project, the final boundaries of the Jewish state are perceived as a negotiable issue by mainstream practical secular Zionism.

¹²⁵ Law of Return, 5710-1950, SH No. 51 (Isr.). Though not a Basic Law, the Law of Return is clearly one of the most basic elements of Israel's material constitution, reflecting its founding narrative as a Jewish state, namely of striving to restore the original unity of the Jewish people as one nation divided only because of the external intervention of mighty empires. Such an affiliation to a Diaspora is common in culturally-oriented nations (see, e.g., Irish Const., 1937, art. 2; 1975 Syntagma [Syn.] [Constitution] 108 (Greece), Polish Const, art. 52 and so forth), although not always to the full Israeli extent of granting foreign citizens the right to join the nation, which trumps almost any kind of discretion by the welcoming state. For other examples, see Yakobson & Rubinstein, supra note 28, at 222-40.

¹²⁶ For instance, by changing the civic republican model of France, which denies the existence of national minorities, into a civic multicultural model that recognizes minorities' collective rights or by changing the nation-state model of Israel, which alienates the Palestinian citizens of Israel, into a more egalitarian bi-national model. On the different models available, see supra note 28.

¹²⁷ On using a round table forum in constitution-making, see Kay, supra note 14, at 750-55.

¹²⁸ For a comprehensive discussion of the issues associated with the operation of a constituent assembly (e.g., convocation, selecting the delegates, the delegates' mandate, internal procedures, and ratification) as well as an historical review of the process in Philadelphia and Paris, see Elster, supra note 79.

¹²⁹ The method of communal referendums addresses the problem of a nation divided into several peoples whose uniting gravity is too weak to allow them to be treated as a single legal entity of the “people.” See Kay, supra note 14, at 750-55.

¹³⁰ Traces of the communal referendum idea can be found in the Canadian Supreme Court's reply to an application on the issue of secession (Reference re Secession of Quebec, [1998] 2 S.C.R. 217). The Supreme Court suggested that although Quebec has no legal right to secede, the people of Quebec may adhere to such an idea. The Canadian government cannot ignore these sentiments and needs to be ready to negotiate a constitutional amendment (a track similar to the consensual third track). Moreover, a clear result in Quebec's provincial referendum is only the first step, as some Canadian consent is also required (maybe through a national referendum representing the anglophone community). Such a judicial assessment is actually equivalent to adopting a judicial eternity clause, recognizing the unity of the nation (based on the civic perception) as a founding value worthy of special political consideration.

¹³¹ For instance, do we really believe that in civic republican Turkey a national referendum aimed at replacing Atatiirk's secular modern Turkey with an Iranian-style Islamic republic would ever gain legitimacy? The eternity clause in article 4 of the Turkish Constitution seems to demand more, something that an historic compromise (safeguarding democracy) ratified by communal referendums might deliver.

¹³² On the free or representative mandate of MPs in relation to the public and the argument that it needs some revision when applied to the relationship between MPs and political parties, see Navot, Suzie, Members of the Knesset as “Public Trustees,” 31 Mishpatim 433, 449–75 (2000) (in Hebrew)Google Scholar; Mersel, Yigal, Hans Kelsen and Political Parties, 39 ISR. L. Rev. 158, 179–81 (2006)Google Scholar.

¹³³ On MPs status as “public trustees,” see Velner case, supra note 72, at para. 33 of Deputy Chief Justice Barak's opinion; Movement for Quality Government in Israel case, supra note 8, at paras. 42-50 of Justice Cheshin's opinion. See also Navot, supra note 132, at 470-75. On MPs' “dual trusteeship”—maintaining allegiance to the public and to their political party—which requires an ad hoc balance, see HCJ 1661/05 Gaza Coast Local Council v. The Knesset 59(2) PD 481 [2005], at paras. 18-23 of Justice Levy's opinion [hereinafter Gaza Coast Local Council case]. Even if we accept such dualism, in revolutionary decisions the obligation to represent the people or the nation as a whole clearly supersedes any other sectarian delegation.

¹³⁴ See Chief Justice Agranat's opinion in the Yeredor case, supra note 55. For the view that any authority holding “constituted power” (embedded in the text) acts only as trustee of the “constituent power” (embedded in the people's hands) and thus subject to its superior will, see Preuss, supra note 14, at 155-58.

¹³⁵ See, e.g., Basic Law: The Knesset, 5718-1958, SH No. 244, §§ 15-16.

