The Challenging of Eternity Clauses-Sharon Weintal

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Citation: 44 Isr. L. Rev. 449 2011
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THE CHALLENGE OF RECONCILING CONSTITUTIONAL
ETERNITY CLAUSES WITH POPULAR SOVEREIGNTY: TOWARD
THREE-TRACK DEMOCRACY IN ISRAEL AS A UNIVERSAL
HOLISTIC CONSTITUTIONAL SYSTEM AND THEORY
Sharon Weintal*
Since the concept of democracy made its premiere,popularsovereignty has always been
one of its fundamental characteristics.Nevertheless, many democracies have adopted
eternity clauses (non-amendable constitutionalprovisions) as well as the unconstitu-
tional constitutionalamendment doctrine (the judicialpower to strike down amendments
to the constitution on substantive grounds), seemingly betraying the establisheddemoc-
ratic tradition.Including eternity clauses in a constitution certainlyposes a challenge to
any democracy, namely that of resolving the tension between theirfreezing effect on the
legal system and the democratic notion ofpopular sovereignty. The intuitive question is
why bother? Why address this challenge in the firstplace rather than uprootingeternity
clauses from the constitutional system altogether, thereby resolving the inner tension
they generate? One answer is that eternity clauses arepresumably 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 irresponsiblenormative 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 articleargues 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 constitutionalsystem, it distinguishes between three decision-making tracks
and identifies the basic norm of the legal system with a nation's collective will or dy-
namic founding narrative.As a constitutional theory, it justifies constitutionalism and
judicial review mainly for the purpose of regulating a nation's evolution. Eternity
* Lecturer, School of Law, Netanya Academic College. LL.D., Hebrew University of Jerusa-
lem. I wish to thank Eyal Benvenisti for his guidance on the doctoral thesis from which this article
evolved. I further wish to thank Ariel Bendor and Re'em Segev for their important comments on an
earlier version in Hebrew. This article is based on a lecture I gave at the IACL Conference Round
Table: Unconstitutional Constitutional Amendments (Jerusalem, April 2010), and I wish to thank
the participants for their illuminating comments. Lastly, I wish to thank the anonymous reader,
Yadl Ronen, and the Israel Law Review Editorial Board for a very productive dialogue that has
substantially improved the end result. One final thanks to Jennifer Tommer for her superb editing
work.
449
450 ISRAEL LAW REVIEW [Vol. 44: 449
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 consen-
sual third track. This protects society from a unilaterally-imposedrevolution-an act
liable to be detrimentalto the delicate evolutionaryprocess.
INTRODUCTION
A nation in a free democratic society is an evolved entity by nature-an association

of free women and men organizing themselves according to ever-changing formulas
for their benefit and well-being.' Therefore, the idea of freezing a nation's founding
formulas (original formulas for organizing society)-especially those imperfect
formulas that represent a premature, or at least questionable, phase in a nation's
evolution-into a written constitution by means of eternity clauses is highly suspi-
cious. Moreover, it is tantamount to an illegal act of conceding the natural right of
individuals to strive for progress (or maintain "the pursuit of happiness"2 ) in their
collective project, which cannot be conceded in the first place.
A powerful expression of these concerns can be found in Emmanuel Sieybs clas-
sic pamphlet What is the Third Estate (1789):
The nation exists prior to everything; it is the origin of everything. Its

will is always legal. It is the law itself. Prior to the nation and above
the nation there is only natural law.... Not only is a nation not subject
to a constitution, it cannot be and should not be.3
To the naked eye, Sieybs seems to oppose any kind of constitutional entrenchment,
especially eternity clauses, as a direct result of his devotion to popular sovereignty.
However, in this article, I beg to differ. I believe that Sieybs' powerful arguments
I The concepts of "nation" and "the people" are usually perceived as identical with regard to
constitution-making power in a democratic society. See EMMANUEL J. SIEYtS, POLITICAL WRIT-
INGS 93, 136-37 (Michael Sonenscher ed. & trans., 2003) for an example of the former and 1
BRUCE ACKERMAN, WE THE PEOPLE: FOUNDATIONS (1991) for an example of the latter. However,
as noted by Schmitt, the former is a better phrase since it succeeds in illustrating the idea that a
constitution-making power originates in a "political unity"-a unified whole existing independently
of its components. See CARL SCHMITT, CONSTITUTIONAL THEORY 126-27 (Jeffrey Seitzer trans.,
2008).
2 DECLARATION OF INDEPENDENCE 1 2 (U.S. 1776). See also THOMAS PAINE, The Rights of
Man: Part I (1791), in PAINE: POLITICAL WRITINGS 57, 86 (Bruce Kuklick ed., 2000): "Natural
rights are those which always appertain to man in right of his existence. Of this kind are all the
intellectual rights ... and also all those rights of acting as an individual for his own comfort and
happiness, which are not injurious to the rights of others."
3 See SIEYES, supra note 1, at 136. For another fierce attack on constitutionalism-especially
on eternity clauses-see PAINE, supra note 2, at 63-64. For a more formalistic approach to eternity
clauses as any other constitutional norm (i.e., an integral part of the legal system), see HANS
KELSEN, GENERAL THEORY OF LAW AND STATE 259-60 (Anders Wedberg trans., 1945).
2011] ETERNITY CLAUSES AND POPULAR SOVEREIGNTY 451
pertaining to the origin and nature of free nations as well as to the essence of popular
sovereignty are much more complex and enigmatic than they seem to be and that
eternity clauses in a constitution-the ultra-controversial constitutional tool-could
actually be used to reinforce, rather than undermine, his insights on the supremacy
of nation over constitution.4
When one begins to analyze Sieybs' arguments, which raise some obvious ques-
tions, the concept of popular sovereignty is no longer black and white. For example,
what is a nation? Which constitutional organ can legitimately claim to speak for a
nation? What is the process by which a nation expresses its will? And what con-
straints on a nation's will derive from natural law?
I do not intend to address all these questions at this point. For the time being,
suffice it to say that the main argument of this article is that constitutional eternity
clauses may actually play a constructive role with respect to popular sovereignty
issues. The apparent animosity between eternity clauses and popular sovereignty
would dissolve instantaneously if they were integrated within a three-track democ-
racy-a holistic constitutional scheme distinguishing between three decision-making
tracks that is established either explicitly by the constituent assembly or implicitly
by the courts as the best interpretation of the text viewed as part of a complete
system.
After introducing a three-track democracy in society, eternity clauses no longer
pose a challenge that a democratic legal system adhering to popular sovereignty can
barely accommodate. On the contrary, they can now be justified as an essential
element of the system-even for the sole purpose of reinforcing popular sover-
eignty. Surprisingly, riding on the freezing effect of eternity clauses, such a constitu-
tional scheme can actually benefit popular sovereignty rather than suppress it.
Firstly, freezing a nation's universal founding formulas (ideal formulas for organiz-
ing society identified with the last phase in any nation's evolution) into eternity
clauses is obviously in the best interest of popular sovereignty. After all, the modern
state based on the social contract' enables any kind of sovereignty (including its
popular version) to exist, and democracy enables the people to share it. Secondly,
with regard to a nation's particular founding formulas (imperfect formulas for
organizing society that represent a premature, or at least questionable, phase in a
nation's evolution), eternity clauses promote popular sovereignty by forcing the
political players to discuss revolutionary decisions in the third track, in which the
4 For a similar insight see ScHMITT, supra note 1,at 128.

5 On the idea of founding a sovereign (a modem state) based on a social contract in order to
escape "the natural condition" (or "the state of nature"), see THOMAS HOBBES, LEVIATHAN 86-129
(Richard Tuck ed., rev. student ed. 1996); JOHN LOCKE, Second Treatise, in Two TREATISES ON
GOVERNMENT 287-300, 348-71 (Peter Laslett ed., 1960). Note that Hobbes' absolutism is very
different from Locke's democratic version of a sovereign. Nonetheless, they similarly resort to the
social contract metaphor as a methodological tool.
nation (or the people), which normally fades out of the picture, is much more active
as any decision in that track requires it to speak loud and clear.6
Three-track democracy can function properly when several tracks for collective
decision-making are established in society based on the distinction between evolu-
tionary decision-making-i.e., regular laws (normal politics-the first track) and
regular constitutional norms (normal constitutional politics-the second track), both
of which maintain allegiance to a nation's founding narrative-and revolutionary
decision-making-i.e., revolutionary constitutional norms that tend to break out of
the current narrative, tantamount to the birth of a new nation (revolutionary constitu-
tional politics-the third track).7
A nation's founding narrative is a dynamic collective story or biography that un-
covers the evidence for its evolution, thereby reflecting its collective will and aspira-
tions throughout the course of history.8 In other words, a nation's founding narrative
encapsulates its current round of evolution, starting from its birth (when a nation's
original formulas for organizing society are applied for the first time) and followed by
a series of founding historical events that serve as opportunities for testing and reshap-
ing the original formulas until they achieve their current form in our generation.9
6 Aharon Barak perceives eternity clauses and the judicial act of applying them (the unconsti-
tutional constitutional amendment doctrine) as a positive mechanism that reinforces popular
sovereignty, as if the challenge addressed in this article were not a real challenge. See Aharon
Barak, The Unconstitutional ConstitutionalAmendment, in JUSTICE BACH BOOK 361, 377 (David
Dahan et al. eds., 2011) (in Hebrew). However, Barak's conclusion presupposes the feasibility of
the option to found a new constitutional order (a third track), namely rewriting the constitution
from scratch (id. at 377-78). This is precisely where the challenge of reconciling eternity clauses
and popular sovereignty lies.
7 Compare to Bruce Ackerman's dualism in ACKERMAN, supranote 1. For a detailed compari-
son, see infra sections 11.A & IlI.C. In Israel, for the time being, we are only familiar with two
decision-making tracks taking place in the Knesset (Israel's parliament)-regular laws and Basic
Laws-which both maintain allegiance to the founding narrative of the nation. However, bearing in
mind the common understanding (of both the Knesset and the Supreme Court) regarding the
Knesset's limited powers as the nation's trustee (see infra section II.C), recognizing a third deci-
sion-making track outside the boundaries of the Knesset, which allows for a collective reconsidera-
tion process of the nation's particular founding formulas, is absolutely essential for Israel to comply
with the DNA of free democratic nations.
8 For the use of the founding narrative metaphor in constitutional interpretation, see HCJ
466/07 MK Zahava Gal-On v. The Attorney General (January 11, 2012), Nevo Legal Database (by
subscription), at paras. 9-18 of Justice Levy's opinion. For a similar view addressing "a nation's
aspirations throughout the course of history," see HCJ 6427/02 Movement for Quality Government
in Israel v. The Knesset (May 11, 2006), Nevo Legal Database (by subscription), at para. 24 of
Chief Justice Barak's opinion [hereinafter Movement for Quality Government in Israel case]. For
further discussion of the founding narrative and how it relates to the text, see infra section IV.A.
9 For an approach to constitutions as evolved identities "further molded by each succeeding
generation," see Michel Rosenfeld, Modern Constitutionalism as Interplay Between Identity and
Diversity, in CONSTITUTIONALISM, IDENTITY, DIFFERENCE, AND LEGITIMACY: THEORETICAL
PERSPECTIVES (Michel Rosenfeld ed., 1994).
A nation's founding values are derived directly from the founding narrative, as
their protection is essential to preserving the narrative's continuity and inner logic. 0
Although a democratic nation is usually founded on both universal and particular
founding values, which can both take refuge in eternity clauses " as a shield against
revolutionary amendments to the constitution, there is a huge difference between the
two categories. Universal founding values are closely connected to a nation's uni-
versal timeless formulas for organizing society: the modem state formula (based on
the idea of the social contract) and the democratic formula. Both these formulas are
identified with the last phase of any nation's evolution. Thus, this group must be
kept off the table in all of society's decision-making tracks. Conversely, particular
founding values are closely connected to the imperfect temporary founding formulas
identified with a premature, or at least questionable, phase in a nation's evolution.
For instance, the Jewish state formula alienates Palestinian citizens of Israel and is
clearly far from perfect, the French civil republican model denies the collective
rights of minorities and thus generates all sorts of identity problems, and the Turkish
devotion to Atatiirk's legacy appears to be the act of a zealous minority imposing
modernism on a traditional Muslim majority. Thus, values in this category must
remain open for discussion-at least for the political players who engage in the third
track. In my opinion, in constitutional terms, nothing can prevent the free members
of a nation from reorganizing themselves according to a completely different par-
ticular formula, provided they use the right decision-making track. For example,
they can expand the boundaries of their political unity (e.g., by forming a union with
members of other nations) or they can redefine the relationship between the nation
and the state (e.g., by giving up their monopoly over the state associates with the
nation-state model).
10 On the adoption of the "founding values" terminology, see HCJ 2605/05 Academic Center
of Law and Business, Human Rights Division v. The Minister of Finance (Nov. 19, 2009), Nevo
Legal Database (by subscription), at para. 20 of Justice Levy's opinion [hereinafter Human Rights
Division case]. On the "fundamental values" terminology, see CA 6821/93 United Mizrahi Bank v.
Migdal Collective Village 49(4) PD 221 [1995], at para. 47 of Chief Justice Barak's opinion
[hereinafter United Mizrahi Bank case]. On the "depth values" terminology, see Movement for
Quality Government in Israel case, supra note 8, at para. 10 of Deputy Chief Justice Cheshin's
opinion.
" Compare to Deputy Chief Justice Cheshin's dichotomy between universal and particular
constitutional values. See HCJ 7052/03 Adalah-The Legal Center for Arab Minority Rights in
Israel v. The Minister of the Interior (May 14, 2006), Nevo Legal Database (by subscription), at
paras. 38-39 of Deputy Chief Justice Cheshin's opinion [hereinafter Adalah case]. According to
Cheshin, while a universal value can be recognized by the court even without a trace in the consti-
tutional text, the recognition of a particular value requires a specific provision in the constitution
that should always be open to reform. Three-track democracy sets the boundaries for the dichotomy
quite differently. Both the universal and the particular can be considered founding values and
recognized without textual anchoring (as long as they derive from the founding narrative). How-
ever, only particular founding values should be left exposed to total revision under the third track.
The essence of three-track democracy lies in the conviction that revolutionary

political decisions should be taken very seriously. It seems that a decision to cut off
the chain of continuity, which is tantamount to a revolutionary leap in a nation's
evolution or to a reincarnation of the original constituent powerl 2 in society, touches
upon the most delicate nerves of society. It could thus have a huge impact on the
basic interests of individuals and on viability of the political unity.
Taking revolutionary decisions seriously involves creating a special decision-
making track for these decisions-the third track of a three-track democracy. The
third track is based on a moral principle according to which a modern, functioning
democracy that respects human rights, regardless of the flaws inherent in the process
of its foundation, should not tolerate an attempt to introduce revolutionary change
through violent force or as a result of a unilaterally-imposed decision.13 Moreover,
certain revolutionary changes in a nation's evolution that touch upon the core of its
democratic nature (or its universal founding values) should not be tolerated under
any circumstances. We ought to embark on a collective effort to tame the seemingly
untamed constituent power" and legalize the last frontier of illegality in a democ-
ratic society in order to harness the wild horse of popular revolutions taking place in
a normative void. This could be accomplished by designing-even just on a theo-
retical level (since its actual implementation currently seems unrealistic)-the third
track in a three-track democracy: a track for a controlled regulated revolution.
The third track should be designed to facilitate a continuous intensive dialogue
between the guardians of the founding narrative and their rival revolutionary move-
ments, who strive to break out of that narrative, in an extraordinary ad hoc represen-
tative body until a broad historical compromise is reached and laid down in a
revolutionary constitutional amendment or a complete constitutional draft. This new,
agreed-upon revolutionary amendment or draft could eventually lead to the birth of a
12 On the terminology of "original constituent power" (or assembly) and "derivative constitu-
ent power," see Claude Klein, After the Bank HamizrahiCase-The Constituent Power as Seen by
the Supreme Court, 28 MISHPATIM 341, 355-58 (1997) (in Hebrew); Ariel L. Bendor, The Legal
Status of Basic Laws, in 2 BERENSON BOOK 119, 132-36, 142-45 (Aharon Barak & Chaim Ber-
enson ed., 2000) (in Hebrew).
13 Even a violent or unilaterally-imposed revolution-changing the basic norm of a legal sys-
tem-could eventually meet Kelsen's validity via effectiveness criteria, which is clearly the right
test from a purely descriptive perspective. See KELSEN, supra note 3, at 118-19. However, based on
a normative test (as explained below) such a revolutionary act is totally unacceptable in a function-
ing democratic society and thus should be regarded as an illegitimate, invalid act.
14 On the distinction between "constituent power" (or "constitution-making power"), originat-
ing in a nation's natural extra-legal right to create a constitution, and "constituted power," originat-
ing in the document itself, see SIEYtS, supra note 1, at 136; SCHMITr, supra note 1, at 126-28;
Ulrich K. Preuss, Constitutional Powermaking for the New Polity: Some Deliberations on the
Relations Between Constituent Power and the Constitution, in CONSTITUTIONALISM, IDENTITY,
DIFFERENCE, AND LEGITIMACY: THEORETICAL PERSPECTIVES 143, 144-45 (Michel Rosenfeld ed.,
1994); Richard S. Kay, Constituent Authority, 59 AM. J. COMP. L. 715, 717-22 (2011).
20111 ETERNITY CLAUSES AND POPULAR SOVEREIGNTY 455
new nation. However, there are still two key obstacles ahead. First, the amendment
or draft must obtain the constitutional court's confirmation that the extraordinary
delegates did not exceed their inherently limited powers by relinquishing the na-
tion's universal founding values, which cannot be relinquished according to their
limited mandate. Second, as discussed below, the amendment or draft must obtain
the direct approval of the people through a referendum. Such a regulated process for
a revolutionary decision (a radical change in a nation's founding formulas or a
radical deviation from its founding narrative) has the potential to produce a consen-
sual and just outcome marking a more progressive phase in the nation's evolution.
This is because its imperfections and injustices are rectified without imposing upon
the opposite side a new form of alienation or jeopardizing the nation's timeless
achievements.
According to three-track democracy, a democratic legal system should be
founded on three legal tracks for expressing a nation's collective will, which are
identifiable by the extent of the nation's presence as a legal entity in the process."
As explained above, the first two tracks are part of the normal evolutionary process,
during which a nation can afford to fade out and let state organs take over and speak
on its behalf, knowing that any harmful mutation will be addressed by a constitu-
tional court, as the trustee or guardian of its collective DNA or founding narrative.
However, during rare historical times, a nation may discover that one of its basic
formulas for organizing society, which has evolved freely through the first two
tracks, is outdated and self-destructive. This would make the actions of state organs
maintaining allegiance to such a formula's inner logic counter-productive. Such a
scenario could set the stage for the extraordinary third track of three-track democ-
racy as a legitimate democratic platform for a nation's direct reincarnation. It would
introduce a collective revolutionary leap in which a nation collectively adopts a
revolutionary amendment or even rewrites the constitution from scratch.
A look at how three-track democracy functions and relates to eternity clauses re-
veals a close connection between the two. On the one hand, the system requires that
revolutionary leaps-in the form of either radical laws or radical amendments to the
constitution produced by the first two tracks-be blocked by constitutional courts and
diverted into the hands of the constitutional players engaging in the third track. Here,
15 Three-track democracy follows Carl Schmitt's insight regarding the normally fading out
sovereign (or nation) that makes a comeback in rare historical times to form a cycle of full incarna-
tions. However, there is a huge difference between the two: firstly, regarding the constitutional
body entitled to speak on behalf of a nation (an extraordinary body of representatives based on
equal voice, combined with a referendum, in contrast to Schmitt's procedural void) and, secondly,
regarding the preconditions for a nation's legitimate full incarnation (democratic continuity and
consensual decision in contrast to Schmitt's normative void). See SCHMIT, supra note 1, at 109-
11, 126-28; Andreas Kalyvas, CarlSchmitt and the Three Moments ofDemocracy, 21 CARDUO L.
REv. 1525, 1530-45, 1557-62 (2000).
eternity clauses-in their formal or judicial form as explained below-serve as the

