“What will the nature of Israel be? A religious Jewish state? A state of all its citizens? A secular, democratic and Jewish state? It is a debate that will engage us for many, many years,” notes a recent article in the New York Times. Despite what many think, this question of whether Israel is the nation state of the Jews—as opposed to the nation state of its citizens—remains an open question.

The issue was recently raised for discussion by the Israeli right when, on November 19, 2014, Israeli PM Benjamin Netanyahu’s cabinet approved 14 principles for a new nation state bill that would enshrine the Jewish character of the state in the Basic Law. The question is also being raised by the Israeli left in the form of a proposed law that seeks to cement the status of Israel as a democratic and multi-cultural state. In light of the collapse of the governing coalition in Israel and the call for elections on March 17, 2015, it seems likely that further discussions of these bills will be deferred until after the election. However, if (as expected) Netanyahu emerges with a stronger governing coalition after the election, the effort to constitutionalize the Jewish character of the state will likely be taken up in the 20th Knesset. Anyone who cares about the character of the state that wields power in the name of Judaism should be paying attention.

Israel’s Basic Law: Founding to Bank Mizrahi Ruling

On May 14, 1948 David Ben-Gurion declared Israel an independent Jewish state, although to this day Israel’s “Jewish” character has not been enshrined in a constitution or in Israel’s Basic Law.

Ben-Gurion’s declaration promised that a constitution would be enacted by October 1, 1948. But this never happened. According to a biographyof David Ben-Gurion written by Shimon Perez and Shlomo Aronson, Ben-Gurion strongly preferred to avoid the tricky issue of defining the ethnic nature of the state in black and white. In a protracted battle with Menachem Begin, who wanted to establish the Jewish nature of the state of Israel once and for all, Ben-Gurion’s view of avoiding a constitution that would have defined Israel as a “Jewish State” prevailed at the time. The nation state bills currently before the Knesset, fueled in part by a loss of faith in a two-state solution for the West Bank and Gaza, are reviving this debate.

The first Knesset convened in January 1949 and commenced to legislate without a constitution. The basic functions of the state, such as the make-up of the Knesset, terms of office, the courts, elections, the office of the President, etc., were established through the normal legislative process. Some of these laws were designated “Basic Laws” with the idea that once they were all in place they would be gathered into a constitution.

In 1992 the Knesset adopted a Basic Law of human dignity and liberty. Significantly, the 1992 laws made reference to the aspirational statements in the declaration of independence of Israel as a Jewish and democratic state, and said that the Basic Law should be interpreted in accordance with those principles. (See Amendment 1) The Israeli Supreme Court then, in what has been termed a constitutional revolution, declared the Basic Laws to be superior to all other laws: in the event of a conflict between a regular law and a Basic Law, the Basic Law would trump. As part of this “revolution,” the court also reserved for itself the prerogative to review all laws for consistency with the Basic Law. See the 1995 Bank Mizrahi ruling.

Through its Bank Mizrahi ruling, the Israeli Supreme Court imbued the Basic Law with the characteristics of a constitution, even though amendment of the Basic Law remains notoriously easy. It was substantial progress towards establishing Israel as a modern democratic state subject to the rule of law.

The Positive Influence of Aharon Barak

How should the courts reconcile the tension between “Jewish” and “democratic” in the Basic Law? Israel’s famous Supreme Court Justice Aharon Barak, leaned firmly towards resolving any such conflict in favor of “democratic.” Jewish means democratic in Barak’s view. “The state is Jewish not in a halachic-religious sense,” he said, “but in the sense that Jews have the right to immigrate to it, and their national experience is the experience of the state ([as] expressed, inter alia, in the language and the holidays).”

“The basic values of Judaism are the basic values of the state. I mean the values of love of man, the sanctity of life, social justice, doing what is good and just, protecting human dignity, the rule of law over the legislator and the like, values which Judaism bequeathed to the whole world. Reference to those values is on their universal level of abstraction, which suits Israel’s democratic character, thus one should not identify the values of the state of Israel as a Jewish state with the traditional Jewish civil law. It should not be forgotten that in Israel there is a considerable non-Jewish minority. Indeed, the values of the State of Israel as a Jewish state are those universal values common to members of democratic society, which grew from Jewish tradition and history.”