¹³⁶ For a linkage between the MPs' oath, their legal status as public trustees, and a comprehensive doctrine of constitutional trusteeship as a justification for judicial review even regarding unconstitutional constitutional amendments, see Navot, supra note 132, at 465-86, 518-25; Navot, Suzie, The Knesset Chapter on the Constitution Draft: Three Remarks, 10 Mishpat Umimshal 593, 624–34 (2007) (in Hebrew)Google Scholar.

¹³⁷ For the classic argument regarding the minimal and fictitious connection between the people and their representatives, see Schumpeter, Joseph A., Capitalism, Socialism and Democracy 250–69 (5th ed. 1976)Google Scholar; Dahl, Robert A., A Preface to Democratic Theory 124–34 (1956)Google Scholar.

¹³⁸ See supra section II.A.

¹³⁹ On the problematic situation in the initial period of the French process when members of the ordinary legislature also functioned as members of the extraordinary constituent assembly—hence faced a conflict of interests—see Elster, supra note 79, at 76-77.

¹⁴⁰ The Federalist No. 51 (James Madison). O n those failures as justification for judicial review, see Ely, John Hart, Democracy and Distrust: A Theory of Judicial Review (1980)Google Scholar.

¹⁴¹ On “minorities' rule” taking advantage of the majority's apathy due to the “intensity problem,” see Dahl, supra note 137, at 131-35.

¹⁴² Benvenisti, Eyal, Judicial Review and Democratic Failures: Minimizing Asymmetric Information through Adjudication, 32 Iyunei Mishpat 277, 281–85 (2010) (in Hebrew)Google Scholar.

¹⁴³ See id. at 285-86. Benvenisti argues that the quantity and quality of information available to the public improves in direct proportion to the number of political players involved in the decision, the intensity of the competition between them (a race to the top), and the court's level of involvement.

¹⁴⁴ On the importance of “downstream legitimacy” (for the final document) in constitution-making and the desirability of a separate ratification process, see Elster, supra note 79, at 80-82.

¹⁴⁵ On the link between intensive deliberation and legitimacy, see Arato, supra note 108, 186-90.

¹⁴⁶ See supra note 112.

¹⁴⁷ On the argument that constitutional politics does not differ from normal politics in terms of procedural failures, see Tushnet, Mark, Red, White, and Blue: A Critical Analysis of Constitutional Law 25–26 (1988)Google Scholar.

¹⁴⁸ Compare to Schmitt's assertion that both a supermajority in the Reichstag and a majority in the British parliament are similarly incompetent at eliminating the “constitution” (as the fundamental decision of a political unity). Only a separate constitution-making assembly can claim such a right. See Schmitt, supra note 1, at 79-80.

¹⁴⁹ For a description of a nation's narrative as imaginary, written in hindsight, and roughly edited by embracing the heroic parts and leaving out items worth forgetting, see Anderson, supra note 48.

¹⁵⁰ I believe that Israel has followed the spontaneous process (skipping a formal constituent assembly) as a collective effort on the part of several social agents, including: the members of the People's Council (Moetzet Ha'am), a temporary legislative body, who signed the Declaration of Independence, which for the first time outlined the founding narrative; the first Knesset, which enacted the 1950 Law of Return addressing a fundamental element of the collective biography (the story of exile from the Jewish homeland and the Zionist ideal of return); the Supreme Court, which reinforced Israel's identity as a Jewish democratic state (see, e.g., Chief Justice Agranat's opinion in the Yeredor case, supra note 55); education ministers who included Bible studies in the public education curriculum, thereby extending the narrative to the biblical days of the Israelites and connecting modern Hebrew to its biblical roots; and so forth.

¹⁵¹ This function is similar to Michael Perry's description of the constitutional text as the sacred text of a political community (by analogy to the sacred texts of a religious community). See Perry, Michael J., The Authority of Text, Tradition, and Reason: A Theory of Constitutional “Interpretation,” 58 S. Cal. L. Rev. 551, 557–64 (1985)Google Scholar. When comparing the two metaphors, the founding narrative seems to be a better platform for constitutionalism. First, Perry's sacred text metaphor is totally dependent on text, which can be either too sparse (leaving out important founding values) or too rich (including values unworthy of their sacred status). Second, the text is too rigid. While the narrative evolves with every new chapter in a nation's biography, text is totally dependant on the amending process, bearing in mind that interpretation is limited by nature.