main legal ground for any judgment striking down a revolutionary amendment that, if
left untouched, could have been detrimental to the integrity of the constitution and to a
nation's evolution as a whole. On the other hand, eternity clauses cannot function
properly or be considered as a legitimate constitutional tool without the backing of a
three-track democracy scheme and the potential to introduce the same revolutionary
amendment in the third track. Otherwise, the system would suffer from a major de-
mocratic deficit, since free members of society would find themselves bound to their
imperfect founding formulas with no legal legitimate track for progress.
Part I of this article organizes and analyzes the comparative data pertaining to
eternity clauses, presenting the unique normative structure they establish in a legal
system. This part will focus on the contribution of the Israeli Supreme Court to the
richness and diversity of this constitutional tool. Part II deals with the challenge of
reconciling constitutional eternity clauses with the nature of a free democratic
society adhering to the concept of popular sovereignty. Although Israel's Basic
Laws do not include formal eternity clauses, I argue in this part that since both the
Knesset (the Israeli parliament) and the Supreme Court seem on board with the
perception of inherently limited amending power, Israel is actually grappling with
this challenge. Part III presents three-track democracy as a universal open code for
integrating eternity clauses in a legal system in a way that does not create a popular
sovereignty deficit. Finally, part IV proposes the adjustments required in the percep-
tion and interpretation of eternity clauses in order to ensure their coexistence with
the concept of popular sovereignty as an integral part of three-track democracy.
I. CONSTITUTIONAL ETERNITY CLAUSES
A. DEFINITION AND STRUCTURE

An eternity clause can be defined as any constitutional arrangement-either an-
chored in the constitution or deemed essential to the constitutional system by the
courts-designed to monitor future amendments in order to strike down revolution-
ary ones, which tend to cut off the chain of a nation's founding narrative.
Inserting eternity clauses into a legal system inherently establishes an extra level
in the "pyramid of norms," separating higher constitutional norms protected by such
clauses from normal constitutional norms exposed to the amending process.' 6 More-
over, the existence of eternity clauses in a constitution reflects a switch from a
16 For a description of a legal system as a hierarchical structure of norms ("pyramid of norms")

whose validity is derived from a single basic norm whose validity cannot be derived from any other
norm and must be presupposed, see KELSEN, supra note 3, at 110-11; HANS KELSEN, PURE
THEORY OF LAW 193-95 (M. Knight trans., 1967); JOSEPH RAz, THE CONCEPT OF A LEGAL
SYSTEM: AN INTRODUCTION TO THE THEORY OF A LEGAL SYSTEM 97-99 (2d ed. 1980).
dynamic system of norms to a semi-static one in which the validity of a constitu-

tional norm is no longer solely determined through the process of creating new
constitutional norms but is also based on its compliance with the founding values
protected in eternity clauses."
This internal hierarchy of constitutional norms should have gone hand in hand with
a strong supremacy clause: a special clause declaring the supremacy of eternity clauses
over normal constitutional norms and authorizing courts to strike down any constitu-
tional norm or amendment that is inconsistent with those clauses. Surprisingly, an
explicit strong supremacy clause is rarely found in the constitutional text. It seems as
though the categorical language often used in eternity clauses,' 8 which appears to be
self-explanatory, has made it unnecessary to explicitly authorize the courts to strike
down amendments that are inconsistent with the eternity clauses. One example of a
complete mechanism combining an eternity clause and an explicit strong supremacy
clause is the 1993 Interim Constitution of South Africa." Article 74 is the eternity
clause that grants the constitutional principles listed in schedule 4 immunity from the
anticipated final constitution, while article 71 is the strong supremacy clause that
requires any future constitutional text to obtain confirmation from the Constitutional
Court that it complies with the higher constitutional principles before it comes into
force. The final constitution adopted in 1996 was no exception and had to pass through
this unique process of preventive judicial review.2 0
17 On the dichotomy between "dynamic system of norms" and "static system of norms," see
KELSEN, supra note 3, at 112-14; KELSEN, supra note 16, at 195-98.
18See, e.g., GRUNDGESETZ FOR DIE BUNDESREPUBLIK DEUTSCHLAND [GRUNDGESETZ] [GG]
[BASIC LAW], May 23, 1949, BGBI. I, art. 79 § 3 ("Amendments of this basic law ... shall be
inadmissible"); TURKISH CONST., 1982, art. 4 ("The provisions of ... shall not be amended, nor
shall their amendment be proposed").
19 S. AFR. (INTERIM) CONST., 1993, arts. 71 & 74, sched. 4. Putting aside the fact that the In-
terim Constitution of 1993 was framed by the dying Apartheid regime, it is still a masterpiece of
constitutional innovation. Unwisely, the final Constitution of 1996 omits from its text both the
eternity clause and the strong supremacy clause (see S. AFR. CONST., 1996, art. 74). However,
since the 1993 Interim Constitution served as the normative base for the final document (as
certified in the Constitutional Court's judgment, see infra note 20) and the latter explicitly ad-
dresses the former in its Explanatory Memorandum, one can argue that the former is still valid in
the sense that future amendments to the 1996 Constitution cannot trump the core of the higher
constitutional principles stated in schedule 4 of the 1993 Interim Constitution, thus undermining the
basic structure of the Constitution.
20 Certificationof the Constitution of the Republic of South Africa 1996 (4) SA 744 (CC). The
Constitutional Court of South Africa found several provisions of the 1996 Constitution to be
inconsistent with the Constitutional Principles stated in schedule 4 of the 1993 Interim Constitu-
tion-which serve to limit the mandate of the Constituent Assembly-on the grounds of failing to
protect the right of individual employers to engage in collective bargaining, impermissibly shield-
ing an ordinary statute from constitutional review, under-entrenching fundamental rights and
freedoms, and failing to provide an adequate set of powers and functions to the provinces as local
governments.
In the absence of an explicit strong supremacy clause, courts had to step in and fill
the "constitutional lacuna" 21 by embracing an unconstitutional constitutional amend-
ment doctrine, since any other approach-denying the judicial power to strike down
amendments to the constitution on substantive grounds-would have undermined the
language and purpose of eternity clauses. The judicial act of filling a constitutional
lacuna served to establish a conventional supremacy clause in the U.S. Supreme
Court's famous Marbury decision,22 as well as in the Israeli Supreme Court's monu-
mental United Mizrahi Bank decision. A constitutional lacuna has similarly been
filled at a higher level by the Brazilian Supreme Court2 4 and the Federal Constitutional
Court of Germany, in order to establish a strong supremacy clause.25
21 A "constitutional lacuna" can be defined as any gap in the constitutional text that-if left
unfilled-undermines the constitutional system and creates a major setback preventing constitu-
tional courts from fulfilling their role in a free democratic society. On the option to apply the
doctrine of lacuna-filling to "constitutional lacuna," see AHARON BARAK, PROPORTIONALITY:
CONSTITUTIONAL RIGHTS AND THEIR LIMITATIONS 82-84 (2010) (in Hebrew). Note that my
definition of "constitutional lacuna" is very broad and does not distinguish between an implied
provision-a provision that, although it cannot be found explicitly in the text, seems to have been
written between the lines in invisible ink-and a real lacuna. See also Barak, supra note 6, at 378. I
believe that both gaps in the constitutional text should be handled similarly to enable courts to
fulfill their role in a free democratic society as part of three-track democracy.
22 Marbury v. Madison, 5 U.S. 137 (1803). In a famous judgment regarded as the beginning of
judicial review in the United States, the Court recognized the supremacy of the Constitution over
any congressional legislation despite a lacuna in the text.
23 United Mizrahi Bank case, supra note 10. This courageous decision was one of the most
important milestones in Israel's constitutional revolution. Led by Chief Justice Shamgar and newly
appointed Chief Justice Barak-along with a famous dissenting opinion by Justice Cheshin-the
Supreme Court managed to place Israel in line with other constitutional democracies by laying the
groundwork (albeit obiter dictum) to what later evolved, after strong controversy in the academic
sphere, into a well-established tradition of judicial review. Based on two (then) new basic laws-
Basic Law: Human Dignity and Liberty and Basic Law: Freedom of Occupation-and in light of
the absence of a supremacy clause, the Court convincingly based its judgment on the language and
purpose of these Basic Laws, as well as on a comprehensive theory recognizing the constituent
power of the Knesset (Israel's parliament). For a more skeptical viewpoint, see Ruth Gavison, The
Constitutional Revolution: A Reality or a Self-Fulfilling Prophecy?, 28 MISHPATIM 21 (1997) (in
Hebrew); Joshua Segev, Why Israel Does Not and Will Not Have a Constitution (at Least Not in the
Near Future)? On the Merits of "the Decision not to Decide," 5 NETANYA ACADEMIC COLLEGE L.
REv. 125 (2006) (in Hebrew).
24 For the Brazilian eternity clause, see CONSTITUICAO FEDERAL [C.F.] [FEDERAL CONSTITU-
TION] art. 60 § 4 (Braz.). For the Supreme Court's understanding of its supremacy, see Luciano
Maia, The Creation and Amendment Process in the Brazilian Constitution, in THE CREATION AND
AMENDMENT OF CONSTITUTIONAL NORMS 54, 73 (Mads Andenas ed., 2000).
25 Although in its decision of March 3, 2004 the Federal Constitutional Court of Germany
ruled not to strike down the amendment of article 13(3) that authorizes electronic eavesdropping,
due to its alleged inconsistency with the eternity clause in article 79(3) addressing human dignity,
the way has nevertheless been paved for such a move in the future. See Nicolas Nohlan, Germany:
The Electronic Eavesdropping Case, 3 INT'L. CONST. L. 680 (2005). See also Jutta Limbch, The
Role of the Federal ConstitutionalCourt as the Guardianof the Constitution, 28 MISHPATIM 5, 5-6
(1997) (in Hebrew).
The French Constitutional Court (Conseil constitutionnel) is exceptional in its un-

willingness to recognize the supremacy of eternity clauses over amendments ratified
by a national referendum. Even though the language and purpose of article 89, the
French eternity clause, are quite explicit, the Court has adopted a kind of non-
justiciability doctrine, arguing that such amendments are outside the judiciary's
reach.2 6 It seems that the inclusive French perception of the nation, 27 combined with
the civic republican model of nationalism (which denies the existence of national
minorities), 28 had led the Court to suggest that a national referendum is the ultimate
expression of a nation's collective will. However, there seem to be several potential
obstacles along the way, since a referendum-as a standalone mechanism-is hardly a
magic cure for all the ills of representative democracy capable of ensuring due process
in revolutionary decision-making. Firstly, without convening an extraordinary ad hoc
body of representatives that grants an equal voice both to the guardians of the founding
narrative and to the revolutionary movement striving to submit a revolutionary
amendment to referendum, there is no guarantee of the substantive dialogue and broad
consensus that are essential to the legitimacy of the outcome. Secondly, since the
revolutionary amendment is framed by the ordinary representative body and ratified
via referendum, which are both extremely majoritarian processes, the voice of minori-
ties may be brutally silenced (although the civic republican model naively denies that
such minorities even exist). Finally, without the supervision of the judiciary, a nation's
universal founding values and timeless achievements may be jeopardized. In light of
these concerns, resorting to the non-justiciability doctrine is tantamount to passing the
buck by the very guardian of the constitution. 29
26 For the French eternity clause, see 1958 CONST. art. 89 (Fr.). For the French position regard-
ing amendments ratified by a national referendum, see Sophie Boyron, From Abolition to Amend-
ment: Life and Death of Constitutions in France, in THE CREATION AND AMENDMENT OF
CONSTrrUTIONAL NORMS 133, 147 (Mads Andenas ed., 2000).
27 On the civic perception, see infra section III.C.2.
28 On the different models of nationalism, see Sami Smooha, Israel's Regime: Civic Democ-
racy, Non-Democracy or Ethnic Democracy?, 2(2) ISRAELI SOCIOLOGY 565, 568-84 (2000) (in
Hebrew). The civic republican model (referred to as "republican liberal democracy" by Smooha),
which is associated with France and Turkey, postulates that all citizens of the state are part of one
happy national group, thereby denying the existence of national minorities. For an illuminating
comparative discussion of the different models, see ALEXANDER YAKOBSON & AMNON RUBIN-
STEIN, ISRAEL AND THE FAMILY OF NATIONS 286-413 (2004) (in Hebrew).
29 For an approach treating an amendment ratified in a referendum like any other amend-
ment-and therefore subject to judicial review under the unconstitutional constitutional amendment
doctrine-see Barak, supra note 6, at 376-78 esp. n. 78. For the role of judges as guardians of the
constitutions, see AHARON BARAK, THE JUDGE INA DEMOCRACY 77-80 (2004) (in Hebrew).
B. CATEGORIZATION
1. FORMAL ETERNITY CLAUSES

A helpful distinction in the eternity clause family concerns the organ of the state that
is responsible for introducing these clauses into the constitutional system. Because
formal eternity clauses are framed by the constituent assembly, they are easy to trace
in the constitutional text. 30 Within this category, article 112 of the Norwegian
Constitution is somewhat of an exception, since it is drafted as a general eternity
clause that lacks a specific set of founding values. Instead, it tends to refer to the
"principles embodied in the constitution" or "the spirit of the constitution.""
One of the main characteristics of this category is the explicit language and pur-
pose of the constitutional provision. Therefore, in declaring a future amendment
unconstitutional, courts simply apply the constitution by revealing the objective
purpose of one of its provisions through a normal act of interpretation.32 The deci-
sion whether an amendment complies with the founding values protected in eternity
clauses involves a broad and complex form of judicial discretion. Nonetheless, the
same interpretative effort is required at a lower level in order to decide whether a
law contradicts the constitution in a manner that justifies declaring it null and void.
2. JUDICIAL ETERNITY CLAUSES

