Monday, October 9, 2023

This Makes My Head Spin

I have been aware that some sort of judicial reform political struggle was underway in Israel but reading this article makes my head spin.  They have no binding constitution; their Supreme Court treats the Knesset's first statutes as having some special binding power but Netanyahu's government wants to amend those statutes in ways that suit their needs.  Even better the Israeli Supreme Court interprets laws against those basic statutes under something called the "Reasonableness Clause":

The Reasonableness Clause became a central mechanism for the judicial review of administrative acts by government officials. The Supreme Court gradually developed the Reasonableness Clause to serve as a “catch-all” when traditional clauses — such as conflict of interest, ex parte communication, or arbitrariness — were difficult to prove or insufficient to protect the public interest. According to the approach adopted in the 1980s, the Reasonableness Clause requires government officials to consider all relevant factors and adequately balance between them. If the decision reflects a significant imbalance, the Supreme Court can strike down the governmental decision for “extreme unreasonableness.” The clause was especially critical in the judicial review of nominations, governmental acts during the transition of power, and civil rights protections.

The elastic clause and substantive due process are downright originalist compared to this. 

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