Constitutional Dialogue Under Pressure: Constitutional Remedies in Israel as a Test Case

Abstract

Constitutional dialogue theory has some great qualities. It is balanced, democratic, and deliberative. It has a special legitimacy-enhancing role due to the place that it gives to legislatures and to the political process. Even its name has a positive aspect. However, this important theory has a major flaw: it does not protect human rights well. This theory puts most of the weight on institutional interaction, and not enough weight on the petitioners’ rights. This Article wishes to strengthen this criticism through a discussion of the strong connection between constitutional dialogue and constitutional remedies. The court choice of remedy can facilitate the legislature’s ability to enact a legislative response as a part of the ongoing dialogue between courts and legislatures. The constitutional remedies are an invitation, directed to the political branches, that can leave the discretion regarding desired policy in the political field, while minimizing the judicial intervention in the legislative fora. An invitation to take (or restore) constitutional responsibility and sensitivity. However, this invitation sees only political institutions, instead of the ones who need the remedy the most: the petitioners. Soft and legitimacy-enhancing designing of constitutional remedies cast the price on the petitioners’ shoulders, who do not win full remedying in the name of constructive inter-institutional dynamics. Thus, using the Israeli Supreme Court’s use of constitutional remedies as a test case, the main argument is a claim in favor of judicial use of strong and status-quo changing remedies that protect the petitioners’ rights. Counterintuitive as it may seem, the dialogue theory—which is built upon the political branches ability to respond—enables and legitimizes the choice to use strong remedies. The latter is the outcome of the responsive nature of the theory and the temporal nature of the constitutional remedies.