Judicial eternity clauses are established by the courts and have no clear trace in the
constitutional text." Clearly, judges cannot legitimately create an eternity clause
through a constitutive act as if they were members of a constituent assembly. At
most, they might declare their existence by addressing a constitutional lacuna34 that
needs to be filled in order to allow them to fulfill their judicial mission in the consti-
tutional system.
30 Among many other examples, see GRUNDGESETZ art. 79 § 3 (Ger.); 1958 CONST. art. 89
(Fr.); FEDERAL CONSTITUTION art. 60 § 4 (Braz.); TURKISH CONST. art. 4.
31 NORWEGIAN CONST. art. 112.
32 Aharon Barak, UnconstitutionalConstitutionalAmendments, 44 ISR. L. REv. 321 (2011).
33 Any judicial eternity clause can be accused of being-in Alec Stone Sweet's words-a "ju-
ridical coup d'dtaf' (or juridical revolution) since, formally speaking, any court that creates such a
clause seemingly changes the basic norm of the legal system. See Alec Stone Sweet, The Juridical
Coup d'ttatand the Problem ofAuthority, 8 GERMAN LAW JOURNAL 915 (2007). This accusation
may not always be justified, as it all depends on the specific constitutional system. In a three-track
democracy, the court may rightfully associate the basic norm with the original will of a nation
converted into a dynamic founding narrative instead of the written constitution. Accordingly, a
judicial eternity clause could actually be a declarative act reinforcing the basic norm rather than
undermining it.
34 See supra note 21.
One of the most famous techniques is the basic structure doctrine established by
the Supreme Court of India in a series of heroic decisions delivered at a time of
major constitutional crisis regarding the Court's authority to pass ratified amend-
ments through judicial scrutiny." In the Golaknath case,3 6 the Court sowed the seeds
for the basic structure doctrine, suggesting that the scope of the "amendment"
concept does not cover radical changes to the constitution's basic structure. Thus,
human rights articles cannot be changed at all. In the Kesavanandacase," although
the Court overturned the Golaknath judgment-asserting that any article in the
constitution is subject to the amendment process-it reaffirmed the basic structure
doctrine. The drama reached its apex in the Minerva Mills Ltd. case" addressing the
Indian parliament's provocative amendments 24 and 42, which aimed to prevent the
Court from intervening in parliament's power to amend the constitution. The Court,
in an exemplary decision for any three-track democracy, ruled that the limited nature
of parliament's power to amend the constitution was an intrinsic part of India's
constitution. Thus, any attempt to make this power absolute contradicted the basic
structure of the constitution. India can apparently be regarded as a three-track
democracy, since the Indian Supreme Court has implied that there is an option to
change the basic structure of the constitution-even by rewriting it from scratch.
Nonetheless, it would require a special track (a third track) operated by an extraordi-
nary constitutional body (outside parliament). One reservation is still missing, since
even a proper constituent assembly cannot rewrite the constitution by omitting a
nation's universal founding values. As previously explained, a nation's universal
founding values are derived from the universal founding formulas that represent the
perfect last phase in its evolution (from which any retreat is a tragic collective step)
and serve as the preconditions for popular sovereignty (since the modem state
allows members of a nation to be sovereign and democracy allows them to freely
express their collective will). Thus, these timeless values must bind members of a
nation under all circumstances in every decision-making track."
What is unique about this technique is that it masquerades as a formal eternity
clause, since the Court presumably only provides a conventional constitutional
35 For the full story, see Mathew Abrahams, Judicial Role in ConstitutionalAmendment in In-
dia: The Basic Structure Doctrine, in THE CREATION AND AMENDMENT OF CONSTITUTIONAL
NORMS 195 (Mads Andenas ed., 2000).
36 Golaknath v. State of Punjab, A.I.R 1967 S.C. 1643. This understanding of the inherently
limited scope of the "amendment" concept was first presented by Schmitt, supra note 1, at 74: "The
authority to undertake constitutional amendments resides in the framework of the constitution, is
established through it, and does not extend beyond it. This authority does not include the power to
establish a new constitution."
37 Kesavananda Bharati Sirpadagalvaru v. State of Kerala, A.I.R 1973 S.C. 1461.
38 Minerva Mills Ltd v. Union of India, A.I.R 1980 S.C. 1789.
39 For the autonomous collective enslavement act paradox that follows Mill's individual
autonomous enslavement act paradox, see infra note 170 and accompanying text.
interpretation of the amendment clause limiting its scope. Without any evidence of
such a limitation in the constitutional text, we should clearly classify these rulings as
a typical judicial eternity clause-a judicial act tantamount to filling a constitutional
lacuna that undermines the constitutional system as a whole.4 0
The Israeli judiciary has contributed immensely to the richness and diversity of
judicial eternity clauses. A pivotal technique is the doctrine of unwritten fundamen-
tal principles introduced to the legal community in Israel by former Chief Justice
Aharon Barak and former Deputy Chief Justice Mishael Cheshin. Recognizing that
certain unwritten fundamental principles are an integral part of the legal system
above and beyond the written constitution is like protecting them in a formal eternity
clause similar to Norway's general eternity clause that addresses the spirit of the
constitution. 4 1
It was Barak who released the time bomb in the Laor Movement case 4 2 when he
suggested that invalidating a law or even a constitutional norm based on its inconsis-
tency with the unwritten fundamental principles of the legal system was an option
open to the judiciary in a democratic society. Barak's time bomb has been ticking
ever since, and one has to give the Knesset some credit for the fact that it has not yet
exploded. This is because Israel's unwritten fundamental principles have generally
gained the respect of the Israeli parliament. Cheshin thought otherwise regarding the
Tal Law, 43 which reaffirms the exemption of ultra-orthodox yeshiva students from
compulsory military service. In a courageous dissenting opinion in the Movement for
Quality Government in Israel case, Cheshin was prepared to declare the law null and
void due to its inconsistency with some of Israel's unwritten founding values, such
40 The unconstitutional constitutional amendment doctrine is clearly tied up with judicial le-
gitimacy issues, such as the "counter-majoritarian difficulty." See ALEXSANDER BICKEL, THE
LEAST DANGEROUS BRANCH: THE SUPREME COURT AND THE BAR OF POLITICS 16-23 (1962).
However, in a three-track democracy (see infra section III), it is precisely these independent,
counter-majoritarian and unaccountable aspects that render the court competent to bravely stand in
the way of a majority illegitimately promoting a unilaterally-imposed revolution. For a different
approach calling for further accountability of constitutional courts in direct proportion to their
judicial review powers, see Yoav Dotan, Judicial Review and Accountability-A Comparative
Analysis 10 MISHPAT UMIMSHAL 489 (2007) (in Hebrew).
41 Supra note 31.
42 HCJ 142/89 Laor Movement v. Speaker of the Knesset 44(3) PD 529 [1990], paras. 25-30 of
Justice Barak's opinion; CA 733/95 Arpal Aluminum Ltd. v. Klil Industries Ltd 51(3) PD 577
[1997], paras. 31-32 of Justice Cheshin's opinion; Human Rights Division case, supra note 10, at
para. 3 of Justice Hayut's opinion; HCJ 4908/10 Bar-On v. The Knesset (Apr. 7, 2010), Nevo Legal
Database (by subscription), at paras. 31-35 of Chief Justice Beinish's opinion [hereinafter Bar-On
case]. For a more skeptical approach, see Human Rights Division case, supra note 10, at paras. 18-
20 of Justice Levy's opinion.
43 Deferment of Military Draft for Yeshiva Students Whose Occupation Is the Study of Torah
Law, 5762-2002, SH No. 5762 p. 521.
as the value of the IDF (Israel Defense Forces) as the protector of the Jewish state
and the value of equality as an essential element of the democratic state.44
The natural law doctrine promoted in Israel by Cheshin can be categorized as an
integral part of the unwritten fundamental principles doctrine. 45 As previously stated,
if certain unwritten principles-or, in this case, certain universal and pre-political
natural rights-stand above the written constitution, they actually enjoy the same
status as if they were included in a formal eternity clause.
Lastly, another technique can be identified in the "rule of recognition" for consti-
tutional norms, introduced by Chief Justice Barak in the United Mizrahi Bank case,
which includes the abuse doctrine. 4 6 After designing a formal test to detect Basic
Laws by focusing on the title "Basic Law" as a conclusive indication for the use of
the constituent power by the Knesset, Barak left pending the question whether to add
a substantive test that would allow the court to lower a norm that only appears to be
a constitutional norm but is actually an abuse of constituent power and thus unwor-
thy of the title "Basic Law." A typical form of abuse involves the overprotection of
values unworthy of a higher law. For our purposes, the term "abuse" could be an
attempt to pass a revolutionary amendment by exceeding the limited powers of the
Knesset as the derivative constituent assembly, 47 thereby undermining the basic
structure of the constitutional order by one of the nation's trustees. In this case, the
Supreme Court, as the nation's other trustee, would find it much easier to address
the harmful mutation. Once the mantle of "Basic Law" has been lifted and the norm
in question has been recognized as a regular law-the written constitution (other real
Basic Laws) is sufficient to strike it down. The unconventional weapon of the
unwritten fundamental principles doctrine can thus be left aside for the next revolu-
tionary challenge.
44 Movement for Quality Government in Israelcase, supra note 8, at paras. 14-18, 31-33, 60 &
74 of Deputy Chief Justice Cheshin's opinion. For Chief Justice Barak's critical comment, see id. at
paras. 72-74.
45 CFH 7015/94 Attorney General v. Unidentified Person (Female) 50(1) PD 48 [1995], paras.
21-23 of Justice Cheshin's opinion (regarding the right of parents to raise their biological child);
Adalah case, supra note I1, at paras. 46-47 of Deputy Chief Justice Cheshin's opinion (regarding
the right to family life). For a classic reference to natural rights, see PAINE, supra note 2, at 85-86.
46 For the general "rule of recognition," see H.L.A HART, THE CONCEPT OF LAW ch. 5 (Joseph
Raz & Penelope Bullock eds., 2d ed. 1994). For Barak's "rule of recognition" for Israel's binding
constitutional norms, see United Mizrahi Bank case, supra note 10, at paras. 55-58 of Chief Justice
Barak's opinion. Barak's doctrine was subsequently adopted by Chief Justice Beinish. See Bar-On
case, supra note 42, at paras. 10-30.
47 On the approach according to which the Knesset is at most a derivative constituent assembly
bound to the nation's founding narrative, see infra section II.C.
II. ETERNITY CLAUSES AS A CHALLENGE FOR FREE DEMOCRATIC

SOCIETIES
A. REVERSING THE PYRAMID OF LEGAL ENTITIES INA FREE DEMOCRATIC

SOCIETY
A free democratic society is based on a complex interplay between three legal
entities-individual, nation, and state-arranged in that order in the pyramid of legal
entities. A nation is a quasi-natural entity, 48 an association of free women and men
(the only absolute natural entities in our society 49 ), united by "the commonness of
such properties as origin, race, language, religion, culture, history and the like" (the
cultural perception),"o or by the commonness of their status as citizens "living under
a common law represented by the same legislature" (the civic perception),' striving
for their benefit and well-being.52
A modem state is an artificial abstract entity,"3 a collection of institutions
founded by a nation to rescue individuals from the dreadful state of nature (based on
the concept of a social contract) by positioning the state as the one and only sover-
eign with a monopoly on the legitimate use of violent force in society. Moreover,
state organs-the three branches of government-are responsible for creating and
enforcing rules governing the peaceful coexistence of society's members as well as
for resolving conflicts that would otherwise be resolved vigilante-style.5 4 Note that
48 A nation cannot be totally natural by definition. Firstly, the process of designing its original
written constitution or its dynamic founding narrative did not really involve all members of society.
For instance, one can argue that the American nation and its written constitution is a product of the
collective will of rich white protestant men (see Michael W. McConnell, Textualism and the Dead
Hand of the Past 66 GEO. WASH. L. REv. 1127, 1127 (1998)). Secondly, a nation's founding
narrative often includes mythical and edited biographical details imagined by its members for the
sake of their unity, glorifying their heroic collective past and, at the same time, covering its dark
corners (see BENEDICT ANDERSON, IMAGINED COMMUNITIES: REFLECTIONS ON THE ORIGIN AND
SPREAD OF NATIONALISM 187-206 (rev'd ed. 1991)).
49 Placing man above nation follows Kant's philosophy asserting that the morality of any act in
our society (including founding a nation) should be tested against its ability to place man's human-
ity at the center of the universe-as an end in its own right rather than a means to achieve external
ends. See Robert Johnson, Kant's Moral Philosophy, in THE STANFORD ENCYCLOPEDIA OF
PHILOSOPHY (Edward N. Zalta ed., 2010), availableat http://plato.stanford.edularchives/sum2010/
entries/Kant-moral.
50 On the cultural conception of a nation, see Preuss, supra note 14, at 150.
sI On the civic conception of nation, see SIEYtS, supra note 1, at 97.

52 On the superiority of a nation, see SIEYES, supra note 1, at 97; SCHMIT, supra note 1, at 128.
53 Although nation and state are both dependent on their organs, there is a big difference be-
tween the two. A state is a totally artificial and abstract entity that by definition cannot be a source
of authentic human will, whereas a nation can express its collective will as a quasi-natural entity.
54 See supra note 5. On the assimilation of the modem state formula based on the social contract
metaphor into Israel's constitutional law in order to strike down a law establishing a privatization
program of state prisons, see Human Rights Division case, supra note 10, at para. 23 of Chief Justice
the state is only sovereign in the context of its natural universal role in society,
namely to rescue the individual from the state of nature (or the natural condition).
However, the real sovereign in a free society is the nation (as a political unity of free
women and men), which by the free expression of its collective will can shape the
identity of the state, thus giving life to a hollow legal entity.
The relationship between nation and state is complex in the sense that the organs of
the state are subject to a nation's authentic collective will. However, a nation is not
entitled to abolish the state (or any of its organs) altogether, since it is part of natural
law as a universal precondition for securing the natural rights of individuals."
To sum up, we can now sketch the pyramid of legal entities in a free democratic
society. At the top stands the individual, the ultimate natural entity in society. The
individual's free will is the origin of any free nation, and individuals' natural rights
are the premise and moral basis for any act of other entities in society. Under indi-
viduals stands a nation-a quasi-natural entity that organizes itself for the benefit
and well-being of individuals. Its collective free will-expressed formally by means
of an original constituent assembly (which drafts the constitution) and a ratification
mechanism (usually a referendum) or spontaneously as a collective effort by various
social agents-is the basic norm of the legal system, an extra-legal norm that stands
above any written constitution. 6 Under a nation stands a state-an artificial abstract
entity incapable of expressing authentic will. However, a nation's superiority over a
state is somewhat limited. On the one hand, a nation's will "is the law itself," and
state organs thus serve as a nation's trustees that are loyal and subordinate to its will.
On the other hand, "above the nation there is ... natural law." A nation's will is thus
subject to the existence of the state and its organs as part of the same natural law that
secures the natural rights of individuals."
Beinish's opinion, para. 2 ofJustice Arbel's opinion, Deputy Chief Justice Rivlin's opinion, paras. 4 &
12 of Justice Prokachia's opinion, para. 2 of Justice Hayut's opinion, and para. 29 of Justice Naor's
opinion. For a more skeptical approach, see id. at paras. 12-13 of Justice Levy's opinion.
55 For the existence of the state as part of natural law, see Justice Sussman's opinion in EA
1/65 Yeredor v. Chairman of the Central Elections Committee to the Sixth Knesset 19(3) PD 365
[1965] [hereinafter Yeredor case]. Any aspect of the state that is fundamental to the extent that
uprooting it from society would endanger the legal entity's natural universal role-that of rescuing
the individual from the state of nature-should enjoy the legal status of natural law that is identical
to embedding it in eternity clauses. For a further discussion of natural law, see supra notes 2 & 45
and accompanying text.
56 On the basic norm as an extra-legal norm, see supra note 16. On the dichotomy between the
formal institutional process and the spontaneous process as methods for expressing a nation's
collective will, see infra note 150 and accompanying text. Note that state organs like parliament can
play a pivotal role in the spontaneous process of expressing a nation's collective will. However, any
such legislative body is inherently inferior to a direct expression of a nation's will-by shifting
from the spontaneous method (governed by various social agents including parliament) to the
formal institutional method that directly involves the members of a nation.
57 For the quotations, see SIEYES, supranote 1, at 136.
Applying eternity clauses without the necessary adjustments in their interpreta-

tion discussed below could reverse the correct order, thus placing a nation above the
individual, desperately nursing a dying founding narrative of a dying nation, while
the spirit of free women and men cries out for a radical change. This concern is of
particular relevance to the particular founding values protected in eternity clauses.
While universal founding values are part of a timeless formula for organizing a
nation for the benefit and well-being of individuals, since the modem state secures
their natural rights and democracy secures their ability to express their free will,
particular founding values are part of a temporary formula that could in a relatively
short period of time become irrelevant and outdated, thus proving to be a problem-
atic coercive force in society-an enemy of freedom.
B. THE BASIC LEGITIMACY PROBLEMS OF CONSTITUTIONALISM AND

ETERNITY CLAUSES
The concept of popular sovereignty, which captures the essence of the pyramid
structure portrayed above, has always been a highly problematic issue in constitu-
tional theory, even for conventional constitutional entrenchment. The basic legiti-
macy problems inherent to constitutionalism are the precommitment problem" and
the inter-temporal precommitment problem." The latter, also known as the "dead
hand" problem,6 0 is obviously the more severe, since it deals with constitutional-
ism's tendency to frustrate majority will not just for the sake of society's current
fundamental values but in order to express the will of past generations, thus letting
the dead hand govern the living.61
Eternity clauses apparently push these problems to the extreme, since they not
only deviate from majority rule but also deny the current generation its democratic
right to design its collective identity as a nation, its desired public sphere (to support
its preferred way of life) and those fundamental values that it considers worthy of
special protection through the constitutional mechanism. 62
58 Stephen Holmes, Precommitment and the Paradox of Democracy, in CONSTITUTIONALISM
AND DEMOCRACY 195 (Jon Elster & Rune Slagstad eds., 1989).
59 Eric Parnes, They the People: A Third-PartyBeneficiary Approach to ConstitutionalInter-
pretation,43 SANTA CLARA L. REv. 495, 500-502 (2003). On "inter-temporal difficulty" terminol-
ogy, see Bruce Ackerman, Storrs Lectures: Discovering the Constitution, 93 YALE L. J. 1013,
1045-46 (1984).
60 McConnell, supra note 48, at 1127.
61 One famous manifestation of this concern can be found in Letter from Thomas Jefferson to
James Madison (Sept. 6, 1789), in 15 THE PAPERS OF THOMAS JEFFERSON 392 (Julian P. Boyd ed.,
1958) (suggesting a constitutional expiration date in every generation, specifically every nineteen
years).
62 For similar concerns, see PAINE, supra note 2, at 63-64; Preuss, supra note 14, at 159-60.
C. DOES ISRAEL AS A JEWISH DEMOCRATIC STATE FACE THIS

