The question discussed in the articles published in this issue of the Israel Law Review is not really new. In 1978, published an article in this review dealing with the issue. At that time, it looked much more like an academic question with very few potential practical consequences. The reason for this is clear. It was like the discussions that took place in European countries a century ago regarding judicial review (of legislation). Even those who favored it were not able to consider any form of implementation. In the absence of an established principle of judicial review, the problem looked purely theoretical. Later, after World War II, judicial review of legislation became very fashionable and conquered almost all modern occidental democracies. The question arising now is whether we can expect a similar development as regards the validity and efficacy of eternity clauses. On the one hand, there is a growing number of eternity clauses; on the other hand, we have witnessed an extraordinary development in the field of judicial review, which is the result of the general growth of judicial activism in all countries. In other words, two parallel trends are coming increasingly close to one another and will certainly give rise to a new chapter in constitutional theory and practice.

In April 2010, the International Association of Constitutional Law (I ACL) held one of its two annual round tables in Jerusalem. Entitled “Unconstitutional Constitutional Amendments,” it was devoted to the issue of constitutional review. In this issue of the Israel Law Review, we present some of the papers presented at the round table by experts from various countries.

This paper deals with the question of an amendment to the constitution that has been made pursuant to the formal requirements of the constitution but deviates from its basic structure. The paper explores different views regarding this question in comparative law. It also examines the applicability ofthe doctrine of unconstitutional constitutional amendments in Israel.

This article is built around three general observations. The first is that, in the current stage of the development of constitutional theory and practice, there is a need to create procedures allowing the review of constitutional amendments. The second is that traditional mechanisms, in particular the “internal” review of constitutionality of constitutional amendments, may not always be able to provide sufficient protection against amendments that run counter to the existing constitutional structure. The final observation is that, in the current state of globalization, international law—in particular international human rights law—may play a significant role in an “external” assessment of the legitimacy of constitutional amendments. This role of international law is particularly well developed in Europe, and most of our conclusions therefore focus on the European perspective. Given the universal nature of human rights, however, at least some of these conclusions may also be validfor other regions of the world.

The world's second-oldest written constitution (1814) still existing presumably also contains the world's oldest substantive “supra-constitutional” or “eternity” clause. According to its text, the “spirit “ and “principles” of the Constitution cannot be amended.

However, it is less than clear that the clause is meant to exclude not only “amendments” but also the adoption of a brand new constitution. Moreover, the meaning of the clause two centuries later cannot be determined without regard to subsequent changes to other parts of the Constitution. The examples discussed include the constitutional monarchy, affected not only by the radical shift in our perception of the role of a hereditary king but first and foremost by formal amendments. In this way, “principles” that may initially have been protected may no longer enjoy a similar status.

Who has the last word as to the substantive limits to amendments? The widely held view in Norway is that the judiciary should stand back. While judicial review of legislation leaves the last word about what norms to apply in the future to the constitution-amending power, judicial review of constitutional amendments would leave the last word about the future meaning of the Constitution itself to judges. Another argument refers to our inherent right as human beings to resist oppression. This argument deserves attention even if it is not substantiated in the text of the Constitution.

Are the “spirit” and “principles” of the Constitution of Norway well protected? If the clause is understood as a contribution to the smoothness of constitutional development over time and thereby to the relative success of the Norwegian Constitution, the assessment is likely to be rather positive.

In several rulings from 1962, 1992, and 2003, the French Constitutional Court (Conseil constitutionnel) has denied jurisdiction over constitutional amendments. This article shows that this solution can only be understood in the light of the doctrinal background that provides its intellectual justification. While refusing to judicially review constitutional amendments, the Constitutional Court is in fact deeply involved in the ongoing process of altering the Constitution. Also, while the quasi-official doctrinal analysis insists on the absence of material limits to the amendment of the Constitution, and on the absence of any “supra-constitutional” rules, an analysis of the language used by the Court in these rulings offers reasons to diverge from this view. While the Court has refused to review constitutional amendments, it has done so in a way that comes very close to the language used by those courts that stated that such amendments were justiciable. Far from adhering to a mere policy of neutrality and self-restraint, the Constitutional Court speaks a “language of eternity” with a rich substantive content.

This paper explores the conceptual possibility and implications of the concept of unconstitutional constitutional amendments. In the first section, the author argues that unconstitutional constitutional norms are conceptually impossible within the conventional hierarchical model of norms. In the second section, the author discusses the normative particularity of the amending power and concludes that an unlimited power may endanger the constitution. In sections III and IV, the author explains why so-called “eternity clauses,” in order to fend off such a danger, have been designed to place certain immutable elements of the constitution beyond the limits of the amending power. The paradigmatic case is the German Basic Law and a recent decision by the Federal Constitutional Court that discusses the implications of the “eternity clause” with reference to the distinction between constituent power and the constituted amending power. The author develops an alternative understanding of that distinction and its consequences for the amending power. The possible adverse effects of “eternity clauses” on the normality of the constitution are briefly considered in the final section.

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.

I am an English judge speaking in Jerusalem at a lecture to honor the memory of an Englishman who was the first member of the English Jewish Community to be appointed to the House of Lords, now the Supreme Court of the United Kingdom. That was 60 years ago in 1951. So this is an important anniversary.

This evening, I am seeking to highlight some of the issues that relate to the role of the media and the role of the judiciary in upholding the rule of law, and the interaction of their relationships in a democratic society that respects the rule of law. My experience is British, but my intention is to address questions that arise in any civilized democracy. The essential principles are unaffected by geography.

My overwhelming belief is that the most emphatic feature of the relationship between the judiciary and the media is that the independence of the judiciary and the independence of the media are both fundamental to the continued exercise, and indeed the survival, of the liberties that we sometimes take for granted. I have said before, and I do not apologize for saying it again, these are critical independences, which are linked but separate. As far as I can discover, there never has been, and there is no community in the world in which an independent press flourishes while the judiciary is subservient to the executive or government, or where an independent judiciary is allowed to perform its true constitutional function while, at the same time, the press is fettered by the executive.