Why the U.S. Constitution Is Everything the Jewish Nation-state Bill Is Not

Unlike the American document of great vision and farsightedness, the Israeli bill is petty and political, and serves the interests of the moment.

Yuli Tamir.
Yuli Tamir
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Israeli and American flags
Israeli and American flagsCredit: Dreamstime
Yuli Tamir.
Yuli Tamir

Since the U.S. Constitution was signed in 1787, it has been the basis of American democratic values. Its power rests in the ambiguity that typifies it, in what it does not define clearly and unequivocally. Even its opening words, “We the people of the United States,” leave room for interpretation. For example, who are the “we” who “do ordain and establish this Constitution for the United States of America”? If the American Constitution were to begin with an exact definition of this “we” – white, male, Protestant landowners – the preamble of that historic document would have required profound changes, because every group added to that “we” would have demanded the wording be adapted to include it as well.

The term “people,” which is not clear either, includes the individual and the collective at one and the same time. Even the term “United States” is flexible enough to include the 13 original colonies that ratified the Constitution and the 50 states that comprise the United States of our own day. One of the Constitution’s main goals, “to form a more perfect Union,” also leaves room for flexibility. The preamble’s brilliance lies in its authors’ ability to keep it ambiguous – an ability that gave birth to a political stability that has lasted for more than 200 years.

The Jewish nation-state bill, in its various versions, does the opposite. It tries to pin down what cannot be pinned down, encourages controversies and requires debate on subjects that are best served by silence. The bill is coming up at a time when the very definition of the Jewish nation-state is in dispute. Do the ones who vote in favor of the bill accept the definition of Jewishness as laid down in the Law of Return? If not, then the Jewish nation-state bill removes many of Israel’s citizens from the nation’s boundaries. If the bill is based on the Law of Return, it stands in contradiction to family law and the laws of conversion, and artificially, if not hypocritically, broadens the concept of “nation” for political ends.

Putting Israel’s Jewish character before its democratic one disrupts a delicate balance that has been kept for years, in which Israel has wisely not committed itself to a clear order of priorities. This has enabled laws such as the Law of Return, in which the Jewish component takes precedence over the democratic one, to exist alongside the Basic Law on Human Dignity and Freedom, in which the liberal-democratic values come before the national ones.

The decision not to heighten the tension between the two approaches has allowed Israel to continue belonging to the democratic world, which has room for the structural preference of a specific nationality that is anchored as a “condition of acceptance” into the country rather than the status of its citizens.

While Israel has never recognized the collective rights of its Arab citizens, it has not revoked them either. The obvious expression of this is Arabic’s status as an official language in Israel and as the language of instruction in the Arab school system. We can see from this that Israel acknowledges that another nation with a different language lives here – a nation that must be respected not only on the individual but also the public level.

The attempt to deprive Israel’s Arab citizens of their rights as an ethnic minority in such a blatant way will give rise to grievances, with good reason, and could ignite a struggle that will sharpen the tensions that already exist between both national groups.

If the Jewish nation-state bill should be passed into law, the next struggle will be not only over the collective rights of Israel’s Arab citizens, but also over their rights as an indigenous people – a definition, according to international compacts, that includes a requirement to recognize the minority’s culture, language and religion, as well as its rights to land and governmental autonomy.

Last, but certainly not least, is the absence of any mention of the principle of equality, which is supposed to derive – according to a professional opinion in the Justice Ministry – from the statement of Israel’s democratic character. If Israel intends to grant equality to all its citizens, why not say so explicitly? If it is not stated explicitly, the suspicion arises that the state’s intention is to chip away at the principle of equality.

On top of that, the term “democracy” has lost some of its charm in recent decades. There have been quite a few cases in which democratic processes resulted in regimes that did not respect the rights of minorities or individual liberties. The naive assumption that a democratic government will necessarily, by democratic process, strengthen the liberal values of equal rights and the protection of human dignity, has been proven false. Therefore, the assertion that the principle of equality is inherent in the concept of democracy is a weak statement that removes equality from the regime’s fundamental values and opens it up to interpretation. This is particularly serious when the law gives power and influence to a majority that could use its power to harm the minority’s rights.

If the Jewish nation-state bill should pass, it will turn Israel from a democratic state that was established on the basis of a universalist, national worldview to an ethnic democracy that bases its existence upon the additional rights of the ruling nation. This change, which seems insignificant – from an ambiguous situation in which a balance between the state’s ethnic and democratic character is kept, and an unambiguous one in which the ethnic component is given more weight – reduces the democratic ability to handle social tensions by political means.

Contrary to the preamble of the U.S. Constitution, that document of great vision and farsightedness, the Jewish nation-state bill is petty and political, and serves the interests of the moment. It has no power to encourage governmental stability or mobilize Israel’s citizens to create “a more perfect Union.” It is not motivated by the hope of creating a new and just society, as the U.S. Constitution was, but rather by fear and lack of confidence in the State of Israel’s ability to continue existing in its present form.

A bill that causes contention rather than encouraging unity is unnecessary and dangerous. Anyone who votes for it in the cabinet or the Knesset should know that he is undermining Israel’s definition as a democratic state, and speeding up its distancing from the Western world.

The writer served as education minister as a member of the Labor Party.

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