CHALLENGE?
The Jewish democratic state, or the Zionist project, is basically a project involving the
self-determination of the Jewish people as a political unity in its historical homeland.
The Zionist movement has always aspired to integrate the achievements of enlighten-
ment by combining the universal formulas of the modem state and democracy (as the
last phase in a nation's evolution) with the particular formula of a Jewish state-a
sovereign safe haven for every Jew and an open public sphere (a far cry from the
Jewish ghetto) supporting Jewish culture and connecting to its historical roots."3
At first glance, the Israeli constitutional system does not appear to face the chal-
lenge of reconciling eternity clauses and popular sovereignty, since it lacks any trace
of a formal eternity clause. On the contrary, Israel's Basic Laws suffer from severe
under-entrenchment, thereby exposing the written constitution to apparently unlim-
ited amending power by regular parliamentary majority.6" However, a more in-depth
view suggests quite a different picture.
An early indication was provided by the famous Yeredor decision." Although the
ruling cannot be considered a typical judicial eternity clause, because it did not directly
address a revolutionary amendment, it still had an indirect effect on the amending
power. Chief Justice Agranat and Justice Sussman-along with a famous dissenting
opinion by Justice Cohn (adhering to the basic principle of the rule of law)-
reaffirmed the Elections Committee's unwritten power to ban a list of candidates from
national elections without clearly ascertaining whether the political movement's goals
encompass the physical destruction of the State of Israel or just the elimination of its
Jewish identity. While Agranat based his judgment on an interpretation of the Basic
Law: The Knesset, asserting that, since the Knesset is "the representative assembly of
the state," 66 potential members of parliament cannot turn against the deepest aspira-
tions of the nation, which include its Jewish identity, Justice Sussman used the natural
law doctrine as a basis for recognizing a state's natural right to protect its very exis-
tence. The judgment generated an unwritten barrier to participation. However, since
63 On the pillars of the Jewish state, see EA 11280/02 The Central Elections Committee to the
Sixteenth Knesset v. Tibi 57(4) PD 1 [2003], at paras. 11-13 of Chief Justice Barak's opinion
[hereinafter Tibi case]. On the controversy in Israel with regard to its characteristics, see Ruth
Gavison, A Jewish and Democratic State: PoliticalIdentity, Ideology and Law, in A JEWISH AND
DEMOCRATIC STATE 169, 180-84 (Ariel Rosen-Zvi ed., 1996) (in Hebrew).
64 Most Basic Laws are easy to amend with an absolute majority of Knesset members (61 out
of 120). See Basic Law: Freedom of Occupation, 5754-1994, SH No. 1454, § 7; Basic Law: The
Knesset, 5718-1958, SH No. 244, §4; Basic Law: Jerusalem the Capital of Israel, 5740-1980, SH
No. 1980, § 7. Outrageously, two of the most important Basic Laws-Basic Law: Human Dignity
and Liberty and Basic Law: The Judiciary--can even be amended by a regular majority (even by
three votes against two).
65 Yeredor case, supra note 55.
66 Basic Law: The Knesset, 5718-1958, SH No. 244, § 1.

the Knesset is also the constituent assembly,67 closing its gates to revolutionary politi-
cal movements could have the indirect effect of limiting amending power.
Twenty years later, the monumental judgment became part of the written consti-
tution, as the Knesset enacted section 7A of the Basic Law: The Knesset.65 This
article authorizes the Elections Committee to ban a list of candidates (or altema-
tively only one candidate as the current version provides) for having political goals
or acting in a manner that negate(s) the existence of Israel as a Jewish democratic
state, inciting racism, or supporting an armed struggle against the state by an enemy
state or terrorist organization.
Such a clause sets the barrier against revolutionary amendments not at the end of
the road, in order to strike them down following their ratification, but at the gates of
the constituent assembly, thereby neutralizing their potential initiators. Since section
7A could be misused to impose unnecessary restrictions on basic rights and free-
doms, the Israeli Supreme Court rightfully chose to give it a narrow interpretation,
thereby successfully reducing its side effects and letting almost every revolutionary
anti-Zionist political party off the hook.69
Although rarely used, section 7A is still a pivotal provision reserved for a true
revolutionary challenge. In the interim, it affects the entire political spectrum, 0
defining the boundaries of legitimate political discourse. Nonetheless, it is an impor-
tant declaration by Knesset members, which arguably reflects Israeli society's strong
belief that the Zionist project is here to stay because it reflects the deepest aspira-
tions of the Israeli nation over the course of history. Moreover, it is a recognition
that any revolutionary aspiration should find refuge outside parliament's gates, since
the Knesset perceives itself in the same way that Agranat perceived it in the Yeredor
case, namely as a nation's trustee (rather than an organ) loyal to its founding narra-
tive. As a derivative constituent power, it is unauthorized to speak for the nation
where revolutionary decisions are concerned and therefore wields inherently limited
amending power.'
67 United MizrahiBank case, supra note 10.

68Basic Law: The Knesset, 5718-1958, SH No. 244, § 7A.
69On the judicial limitation clause that sets strict cumulative court-determined tests in order to
drastically narrow down the possibility of banning candidates from national elections, see EA 1/88
Neiman v. The Central Elections Committee to the Twelfth Knesset 42(4) PD 177 [1988]; Tibi
case, supra note 63; EA 561/09 Balad (The National Democratic Party) v. The Central Elections
Committee to the Eighteenth Knesset (Mar. 7, 2011), Nevo Legal Database (by subscription).
70 Section 7A grounds for banning a list of candidates from national elections were duplicated
by the Knesset for other purposes, for example to deny a request to establish a new political party
(Political Parties Law, 5752-1992, SH No. 190, § 5), to limit MPs' immunity (Immunity, Rights
and Duties of Knesset Members Law, 5711-1951, SH No. 80, § 1(al)), or to bury a private legisla-
tive proposal by the Knesset presidency (Knesset Regulations, 1973, KT 3059, § 75(e)).
71 In the dispute over the scope of the Knesset's powers, I add my voice in favor of the narrow
approach according to which the Knesset is at most a derivative constituent assembly bound to the
The Supreme Court justices' response to section 7A was quite ambivalent. On

the one hand, as mentioned above, they did everything in their power not to use it,
letting almost every revolutionary agenda compete freely in the public arena. On the
other hand, they stressed its pivotal place in the constitutional system, accepting its
implications for every aspect of political life.72 Yet make no mistake: considering the
various judicial eternity clause techniques stemming from the bench," especially the
doctrine of unwritten fundamental principles,74 the Supreme Court appears to be
very much on board with the Knesset's own perception of its inherently limited
amending powers. Implementing this seemingly agreed-upon principle in the Israeli
legal system would make it necessary to adopt an Israeli version of the unconstitu-
tional constitutional amendment doctrine 7 5 -recognizing the judicial power to strike
down revolutionary amendments to the Basic Laws on substantive grounds-thus
bridging the constitutional lacuna 6 stemming from the absence of formal eternity
clauses.7
nation's founding narrative (see Barak, supra note 6, at 379-81, Bendor, supra note 12) and not an
original constituent assembly (see Klein, supra note 12). The main argument of this article (which
is developed further in part III) is that the Israeli parliament, like any other parliament, is not
competent to operate the third track in a three-track democracy on behalf of the nation in relation to
revolutionary decisions.
72 The Supreme Court suggested that section 7A should serve as a legal basis for limiting other
aspects of political life, for example as a basis for limiting MPs' immunity (HCJ 620/85 Miari v.
Knesset Speaker 41(1) PD 169 [1985], Chief Justice Shamgar's opinion), for declaring a political
agreement null and void (see HCJ 5364/94 Velner v. Chairman of Israeli Labor Party 49(1) PD 758
[1995], opinions of Chief Justice Shamgar and Justice Cheshin [hereinafter Velner case]), or as a
basis for the chairmen of the Central Election Committee's power to disapprove of a propaganda
broadcast (HCJ 212/03 Herut National Movement v. Chairman of the Central Election Committee
for the Sixteenth Knesset 57(1) PD 750 [2003], Justice Matza's opinion).
73 See supra section I.B.2.
74 See supra notes 42 & 44. See especially Chief Justice Barak's clear statement that the Knes-
set was never authorized by the people to eliminate Israel's fundamental principles or character as a
Jewish democratic state (see Movement for Quality Government in Israel case, supra note 8, at
paras. 73-74).
75 More recently, Chief Justice Beinish left pending the question whether to adopt an Israeli
version of the unconstitutional constitutional amendment doctrine-following Aharon Barak's
suggestion (see Barak, supra note 6, at 379-81)-as a legal base for striking down amendments to
the Basic Laws. However, she seems to concur with the general conclusion drawn by Chief Justice
Barak and Deputy Chief Justice Cheshin that the Knesset holds limited powers and cannot under-
mine the core of the Jewish-democratic narrative. See Bar-On case, supra note 42, at paras. 31-35.
76 For the definition of a "constitutional lacuna," see supranote 21.
77 Aharon Barak raised some serious doubts regarding the relevance of the "constitutional la-
cuna" doctrine to the Israeli constitutional project, since-by definition-it is an incomplete project
that should only be completed by the constituent authority (see BARAK, supra note 21, at 82-84).
This article's perspective is somehow different. Since the creation of the Israeli nation and its
founding narrative can be described, in George W. Bush's words, as "mission accomplished," the
current stage of the written constitution (as a pale copy of the narrative) is less relevant to the
adoption of a full-fledged three-track democracy in Israel.
To summarize, given that the Zionist project devoted to the Jewish state (as a
particular formula for organizing the Israeli nation) is here to stay and the Knesset
and the Supreme Court are both convinced that this element in the founding narra-
tive cannot be legitimately undermined from inside parliament, while outside par-
liament there is a normative void, one can conclude that Israel-as any other
constitutional system leaning on eternity clauses-faces the challenge of reconciling
what seems to be a perception of eternal particular founding values and the concept
of popular sovereignty."8
III. EMBRACING THREE-TRACK DEMOCRACY AS A UNIVERSAL OPEN

CODE FOR RESOLVING THE TENSION BETWEEN ETERNITY CLAUSES
AND POPULAR SOVEREIGNTY
A. THREE-TRACK DEMOCRACY AS A HOLISTIC CONSTITUTIONAL

THEORY-INTRODUCTION
Three-track democracy is a holistic constitutional theory that perceives constitution-
alism as a social mechanism that was put in place in order to facilitate a nation's
evolution. A nation is an evolved entity that begins its life cycle (or its founding
narrative) by organizing itself according to the ideal formulas available or feasible at
the time of foundation, followed by a constant process of testing and reshaping those
original formulas through a free flow of founding historic events, and ending up
with its current identity in our generation. According to three-track democracy, one
of the main purposes of a constitutional system is to facilitate and regulate this
delicate evolutionary process-hopefully always moving forward and never back. 9
A nation, like any other evolving system on earth, desperately needs a mecha-
nism to reliably duplicate vital information (the system's DNA or basic information
required for creation and self-preservation) and pass it on from one generation to the
next. It also requires a correction mechanism for addressing harmful mutations that
could-if left untouched-be detrimental to the system." Constitutional courts in a
78 Addressing the challenge portrayed here, Ruth Gavison concluded that-in terms of a politi-
cal movement that aspires to change Israel's Jewish identity by peaceful means-the authority of
section 7A cannot be reconciled with democracy (see Gavison, supra note 63, at 184-87, 193-94).
In the next part of this article, I argue that embracing three-track democracy could ease the inner
tension within the Israeli legal system.
7 On the importance of continuity in constitution-making-thus favoring a process based on
the founding generation's achievements and ground rules-see Jon Elster, Constitutional Boot-
strapping in Philadelphia and Paris, in CONSTITUTIONALISM, IDENTITY, DIFFERENCE, AND
LEGITIMACY: THEORETICAL PERSPECTIVES 57, 82-83 (Michel Rosenfeld ed., 1994).
s0 Note that some mutations are obviously essential to the very essence of evolution. On the
evolutionary process of ideas (based on a memes-genes analogy) and its field of science (memet-
ics), see SUSAN BLACKMORE, THE MEME MACHINE (1999). The founding narrative of a nation is a
three-track democracy serve both functions. By upholding the written constitution as

a reflection of an unwritten founding narrative (encompassing a nation's collective
wisdom in terms of its ideal organizing formulas) and striking down laws or
amendments that tend to harm these delicate formulas, constitutional courts act as a
duplication mechanism passing on vital system information from one generation to
the next as well as a correction mechanism addressing harmful mutations.
However, the concept of popular sovereignty cannot make do with the gradual
evolutionary process portrayed here as the only legitimate decision-making track in
society. Free women and men seemingly possess a natural democratic right to strive
for progress-in the here and now-by correcting the imperfections in their current
evolutionary phase, even if it means promoting risky revolutionary leaps in order to
re-emerge as a nation in a completely new form. It is precisely at this point that
three-track democracy can play a pivotal role in a free democratic society, namely
by reconciling between two fundamental conflicting aspirations embedded in the
hearts and minds of members of a free nation. Three-track democracy seems to be
able to take both of them seriously: on the one hand, the aspiration to preserve the
essence of their collective project and avoid the side effects of irresponsible revolu-
tions (by adhering to a nation's founding narrative and leaning on eternity clauses to
block the first two decision-making tracks against revolutionary amendments); on
the other hand, the aspiration to keep the option of a controlled, regulated, and just
revolution open in their quest for progress (by recognizing a third decision-making
track).
In his monumental work on dualism, Bruce Ackerman portrays two decision-
making tracks in American democracy: "normal lawmaking" involving decision-
making by representatives and "higher lawmaking" involving decision-making by
the people themselves." While Ackerman's constitutional theory addresses the inter-
temporal difficulty and promotes popular sovereignty by providing the current
generation with a democratic platform for expressing the people's collective will
free of the dead hand of past generations, his solution seems to be out of tune, being
either too flexible or too rigid.82 On the one hand, it suffers from a lack of attention
to the social and individual cost of revolutionary decision-making, allowing the
people-as they release their collective energy-to wash away the heroic achieve-
ments of past generations. On the other hand, it is too rigid for evolutionary deci-
sion-making (or normal constitutional politics), as the answer to the via dolorosa of
powerful memeplex, a body of ideas on how to ideally organize the political community, duplicat-
ing itself with the help of social agents, among others constitutional courts.
81ACKERMAN, supra note 1, at 6-16, 266-94.
82 For similar criticism, see Lior Barshack, Constituent Power as Body: Outline of a Constitu-
tional Theology, 56 U. TORONTO L.J. 185, 216-18 (2006).
article V83 is an informal bypass process of higher lawmaking that is too complex
and rarely achievable in its own right.8 4
Three-track democracy splits Ackerman's second track of higher lawmaking or
constitutional politics into two distinct tracks." The second track of three-track
democracy-normal constitutional politics-remains a track for higher lawmaking.
However, since it is part of evolutionary decision-making (together with normal
politics or normal lawmaking in the first track), no extraordinary procedures are
required and we can even make do with a regular majority in parliament. The second
track is dominated by state organs acting as the nation's trustees or as a derivative
constituent assembly, maintaining allegiance to a nation's founding narrative by
capturing its essence through written constitutional norms.
The third track of three-track democracy is a track designed for revolutionary
decision-making (or revolutionary constitutional politics), a track for the reincarna-
tion of the original constituent power in society in order to cut off the chain of the
founding narrative-an act equivalent to the birth of a new nation and a new consti-
tutional order. While courts deal with blocking unauthorized attempts to break out of
the founding narrative in the first two tracks, they need to pay attention to their role
of clearing the channels for the third track." Otherwise, there could be a serious
democratic deficit in the system, as free women and men find themselves unable to
freely express their legitimate aspirations to reorganize in a way that addresses the
imperfections of their collective project.
Three-track democracy can be compared to a sophisticated distributor whose
main function is to allocate every possible political initiative required to create a
83 U.S. CONST. art. V.

