We need the new nationality law because we have a constitution that leaves it out.
By JOEL H. GOLOVENSKYBoy with Israeli flag (photo credit: Courtesy)
We need the new nationality law because we have a constitution that leaves it out. This constitution was not enacted by the Knesset: it was decreed by the Supreme Court. As elaborated and expanded over the past 20 years, it subordinates national Jewish interests to universalist ones.During the country’s first 45 years, the Supreme Court skillfully applied common law to navigate a delicate and broadly accepted balance between the fundamental interests of Israel as both the nation state of the Jewish People and as a vibrant democracy.But soon after the passage in 1992 of the two basic laws on civil rights (Human Dignity and Liberty and Freedom of Enterprise), the Court ruled that the basic laws constitute an instant and written constitution, and this carefully woven balance started to unravel.The Court determined that these two civil rights laws are pivotal constitutional provisions with which all laws – past and future – must conform and through which all laws – past and future – will be interpreted. Under this new constitutional regime, there is no comparable basic law establishing the national (“Jewish”) character, and thus the gradual but steady decline of national interests in favor of universalist ones.Last January, the Institute for Zionist Strategies issued a comprehensive report authored by Dr. Aviad Bakshi which researched in detail the dramatic change in the Court’s decisions since the constitution appeared on the scene.The study demonstrates that it is the imbalance in our basic laws which leads to the subordination of national interests. The clear and carefully documented conclusion of the IZS study is that the legal character of Israel as the nation state of the Jewish People is being seriously weakened under the current constellation of basic laws.Academics and jurists who follow these developments understand this, but there are elements within those groups, as elsewhere, who are not displeased. For they prefer a Jewish democratic state where the “Jewish” element consists only of symbols (the fewer, the better) and not much else. Many of those who tell us that defining Israel as the nation state of the Jewish People would perforce subordinate democratic values are being deliberately disingenuous.For they know that the present reality is the opposite – that “democratic” increasingly subordinates “Jewish,” but they prefer it this way and they do not want a true balance restored.Some claim that the 1992 laws themselves established a legal parity of interests by characterizing Israel as a “Jewish democratic state,” but unfortunately, this is not true. For the quoted phrase is declarative only with no legal effect, while the protection of democratic interests directly restrict Knesset authority and government power. And this is precisely how the basic laws have been implemented by Court decision.Another argument advanced is that the opponents of the proposed basic law really do not oppose the Jewish state, but rather, seek only to insure that national interest do not overwhelm democratic ones. But the new law does not subordinate democratic values: it just elevates “Jewish” values alongside the other basic laws (there are 10 existing basic laws promulgating democratic procedures and values).
Indeed, when the Knesset Constitution and Law Committee deliberated passing a full-fledged constitution in 2007-09, some of these opponents, including a prominent institute promoting democracy, opposed inclusion of essentially the same provision even though the draft constitutions under consideration strengthened democracy, and even though it included a comprehensive article protecting civil rights, that would have made the US Bill of Rights blush. I know because I participated in the committee deliberations, and it was the IZS provision which was being considered by the committee (favorably, as it turned out).The Basic Law: Israel as the Nation State of the Jewish People would not subordinate or diminish democracy or minority rights. In accordance with our jurisprudence and under authority of existing basic laws, all citizens would continue to be entitled to equal treatment under law with full civil rights, but these are political and, in part, social in nature – not collective. There are 21 Arab states, with another one possibly on the way. Israel is the one and only state championing the collective rights of the Jewish People.It is here alone, in accordance with clear international law, that we have exercised our right to self-determination.This is precisely as envisioned in the Balfour declaration, by the San Remo Resolution and the League of Nations Mandate (both in 1922), by the Anglo-American Treaty of 1925, by the recommendation of the UN General Assembly in 1947, by the Israeli Declaration of Independence of 1948, and now by the proposed basic law.According to every international convention and standard, no Arab or Palestinian citizen of Israel is being or will be discriminated against by the fact that the Jewish state is the nation state of the Jewish People, and promotes collective Jewish interests and culture while treating all citizens as equal before the law. Of course, one who does not identify with the Jewish People feels less connected. But this is inevitable in every nation state where some citizens do not belong to the predominant, favored ethnic group. As a citizen in a democratic nation state, the minority member receives equal political and social rights. But as a non-member of the nation he does not bask in the same feeling of fellowship and belonging that accompanies the self-determination of the overwhelming majority.Those of us who grew up in the US, which is not a nation state, are accustomed to the state being neutral in ethnic and religious matters. But the US is not an instance of a nation which formed a state: it is rather a state that engendered a national civic identity. This is more the exception than the rule. A majority of European countries are nation states, each, in its own way, promoting the collective interests of the predominant national groups while affording equal political rights to all citizens.Israeli Arabs or Palestinians are free to develop their culture.They are educated in their own language in a system they themselves fashion. This is not always the case in other nation states. But there is no Law of Return for Arabs, because this is a Jewish state established as a home for those members of the Jewish nation who want to join, and for those who must. As the sovereign nation state of the Jewish People, it is legitimate and proper that Israel promote Jewish culture, Jewish learning, Jewish history and a vibrant Jewish future here and to the extent possible, in the Diaspora. It is legitimate and proper that Israel devote resources to the ingathering of our brethren, that we commemorate Yom Hashoa and Yom Hazikaron, that we celebrate Hanukkah and Yom Ha’atzmaut.Our status as the nation state of the Jewish People must not remain unprotected by the new constitution under which we now live. We need to correct the current legal imbalance in the basic laws so that the courts can protect rather than erode Israel’s Jewish character as conceived by our founders and as implemented by the courts before the surprise appearance of the new constitution.Israel was established as a Jewish state, and historical justice requires that we protect and anchor this status in our basic laws. The prime minister’s commitment to pass the Basic Law: Israel as the Nation State of the Jewish People deserves the support of all us.The author is an attorney in Israel and the US. He is the founding president of the Institute for Zionist Strategies, which seeks to strengthen Israel as the democratic nationstate of the Jewish People.
