The Size of the Majority: On Entrenchment, Override and Basic Law: Legislation

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The constitutional crisis that has gripped Israel in recent years has highlighted the urgent need to adopt a Basic Law: Legislation that would complete the process of formalizing the Israeli constitution. This crisis has exposed the fragility of the existing constitutional framework, which remains subject to frequent and ad hoc changes driven by the needs of shifting coalition politics. Increasingly, segments of Israeli society appear more willing to accept compromises that would promote governmental stability, recognizing that the fundamental rules of the political game should not be so malleable. In this sense, the constitutional crisis has also created a constitutional opportunity.

Accordingly, the 36th government, headed by Naftali Bennett and Yair Lapid, included in its coalition guidelines a commitment to enact Basic Law: Legislation. Justice Minister Gideon Sa’ar subsequently announced the composition of the committee tasked with drafting this Basic Law.

Competing Visions at the Finish Line

At this critical juncture stand representatives of opposing constitutional visions. On one side are those who supported the enactment of Basic Law: Israel – The Nation-State of the Jewish People and who view its entrenchment as part of a broader, comprehensive constitutional framework. They seek, as part of Basic Law: Legislation, to explicitly deny the judiciary the power to review constitutional amendments, although it is doubtful whether such a provision could withstand judicial scrutiny. They also propose to enshrine the Knesset’s power to override constitutional norms or judicial interpretations of those norms.

On the other side are those who wish to lend legitimacy to the constitutional revolution that occurred in Israel during the 1990s. They seek formal recognition of the Basic Laws as Israel’s supreme constitution, superior to ordinary legislation. They advocate for explicit entrenchment of judicial review over primary legislation and demand that the constitution be insulated from hasty amendment. Between these two camps lie a range of intermediate positions. A key obstacle to the adoption of Basic Law: Legislation remains the disagreement over the majority required to amend the constitution, and the majority required to override it.

The Link Between Constitutional Adoption and Amendment

This essay argues that there is a fundamental link between the manner in which Israel’s constitution is adopted and the procedure by which it may be amended—and that this connection must be reflected in the final wording of Basic Law: Legislation. In addition, I argue that there is a close relationship between the method of constitutional adoption and amendment and the degree of threat posed by an override clause to the integrity of Israel’s constitutional framework. As articulated in the Bank Mizrahi ruling, there are two primary models for constitutional formation and amendment:(1) a constitution created solely by the legislature, and(2) a constitution requiring the consent of the people.

A Constitution Based on Parliamentary Sovereignty

If Basic Law: Legislation authorizes the Knesset—acting alone and unilaterally—to initiate and amend the constitution, this would constitute a model of parliamentary sovereignty (in one of its many variations). Under such a model, constitutional amendments could be enacted without the people’s consent. Worse still, amendments enjoying broad popular support might never even receive parliamentary consideration. Even if Basic Law: Legislation introduces a special legislative procedure for constitutional amendments—e.g., four readings, an absolute or qualified majority, mandatory intervals between readings, and exclusive plenary debates on constitutional matters—this would still not amount to a model based on popular sovereignty.

Preventing hasty amendments and requiring large legislative majorities are important, but they do not ensure that the majority in the legislature reflects the true will of the people. As such, a constitution founded solely on legislative power remains vulnerable to manipulation, and does not satisfy the normative legitimacy expected of a modern constitutional system.

At the heart of the doctrine of popular sovereignty lies a distinction between the people and their representatives. Representatives elected in general elections do not receive, by virtue of those elections alone, a mandate from the people to enact constitutional change. When voters elect legislators, many competing issues are at play. Voters make their decisions based on the identities of candidates, party affiliations, and a range of policy considerations. A vote in parliamentary elections does not necessarily reflect the electorate’s stance on any given constitutional matter. Moreover, the people do not typically engage in a deep deliberation of the constitutional issues on the ballot, and representatives are free to diverge from their campaign promises and revise their positions. Such is the nature of representative democracy.

