Alternative Pluralisms: Israeli and American Constitutionalism in Comparative Perspective

Abstract

Constitutional transplantation, the process by which the constitutional practice of one society becomes an important source for the legal development of another, has figured importantly in the institutional evolution of new politics. In this article, I examine the constitutional experience of Israel and the United States, two societies that share a language of jurisprudential discourse while differing significantly in a number of polically relevant ways. In particular, the fact that both societies can be described as pluralistic only conceals the fact that they represent alternative models of pluralism that may render problematic the the transferablity of constitutional outcomes from one place to another. Thus, the literature of modern constitutionalism, which has tended to emphasize the rights-based liberal ethic of individualism, is arguably more compatible with an American model in which the principles of the “procedural republic” are more unproblematically embraced. To pursue this question, I look at two issues—the advisability of adopting a bill of rights and the appropriate stance of the regime on the question of free speech—that allow us to reflect upon the limits and possibilities of constitutional transplantation.