84 Compare to the complexity of higher lawmaking during the New Deal (see ACKERMAN,
supra note 1, at 47-50), which required four different stages of political arm twisting for the minor
constitutional reform of a dubious constitutional norm based on a clear mistake by the Supreme
Court in the Lochner era (Lochner v. New York, 198 U.S. 45 (1905)).
85 Ackerman himself does not rule out three or more levels of public engagement (ACKERMAN,
supra note 1,at 299-300); he even encourages his fellow citizens to embark on a higher lawmaking
project to secure some individual rights in a German-style eternity clause (id. at 320-21). However,
until the wheels of the second track start turning, Americans are stuck with dualism. Once we start
thinking of three-track democracy as a normative system designed to secure the true essence of
popular sovereignty, recognizing inalienable rights by introducing judicial eternity clauses (see
supra section I.B.2) can become a legitimate option for the judiciary. Moreover, the American
system already has its own formal eternity clause embedded in the amendment clause---"provided
that ... no state, without its consent shall be deprived of its equal suffrage in the Senate" (U.S.
CONST. art. V)--which serves as a strong indication of a three-track democracy.
86 Clearing the channels for a third track could mean protecting basic rights and liberties-be
they enumerated or unenumerated in the constitutional text-that are closely connected to the
future operation of a third track, such as freedom of speech, freedom of association, free access to
information, free access to courts as the supervisors of a third track, the right to equality in general,
the right to equal voice in the extraordinary ad hoc representative body that dominates the third
track, and so forth.
new norm for the right assembly line of society's factory of norms or political
decisions. Each political decision needs to be handled differently. According to
three-track democracy, as Ackerman rightfully indicates, 7 everyday politics requires
minimal attention from members of parliament. In contrast to Ackerman's assertion,
normal constitutional politics as part of evolutionary decision-making can make do
with the regular amending process even by the representatives themselves. However,
revolutionary constitutional politics, which is potentially harmful to the delicate
evolutionary process, deserves the extra attention made available by the third track,
as discussed at length below in section III.C. Finally, the mechanism must have a
quality control element supervising the outcome of all three decision-making tracks
in order to strike down, by means of judicial intervention, any normative product
that is inconsistent with the production orders of the specific track.
A pivotal dichotomy in three-track democracy separates founding values deriv-
ing from a nation's founding narrative into two categories. One group of values-the
universal founding values-stands for the timeless achievements of a nation suc-
cessfully organizing itself according to progressive formulas identified with the last
phase in a nation's evolution. Another group of values-the particular founding
values 8 -stands for imperfect formulas"9 that must remain exposed to the nation's
evolutionary process although they have served it over the years.
The dichotomy portrayed here has an enormous effect on how three-track de-
mocracy functions. While the universal founding values should enjoy the ultimate
protection of the courts in all three tracks (as any mutation here is necessarily
harmful), the particular founding values only benefit from procedural protection,
which is achieved by distinguishing the gradual coherent changes within the scope
of evolutionary decision-making in the first two tracks of three-track democracy
from revolutionary decision-making worthy of the special treatment of the third
track.
Eternity clauses and three-track democracy are interdependent, since neither one
can exist or function properly without the other. On the one hand, eternity clauses
are an essential element in every three-track democracy, since they serve as the legal
basis for the judicial act of blocking the first two tracks ahead of an unauthorized
attempt to break out of a nation's founding narrative, thereby singling out revolu-
tionary decisions that should be addressed by the third track. By striking down
87 This is the first track in Ackerman's dualism, namely "normal lawmaking." See ACKER-
MAN, supra note 1, at 6-7.
88 Examples of universal and particular founding values can be found infra in section IV.B.
89 These imperfections can be described as the failure of the current constitution "to transform
the unfathomable power of the ethnos into responsible authority of the demos." See Preuss, supra
note 14, at 164. Three-track democracy is designed to ensure that the next incarnation of the
constituent power marks true progress-a nation's triumph-not just a grim trade-in of the untamed
power of one ethnos for another.
revolutionary amendments to the constitution that are inconsistent with eternity

clauses, the court paves the way for both sides of the conflict (guardians of the
narrative and the revolutionary movements) to engage in the third track. On the
other hand, eternity clauses, especially those safeguarding particular imperfect
formulas, cannot be reconciled with the democratic requirement of popular sover-
eignty unless they can be integrated as part of a three-track democracy-a constitu-
tional system that allows members of a nation to freely express their revolutionary
aspirations in the third track, as long as the universal founding values are kept off
the table and due consensual process is applied.
Since eternity clauses and three-track democracy are closely linked, it comes as
no surprise that, where formal eternity clauses are explicitly found in the constitu-
tional text, three-track democracy naturally evolves. The reverse also applies. Where
the premises of three-track democracy are embraced by a legal system, judicial
eternity clauses are naturally applied to allow the constitutional system to function
properly.
Traces of three-track democracy can be explicit in the constitutional text in order
to form a legal natural habitat to accommodate formal eternity clauses, as in the case
of the German Basic Law. What appears to be an inner contradiction between two of
its articles is actually not a contradiction at all, since each article refers to different
tracks in three-track democracy. While the eternity clause of article 79(3)90 refers to
the first two tracks, blocking any attempt to impose a constitutional revolution
through the regular amending process, article 14691 refers to the German people's
option to operate the third track to replace the Basic Law with a new constitution. 92
However, the absence of such explicit traces should not be deemed a decisive
indication for concluding otherwise. If a formal eternity clause protecting particular
founding values can be found in the constitutional text, the courts must fill the
constitutional lacuna by recognizing the legitimate option of operating the third
track, as any other approach would undermine their role as the guardians of democ-
racy and popular sovereignty in accordance with the nation's timeless universal
90GRUNDGESETZ art. 79 § 3 ("Amendments of this basic law ... shall be inadmissible").

91GRUNDGESETZ art. 146. This article, which could have been interpreted as a limited option
referring only to the anticipated unification process, is now--since the Basic Law has remained
intact-a feasible (albeit abstract) third track for the unified German people.
92 An explicit third track can also be found in the provisions distinguishing "total" revision
from a "partial" one. See, e.g., BUNDESVERFASSUNG [BV] [CoNsTITUrTION] Apr. 18, 1999, SR 101,
arts. 192-195 (Switz.); CONSTITUCI6N ESPA&OLA [C.E.] [CONSTITUTION], B.O.E. n. 311, Dec. 29,
1978, arts. 167-168 (Spain); BUNDES-VERFASSUNGSGESETZ [B-VG] [CONSTITUTION] BGBI No.
1/1930, as last amended by Bundesverfassungsgesetz [BVG] BGBI I No. 2/2008, art. 44 (Austria).
Similar potential lies in the American amending process (U.S. CONST. art. V) if one recognizes the
supremacy of the "convention" method of proposing amendments over the congressional one. See
Kay, supra note 14, at 725-26.
formula." Even if a formal eternity clause cannot be found in the constitution,

observing the legal system as a whole could lead to the same conclusion, first, by
incorporating the premises of three-track democracy into the legal system (i.e.,
parliament's lack of competence to operate the third track and the inherently limited
scope of its amending power) and, second, by applying judicial eternity clauses as a
complementary essential element in order to strike down parliament's ultra vires
acts.94
One important reservation needs to be introduced when considering the role of
eternity clauses in a three-track democracy. Only a nation complying with minimal
basic universal standards, that is to say, a functioning democracy committed to
securing basic human rights and freedoms, can claim the respect of others for its
founding narrative and founding values. Since the world is better off without au-
thoritarian oppressive regimes, any constitutional order designed to hold back the
wheels of revolution in such regimes is highly suspicious.
B. THREE-TRACK DEMOCRACY FROM A MORAL PERSPECTIVE-TAKING

REVOLUTIONARY DECISIONS SERIOUSLY
Protecting the founding narrative from a revolutionary twist is crucial to securing the
basic interests of individuals and the viability of the political unity. Setting aside the
universal founding values that have clearly earned the respect of both comprehen-
sive (classical) liberalism and political liberalism, securing particular founding
values ahead of a unilaterally-imposed revolution can also meet the normative
standards of these influential political philosophies.95
93 This was the French Constitutional Court's move (see supra note 26), singling out amend-
ments ratified in a referendum as a legitimate operation of the third track capable of overpowering
eternity clauses. For my criticism, see supra section I.B.2.
94 The order of events in Israel was, first, acceptance of the premises of three-track democracy
with regard to the inherently limited powers of the Knesset-both by the Knesset itself and the
Supreme Court (see supra section II.C)-followed by a variety of judicial eternity clauses stem-
ming from the bench (see supra section I.B.2). Conversely, the Indian Supreme Court's actions (see
supra notes 36-38) seem to encompass both steps at once, since the recognition of parliament's
limited amending power emerged at the same time as the judicial eternity clause of the basic
structure doctrine. However, the secret to accommodating any eternity clause-the recognition that
another constitutional body (not parliament) can effect the basic structure of the constitution and
even rewrite it from scratch (through a third track)-came later in India and is still to come in
Israel.
95 For an introduction to comprehensive (classical) liberalism, see RONALD DWORKIN, A
MATTER OF PRINCIPLE 188-91 (1985). On political liberalism, as an advanced moral commitment
striving to avoid imposing the liberal conception of the "good" on others by adherence to the
neutrality of the state principle, see CHARLES E. LARMORE, PATTERNS OF MORAL COMPLEXITY
40-66 (1987); THOMAS NAGEL, Moral Conflict and PoliticalLegitimacy, 16(3) PHIL. & PUB. AFF.
(1987); Bruce Ackerman, PoliticalLiberalism, 91 J. PHIL. 364-71 (1994).
At first glance, liberalism (comprehensive or political) and eternity clauses pro-

tecting a particular narrative appear to be rivals. First, the mere deviation from
majority rule seems to threaten equality in the allocation of political power in
society,96 giving extra power to the minority or-for our purpose-to the founding
dominant group holding eternity clauses as an anti-revolution trump card after losing
the upper hand in society. Second, protecting particular founding values in eternity
clauses implies a clear breach of liberalism's moral imperative regarding equal
concern and respect or political liberalism's neutrality of the state principle by
alienating national minorities and ruining their chance of identifying equally with
both nation and state (its founding narrative, institutions, goals, leaders, and so
forth), thereby reducing the sense of satisfaction they derive from their part in the
collective social project. Finally, eternity clauses tend to restrict the political auton-
omy of individuals claiming their democratic right to radically change an imperfect
formula for organizing a nation.
Nevertheless, I believe the moral balance can be portrayed quite differently.
First, the majoritarian process, though formally equal, tends to substantially dis-
criminate against minorities and silence their voices, especially in divided societies,
since their chances of affecting the outcome are slim. A consensual third track in
revolutionary decisions-where the preference of the minority is very intense-can
therefore actually promote substantial equality, providing each group with a fair
chance of safeguarding its basic interests.97 Although some constitutional courts
serve as an integral part of the political system, and may therefore be suspected of
bias in favor of the majority, I believe that fairness, equality, and an acute sensitivity
to minorities' basic interests are embedded in their DNA, regardless of their method
of appointment or job definition. They can therefore be trusted as honest brokers
overseeing the procedures and outcome of the third track.
As for the tendency of particular elements in the founding narrative to alienate
national minorities, it seems wrong to replace one evil with another. A unilaterally-
imposed revolution, introducing a new narrative by a majoritarian act, ignores the
basic interests of individuals vested in the current founding narrative. First, there is
the interest of personal security, as a revolutionary twist in basic state goals could
mean exposing parts of society to new threats. Second, there is the interest of living
in the context of one's own culture and preserving it for future generations. A new
96 On this argument, see Andre Marmur, JudicialReview in Israel, 4 MISHPAT UMIMSHAL

133, 144-52 (1997) (in Hebrew). For a counterattack asserting that majority rule was democracy's
pick for reasons of efficiency rather than morality (since in divided societies only a consensual
process can meet substantial equality standards), see Eli M. Salzberger & Sandy Kedar, The Secret
Revolution: More on the New Basic Laws, Their Interpretation by the Supreme Court and on
JudicialReview in Israel,4 MISHPAT UMIMSHAL 489, 495-501 (1998) (in Hebrew).
97 On this argument, see Salzberger & Kedar, supra note 96.
narrative could mean a new culture dominating the public sphere.98 Third, there is
the reliance issue, which is tied up with individual autonomy. Since individuals tend
to make their autonomous choices based on the founding narrative as an important
stable feature in their lives (the empiric argument) and are also urged to do so for the
sake of collective well-being (the normative argument), 99 and since the narrative
serves as a source of reference giving these choices their social significance, a
sudden twist could mean a deficit in individual autonomy: a retroactive substantial
change in the meaning of these choices once it is too late to make a sharp turn in the
course of one's life. Finally, there is the interest of maximizing identification with a
nation and a state. A unilaterally-imposed revolution seems like a useless trade-in,
since it replaces the original alienation (that of national minorities who were left out
of the founding narrative), which is sometimes addressed by state institutions for
centuries with relative success, with a fresh one (that of the founding group after
losing its self-determination) whose prospects of being successfully dealt with are
questionable at best.
This last interest is tied up with another basic interest relating to individual pro-
gress and evolution. Since the individual is an evolved entity forever striving for
material and spiritual progress, and since it is in our collective interest (at least
according to the liberal approach) that each individual maximizes his or her potential
for personal growth, we must take the impact of a revolutionary decision into ac-
count. A radical deviation from a nation's founding narrative could have a huge
impact on individual motivation for progress, since a person's perspective on how a
joint project is faring seems to mimic a vector in physics, either enhancing or sup-
pressing the original momentum, which stands for the individual's natural drive for
personal growth. It seems that when individual aspirations meet the collective
aspirations embedded in the constitution, the effect is synergy. Conversely, a unilat-
erally-imposed revolution generates extreme alienation on the losing side (its magni-
tude relative to the original alienation of national minorities is hard to estimate), thus
attracting many to the club of those who suffer from the tragic collision of these two
types of aspirations.
From the perspective of political liberalism, a revolutionary amendment creates a
moral conflict between rival groups regarding the shaping of a joint identity."' Any
98 There are several individual interests tied up with culture. On culture and autonomy, see
WILL KYMLICKA, MULTICULTURAL CITIZENSHIP: A LIBERAL THEORY OF MINORITY RIGHTS 83-
84 (1995); JOSEPH RAz, ETHICS IN THE PUBLIC DOMAIN: ESSAYS IN THE MORALITY OF LAW AND
POLITICS 161-62 (1994). On culture and adhering self-identity, see RAZ, supra, at 163; CHAIM
GANS, THE LIMITS OF NATIONALISM 43 (2003); YAEL TAMIR, LIBERAL NATIONALISM 35-36
(1993). On culture and the survival of personal efforts and effects, see GANS, supra, at 52-54.
99 I wish to thank Re'em Segev for drawing my attention to the normative argument.
1ooFor a classification of group conflicts and the importance of establishing a platform for dia-
logue and compromise, especially in identity ("joint symbols") shaping conflicts, see Eyal Ben-
unilateral decision would therefore clearly betray its basic commitment to resolve
such moral conflicts by means of public dialogue (behind a veil of ignorance 0 1 or
by accepting restrictions on the kind of arguments each side can raise 102) as part of a
bilateral search for "neutral ground" 03 or "overlapping consensus"'0 that does not
impose any particular conception of "good" on others. Clearly, protecting a particu-
lar narrative breaches neutrality in any case, but a unilaterally-imposed revolution
means going from bad to worse.
Furthermore, the founding narrative serves as the common ground on which so-
ciety is built-the glue that keeps all components together. Therefore, a unilaterally-
imposed revolution could suffer from a legitimacy deficit, dragging society into a
vicious cycle of revolution and counter-revolution and increasing tension between
rival communities until peaceful coexistence is no longer within reach. This turn of
events could lead to a complete meltdown of political unity-while the prospects of
fostering a new one are grim-and as a result would endanger the universal found-
ing formulas of the modem state and democracy.
C. THE THIRD TRACK OF THREE-TRACK DEMOCRACY
1. GENERAL OUTLINE
Operating the third track is a very delicate affair at a critical point in a nation's
history, since it comes into play when the evolutionary process reaches a dead end
and a revolutionary leap is the order of the day. The leap could be a blessing-a leap
forward-if it manages to address past injustices without creating new ones by
turning the old oppressors into new victims. However, the leap could be a tragic step
back if it threatens a nation's universal founding formulas (and thereby its ability to
maintain a modern state and a democratic regime) or ignores individuals' basic
interests vested in the current founding narrative. This turn of events could lead to
society's decline into a vicious cycle of revolution and counter-revolution, while the
threat of civil war hovers over both parties to the conflict. Such a delicate political
decision requires a special track to express the collective will of the people: the third
track of three-track democracy.
With regard to a revolutionary due process suitable for modern democracies and
liberal societies, we can dismiss Carl Schmitt's Armageddon between the guardians
venisti, National Courts and the Protectionof NationalMinorities, 3 ALEI MISHPAT 463, 472-74,
492-94 (2003) (in Hebrew).
101JOHN RAWLS, A THEORY OF JUSTICE 12 (1971).
102 On self-restricted dialogue, either by suppressing partial suspected arguments or escaping
to neutral ground as part of the "universal norm of rational dialogue," see Ackerman, supra note 95,
at 368-71; LARMORE, supra note 95, at 53.
103 LARMORE, supra note 95, at 53.
104 JOHN RAwLs, POLITICAL LIBERALISM 145-46 (1993).
of the constitution (as "political unity") 0 and their enemies-a battle to tame
sovereignty's untamed endless cycle of incarnations (or the unleashed power of the
people to found a new constitutional order) 06 in which all means are valid and
legality (the rule of law) temporarily fades out. 07 Since both sides to the conflict
will have to coexist after the third track comes to its completion (assuming secession
is unrealistic and massive citizenship deprivation is universally unacceptable), a
mutual commitment is badly needed. The guardians of the constitution should
commit to limiting their defensive actions to acceptable democratic means that
adhere to the rule of law, as well as to keeping their minds open to change and being
ready to negotiate revolutionary amendments in good faith. On the other hand,
revolutionary movements should commit to setting aside universal founding values,
since there is no room for compromise in this area. Moreover, they should give up
on the idea that they can legitimately apply a unilaterally-imposed revolution and act
in a total normative void. 08
A more modem approach to popular sovereignty and the revolutionary process can
be found in Ackerman's dualism.'" As discussed above, Ackerman's dualism sepa-
rates decision-making in society into two distinctive tracks: "normal lawmaking," a
process dominated by the people's representatives and engulfed in the petty, interest-
oriented, and narrow-sighted approach of ordinary politics, and "higher lawmaking," a
process that raises awareness and generates substantive constitutional deliberation,
thus holding the potential to crystallize the people's authentic collective will.
105 On Schmitt's famous dichotomy between the "constitution" (i.e., the inviolable decision of
a "political unity" that forms the core of the constitutional order) and "constitutional law" (i.e.,
procedures and institutions anchored in the written document, which cannot be derived from the
founding decision itself and thus can be suspended during the battle of the spirit of the constitu-
tion), see SCHMITT, supra note 1, at 75-81.
106 On Schmitt's perception of sovereignty as the democratic power of the people to introduce
a new constitutional order through a cycle of incarnations, see SCHMITr, supra note 1, at 126-28;
Barshack, supranote 82, at 185, 185-90, 197-204.
107 We therefore ought to dismiss Schmitt's characterization of constitution-making power as
an unlimited and illegal force in our democratic society: "However, for the act itself, for the
exercise of this will, there can be no procedural provisions. This applies no less to the content of the
political decision.... The people, the nation, remains the origin of all political action ... without
ever subordinating itself ... to a conclusive formation." SCHMITT, supra note 1, at 128. Similarly,
we should dismiss Schmitt's characterization of the extraordinary constituent assembly as a
"sovereign dictator." Id. at 109.
1os On the argument that establishing a new constitutional order is doomed to fail if the revolu-
tionary movement tries to completely disconnect itself from the old order or ignore fundamental
constitutional principles, see Barshack, supra note 82, at 198-200. The new revolutionaries of
Eastern Europe seem to embrace this idea, trying hard to keep up an the appearance of continuity,
see Andrew Arato, Dilemmas Arising From the Power to Create Constitutions in Eastern Europe,
in CONSTITUTIONALISM, IDENTITY, DIFFERENCE, AND LEGITIMACY: THEORETICAL PERSPECTIVES
165, 179-81 (Michel Rosenfeld ed., 1994).
109 ACKERMAN, supra note 1, at 6-16, 266-94.
Ackerman's second track is essentially a majoritarian process that merely re-