Comparative experience shows that, in many cases, constitutional changes supported by the legislature have been rejected by the people in referendums. As long as the power to amend the constitution lies solely with the legislature, it is more honest for the constitution to be adopted by the legislature alone, without recourse to the people. We should avoid the illusion that the constitution enjoys the people’s consent when, in practice, the final word rests with the legislature. A referendum under such conditions would risk becoming an exercise in public opinion rather than a genuine act of constitutional ratification. It is doubtful that the public would attribute real significance to its role in such a process, and this could ultimately undermine the democratic authority of the people as a source of legitimacy in constitutional affairs.

If the power to amend the constitution remains with the legislature alone, it would also be preferable not to entrench the constitution beyond an absolute majority requirement. Legislative self-entrenchment through higher thresholds raises difficult normative questions: Why should one Knesset be superior to another and bind future legislatures to a constitutional framework? Is this not an attempt by today’s majority to weaken the electoral power of tomorrow’s voters? May the legislature divest itself of its power to legislate? May it transfer its decision-making authority to yesterday’s majority or tomorrow’s minority?

Indeed, in the rare instances where parliaments in Anglo-American legal systems have adopted self-entrenchment clauses, such provisions were later often violated by simple majorities—without judicial enforcement. The Israeli Supreme Court in Bank Mizrahi likewise expressed skepticism that all forms of legislative self-entrenchment would be judicially enforced.

If, despite these challenges, we nonetheless adopt a constitution through legislative entrenchment, then the required voting threshold should be symmetrical: it must apply both to the adoption of the constitution (i.e., ratifying the Basic Laws) and to its amendment. It is insufficient to allow the Knesset to adopt the constitution by an ordinary majority during a transitional period and only later require a special majority for amendments. The fact that a constitution passes by a regular majority does not indicate it enjoys the broader support that a special majority entails. These requirements are meant to prevent transient majorities from entrenching constitutional arrangements that are difficult to undo and may harm minority groups.

A Constitution Based on Popular Sovereignty

If Israel seeks a constitution grounded in popular sovereignty, Basic Law: Legislation must ensure that no constitutional amendment is adopted without broad, stable, and conscious consent of the people. At the same time, it must guarantee that amendments enjoying such consent are not blocked. The process of adopting the constitution must likewise reflect popular approval.

The popular sovereignty model demands a closer approximation of the people’s will than parliamentary decision-making alone can provide. Under this model, no governmental branch acting alone may claim to represent the people’s will on constitutional matters. Rather, such action requires the combined consent of the people and their representatives. It also requires extensive public deliberation before constitutional adoption. In this framework, the Knesset would likely still be the body to draft the constitution—rather than a separate constituent assembly. However, the people’s approval would be required via a referendum, preceded by in-depth public debate on the constitution’s content.

True, the people may reject the proposed constitution, as occurred in referenda on the European Constitution. But this is a risk worth taking if the goal is to anchor the constitution in genuine democratic legitimacy.

If the constitution is adopted by the people, no authority inferior to the people should be allowed to amend it without their consent. Israel is neither a federation nor a system in which the executive is independently elected and functions separately from the legislature. Thus, constitutional amendment authority cannot be decentralized among multiple elected bodies in a way that would approximate popular will. To involve the people in constitutional amendments, such amendments should require post-parliamentary approval via referendum.

Alternatively, the process could require two rounds of approval: the amendment would pass through three readings in two successive Knessets, with general elections held in between that focus primarily on the constitutional issue. These elections would act as a referendum in substance. Ideally, the Knesset might even dissolve over the constitutional question to ensure the elections focus on it—although this is not strictly necessary.

The people could also be given the right to initiate constitutional amendments. But if the Knesset refuses to approve such a bottom-up initiative, the proposal should require approval by two referenda held at a meaningful interval from each other. Under this model, it would be appropriate to entrench the constitution against amendment by a simple parliamentary majority, in order to prevent changes without broad public support.

Many countries—differing in size, demographics, culture, and governance—rely on similar procedures for the adoption and amendment of their constitutions. This testifies to the practicality and feasibility of such mechanisms for giving meaningful expression to the people’s will in constitutional matters.

