Cementing the supremacy of national group rights over individual minority rights upends the precarious balance between Jewish and democratic, upon which liberal Zionism relies. For the ‘Nation-State Law’s authors and political patrons, however, this is just the beginning.
Liberal Zionists of all stripes tend to have one thing in common: the belief — or at least the hope — that Israel can reconcile and balance being a Jewish and a democratic state, serving both as the realization of Jewish national self-determination and as a modern liberal state that guarantees equality to all its citizens regardless of their religion or ethnic heritage.
Former Supreme Court President Aharon Barak, one of Israel’s preeminent jurists, perhaps best explained the mechanism and limitations of such a precarious balance. In the Ka’adan ruling (PDF), one of the most important contemporary legal precedents advancing equality in Israel, Barak explained that Jews may have privileged national rights when it comes to immigration, but that once inside the state’s borders, all must stand equal before the law.
It is true, members of the Jewish nation were granted a special key to enter, but once a person has lawfully entered the home, he enjoys equal rights with all other household members.
That formulation — and the ideology that relies on it — is about to be turned on its head, and along with it, the only palatable recipe for reconciling the competing values espoused by liberal Zionism.
A new proposed law moving rapidly through Israel’s Knesset with the support of the prime minister and a majority of the government would codify and constitutionalize legal discrimination against ethnic and religious minorities in Israel. The so-called “Jewish Nation-State Law” will upend Justice Barak’s “special key” theory.
Jewish national rights trump individual Arab rights
Several clauses in the draft law — and in Prime Minister Netanyahu’s principals, on which he has pledged to base its final wording — recognize national and group rights of the Jewish people inside the State of Israel while recognizing only individual (read: inferior) rights for members of religious, national and ethnic minorities.
In other words, Jews still hold have privileged status as key-holders to the gates of the country, but that privileged group status now follows them inside.
If passed into law, the bill, formally called “Basic Law: Israel — Nation-State of the Jewish People,” will have constitutional status, meaning it requires a super-majority to pass and revoke, and that Israeli courts will give it greater standing when weighing it against other laws or state practices that may contradict it. Israel does not have a formal constitution.
In just one example of discrimination in the Jewish Nation-State Law, the bill mandates that the State act to strengthen the historical and cultural heritage and tradition of the Jewish people — both in Israel and in the Diaspora. In contrast, the new law would only require the State to permit non-Jewish individuals to do the same on their own behalf.
Esteemed constitutional and human rights scholar Dr. Yousef Jabareen explains (PDF): “the preference for the Jewish majority engrained in the law paves the way for the granting of group-based rights and privileges to the Jewish majority while simultaneously justifying discriminatory and racist policy towards the Arabs on the individual and collective levels.”
Normalizing the national exclusion of Arabs
More troubling than the supremacy given to Jewish tradition and heritage over those of other indigenous and minority groups of citizens, is the supremacy the draft law gives to those ideas when it comes to judicial decisions and in justifying the violation of individual rights.
After defining the state as the national home of the Jewish people, in which the Jewish people “realizes its right to self-determination in accordance with its cultural and historic heritage,” the draft law says individual rights may be violated for the benefit of the values of the Jewish people. In other words, individual minority rights may be violated for the benefit of Jewish collective rights.
As it is, according to Adalah — the legal center for Arab minority rights in Israel, there are more than 50 laws that discriminate against Arab citizens “in all areas of life, including their rights to political participation, access to land, education, state budget resources, and criminal procedures.”
The Jewish Nation-State Law would make it much more difficult than it already is to challenge the constitutionality of such discriminatory legislation in Israel, Jabareen writes. The proposed law “not only deepens national exclusion of Arabs but also entrenches and normalizes it.”
But the primary purpose of the Jewish Nation-State Law is to constitutionalize a twisted exclusionary social contract — not between the State and all its citizens, but rather with one specific religious/ethnic group. Unlike most democracies where — at least theoretically — the state is given its legitimacy to govern by consent of the people, by giving ownership of the state to one subset of its citizens and their kin (Jews who are not Israeli citizens), the law inherently disenfranchises a significant portion of its own citizens.
That, of course, is nothing new. Among right-wing politicians in Israel, a favorite method for deriding political opponents on the Left is to accuse them of seeking “a state of all its citizens,” something most contemporary democracies aspire to.
In the Ka’adan decision, Justice Barak wrote that there is “no contradiction between the values of the State of Israel as a Jewish and democratic state and between the absolute equality of all of its citizens.” Whether or not he was right at the time is a wider, more contentious debate. If and when the Jewish Nation-State basic law passes, however, such a contradiction will be written into the closest thing Israel has to a constitution. And if the bill’s authors have their way, it will eventually be the bedrock of a constitution itself.
Playing the long game
The “Jewish Nation-State Law” was drafted by the Institute for Zionist Studies (IZS), a think tank that “seeks to strengthen Israel as the nation state of the Jewish People.” Its chairman, Yoaz Hendel, is a former senior official in the Prime Minister’s Office under Netanyahu.
The current version of the law, sponsored by Likud MK Yariv Levin — as well as the principles Netanyahu published as the basis for the bill’s final wording — are remarkably similar to the draft written by Hendel’s think tank.
One of the IZS’s primary raisons d’être is drafting and advancing the ratification of a constitution for Israel, something many others have tried and failed to do for decades. Realizing their short-term odds, it would seem that the IZS and its political patrons in the government have resigned themselves to a piecemeal approach to passing a constitution. Their vision for a constitution weakens judicial oversight, puts as much land as possible in Jewish hands, makes individual rights conditional on military service, and seeks to limit non-Jewish participation in government (by conditioning eligibility for public office on receiving a security clearance, a requirement that inherently discriminates against non-Jews and those who did not serve in the military).
Many observers of Israeli politics and history make the mistake of dismissing the existence of any strategic thinking, likening the state’s decision-makers to the CEO’s of its Startup Nation — all improvisation, all the time.
The Jewish Nation-State Law and its backers, like proponents of annexation initiatives and Netanyahu’s own status quo strategy vis-à-vis the occupation, are looking at the long game. It’s the same long game that early Zionist pioneers first adopted and which has become an Israeli pastime ever since: create enough facts on the ground and soon enough there’s no going back.