quires a higher level of public awareness and involvement that can be achieved
through the regular amendment process or through informal means of participation.
Ackerman perceives extreme power clashes in American history, when different
branches of government used any political ammunition available, as opportunities to
seize the constitutional moment and crystallize a nation's will, with the help of
decisive elections." 0
Setting aside the fact that waiting for decisive elections in divided societies is
unrealistic, Ackerman's majoritarian second track seems to strike the wrong balance
between evolution and revolution. On the one hand, as mentioned earlier, Acker-
man's second track seems to overshoot the requirements of evolutionary decision-
making in a democratic society, since it is much too complex and hard to achieve.
On the other hand, where revolutionary decision-making is concerned, we want a
nation to collectively speak loud and clear, through a consensual process, and avoid
unilateral coercion-a requirement that such political arm-twisting will never meet.
Moreover, with regard to the universal founding values (which need to be kept out
of reach even of the people themselves), neither the routine nor the informal amend-
ing process can serve as a real barrier to such a threat. Ackerman's own example of
a revolutionary amendment making the United States a Catholic state while depriv-
ing other religions of their freedom of worship merely serves to highlight these
concerns.'
The idea behind a third track is to regulate revolutionary decisions by designing
a special process for embedding a nation's timeless universal founding values in the
new emerging narrative, while at the same time taking into account the basic interest
of individuals vested in the former narrative in order to make sure that justice will
ultimately prevail. A successful, controlled, regulated, and just revolution-suitable
for modern democracies and liberal societies-is dependent upon a profound proc-
ess of engagement by both sides of the constitutional conflict (guardians of the
constitution and revolutionary movements) in order to reshape a joint identity and
turn a particular excluding narrative into a more universal inclusive one." 2
1o Id. at 44-50.
111Id. at 14-16. Even when dualism itself (the universal notion for popular sovereignty) is put
on the line (see supra note 109 and accompanying text), Ackerman still hesitates whether to
embrace the unconstitutional constitutional amendment doctrine advocated here as part of three-
track democracy.
112This argument follows Arendt's famous observation on revolutions, separating an Ameri-
can-style revolution-as admirable collective effort to reshape a joint citizenship-from a French-
style revolution dominated by the poor masses preoccupied with improving their socioeconomic
status until they lose sight of their political mission. See HANNAH ARENDT, ON REVOLUTION 61-
68, 90-95, 104-105, 164-68 (1965). For a critical view of Arendt's dichotomy, see ACKERMAN,
supra note 1, at 204-12.
The method consists of forming a special ad hoc constitutional body that is a re-
incarnation of the original constituent assembly-an organ of a nation that helps it to
crystallize its new collective will."' The role of the newly founded constitutional
body is to facilitate intensive dialoguell 4 striving for a broad historic compromise
between authentic representatives of the original nation (the guardians of the found-
ing narrative) and the revolutionary political movements. Its aim is to consensually
draft radical constitutional amendments or a brand new constitution, later to be
submitted for ratification by the people directly in a national or communal referen-
dum (as explained below)." 5
Supervising the extraordinary constituent assembly in order to ensure that its deci-
sions respect the procedural (intensive dialogue and broad compromise) and substan-
tive (leaving universal founding values off the table) requirements of the third track is
clearly a social mission for constitutional courts as guardians of the original constitu-
tion (or an interim constitution put in place to limit the constituent assembly's man-
date)." Courts should enjoy inherent certification power with regard to the constituent
assembly's procedures and final decisions"' in order to block any illegitimate attack
on the constitution, as long as their position in society allows them to function and the
idea of a controlled regulated revolution is respected by all sides.
I13 On the idea of using the same Knesset as a special constitutional organ to form a constitu-
tional draft submitted to a national referendum, see Rivka Weill, Shouldn't We Seek the People's
Consent? On the Nexus Between the Procedures of Adoption and Amendment of Israel's Constitu-
tion, 10 MISHPAT UMIMSHAL 449, 469-80 (2007) (in Hebrew). Since all projects for a new
constitution in Israel intend to reliably duplicate the founding narrative, as a declarative act, Weill's
suggestions are suitable. However, in revolutionary decisions, placing the constituent power in the
extreme majoritarian institution (the Knesset) and process (national referendum) will fail to secure
the requirements of the third track.
114 For a grim assessment of democratic institutions, see Arato, supra note 108, at 172: "all
types of democratic institutions in public life have built-in forms of exclusion, constraints of
discussion, and probable asymmetric among participants ... thus ... it is highly desirable to
combine different types of democratic institutions and processes ... in a given constitutional
framework." The ideal description of the third track applies Arato's suggestion, combining a
special constituent assembly and a national or communal referendum.
"15 I believe that designing the third track as an integral part of a three-track democracy system
is an important response to Sujit Choudhry's call for deeper involvement of comparative constitu-
tional law in the effort to meet the challenge of constitutional design for divided societies. See Sujit
Choudhry, Bridging Comparative Politics and Comparative Constitutional Law: Constitutional
Design in Divided Societies, in CONSTITUTIONAL DESIGN FOR DIVIDED SOCIETIES: INTEGRATION
OR ACCOMMODATION? 3, 3-14 (Sujit Choudhry ed., 2008).
116 Such a mechanism was put in place in the process of constitution-making in South Africa.
On the unique preventive judicial control based on the constitutional principles in schedule 4 of the
Interim Constitution, see supra section I.A. See also Kay, supra note 14, at 753-55.
117 On the unprecedented (albeit desirable) certification judgment of the Constitutional Court
of South Africa rejecting several provisions in the Final Constitution due to their inconsistency with
the constitutional principles of the Interim Constitution, see Certification of the Constitution of the
Republic ofSouth Africa 1996 (4) SA 744 (CC).
One could argue that the concept of a regulated revolution is an oxymoron and
that constitutional courts-especially those that are considered to be an integral part
I-simply cannot deliver and are prone to bias in favor of a
of the political system"'
revolutionary majority. I beg to differ. Firstly, a constitutional court in a constitu-
tional democracy-be it a supreme court or a real constitutional court-is equal to
the task since fairness, equality, and sensitivity to universal founding values (the
normative requirements of a third track) are embedded in its DNA in any case,
regardless of its method of appointment. Secondly, after generations of judges have
maintained allegiance to a nation's founding narrative as its trustees, a slight revolu-
tionary wind blowing from a temporary majority in parliament is probably not
enough to divert the court from its familiar trail; only strong indications coming
from a third track can persuade judges that it is time to reformat their judicial hard
drive because a new constitutional order has been legitimately applied in society.' 19
2. IMPLICATIONS OF THE FOUNDING PERCEPTION OF A NATION FOR THE OPTION

OF USING ANATIONAL REFERENDUM AS PART OF THE THIRD TRACK
Finding an answer to the question of how a nation expresses its will through the
third track has to begin by addressing the more basic question "what is a nation?"
There are two distinct perceptions of the concept of a nation. The civic definition
perceives a nation as a "body of associates living under a common law, represented
by the same legislature, etc."1 20 In other words, the citizens of a modern state. The
cultural definition identifies the concept of a nation with the concept of a national
group, as a "pre-political community which is constituted by the commonness of
21
such properties as origin, race, language, religion, culture, history, and the like,"
which exist independently of a modem state.
There are several indications that can help us decide which perception was
adopted by the members of a nation in order to define the boundaries of their politi-
cal unity. The first is the starting point of the founding narrative, since the civic
narrative starts close to the moment of birth of the modem state, while the cultural
118 On the dichotomy between regular supreme courts as an integral part of the legal system
and constitutional courts as an outsider associated with the political system (to ensure a higher level
of accountability), see Dotan, supra note 40. In my opinion, supreme courts and constitutional
courts play more or less the same pivotal role in a constitutional democracy. Thus, they cannot be
separated no matter how they have been selected for the task.
119 The Turkish Constitutional Court, which is part of Atattirk's legacy (as the nation's found-
ing narrative) and stands in the way of Islamic revolutionary majority (see Barak, supra note 6, at
363-65), is an example of the determination of constitutional courts to serve as guardians of the
constitution. I believe that strong indications of a "new deal" in Turkish society (a successful
operation of the third track) would finally persuade the court to let go of the old constitutional
order.
120 SIEYtS, supra note 1, at 97.
121 Preuss, supranote 14, at 150.
narrative goes back to the origins of the national group, long before the idea of a
modem state was even known to mankind. 122 The second indication is the character
of the founding national movement, since the civic perception is the outcome of
statist nationalism, striving for self-determination in order to found a state and gain
democratic self-government. In this scenario, culture and identity are merely a
means to increase solidarity between the citizens as a key factor in state efficiency.
The cultural perception, on the other hand, is the outcome of cultural nationalism,
striving for self-determination in order to found a stable, undisturbed public sphere
to support and preserve a nation's culture, way of life, and narrative. In this scenario,
the state is mostly a means to maintain such a public sphere. 12 3 The third indication
is the centrality of territory in a nation's list of founding values, since from the civic
perspective territory is everything, defining the boundaries of a nation and its mem-
bers, while from the cultural perspective territory seems irrelevant to the definition
of a nation. 124 The final indication is the attitude toward the Diaspora (members of
the national group living under foreign sovereignty), since the civic narrative sees
them as foreigners (or distant relatives), while the cultural narrative sees them as an
integral part of the nation. 125
Revolutionary transitions in a nation's evolution can be classified according to
several prototypes. There are transitions from a cultural perception of a nation to a
more inclusive civic one (and vice versa) and less transformative transitions that do
not alter the basic conception of a nation (i.e., from civic to civic or from cultural to
cultural) but still alter the founding formula and shift from one model of nationalism
122 In Israel's Declaration of Independence, the nation's biography starts in biblical times.
Other examples include the preamble to the Constitution of Croatia, which stretches the nation's
founding narrative back to the seventh century CE, and the preamble to the Constitution of the
Republic of Poland, which glorifies a heritage dating back more than 1,000 years.
123 On the dichotomy between statist and cultural nationalism and the two meanings of self-
determination, see Preuss, supra note 14, at 147-55; GANS, supra note 98, at 7-26; TAMIR, supra
note 98, at 69.
124 While France and Turkey, which adhere to the civic republican model, have enshrined terri-
tory in eternity clauses (see supra notes 18 & 26), Israel has not yet determined its final boundaries.
Though the return of the Jews to their historical homeland is pivotal to the Zionist project, the final
boundaries of the Jewish state are perceived as a negotiable issue by mainstream practical secular
Zionism.
125 Law of Return, 5710-1950, SH No. 51 (Isr.). Though not a Basic Law, the Law of Return is
clearly one of the most basic elements of Israel's material constitution, reflecting its founding
narrative as a Jewish state, namely of striving to restore the original unity of the Jewish people as
one nation divided only because of the external intervention of mighty empires. Such an affiliation
to a Diaspora is common in culturally-oriented nations (see, e.g., IRISH CONST., 1937, art. 2;
1975 SYNTAGMA [SYN.] [CONSTITUTION] 108 (Greece), POLISH CONST. art. 52 and so forth),
although not always to the full Israeli extent of granting foreign citizens the right to join the nation,
which trumps almost any kind of discretion by the welcoming state. For other examples, see
YAKOBSON & RUBINSTEIN, supra note 28, at 222-40.
to another.12 6 Two prototypes of a revolutionary transition-radically changing a

nation's particular founding formula-should be set aside by the constituent assem-
bly as a clear step back in a nation's evolution. The first is the move from civic to
cultural (e.g., from civic republican France to a Catholic nation-state), since such a
transition tends to alienate an integral part of a nation that is forced to adopt the
status of a national minority. The second is the move from one cultural perception to
another (e.g., from Jewish Israel to a Palestinian nation-state), since it seems
counter-productive to substitute the original alienation, which has been handled for
decades by state organs with relative success, with a new one that could lead to a
complete meltdown of political unity.
The different perceptions of the concept of a "nation" and the different proto-
types of a revolutionary transition may be crucial to testing the use of a national
referendum as part of the third track. First, in all prototypes, the involvement of an
extraordinary ad hoc constituent assembly is absolutely essential before subjecting
the people to a revolutionary constitutional question, since the extreme majoritarian
nature of a referendum cannot ensure intensive dialogue and broad historic compro-
mise as central requirements of the third track.
In order to achieve the type of consensual revolutionary decision-making that
bridges the abyss between guardians of the founding narrative and the revolutionary
movements, we must ensure that at least one stage in the process serves as a plat-
form for substantive dialogue and broad historic compromise. Without the interven-
tion of an extraordinary body of representatives, the task of molding a revolutionary
decision is entrusted to parliament (or any other ordinary representative body). This
forum, which is characterized by its majoritarian process and engulfed in daily
politics, is prone to falling short of meeting the third track's intensive dialogue and
broad consensus requirements. Thus, even if a referendum succeeds in generating
substantive constitutional deliberation, the people would still find themselves bound
to a binary yes-no question with no room for compromise. This would serve as a
golden opportunity for a slim revolutionary majority to apply a unilaterally-imposed
revolution. Applying the supermajority (of voters) requirement to a parliamentary
process or a referendum as a condition for a valid result could reduce the unilateral
coercive effect. However, in some cases-when the golden number could be reached
unilaterally-it would still fail to produce the desirable outcome of an overlapping
consensus anchored in an historic agreement without a clear winner or loser.
The extraordinary ad hoc constituent assembly advocated here will either represent
the main communities in society equally (with some representation of subcommu-
126 For instance, by changing the civic republican model of France, which denies the existence
of national minorities, into a civic multicultural model that recognizes minorities' collective rights
or by changing the nation-state model of Israel, which alienates the Palestinian citizens of Israel,
into a more egalitarian bi-national model. On the different models available, see supra note 28.
nities) by directly choosing their authentic delegates in a kind of a round table forum1 27
(in a nation based on the cultural perception) or represent one civil community (in a
nation based on the civic perception). Moreover, in order to create a feasible third
track in a nation based on the cultural perception, the internal decision-making method
(inside the extraordinary body of representatives) should be designed to accept a broad
compromise between the delegates of the main rival communities in society as suffi-
cient to make binding decisions. In addition, it is important to avoid allowing smaller
subcommunities, which are likely to be related to the larger communities and tend to
be overly sensitive to the founding narrative or the revolutionary ideology, to have
veto rights that might ruin the prospects for a successful third track.128 Of course, the
requirement for an historic compromise between the guardians of the narrative and the
revolutionary movements provides each of the rival communities with veto rights. In
this case, however, these rights are justified for the sake of protecting society from a
complete meltdown of political unity that would endanger the universal founding
formulas in the form of the modem state and democracy.
Similarly, designing the referendum method should take into account the type of
nation concerned. On the one hand, a nation based on the civic perception can barely
settle for a national referendum. Since all potential voters are an integral part of it, a
majority of them apparently represents its new collective will. On the other hand, a
nation based on the cultural perception, especially in a divided society, would
probably be better off adopting communal referendums,12 9 assuring that both sides of
the constitutional crisis, the guardians of the narrative and the revolutionary move-
ments, are on board with their new joint identity and narrative. 3 0
Communal referendums that provide the founding fathers' descendants (i.e., the
guardians of the founding narrative) with a substantive equal voice in the revolu-
127 On using a round table forum in constitution-making, see Kay, supra note 14, at 750-55.
128 For a comprehensive discussion of the issues associated with the operation of a constituent
assembly (e.g., convocation, selecting the delegates, the delegates' mandate, internal procedures,
and ratification) as well as an historical review of the process in Philadelphia and Paris, see Elster,
supra note 79.
129 The method of communal referendums addresses the problem of a nation divided into sev-
eral peoples whose uniting gravity is too weak to allow them to be treated as a single legal entity of
the "people." See Kay, supra note 14, at 750-55.
130 Traces of the communal referendum idea can be found in the Canadian Supreme Court's
reply to an application on the issue of secession (Reference re Secession of Quebec, [1998] 2
S.C.R. 217). The Supreme Court suggested that although Quebec has no legal right to secede, the
people of Quebec may adhere to such an idea. The Canadian government cannot ignore these
sentiments and needs to be ready to negotiate a constitutional amendment (a track similar to the
consensual third track). Moreover, a clear result in Quebec's provincial referendum is only the first
step, as some Canadian consent is also required (maybe through a national referendum representing
the anglophone community). Such a judicial assessment is actually equivalent to adopting a judicial
eternity clause, recognizing the unity of the nation (based on the civic perception) as a founding
value worthy of special political consideration.
tionary decision constitute a legal estoppel. As a result, claims challenging the

legitimacy and legality of the decision-suggesting that the decision illegitimately
violates the right to self-determination or illegally undermines the basic structure of
the constitution and its eternity clauses-will not be heard, since a new nation was
born and a new constitutional order was applied through a legitimate third track.
Conducting communal referendums must be preceded by a counting process,
separating citizens of the state into two or more groups holding specific voting rights
for a specific referendum. Any counting process will have to balance the liberal
desire to respect individual autonomy to define one's own identity by associating
oneself with a given community (the subjective test) with the need to avoid inten-
tional and false interference with the counting process (the objective test).
It is worth noting that even in a revolutionary transition in a nation based on the
civic perception, where conducting one national referendum for all citizens of the
state seems to be the obvious choice, communal referendums can sometimes serve
as a desirable alternative. Introducing communal referendums within a civic society
is justified in circumstances where the imaginary civic idea-that all citizens of the
state form one united national group-has clearly collapsed, as two divided commu-
3
nities face each other on the constitutional battleground.' '
3. THE PARLIAMENTARY SUPERMAJORITY'S LACK OF COMPETENCE TO SPEAK FOR

