The Nation-State Law and the march of Jewish history
When the Knesset passed the Jewish Nation-State Law (Basic Law: Israel as the Nation-State of the Jewish People) early on Thursday morning, it made history and marked a significant landmark in the 2,000-year march of the Jews to reestablish their sovereignty in their homeland, the Land of Israel.
The Jewish state is a vibrant democracy which is also a nation-state, as are the overwhelming majority of the other 60 democracies in the world. A democratic nation-state reflects the ethnic identity of the predominant group and at the same time affords full civil and religious rights to all minorities. This is a precise description of Israel.
The Supreme Court decreed in 1995 that all “basic laws” are really constitutional provisions. Previously, such laws had been labeled “basic” for purposes of future classification and had been universally understood and implemented as regular laws. Prominent among the newly pronounced constitutional provisions, were the two civil rights laws of 1992: “Human Dignity and Liberty” and the “Freedom of Occupation.” These “basic laws” have been steadily broadened over time by Supreme Court interpretation, and today, they constitute the equivalent of Israel’s Bill of Rights.
The new Jewish Nation-State Law is also a basic law. In fact, unlike the 1992 laws which were passed as private laws by 32 and 23 Knesset votes, respectively, in half-empty chambers late at night, the current law was passed by an absolute majority of all Knesset members (62) with almost all Knesset members present and voting.
Israel is a parliamentary system of government, so that in some ways it is more direct a democracy than the United States. The bills leading to this new Jewish Nation-State Basic Law have been discussed and analyzed ever since first drafted in 2010 and tabled in 2011. The fact that an absolute majority of the Knesset members voted for a law about which there is so much noisy controversy is significant. In fact, many say that Prime Minister Netanyahu supported the legislation now because he wants to make it an election issue. If so, his judgment is that it is a widely popular provision, a view shared by many. THE JEWISH Nation-State Law does not in any way, even to a minute degree, dilute or weaken the existing civil rights protections for all citizens of Israel. The new law states that Israel is the nation of the Jewish people, and the civil rights laws ensure equal protections under the law for all citizens – both those belonging to the Jewish nation and those who do not. The new and old laws stand together, side by side.
It may be that a Jew in Israel feels more at home than does a Palestinian or a Catholic priest, but this does not mean he has greater rights. A Jew in England, for example, may feel less comfortable than an Anglo-Saxon Christian saluting the UK flag with its Christian cross or serving a Christian queen who is the “supreme governor of the church,” but he or she still has equal civil, religious and societal rights. It is the very nature of a nation-state that the majority feels more comfortable, even though their rights are merely equal. But this is precisely why Israel was established as a Jewish state – to have one state in the world where Jews feel comfortable and secure – where they can practice their faith and celebrate their history and destiny in safety, with pride and in uninhibited emotional fulfillment.
The League of Nations voted unanimously in 1922 to establish a “national home for the Jewish people” in Palestine, and the UN General Assembly voted in favor of a partition of that same land into two states – an “Arab state” and a “Jewish state.” Israel’s Declaration of Independence declared the establishment of a “Jewish state” based on its natural and historic rights and based on international law, including the League of Nations and UN General Assembly votes.
The new law is the focus of much controversy today in Israel. First, there has always been a small but influential strain in Zionism against Jewish sovereignty. Before the state was born, this sentiment was expressed openly and attracted intellectuals, academics and other members of the society’s elite. Today, these forces argue for various degrees of a bi-national state. Some eschew all Jewish national characteristics while others advocate a symbolic nexus. The members of the elite holding such views decrease in number and influence steadily but the Jewish Nation-State law triggered their vociferous opposition – maybe a last hurrah.
Others oppose the new law because they are in the opposition and the law was passed by the government. Among the loudest and most vociferous opponents of the new law are MKs who supported the substance of the original bill in 2011 – some in whole, others in part.
Some of these opponents genuinely oppose the law; others are either disingenuous, or more likely, have become convinced by their own rhetoric – an increasingly prevalent affliction in today’s populist politics.
The reasons articulated for opposing the bill are also varied. A loud voice has been raised that the law should have included provisions for equality or democracy. But there are specific basic laws already in force which require equal privilege before the law. It is similar to arguing that the Eighteenth Amendment to the US Constitution giving the women the right to vote, or the Twenty-Second Amendment limiting the President to two terms, should also have included a restatement of the right to freedom of speech included in the First Amendment. FOR THOSE who argue that the civil rights, interpreted by the court to require equal privileges under law, should contain explicit guarantees of full equality, the proper vehicle is a new basic law defining the rights and obligations characterizing this equality. This is an excruciatingly complex and difficult task requiring dedicated and exclusive focus. Those shouting loudest for an “equality clause” are really talking only about privilege and rights (already in effect), without confronting the full ramifications of their demands. The Arab minority is exempt from military service and the overwhelming majority even boycott national service which would only require them to serve their own communities in hospitals and other social service providers.
This exemption from military service and boycott of national service is also the fact for the vast majority of the haredi (ultra-Orthodox) community. Full equality would eliminate these special benefits and require equal obligations to be newly enforced alongside the equal rights already enjoyed.
Those of us who believe in full equality understand that this would require intensive work, compromises that are difficult even to contemplate, and careful, patient, and precise articulation. It is likely that vociferous and ugly “debate” and probably riots would poison the atmosphere surrounding this effort.
Members of the Druze community who have always fulfilled their obligations as citizens are frustrated and angered by the new law, but these justified feeling are misdirected. The focus of their efforts should be amendment of the civil rights laws. The rights and obligations of individual citizens or groups is neither the purpose, task, nor the context for passage of the Nation-State Law. These rights and obligations are a central pillar in a constitution, but the Knesset abandoned this effort years ago. In our present predicament, we are passing individual basic laws which the Supreme Court has decreed have constitutional authority.
The Nation-State Law was drafted and fine-tuned over seven years of deliberations. But some of the law’s provisions were inserted in the last days of Knesset jockeying among factions and interest. These changes have been criticized by some politicians in Israel and even by some leaders of American Jewish organizations. Some of these concerns are understandable.
Article 6 of the law confines the State’s efforts to preserve Jewish heritage and the affinity between the state and members of the Jewish people to the Diaspora. This offends Jews in Israel, in the United States and elsewhere. It is a flaw in the law which should and can be corrected by future enactments and by government actions. The new basic law does not preclude correction. It can be accomplished by simple legislation passed by a majority of those voting.
The Jewish Nation-State Law is a basic law, which by its enforceable terms, can neither be amended nor repealed except by an absolute majority of the members of the Knesset. This will not happen unless there is a dramatic change in the balance of forces within the Knesset, something that is unlikely.
Much of the opposition from the Left will peter out and, hopefully, some of the legitimate grievances will be addressed by the political process.
The Jewish Nation-State Law is a major event in Israel’s history and in the Zionist vocation. In days to come, this basic law will be broadly recognized and widely heralded. Jewish history is on the march.
The writer practices law in Israel and the US, and is the founding president of the Institute for Zionist Strategies, which originated and helped draft the new Basic Law: Israel as the Nation-State of the Jewish People.