Thus, in cases where democratic and Jewish truly conflict, said Barak, the judge must choose between them and he should do so “according to the views of the enlightened community in Israel.” Barak felt that the “enlightened views of the community” would provide a suitably objective test “which refers the judge to the full set of values which shape the character of the modern Israeli.” Barak: Basic Law, Freedom of Occupation, p. 208.

It’s important to recognize that this position outlined by Justice Barak is indeed a strongly liberal and activist view of the law. However, in the absence of a constitution that provides for judicial review of legislation or that guarantees the equal rights of citizens, and with only weak and vague Basic Laws, it is a type of judicial activism that is absolutely essential if Israel is to be a liberal democracy subject to the rule of law. It is essential just like Marbury v. Madison (which established judicial review in the U.S.) was essential.

Conservative forces in Israel are pushing back against this rule of law model championed by Justice Barak. For example, Hillel Neuer of the Shalem Center (which is partially funded by Sheldon Adelson) looks at the role of the court described by Justice Barak and he sees dangerous activism limiting the rights of the majority to pass laws as it sees fit, even if such laws may be profoundly undemocratic and discriminatory.

The stakes could not be higher.

State Preference of Jews over Non-Jews

Although the “Jewish” character of the state was not enshrined in a constitution, nor in its Basic Law, and although Israel has made progress towards a modern democratic state governed by the rule of law (but not in the occupied territories), the laws of the state have nevertheless evolved in a discriminatory manner that has privileged Jews over all other citizens. This has occurred despite reference in the Basic Law to the universal democratic values that are mentioned in the declaration of independence (Israel “will foster the development of the country for the benefit of all its inhabitants; … ensure complete equality of social and political rights to all its inhabitants irrespective of religion, race or sex”).

In 1950, the Knesset enacted a Law of Return, granting Jews everywhere the right to immigrate to Israel. Although not a Basic Law, the law of return, of course, privileges Jews over non-Jewish citizens of the state. In all, the Legal Center for Arab Minority Rights in Israel has compiled a list of more than 50 laws that expressly discriminate against the Palestinian minority in Israel. Such discrimination covers all areas of life, from rights to political participation, access to land, education, state budget resources, to criminal procedures. Systematic discrimination by the state against Palestinians received a head start under martial law that was applied to Palestinian citizens of Israel during the first 18 years of the state’s existence. It is perpetuated by Israeli identity cards that describe “Jewish” as a nationality—leaving non-Jewish citizens out in the cold. It is exacerbated by the fact that the state opted to outsource the determination of who counts as a Jew to the “rabbis and politicians who adhere to a conservative, orthodox interpretation of Jewish tradition,” says Yacov Yadgar in his recent article in the Journal of Religion and Society.

The Proposed Nation State Law

Here are the 14 principles for a new nation state bill that the Israeli cabinet approved on November 19.

Objective

Defining the identity of the State of Israel as the nation state of the Jewish people, and anchoring the values of the State of Israel as a Jewish and democratic state, in the spirit of the principles contained in the Declaration of the Establishment of the State of Israel.

Founding principles: The land of Israel is the historic homeland of the Jewish people and the birthplace of the State of Israel. The State of Israel is the national home of the Jewish people, in which it fulfills its right to self-determination according to its cultural and historic heritage. The right to the fulfillment of national self-determination within the State of Israel is unique to the Jewish people. The State of Israel is a democratic state, established on the foundations of liberty, justice and peace in light of the vision of the prophets of Israel, and realizes the individual rights of all its citizens under law.

The symbols of the state: The anthem of the State is “Hatikvah.” The flag of the State is white, with two light-blue stripes near its edges and a light-blue Star of David in its center. The symbol of the State is the seven-armed candelabra, with olive branches on both its sides and the word “Israel” beneath.

Return:

Every Jew has the right to immigrate to the land [Israel] and to receive the citizenship of the State of Israel under law.

Ingathering of the exiles and strengthening the ties to the Jewish people in the Diaspora:

The State shall act to gather in the exiles of Israel and to strengthen the affinity between Israel and the Jewish communities of the Diaspora.

Aid to the Jewish people in distress:

The State shall act to give aid to members of the Jewish people who are in distress and captivity because of their Jewishness.

Heritage: The State shall act to preserve the cultural and historic heritage and tradition of the Jewish people, and to cultivate and foster them in Israel and the Diaspora. In all educational institutions serving the Jewish public in Israel the annals of the Jewish people, its heritage and tradition, shall be studied. The State shall act to enable all residents of Israel, without regard to religion, race or nationality, to act to preserve their culture, heritage, language and identity.