¹⁵² On the connection between the ability to posit a compelling historical narrative about the origin of a constitution and its success in society, see Kay, supra note 14, at 761.

¹⁵³ This touches on one of the justifications for national minority rights. Native minorities preceded the state, and since the founding narrative was largely imposed upon them it left them unable and unwilling to embrace it. Thus, letting them develop their own narrative, identity, and sense of belonging based on a communal undisturbed life is justified from the perspective of corrective justice.

¹⁵⁴ A nation that cuts the chain of continuity with past generations is, in Edmond Burke's words, similar to a collection of “flies of a summer.” See Burke, Edmund, Reflections on the Revolution in France 141 (2d ed. 1790)Google Scholar.

¹⁵⁵ For a reverse description according to which the narrative is one element of a broader political tradition symbolized by the constitutional text, see Perry, supra note 151.

¹⁵⁶ On the genetic code metaphor describing the social contract according to which society is built, see Movement for Quality Government in Israel case, supra note 8, at para. 9 of Deputy Chief Justice Cheshin's opinion.

¹⁵⁷ On the dynamic nature of a nation's identity, perceptions, and fundamental values, see HCJ 265/87 Bresford v. The Minister of the Interior 43(4) PD 793 [1987], at para. 10 of Justice Barak's opinion; Human Rights Division case, supra note 10, at paras. 18-20 of Justice Levy's opinion.

¹⁵⁸ A classic example is the right to bear arms in the Second Amendment to the U.S. Constitution—a right that may well derive from the creation of the founding narrative during the days of the Old West. Today, however, this can hardly be reconciled with the universal founding formula of the modern state. Another example is gay (or LGBT) rights. These rights often cannot be found in the constitutional text, as this phenomenon was “in the closet” at the time of the foundation of the state. Nowadays, however, their absence constitutes a constitutional lacuna, as the current phase in a democratic nation's evolution cannot be reconciled with any kind of discrimination based on sexual orientation. Compare to Justice Amit's judgment in APA 343/09 The Jerusalem Open House for Pride and Tolerance v. The Municipality and the Mayor of Jerusalem (Sept. 14, 2010), Nevo Legal Database (by subscription) (claiming that any classification based on sexual orientation is a “suspect classification”).

¹⁵⁹ The Israeli Supreme Court used almost every trick in the book (see supra note 69) to avoid banning revolutionary political parties from national elections, since the revolutionary challenge was not considered to be clear and immediate enough.

¹⁶⁰ Compare to Aharon Barak's test, which only addresses the core of the Jewish-democratic founding formula (see Barak, supra note 6, at 379-81). I believe the difference is very slight, since any revolutionary amendment that tends to cut off the nation's founding narrative and disrupt its delicate evolutionary process would probably pass Barak's test. However, one difference lies in Barak's suggestion that the Knesset could decide to adopt a “softer” version of judicial review without touching upon the core of the democratic formula (id. at 380). If “softer” means granting the last word in a constitutional matter to the Knesset, such an amendment clearly cannot be reconciled with the basic structure of a three-track democracy system as a constitutional system that presupposes the limited power of parliaments (as a trustee body that is not competent to operate the third track). Thus, any of its ultra vires acts must be addressed by constitutional courts as the branch of government that has the last word in this regard.

¹⁶¹ Compare to Dworkin's serial novel metaphor and the concept of “coherent constitutional morality.” See Dworkin, Ronald, Freedom's Law: The Moral Reading of the American Constitution 10–11, 229–38 (1996)Google Scholar. While Dworkin's interest lies in the integrity of constitutional judgments, the founding narrative metaphor is about the integrity and unity of a nation as a whole.

¹⁶² In his famous speech, in light of the south's threats of secession, Lincoln identified the unity of the nation as the number one reason for waging the civil war. Lincoln's speech is cited in Buchanan, Allen, Secession: The Morality of Political Divorce from Fort Sumter to Lithuania and Quebec 1 (1991)Google Scholar.

¹⁶³ Obviously, the unity of the Jewish nation is only one element in establishing the individual right of every Jew to return to Israel, which goes hand in hand with the other essential element—the united body's collective right to self-determination in its historical homeland. For the latter element, see Yakobson & Rubinstein, supra note 28, at 44-64.

¹⁶⁴ See supra note 125.

