Understanding the Origins of Abusive Constitutionalism: Constitutional Entrepreneurship and Israel’s Judicial Overhaul

This paper develops a novel theoretical framework for explaining how propositions for abusive constitutional changes are crystallized and elevated to the realm of constitutional politics. Abusive constitutionalism, also called "illiberal" or "authoritarian" constitutionalism, describes a situation in which a government or political leader manipulates the constitutional framework of a country to consolidate power, undermine democratic institutions, and weaken the rule of law. Extensive scholarly attention has been dedicated to comprehending the multifaceted strategies employed by political leaders and parties aimed at subverting constitutions, as well as the counteractive methods used to protect constitutions from such encroachments. But from where do abusive constitutional schemes originate? This paper identifies a new type of actor as the source of such abusive constitutional changes – constitutional entrepreneurs. Constitutional entrepreneurs are organizations or individuals who work to promote constitutional changes in alignment with their agendas and interests. They identify issues, propose solutions, and often work to build coalitions or support for their constitutional ideas. To this end, they engage in activities like lobbying, advocacy, conducting research, and leveraging their networks to gain attention and support for their proposed policies. I demonstrate my argument by focusing on the case study of Israel’s judicial overhaul. This "reform" seeks to weaken the Israeli judiciary by curtailing the Supreme Court's ability to exercise judicial review and politicizing the process of appointing judges. Given that Israel does not possess a full, written Constitution, this "reform" poses a significant threat to the country's democratic identity. It is tempting to think that this "reform" was conceived by the Israeli government, which would be the main beneficiary of it. Yet, each component can be found in policy papers and publications of a right-wing think tank called Kohelet Policy Forum. The organization is considered to be the driving force behind Israel’s judicial overhaul. Its members advised leading politicians, assisted in drafting the "reform" bills, and propagated it in Israeli and international media. I use process tracing to analyze how, by framing and reframing problems and formulating constitutional solutions to them, providing intellectual justification for constitutional changes, consulting politicians, and assisting in drafting, Kohelet Policy Forum managed to bring to the political fore its abusive propositions. For this purpose, I will utilize various types of qualitative sources, including policy papers and publications from the Kohelet Policy Forum, media articles, speeches, and statements made by politicians, and minutes from Knesset committee meetings. This paper contributes to the literature on democratic backsliding by introducing a pioneering theoretical framework that provides crucial insights into the role of constitutional entrepreneurs involved in constitutional abuses. Its broader contribution lies in its capacity to transcend the traditional confines of the political domain, situating the issue of democratic backsliding within a wider context that encompasses civil society organizations and interest groups. Moreover, it provides an alternative explanation to the purely rational portrayals of actors seeking more power. Instead, it offers a palpable explanation that underscores the fundamental role of agency in instigating constitutional changes.