Official calendar:

The Hebrew calendar is the official calendar of the State.

Independence Day and memorial days: Independence Day is the national holiday of the State. Memorial Day for the Fallen in Israel’s Wars and Holocaust and Heroism Remembrance Day are the official memorial days of the State.

Days of rest:

The established days of rest in the State of Israel are the Sabbath and the holidays of Israel, in which no employee shall be employed except under conditions set in law. Members of recognized [religious] groups shall be allowed to rest on their rest days and holidays.

Hebrew law: Jewish law shall serve as a source of inspiration for the Knesset. If a court faces a legal question that must be decided, and cannot find an answer in legislation, precedent or clear deduction, it shall decide the matter in light of the principles of liberty, justice, integrity and peace in the heritage of Israel.

Protection of holy places:

The holy places shall be secure from desecration, from any other harm, and from anything that may hinder free access of the religious to the places holy to them, or offend their sentiments toward those places.

Denial of rights:

The rights in the Basic Law shall not be denied except in a law that accords with the values of the State of Israel, that is intended for a fitting purpose and to an extent no greater than necessary, or according to such a law under the explicit authority contained within it.

Rigidity

This Basic Law shall not be changed except by a Basic Law passed by a majority of members of Knesset.

A Profound Turn Away from Liberal and Democratic Values

Eugene Kontorovich over at Volokh Conspiracy claims these principles for a proposed nation state law are no big deal. “The nation state bills mostly constitutionalize the national anthem, symbols, holidays, and so forth. There is nothing racist, or even unusual, about having national or religious character reflected in constitutional commitments,” says Kontorovich. Horsefeathers! The 14 principles for a nation state law approved by the cabinet represent a profound turn away from liberal democratic values towards an ethnocracy based on 2,500 year old values. Abandoning Enlightenment values and a modern liberal democratic state in favor of a Talmudic ethnocracy is a big deal—especially in the Middle East, we might say, where modern liberal democratic states are hard to come by.

In the context of discrimination that occurs in Israel against Palestinian citizens, to “constitutionalize” the identity of the state as a Jewish state and the nation state of the Jewish people, where the Jewish people, and nobody else, may fulfill their right to self-determination, is a big deal. It very dramatically shifts the state away from the vision outlined by Justice Barak, it removes the ability of the Supreme Court to nudge the country towards a vision of equality for all citizens, and it lays the groundwork for fully implementing an ethnocracy that privileges Jews over all others in perpetuity.

To constitutionalize that the symbols of the state will be Jewish religious symbols may not be a big deal to Kontorovich, but it will be a big deal to non-Jewish citizens. To constitutionalize a right of return for “every Jew” while the state refuses to grant even so much as a visa to the West Bank spouses of Palestinian Israeli citizens– let alone any return to Palestinian refugees– will not be acceptable to Palestinian Israeli citizens.

A state that actively works to promote immigration of one ethnic group, while actively working to exclude immigration from minority ethnic groups will not be acceptable to the minority.

A constitutional mandate that the state “act to preserve” (read fund) Jewish cultural heritage and “act to enable” (read not fund) the heritage of other citizens will not sit well with the other citizens.

Constitutionally directing that courts must look to Israeli/Hebrew traditions to resolve open questions is to deprive Israeli courts of a tool they have used to interpret laws consistent with liberal democratic values. In light of Israeli court precedent, which often turn to the laws of other modern states for guidance, this is a profound change. It directs the court to look to 2,500 year old legal traditions and to ignore post Enlightenment traditions.

A change in language from the declaration of independence, which prominently called for the protection of all holy places for all religions, to protecting just the holy places of the Jewish state is ominous.

Conclusion

The proposed Basic Law to define Israel as the nation state of the Jewish people is a big deal. It would mark a dramatic change in law from the status quo. Although it might not effect a large change in terms of how many conceive of the state now, or in terms of the ethnocratic facts on the ground, it would provide legal cover for a system that privileges Jews over all others in all aspects of life. It would severely hamper the Israeli Supreme Court to reverse this trend and nudge the country back towards a post-Enlightenment democratic state.

Failure to stop this law would have far reaching consequences.

This post first appeared on Roland Nikles’s blog.