THE PEOPLE IN THE THIRD TRACK
As most eternity clauses function as a limitation on the scope of parliamentary

amending power, they are perfectly suited to three-track democracy, since it seems
that parliament, as a constitutional body, suffers from several formal and substantial
problems that make it incapable of operating the third track.
First, parliament is a house of representatives whose members enjoy a free man-
date (in contrast to an imperative one),' 32 unlimited by any form of sectarian delega-
tion, in order to allow them to represent not just the narrow interests of their party or
voters, but first and foremost the collective public interest." Setting aside the com-
131 For instance, do we really believe that in civic republican Turkey a national referendum
aimed at replacing Atattirk's secular modern Turkey with an Iranian-style Islamic republic would
ever gain legitimacy? The eternity clause in article 4 of the Turkish Constitution seems to demand
more, something that an historic compromise (safeguarding democracy) ratified by communal
referendums might deliver.
132 On the free or representative mandate of MPs in relation to the public and the argument that
it needs some revision when applied to the relationship between MPs and political parties, see
Suzie Navot, Members of the Knesset as "Public Trustees, " 31 MISHPATIM 433, 449-75 (2000) (in
Hebrew); Yigal Mersel, Hans Kelsen and PoliticalParties,39 IsR. L. REv. 158, 179-81 (2006).
133 On MPs status as "public trustees," see Velner case, supra note 72, at para. 33 of Deputy
Chief Justice Barak's opinion; Movement for Quality Government in Israel case, supra note 8, at
paras. 42-50 of Justice Cheshin's opinion. See also Navot, supra note 132, at 470-75. On MPs'
"dual trusteeship"-maintaining allegiance to the public and to their political party-which
plexities of the relationships between the public, political parties (as mediators), and
members of parliament (MPs), the latter-as public trustees-cannot turn against the
deepest aspirations of a nation, undermining its founding narrative and clearly placing
their revolutionary party's interest above the collective interest of a nation.13 4 Second,
since parliament is the symbol of legality setting the normative restrictions for indi-
viduals, it would be totally inappropriate if we accepted that it can disobey the basic
norm of the system, substantially destroying the old constitutional order. Third, since
MPs take an oath to maintain allegiance to the state and to their delegation as members
of parliament,' undermining the foundations of the state and its constitutional order
can hardly be considered as being in keeping with their word. 3 6
From a substantive perspective, parliaments suffer from inherent institutional is-
sues that make them incapable of speaking for the people when revolutionary
decisions are at stake. As MPs are only representatives and as the parliamentary
process fails to involve the people directly, if parliaments claim to hold the authority
to make revolutionary decisions on their own without submitting them for ratifica-
tion by the people, they clearly fall short of being a legitimate candidate for operat-
ing the third track.m' In that case, since a nation, as a quasi-natural entity, normally
stands above the artificial abstract entity of the state in the pyramid of legal entities
(except for a narrow dimension explained above),' 3 parliament as a state's organ is
subject to the upper entity's will and is thus bound to maintain allegiance to its
founding narrative as a nation's trustee.
Even if parliaments limit their claim to merely holding the authority of the spe-
cial constitutional body responsible for drafting the revolutionary amendments in the
third track later submitted for ratification by the people, there are still serious issues
requires an ad hoc balance, see HCJ 1661/05 Gaza Coast Local Council v. The Knesset 59(2) PD
481 [2005], at paras. 18-23 of Justice Levy's opinion [hereinafter Gaza Coast Local Council case].
Even if we accept such dualism, in revolutionary decisions the obligation to represent the people or
the nation as a whole clearly supersedes any other sectarian delegation.
134 See Chief Justice Agranat's opinion in the Yeredor case, supra note 55. For the view that
any authority holding "constituted power" (embedded in the text) acts only as trustee of the
"constituent power" (embedded in the people's hands) and thus subject to its superior will, see
Preuss, supra note 14, at 155-58.
135 See, e.g., Basic Law: The Knesset, 5718-1958, SH No. 244, §§ 15-16.
136 For a linkage between the MPs' oath, their legal status as public trustees, and a comprehen-
sive doctrine of constitutional trusteeship as a justification for judicial review even regarding
unconstitutional constitutional amendments, see Navot, supra note 132, at 465-86, 518-25; Suzie
Navot, The Knesset Chapter on the Constitution Draft: Three Remarks, 10 MISHPAT UMIMSHAL
593, 624-34 (2007) (in Hebrew).
137 For the classic argument regarding the minimal and fictitious connection between the peo-
ple and their representatives, see JOSEPH A. SCHUMPETER, CAPITALISM, SOCIALISM AND DEMOC-
RACY 250-69 (5th ed. 1976); ROBERT A. DAHL, A PREFACE TO DEMOCRATIC THEORY 124-34
(1956).
138 See supra section II.A.
of competence. First, as serial elected representatives (in contrast to an extraordinary

ad hoc elected constituent assembly), MPs inherently suffer from a conflict of
interest, namely the potential risk that they will act in their own narrow and short-
term interest, betraying a nation's collective and long-term interest.13 9 Second,
parliament-with its hectic and adversarial atmosphere engulfed in ordinary poli-
tics-is not an institution that can serve as a platform for the intense and ongoing
group dialogue required to reach an historic, broad compromise. Third, since the
parliamentary process is extremely majoritarian (in contrast to a consensual third
track), it suffers from the inherent failures embedded in every majority rule process,
such as the "tyranny of the majority" problem (the tendency of the majority to favor
itself at the expense of others) and the "discrete and insular minorities" problem (the
vulnerability of certain minorities).'" Therefore, one could argue that parliaments
speak for the majority and not for a nation as a whole, especially in a culturally-
oriented divided nation. Fourth, even majority rule is a myth in normal politics.141 As
noted by Eyal Benvenisti, an asymmetric political battle is taking place in ordinary
legislating forums, especially in parliaments, as key players like MPs and interest
42
groups take advantage of the majority's lack of incentive to gain vital information.1
Taking revolutionary decisions out of parliament's hands by adding another consti-
tutional body (an extraordinary ad hoc constituent assembly) or by involving consti-
tutional courts and resorting to eternity clauses, will therefore increase the friction
between the different branches of government, thereby providing the public with
vital information and raising its awareness of the constitutional issue.143 Finally, the
effectiveness of revolutionary decisions is dependent upon legitimacy, which in turn
is dependent upon broad consensus and widespread acceptance of the outcome.'"
The parliamentary process falls short of securing legitimacy,145 since its decisions
are liable to be taken as an act of temporal majority, stealing a nation's well-
established identity for the sake of social or economic benefits, rather than as a
139 On the problematic situation in the initial period of the French process when members of
the ordinary legislature also functioned as members of the extraordinary constituent assembly-
hence faced a conflict of interests-see Elster, supra note 79, at 76-77.
'4 THE FEDERALIST No. 51 (James Madison). On those failures as justification for judicial re-
view, see JOHN HART ELY, DEMOCRACY AND DISTRUST: A THEORY OF JUDICIAL REVIEW (1980).
141On "minorities' rule" taking advantage of the majority's apathy due to the "intensity prob-
lem," see DAHL, supranote 137, at 131-35.
142 Eyal Benvenisti, Judicial Review and Democratic Failures: Minimizing Asymmetric Infor-
mation throughAdjudication, 32 IYUNEI MISHPAT 277, 281-85 (2010) (in Hebrew).
143 See id at 285-86. Benvenisti argues that the quantity and quality of information available to
the public improves in direct proportion to the number of political players involved in the decision,
the intensity of the competition between them (a race to the top), and the court's level of involve-
ment.
144 On the importance of "downstream legitimacy" (for the final document) in constitution-
making and the desirability of a separate ratification process, see Elster, supra note 79, at 80-82.
145 On the link between intensive deliberation and legitimacy, see Arato, supranote 108, 186-90.
sincere collective effort to reshape a joint citizenship addressing the imperfections of

the old constitutional order.146
For the purposes of three-track democracy, the amending process in parliament
is basically no different from normal politics (despite the supermajority require-
ment), as it suffers from the same illnessesl 47 although it does tend to reduce some
of the risks due to the extra power of minorities.148 Even so, the golden number is
just a number, and the interim era-when revolutionary movements seem to be on
the verge of succeeding-is expected to be an era of extreme tension and conflict
that any society would prefer to skip. The use of eternity clauses by three-track
democracy is designed to avoid this dreadful interim period by forcing revolutionary
movements to engage in the consensual third track (outside parliament) until a broad
historic compromise is reached.
IV. THE ADJUSTMENTS REQUIRED FOR ETERNITY CLAUSES TO

COEXIST WITH THREE-TRACK DEMOCRACY AND THE CONCEPT OF
POPULAR SOVEREIGNTY
A. CONVERTING A SET OF FROZEN-IN-TIME VALUES INTO A DYNAMIC

FOUNDING NARRATIVE
The founding narrative of a nation is a collective story or biography, starting with a
first edition chosen, designed, and edited14 9 by the founding fathers in the constitu-
ent assembly (the formal institutional process) or by other social agents as a collec-
tive effort (the spontaneous process).'s It is a dynamic, ever-changing story that is

147 On the argument that constitutional politics does not differ from normal politics in terms of
procedural failures, see MARK TUSHNET, RED, WHITE, AND BLUE: A CRITICAL ANALYSIS OF
CONSTITUTIONAL LAW 25-26 (1988).
148 Compare to Schmitt's assertion that both a supermajority in the Reichstag and a majority in
the British parliament are similarly incompetent at eliminating the "constitution" (as the fundamen-
tal decision of a political unity). Only a separate constitution-making assembly can claim such a
right. See Schmitt, supra note 1, at 79-80.
149 For a description of a nation's narrative as imaginary, written in hindsight, and roughly edited
by embracing the heroic parts and leaving out items worth forgetting, see ANDERSON, supra note 48.
Iso I believe that Israel has followed the spontaneous process (skipping a formal constituent
assembly) as a collective effort on the part of several social agents, including: the members of the
People's Council (Moetzet Ha'am), a temporary legislative body, who signed the Declaration of
Independence, which for the first time outlined the founding narrative; the first Knesset, which
enacted the 1950 Law of Retum addressing a fundamental element of the collective biography (the
story of exile from the Jewish homeland and the Zionist ideal of return); the Supreme Court, which
reinforced Israel's identity as a Jewish democratic state (see, e.g., Chief Justice Agranat's opinion
in the Yeredor case, supra note 55); education ministers who included Bible studies in the public
education curriculum, thereby extending the narrative to the biblical days of the Israelites and
connecting modem Hebrew to its biblical roots; and so forth.
reshaped by each and every generation, the process of social evolution, and the flow
of life itself. Any major event in a nation's history-a founding event-is to the
founding narrative as the water and wind are to bare rock, namely always carving a
path, leaving its mark, and changing it for good.
The founding narrative serves as a platform for an inter-generational dialogue,"'
52
interweaving the past, the present, and the future into a heroic unbreakable chain
to which anyone can hopefully relate" and allowing a nation to evolve without
disconnecting it from its roots and traditions.15 4 It symbolizes and condenses a
nation's collective beliefs, values, aspirations, traditions,'" preferred language and
culture, and preferred way of life. In short, it defines a nation's genetic code5 6 or
identity.
Eternity clauses should not be interpreted as a commitment to freeze a set of val-
ues in time but rather as a social tool for regulating a nation's evolution as part of
three-track democracy, failing which the tension between such clauses and the
concept of popular sovereignty will not be resolved. Eternity clauses could contrib-
ute to the process if appropriately used by courts to compel state organs to maintain
allegiance to a dynamic founding narrative of a nation, thereby keeping its continu-
ity and inner logic intact while at the same time clearing the channels for a third
track suited to a revolutionary leap that breaks out of the current narrative.
I5 This function is similar to Michael Perry's description of the constitutional text as the sa-
cred text of a political community (by analogy to the sacred texts of a religious community). See
Michael J. Perry, The Authority of Text, Tradition, and Reason: A Theory of Constitutional "Inter-
pretation," 58 S. CAL. L. REV. 551, 557-64 (1985). When comparing the two metaphors, the
founding narrative seems to be a better platform for constitutionalism. First, Perry's sacred text
metaphor is totally dependent on text, which can be either too sparse (leaving out important
founding values) or too rich (including values unworthy of their sacred status). Second, the text is
too rigid. While the narrative evolves with every new chapter in a nation's biography, text is totally
dependant on the amending process, bearing in mind that interpretation is limited by nature.
152 On the connection between the ability to posit a compelling historical narrative about the
origin of a constitution and its success in society, see Kay, supra note 14, at 761.
153 This touches on one of the justifications for national minority rights. Native minorities pre-
ceded the state, and since the founding narrative was largely imposed upon them it left them unable
and unwilling to embrace it. Thus, letting them develop their own narrative, identity, and sense of
belonging based on a communal undisturbed life is justified from the perspective of corrective
justice.
154 A nation that cuts the chain of continuity with past generations is, in Edmond Burke's
words, similar to a collection of "flies of a summer." See EDMUND BURKE, REFLECTIONS ON THE
REVOLUTION INFRANCE 141 (2d ed. 1790).
155 For a reverse description according to which the narrative is one element of a broader po-
litical tradition symbolized by the constitutional text, see Perry, supra note 151.
156 On the genetic code metaphor describing the social contract according to which society is
built, see Movementfor Quality Government in Israel case, supra note 8, at para. 9 of Deputy Chief
Justice Cheshin's opinion.
Since a nation is an evolving entity whose collective will and identity are in con-
stant flux,'5 7 written rigid constitutions are at risk of becoming outdated and irrele-
vant while desperately chasing a dynamic narrative.' 8 Moreover, we should always
bear in mind that a written constitution-even if it is a constitutional masterpiece-
is ultimately an imperfect social product, a desperate effort to capture the elusive
essence of a nation's identity and founding narrative using limited linguistic tools
invented for external purposes of ordinary day-to-day human communication.
As the gap between narrative and text gets wider, the inherent tension of consti-
tutionalism becomes more and more intense. Therefore, constitutional courts should
allow the original formulas for organizing a nation embodied in the constitution to
evolve substantially in the first two tracks of three-track democracy, as long as the
constitutional reforms can be reconciled-even through significant interpretive
effort-with the founding narrative, leaving eternity clauses aside for a real revolu-
tionary challenge.'59
A suspected amendment to the constitution invites constitutional courts, as au-
thorized interpreters of the constitution (as well as of eternity clauses), to draw in
their judgment the founding narrative passing through all the relevant stations that
can provide the historical evidence for their final ruling. The suspected amendment
should then be put to the test by asking whether it can be reconciled with a nation's
founding formulas and values (derived from the founding narrative) as they evolved
until the judgment as well as with the basic structure of the whole three-track de-
mocracy constitutional scheme.'"
157 On the dynamic nature of a nation's identity, perceptions, and fundamental values, see HCJ
265/87 Bresford v. The Minister of the Interior 43(4) PD 793 [1987], at para. 10 of Justice Barak's
opinion; Human Rights Division case, supra note 10, at paras. 18-20 of Justice Levy's opinion.
15 A classic example is the right to bear arms in the Second Amendment to the U.S. Constitu-
tion-a right that may well derive from the creation of the founding narrative during the days of the
Old West. Today, however, this can hardly be reconciled with the universal founding formula of
the modem state. Another example is gay (or LGBT) rights. These rights often cannot be found in
the constitutional text, as this phenomenon was "in the closet" at the time of the foundation of the
state. Nowadays, however, their absence constitutes a constitutional lacuna, as the current phase in
a democratic nation's evolution cannot be reconciled with any kind of discrimination based on
sexual orientation. Compare to Justice Amit's judgment in APA 343/09 The Jerusalem Open House
for Pride and Tolerance v. The Municipality and the Mayor of Jerusalem (Sept. 14, 2010), Nevo
Legal Database (by subscription) (claiming that any classification based on sexual orientation is a
"suspect classification").
159 The Israeli Supreme Court used almost every trick in the book (see supra note 69) to avoid
banning revolutionary political parties from national elections, since the revolutionary challenge
was not considered to be clear and immediate enough.
160 Compare to Aharon Barak's test, which only addresses the core of the Jewish-democratic
founding formula (see Barak, supra note 6, at 379-81). I believe the difference is very slight, since
any revolutionary amendment that tends to cut off the nation's founding narrative and disrupt its
delicate evolutionary process would probably pass Barak's test. However, one difference lies in
Barak's suggestion that the Knesset could decide to adopt a "softer" version of judicial review
Using the founding narrative metaphor reduces the side effects of eternity
clauses and allows the current generation to freely amend the constitutional text, as
long as the amendment is coherent with the narrative, and in the long run to gradu-
ally reach the revolutionary outcome. If time is of the essence and revolutionary
movements lose their patience, the third track should be ready to accommodate the
aspirations for a revolutionary leap.
B. ACCEPTING THE DICHOTOMY BETWEEN UNIVERSAL AND PARTICULAR