This model is preferable to that of parliamentary sovereignty because it provides a firm foundation for constitutional supremacy over ordinary legislation, rooted in the normative hierarchy of lawmaking authorities. It avoids the democratic difficulties posed by legislative self-entrenchment. Under this model, judicial review of ordinary legislation serves to uphold the will of the people as expressed in the constitution over the will of their representatives as expressed in statutory law.

Override Clauses and Constitutional Amendment

Some leading actors have proposed that, if a general override clause is adopted in Basic Law: Legislation, it should only be exercisable by a supermajority. For example, it has been suggested that a majority of 70 MKs be required to override constitutional norms. The rationale is that while governments routinely control a bare majority of 61 MKs, reaching 70 would require cooperation with the opposition, thus ensuring broad support. This would make overrides more difficult and reserved for exceptional cases.

Some scholars go further, proposing that the path to override constitutional provisions should be even more difficult than amending the constitution itself. They argue that legislatures may be less hesitant to override constitutional norms than to formally amend the constitution—though whether this assumption holds over time remains uncertain.

Override vs. Constitutional Amendment

In my view, the override mechanism should not be made more rigid than the constitutional amendment process. The very purpose of the override is to offer the legislature a narrowly tailored and temporary means to deviate from constitutional norms—not to make such deviation permanent by amending the constitution. The override is not a constitutional amendment. It is exercised by an inferior authority—ordinary legislation—and is not intended to incentivize constitutional change, as amendments may permanently weaken the protection of constitutional rights and values. Moreover, the stricter amendment process is designed to reflect the broad public consent required for constitutional change—not merely the will of the legislature. It would constitute a reversal of constitutional logic to render override legislation more difficult than formal constitutional amendment.

Additionally, it is no coincidence that both in Canada and Israel, explicit override clauses do not require more than a simple majority (in Canada) or an absolute majority (in Israel’s Basic Law: Freedom of Occupation). An absolute majority requirement does not constitute formal entrenchment, as in a full Knesset, 61 votes would be required regardless. The historical and ideological origins of the override lie in common law systems rooted in parliamentary sovereignty, where the legislature retains the final word, provided it speaks clearly. These systems intentionally avoid requiring a special majority, as that would undermine parliamentary supremacy.

Nevertheless, I recommend that even if a 61-MK majority is required for override, a certain degree of opposition representation should also be mandated—thus ensuring that override powers are not used at the whim of a narrow governing coalition.

In my view, if Basic Law: Legislation adopts a parliamentary sovereignty model, there is no justification for requiring more than 61 MKs for override. In such a system, even if constitutional amendment requires a supermajority, it is doubtful that this requirement would be enforceable. The legislature, in such a model, would frequently amend or override the constitution at will.

By contrast, if Basic Law: Legislation adopts a model based on popular sovereignty, the expectation is that override powers would be used sparingly. As in Canada, such a mechanism would likely be viewed as an illegitimate tool for circumventing the will of the people.

Either way, the decisive factor is not the numerical threshold set for the override. On the contrary, the nature of the constitution and the process of its adoption and amendment will determine whether the override constitutes a threat. Furthermore, the most effective safeguard against misuse of the override lies, in my view, in the inherent limitations imposed on override powers—not in how the mechanism is designed procedurally.

Conclusion

Both models for grounding Israel’s constitution—parliamentary sovereignty and popular sovereignty—are legitimate and feasible. However, popular sovereignty is the preferable path if the goal is to establish a robust constitution that resists regression to the classical model of an all-powerful legislature. Following the collapse of communist regimes, many Eastern European countries experimented with parliamentary sovereignty models that included supermajority requirements. Today, we are witnessing the erosion of these models in several of those states.

If Israel is to adopt a constitution based on the consent of the people, it is not enough to include suitable phrasing in Basic Law: Legislation. The process by which the constitution is proposed, ratified, and amended must ensure genuine popular consent. Such consent cannot be equated with public opinion polling or opportunistic use of referenda. It requires structured, deliberative processes that guarantee in-depth public discussion as a precondition for legitimate democratic consent.

The time has come to listen to the voice of the people.

Suggested Citation:

The Size of the Majority: On Entrenchment, Override and Basic Law: Legislation, ICON-S-IL Blog, June 24, 2021 [Hebrew].