¹⁶⁵ The unity of the nation has been a fundamental issue in Israeli lawmaking since the early days of the state and is still a major issue in public discourse. For instance, applying religious law to matters of personal status (see, e.g., Rabbinical Courts Jurisdiction (Marriage and Divorce) Law, 5713-1953, SH No. 134) was clearly influenced by the concern that non-religious weddings would split the nation into two divided, estranged groups. Another example is the issue of conversion to Judaism, which has yet to be addressed by the Israeli parliament and currently conforms (in Israel) to Ultra-Orthodox customs, again due to the concern for a growing split inside the Jewish nation. One may argue that these concerns are exaggerated and that there is much room for evolutionary decision-making, since the Zionist project did a remarkably good job of establishing a united nation. However, the basic cultural conception of the Jewish nation and its affiliation to the Diaspora can still be regarded as founding values.

¹⁶⁶ The founding nature of the Law of Return explains Chief Justice Shamgar's suggestion to treat it as a Basic Law (see United Mizrahi Bank case, supra note 10, at paras. 37-38 of Chief Justice Shamgar's opinion), as well as the court's interpretation of section 7A according to which an active political program seeking its annulment could serve as a basis for banning a list of candidates from national elections (see Tibi case, supra note 63, at paras. 11-13 of Chief Justice Barak's opinion).

¹⁶⁷ See supra section II.A.

¹⁶⁸ See supra note 5.

¹⁶⁹ Recognizing universal founding values as preconditions for popular sovereignty can solve the mystery behind Sieyes' reference to natural law as the only will superior to a nation's will (see supra “Introduction”). For a similar view limiting the power to amend the constitution when the core values of democracy are at stake, see Barak, supra note 29, at 99.

¹⁷⁰ Mill, John Stuart, On Liberty 173 (Penguin Classics 1982)Google Scholar. The autonomous enslavement act paradox deals with boundaries of individual autonomy—a discussion that, by analogy, could be used to address the larger question of the boundaries of popular sovereignty in a democratic society. Both legal entities—the individual and the nation—cannot use the autonomy argument to back an individual or collective enslavement act as they both seem to concede autonomy all together in the same act.

¹⁷¹ In his refreshing argument for judicial review, Alon Harel based this controversial democratic practice on the right to a fair hearing against potentially injurious legislation. See Harel, Alon, The Right to Judicial Review, 40 Mishpatim 239, 261–69 (2010) (in Hebrew)Google Scholar. This justification seems applicable to higher-level challenges against revolutionary amendments to the constitution. Where a suspected amendment is blamed for violating a nation's universal founding values, the individual clearly has a prima facie natural right (derived from the timeless formulas of the modern state and democracy as part of natural law) that entitles him to a fair hearing. However, even where particular founding values are concerned, the individual also seems to hold a prima facie right—the right to a higher level of participation in revolutionary decision-making made available by the third track.

¹⁷² On the distinction between the “core” and the “periphery” of a constitutional right in Israeli jurisprudence, see Adalah case, supra note 11; Human Rights Division case, supra note 10.

¹⁷³ “Collective dissonance” can be defined as a situation in which a nation radically deviates from its founding narrative without any clear intention of breaking out of it. Resolving the intense inner tension this generates (by resuming the good old narrative) should thus not be considered as a matter for the constitutional mechanism. For example, Germany's unification can be seen as a corrective act addressing the collective dissonance imposed by the foreign superpowers after World War II. A few minor amendments to the Basic Law were thus sufficient to accommodate such a dramatic change. See Schwartz, Paul M., Constitutional Change and Constitutional Legitimation: The Example of German Unification, 31 Hous. L. Rev. 1027 (1994)Google Scholar. In a similar vein, Israel's Gaza disengagement plan was carried out with relative constitutional indifference. Although the Supreme Court found some minor defects in the restitution program, it left the overall plan intact with only Justice Levy dissenting (see Gaza Coast Local Council case, supra note 133). Since the plan can be regarded as a corrective act (addressing the collective dissonance imposed by the 1967 Six-Day War) that reinforced the Jewish democratic narrative, no major constitutional intervention was needed.

¹⁷⁴ Portuguese Const., 1976, as last amended in 2005, art. 288.

¹⁷⁵ Supra note 19.

¹⁷⁶ On the “squaring the circle” metaphor pertaining to the Jewish democratic project, see Rosen-Zvi, Ariel, A Jewish and Democratic State: Spiritual Parenthood, Alienation and Symbiosis—Can We Square the Circle?, 19 Iyunei Mishpat 479 (1995) (in Hebrew)Google Scholar.