FOUNDING VALUES
Founding values are derived from the founding narrative, since their protection is
essential to keeping it coherent and intact' 6' and preserving its inner logic and
continuity. As explained above, a nation's collective will (converted into a dynamic
founding narrative) is the basic norm of a legal system and the source of all other
norms subject only to natural law. The unity of a nation-based on a cultural or
civic perception-is therefore a founding value, since the disintegration of the
political unity undermines the founding narrative and threatens the integrity of the
constitution as a manifestation of the unified entity's will. For example, the unity of
the nation is an American founding value, as Lincoln rightly insisted, since allowing
the South to secede unilaterally would have been devastating to the inner logic and
continuity of the Unites States' founding narrative.162 Similarly, the unity of the
63
Jewish nation, which justifies the right of every Jew to return to Israel,' as en-
65
shrined in the Law of Return,' M is a classic founding value.1 It seems as though any
without touching upon the core of the democratic formula (id. at 380). If "softer" means granting
the last word in a constitutional matter to the Knesset, such an amendment clearly cannot be
reconciled with the basic structure of a three-track democracy system as a constitutional system that
presupposes the limited power of parliaments (as a trustee body that is not competent to operate the
third track). Thus, any of its ultra vires acts must be addressed by constitutional courts as the branch
of govemment that has the last word in this regard.
161 Compare to Dworkin's serial novel metaphor and the concept of "coherent constitutional mo-
rality." See RONALD DWORKIN, FREEDOM'S LAW: THE MORAL READING OF THE AMERICAN
CONSTITUTION 10-11, 229-38 (1996). While Dworkin's interest lies in the integrity of constitutional
judgments, the founding narrative metaphor is about the integrity and unity of a nation as a whole,
162 In his famous speech, in light of the south's threats of secession, Lincoln identified the
unity of the nation as the number one reason for waging the civil war. Lincoln's speech is cited in
ALLEN BUCHANAN, SECESSION: THE MORALITY OF POLITICAL DIVORCE FROM FORT SUMTER TO
LITHUANIA AND QUEBEC 1 (1991).
163 Obviously, the unity of the Jewish nation is only one element in establishing the individual
right of every Jew to return to Israel, which goes hand in hand with the other essential element-the
united body's collective right to self-determination in its historical homeland. For the latter ele-
ment, see YAKOBSON & RUBINSTEIN, supra note 28, at 44-64.
165 The unity of the nation has been a fundamental issue in Israeli lawmaking since the early
days of the state and is still a major issue in public discourse. For instance, applying religious law
to matters of personal status (see, e.g., Rabbinical Courts Jurisdiction (Marriage and Divorce) Law,
violation of this principle-separating the Jews in Israel from the Jews in the Dias-
pora-undermines the inner logic and continuity of the founding narrative that
portrays the Zionist project as a revival of the original unity of the Jewish people-a
national group divided only due to the external intervention of mighty empires.'
As mentioned above, a pivotal dichotomy in three-track democracy is the di-
chotomy between universal and particular founding values that represent formulas
for organizing a nation for the benefit and well-being of man.' 67 For eternity clauses
to fit in as an integral part of three-track democracy-thereby resolving its inherent
tension with the concept of popular sovereignty-this key dichotomy must also be
incorporated.
Some formulas applied by a nation and embedded in eternity clauses are univer-
sal in the sense that they are ideal formulas for any free nation, representing the last
phase in society's evolution from which any retreat is clearly a step back. Such
formulas include the concept of the modern state based on a social contract, in
contrast to the state of nature described by Hobbes and Locke,168 and the democratic
system of government as we perceive it in our generation, as opposed to any other
system. When universal founding values are protected in eternity clauses, the tension
with the concept of popular sovereignty dissolves, as the former serves as a precon-
dition for the applicability of the latter in society. The modern state's monopoly over
the right to use violent force in society is a precondition for any kind of effective
sovereignty-including popular sovereignty-and democracy is a precondition for
the ability of the people to share sovereignty and avoid a hostile takeover by another
force other than the people, as well as for their ability to enjoy the essence of sover-
69
eignty by freely expressing their collective will.'
5713-1953, SH No. 134) was clearly influenced by the concern that non-religious weddings would
split the nation into two divided, estranged groups. Another example is the issue of conversion to
Judaism, which has yet to be addressed by the Israeli parliament and currently conforms (in Israel)
to Ultra-Orthodox customs, again due to the concern for a growing split inside the Jewish nation.
One may argue that these concerns are exaggerated and that there is much room for evolutionary
decision-making, since the Zionist project did a remarkably good job of establishing a united
nation. However, the basic cultural conception of the Jewish nation and its affiliation to the
Diaspora can still be regarded as founding values.
166 The founding nature of the Law of Return explains Chief Justice Shamgar's suggestion to
treat it as a Basic Law (see United Mizrahi Bank case, supra note 10, at paras. 37-38 of Chief
Justice Shamgar's opinion), as well as the court's interpretation of section 7A according to which
an active political program seeking its annulment could serve as a basis for banning a list of
candidates from national elections (see Tibi case, supra note 63, at paras. 11-13 of Chief Justice
Barak's opinion).
167 See supra section II.A.
168 See supranote 5.
169 Recognizing universal founding values as preconditions for popular sovereignty can solve
the mystery behind Sieybs' reference to natural law as the only will superior to a nation's will (see
supra "Introduction"). For a similar view limiting the power to amend the constitution when the
core values of democracy are at stake, see BARAK, supra note 29, at 99.
With regard to the universal founding values, the people are in the same position as
the potential slave in Mill's paradox,7 0 who is not free to enslave himself since the act
of enslavement undermines his claim to individual autonomy. They are thus not free to
give up the preconditions for popular sovereignty and misuse their autonomy through
a collective act of enslavement. These preconditions for popular sovereignty have not
changed and are not going to change, so the inter-temporal problem dissolves.
Eternity clauses protecting universal founding values should therefore be inter-
preted as a social commitment to use constitutionalism and completely block all
three tracks of three-track democracy. What good will it do if the people are allowed
to destroy a timeless universal formula for social evolution and human progress
using the third track? Any revolutionary step in this context is clearly a step back.
This is not the case with regard to a particular formula protected in eternity
clauses. Here we are dealing with imperfect formulas dating back to the founding
fathers, namely those that the people would probably like to change some time in the
future and that it is reasonable to strongly oppose. For example, the Jewish state
formula alienates Palestinian citizens of Israel and is obviously far from perfect.
Germany's federalism and social state formula seem temporary in light of the
minimal cultural differences between the different Ldnder and global economic
uncertainty. Finally, Turkey's secular civic republican model disregards intense
preferences of its traditional Muslim majority and may not survive much longer, as
indicated in the last constitutional reforms, thus diminishing the role of the military
as the defender of the secular regime.
Particular formulas demand a narrower interpretation of eternity clauses. The
best interpretation we can offer here is one that blocks the first two tracks of three-
track democracy but keeps the third wide open for the reincarnation of the original
constituent power and the implementation of a radical change. In this manner, it is
possible to maintain a nation's evolution and at the same time seriously consider a
revolutionary leap to address the imperfections and injustices embedded in its
constitutional order by using the third track of three-track democracy.
The judiciary-the government branch saddled with the ongoing task of tracing
the dynamic founding narrative as an integral part of its judgments-is also the
branch that will have to address the dichotomy between universal and particular
founding values."' At first glance, this task seems to be a far cry from the court's
170 JOHN STUART MILL, ON LIBERTY 173 (Penguin Classics 1982). The autonomous enslave-
ment act paradox deals with boundaries of individual autonomy-a discussion that, by analogy,
could be used to address the larger question of the boundaries of popular sovereignty in a democ-
ratic society. Both legal entities-the individual and the nation-cannot use the autonomy argu-
ment to back an individual or collective enslavement act as they both seem to concede autonomy all
together in the same act.
171In his refreshing argument for judicial review, Alon Harel based this controversial democ-
ratic practice on the right to a fair hearing against potentially injurious legislation. See Alon Harel,
ordinary judicial functions, since the dichotomy only seems to be relevant to the
judicial review of the normative products of the third track, which-in and of
itself-is far away from the here and now. However, bearing in mind the court's role
of clearing the channels for the third track, addressing the dichotomy seems to be
part of normal constitutionalism. For instance, where freedom of speech or the right
to be elected are concerned, constitutional courts have no choice but to address the
dichotomy, since a challenge to universal founding values can be regarded as falling
outside the inner scope of the constitutional right. However, the same challenge to
particular founding values-as part of a legitimate call for a third track-must find
refuge at the core of the alleged right."'
C. APPLYING A LIMITATION CLAUSE AS AN ESSENTIAL ELEMENT OF ANY

ETERNITY CLAUSE
According to the types of mutations they inflict on the evolutionary system of a
nation, suspicious amendments can be classified as unharmful (as a progression
coherent with the founding narrative), chronic (creating a permanent collective
dissonance' 73 in the founding narrative), or fatal (cutting off the chain of the found-
ing narrative in a revolutionary leap).
Eternity clauses must include a limitation clause aimed at screening future amend-
ments in order to avoid overly constraining the majority will. A proper limitation
The Right to Judicial Review, 40 MISHPATIM 239, 261-69 (2010) (in Hebrew). This justification
seems applicable to higher-level challenges against revolutionary amendments to the constitution.
Where a suspected amendment is blamed for violating a nation's universal founding values, the
individual clearly has a prima facie natural right (derived from the timeless formulas of the modem
state and democracy as part of natural law) that entitles him to a fair hearing. However, even where
particular founding values are concerned, the individual also seems to hold a prima facie right-the
right to a higher level of participation in revolutionary decision-making made available by the third
track.
172 On the distinction between the "core" and the "periphery" of a constitutional right in Israeli
jurisprudence, see Adalah case, supra note 11; Human Rights Division case, supra note 10.
173 "Collective dissonance" can be defined as a situation in which a nation radically deviates
from its founding narrative without any clear intention of breaking out of it. Resolving the intense
inner tension this generates (by resuming the good old narrative) should thus not be considered as a
matter for the constitutional mechanism. For example, Germany's unification can be seen as a
corrective act addressing the collective dissonance imposed by the foreign superpowers after World
War II. A few minor amendments to the Basic Law were thus sufficient to accommodate such a
dramatic change. See Paul M. Schwartz, ConstitutionalChange and Constitutional Legitimation:
The Example of Gennan Unification, 31 HOus. L. REv. 1027 (1994). In a similar vein, Israel's
Gaza disengagement plan was carried out with relative constitutional indifference. Although the
Supreme Court found some minor defects in the restitution program, it left the overall plan intact
with only Justice Levy dissenting (see Gaza Coast Local Council case, supra note 133). Since the
plan can be regarded as a corrective act (addressing the collective dissonance imposed by the 1967
Six-Day War) that reinforced the Jewish democratic narrative, no major constitutional intervention
was needed.
clause must distinguish between the different types of amendments, allowing normal
amendments to infringe upon protected values if they remain consistent with the
founding narrative (unharmful mutations) and prohibiting revolutionary amendments
that constitute a violation of these values, as a radical deviation from-or even an
irreversible total break with-the narrative (chronic or fatal mutations), which clearly
exceeds the powers of the derivative constituent assembly acting in the second track.
Most eternity clauses suffer from the absence of an explicit limitation clause.
They accordingly pass the buck of filling the constitutional lacuna to the courts,
which are forced to create a judicial limitation clause instead. Article 288 of the
Constitution of Portugall 7 4 at least implies the existence of such a clause by chang-
ing the common language of a strict prohibition of any amendment infringing on
eternity clauses into the language of an obligation to respect the values they protect.
D. APPLYING A SELF-ETERNITY CLAUSE AS AN ESSENTIAL ELEMENT OF

ANY ETERNITY CLAUSE
Finally, every eternity clause needs to secure its own eternal status by means of an
explicit or implicit self-eternity clause. It seems that any initiative to substantially
revise the eternity clauses themselves by the derivative constituent assembly (e.g.,
by parliament) through the second track is tantamount to a revolutionary amendment
undermining the basic structure of the constitution-a normative act that is normally
handled by constitutional courts under a three-track democracy scheme in the
context of the unconstitutional constitutional amendment doctrine. Article 74 of the
Interim South African Constitution"'s is a fine example of an effective self-eternity
clause, securing both the eternity clause and the strong supremacy clause.
CONCLUSION
Will eternity clauses and popular sovereignty ever walk hand in hand? I believe that
they will-as soon as three-track democracy is established and the adjustments that
are needed in order to apply eternity clauses are made. The people must have the
right to make revolutionary decisions in order to break out of an imperfect particular
formula embedded in the founding narrative. However, it is vital to ensure that such
an historic decision is only be made by a competent constitutional organ in accor-
dance with due process-the third track of three-track democracy. The substantive
requirements of the third track (i.e., an extraordinary ad hoc constituent assembly,
intensive dialogue, broad compromise, and ratification by the people-all under
court supervision) must be adhered to in order to ensure that a collective revolution-
174 PORTUGUESE CONST., 1976, as last amended in 2005, art. 288.

175 Supra note 19.
ary leap will not mark a tragic moment in a nation's cycle of incarnations but rather
an historic triumph successfully addressing the imperfections of its constitutional
order without imposing a new form of alienation or jeopardizing its universal and
timeless achievements.
Eternity clauses can serve as a badly needed distribution mechanism in three-
track democracy to allocate every political decision to the right track and avoid
irresponsible, unilaterally-imposed revolutions. In such a system, which paves the
way for controlled, regulated, and just revolutions, the concept of popular sover-
eignty no longer suffers. On the contrary, it tends to turn the notorious concept-
tainted with the guillotine's blood-into a more balanced and moderate one, making
it much more appealing to modern democracies and liberal societies.
As discussed above, the legal system of Israel as a Jewish democratic state tends
to limit the scope of amending power (in order to protect the particular Jewish
formula) without formal eternity clauses. Israel thus seems to face the same chal-
lenge any democracy with formal eternity clauses faces, namely that of reconciling
ultimate entrenchment and popular sovereignty. Adopting three-track democracy-a
holistic constitutional system and theory-as a universal open code for resolving
this tension could be the way out of a problematic situation. Under three-track
democracy, there is a clear separation between the Jewish and democratic elements
in Israel's founding narrative. The democratic nature of the state, as a universal
founding value, is clearly off the table for all three tracks. However, the Jewish
element, which is mistakenly regarded as its conjoined twin, actually possesses the
lower normative status of a particular founding value. As such, the Jewish nature of
the state is exposed to potential future operation of the third track, a negotiable issue
for an (as yet) unknown constitutional organ (not the Knesset) that is capable of
serving as an organ of the nation and claiming its right to break out of the founding
narrative by drafting a broad historic compromise as a new constitution for a new
Israel to be submitted for ratification by communal referendums.
The third track scenario is a daunting prospect for most Jews living in Israel (in-
cluding this author). Although we may not feel the need to take such a radical step in
this generation, accepting three-track democracy and the third track as a feasible
option in our evolutionary process is the only way to ever square the circle 16 and
live a full Jewish democratic life.
176 On the "squaring the circle" metaphor pertaining to the Jewish democratic project, see Ariel
Rosen-Zvi, A Jewish and Democratic State: Spiritual Parenthood,Alienation and Symbiosis-Can
We Square the Circle?, 19 IYUNEI MISHPAT 479 (1995) (in Hebrew).

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Citation: 44 Isr. L. Rev. 449 2011

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A nation in a free democratic society is an evolved entity by nature-an association

The nation exists prior to everything; it is the origin of everything. Its

4 For a similar insight see ScHMITT, supra note 1,at 128.

The essence of three-track democracy lies in the conviction that revolutionary

eternity clauses-in their formal or judicial form as explained below-serve as the

I. CONSTITUTIONAL ETERNITY CLAUSES

A. DEFINITION AND STRUCTURE

16 For a description of a legal system as a hierarchical structure of norms ("pyramid of norms")

dynamic system of norms to a semi-static one in which the validity of a constitu-

The French Constitutional Court (Conseil constitutionnel) is exceptional in its un-

1. FORMAL ETERNITY CLAUSES

2. JUDICIAL ETERNITY CLAUSES

II. ETERNITY CLAUSES AS A CHALLENGE FOR FREE DEMOCRATIC

A. REVERSING THE PYRAMID OF LEGAL ENTITIES INA FREE DEMOCRATIC

sI On the civic conception of nation, see SIEYtS, supra note 1, at 97.

Applying eternity clauses without the necessary adjustments in their interpreta-

B. THE BASIC LEGITIMACY PROBLEMS OF CONSTITUTIONALISM AND

58 Stephen Holmes, Precommitment and the Paradox of Democracy, in CONSTITUTIONALISM

C. DOES ISRAEL AS A JEWISH DEMOCRATIC STATE FACE THIS

66 Basic Law: The Knesset, 5718-1958, SH No. 244, § 1.

67 United MizrahiBank case, supra note 10.

The Supreme Court justices' response to section 7A was quite ambivalent. On

III. EMBRACING THREE-TRACK DEMOCRACY AS A UNIVERSAL OPEN

A. THREE-TRACK DEMOCRACY AS A HOLISTIC CONSTITUTIONAL

three-track democracy serve both functions. By upholding the written constitution as

83 U.S. CONST. art. V.

revolutionary amendments to the constitution that are inconsistent with eternity

90GRUNDGESETZ art. 79 § 3 ("Amendments of this basic law ... shall be inadmissible").

formula." Even if a formal eternity clause cannot be found in the constitution,

B. THREE-TRACK DEMOCRACY FROM A MORAL PERSPECTIVE-TAKING

At first glance, liberalism (comprehensive or political) and eternity clauses pro-

96 On this argument, see Andre Marmur, JudicialReview in Israel, 4 MISHPAT UMIMSHAL

C. THE THIRD TRACK OF THREE-TRACK DEMOCRACY

Ackerman's second track is essentially a majoritarian process that merely re-

2. IMPLICATIONS OF THE FOUNDING PERCEPTION OF A NATION FOR THE OPTION

to another.12 6 Two prototypes of a revolutionary transition-radically changing a

tionary decision constitute a legal estoppel. As a result, claims challenging the

3. THE PARLIAMENTARY SUPERMAJORITY'S LACK OF COMPETENCE TO SPEAK FOR

As most eternity clauses function as a limitation on the scope of parliamentary

of competence. First, as serial elected representatives (in contrast to an extraordinary

sincere collective effort to reshape a joint citizenship addressing the imperfections of

IV. THE ADJUSTMENTS REQUIRED FOR ETERNITY CLAUSES TO

A. CONVERTING A SET OF FROZEN-IN-TIME VALUES INTO A DYNAMIC

146 See supra note 112.

B. ACCEPTING THE DICHOTOMY BETWEEN UNIVERSAL AND PARTICULAR

C. APPLYING A LIMITATION CLAUSE AS AN ESSENTIAL ELEMENT OF ANY

D. APPLYING A SELF-ETERNITY CLAUSE AS AN ESSENTIAL ELEMENT OF

174 PORTUGUESE CONST., 1976, as last amended in 2005, art. 288.

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