A. Introduction
My lecture today is not designed to provide a full explanation of what rights are. It is intended, instead, to suggest several preliminary thoughts on what I would call “Designing the Bill of Rights in the Constitution.” Before we begin the detailed work on the rights, you have an opportunity – as ones who are given more or less carte blanche to write a Bill of Rights – to consider the issue of rights from a birds’-eye view, and to make a few important decisions about the work that lies ahead of you.
I will consider briefly five topics: 1. The list of rights and their classification
2. Establishing the beneficiaries of rights: Should particular rights be granted to “every person,” only to citizens, or only to residents? Should certain rights be granted to corporations? To the unborn? The dead? Should these decisions be made across the board, or right by right?
3. Do constitutional rights apply only to citizen-government relations, or does the establishment of a constitutional right bind people in private transactions and relationships? Classically, if the constitution includes equality and non-discrimination, does it apply to a landlord and prevent him from discriminating in renting out his apartment on the basis of race? And again: should this decision be made for each right?
4. How do we design the rights in the constitution: do we just make a declaration naming them (e.g., “All have the right to acquire property”) or do we give them greater detail in the constitution (e.g. the way it has been done in the Basic Law: Human Dignity and Freedom)? Must the legislature explicitly declare what it does not want to include in the constitution? Should the legislature define the legitimate motives for limiting rights at this constitutional level?
5. Leaving the door open to legislators to limit rights: Several techniques (“back doors”) exist to circumvent constitutional limitations. The high road is the general “Limitation Clause,” which allows the legislator to infringe on a right for a pre-approved purpose, with legislation that befits the values of the State of Israel, and only so long as it is no greater an infringement than necessary. Additional methods of limitation accepted in Israel include “preservation of laws,” a practice by which a new Basic Law cannot be used to strike down legislation already in force when the Basic Law is passed, and which has been applied in various ways; and an “Override clause,” which Israel used with the Basic Law: Human Dignity and Freedom. (Override clauses allow legislation which contradicts a Basic Law to be passed in a limited manner despite the contradiction). We may conceive of still other techniques to limit the areas in which all later legislation shall be subject to Judicial review.
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