Dear Chaim,
My question is a response to a question asked last week by "QQ" regarding the Israeli Supreme Court, and your answer concerning how the Israeli Supreme Court overruled Ehud Barak when he wanted to cut off electricity to Arabs, and how that shows that Israel is not a free country. (I am paraphrasing QQ's question and your response.)
The ability of a nation's supreme court to invalidate a law passed by a state or national legislature, or an executive action taken by a state or national leader, is called "judicial review." As far as I know, judicial review is an American innovation. Judicial review is one of the "checks and balances" we all learned about in school, that make America free and great.
The Doctrine of Judicial Review is supposed to be the way that the Supreme Court insures that laws and executive actions conform to the Constitution. For example, during the Korean War, the steel mills went on strike. President Truman needed steel for the war, so he issued an executive order seizing the mills. He went on radio and TV to announce this.
The steel companies sued the government, and the government lost. The Supreme Court held that the President has no power to act except in those cases expressly or implicitly authorized by the Constitution or by an act of Congress. (And here, the Constitution conferred no authority on the President to take control of private property.) [The case is Youngstown Sheet & Tube Co. v. Sawyer (1952) 343 U.S. 579]
The big debate now between originalist jurists, like Justice Scalia, and activist jurists, like Justice Ginsburg, comes down to one word above: "implicitly." In Roe v. Wade, for example, the Supreme Court decided that any state law banning abortion was illegal, because the Constitution conferred a "right of privacy." The Constitution does not say so explicitly, but the Court found it to be "implicit."
So my question is this: Does Israel have a Constitution? If not, what is the Israeli Supreme Court reviewing laws and executive actions against?
Thank you as always Chaim for your patience and erudition.
Kalman Ben Menachem