Manal Totry-Jubran (Bar Ilan University Faculty of Law) and David Kretzmer (Hebrew University of Jerusalem) have posted Parliaments as Constituent Assemblies in the Age of Populism: The Case of Israel on SSRN. Here is the abstract:
This article examines how parliamentary systems that unite legislative and constituent authority within a single body face distinctive risks of constitutional erosion in an age of populism. When the same institution both enacts and amends the constitution, the absence of entrenched procedures or cross-partisan restraints enables majorities to reshape constitutional norms for short-term political advantage. Using Israel as its focal case, the article traces the evolution from the 1950 Harari Resolution through the Mizrahi Bank doctrine to the 2024 Unreasonableness Amendment decision, showing how these developments transformed a provisional compromise into an unbounded exercise of constituent power. Placing Israel in comparative perspective, the article identifies the institutional and cultural factors that determine whether parliamentary constituent power becomes self-restraining or self-entrenching. Building on this analysis, it proposes a framework of procedurally constrained constituent power based on three principles: temporal distance (preventing self-serving reform), consensus and inclusion (ensuring cross-partisan legitimacy), and a substantive requirement that constitutional amendments preserve the democratic character of the state—reinforced by judicial oversight as a procedural guardian. Together, these safeguards, the article contends, provide the foundation for constitutional legitimacy, which depends on process rather than textual rigidity.
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