The Nation-State Bill, Groucho Marx, and Justice Kavanaugh

They have it so painfully wrong. The outrage over the Nation-State bill passed by Knesset is a tempest in a cholent pot. The world community that calls it racist is wrong. The effete snobs of the New York Times who wrote their obituaries for Israeli democracy are wrong. The Haaretz leftists who are calling for an immediate appeal are wrong. The Druze leader who has managed to elevate his blood pressure – along with a few of his best friends in Knesset – is wrong. Only Groucho Marx got it right. I will explain, in due course.

Some background. I knew that a friend, Prof. Moshe Koppel, had been involved with drafting the law, so I turned to him for a tutorial. (The general thrust – but not the details – of much of the next four paragraphs is based on conversations with him, but responsibility for accuracy rests with me.) The bill was many, many years in the making, and its target was never whom the world assumes it is. The bill had far more to do with Brett Kavanaugh than with kafiyehs.

Israel’s Supreme Court enjoys the dubious distinction of being perhaps the most activist court in the world. Compounding matters is that it is largely an “old boys and girls” club. The Court itself exercises inordinate control over its own composition. The committee of nine responsible for appointments has three members from the Court itself, and two from the Bar Association with which it is closely allied. Together, they are a majority, and appoint like-minded people, regardless of the will of the nation.

Then there is the matter of the Constitution. Israel does not have one. (Ben-Gurion didn’t want one, fearing what the Court would do with it!) Instead, a group of laws, known as the Basic Laws functions as a quasi-Constitution; its provisions trump those of ordinary laws, and are subject to deep interpretation by the Court.

Constitutions generally include three components: a mission statement of sorts of what the nation is about; a section delineating individual rights; a description of the conduct of the branches of government. Israel has had Basic Laws regarding the last two sections, but not the first. The Basic Law on Human Freedom and Dignity has proven to be particularly pliable. Justices have found more items and objections here than liberal justices on the US High Court have found in the infamous “penumbra” of the Constitution. This was particularly true during the years that the Court was headed by Aharon Barak whose full-throated embrace of judicial activism should frighten anyone but a North Tel Aviv elitist. One of his findings was that the Basic Law on human dignity disallowed corporal punishment of children by parents, making Israel the first country in the world to essentially find the use of a traditional parental prerogative to be “unconstitutional” as a basic affront to humanity. Another justice of the court opined that “light violence” could easily deteriorate into greater violence. Whether or not the justices were correct can be reasonably debated. Whether the State should step into the family dynamic seemed to be a governmental intrusion into the private sphere that would be tolerated nowhere in the Western world.

The Court over the years chipped away at the Jewish character of the State. Many feared that, in time, there would be nothing left of it, as the Court would find that, for example, the singing of Hatikvah, which is clearly irrelevant to the Arab citizens of the country, would be found to be a violation of their freedom and dignity. Now, the State of Israel constituted itself as Jewish and democratic. The democratic element had been enshrined in Basic Laws, but there was no equivalent set of fundamental laws that would give future Courts a place of refuge when considering the special role played by the State as the national homeland of the Jews. The law passed last week simply provided the third leg of Israel’s non-Constitution. It puts on an equal footing to the laws of human dignity the nature of Israel as a Jewish state. It provides a legal understanding – a very narrow and limited one at that – to the promise in Israel’s Declaration of Independence to be a Jewish and democratic state. Should challenges to various practices arise in the future, justices will not be left with but a single yardstick – the human dignity law – to measure their legality. The Nation-State law creates an argument with the force of Basic Law that allows for the overt consideration of the goal of the foundation of the State: the well-being of a homeland for the Jewish people.

Simply put, the Nation-State bill served those who were afraid of a left-leaning activist Court precisely the way the presence of a Justice Gorsuch and future Justice Kavanaugh calm the fears of the red half of the United States that left-leaning judges have gone off the rails.

We needn’t devote much time to considering the objections to the bill raised in many circles, some with malice, some without. Much has been written, and readers can find the material easily. We’ll simply mention some of them – and responses to them – in bullet list form:

  • The bill disenfranchises the Arab minority. Nonsense. The Basic Law on Human Freedom and Dignity won’t allow that. The bill takes away nothing. It does attempt to help a future Court not to take away from the Jewish character of the State.
  • Calling Israel a Jewish State is inherently racist and anti-democratic. Nonsense, and also funny. Nonsense, because if that were so, a slew of European countries would have to be seen as anti-democratic for establishing special preferences for majority parts of the population, or establishing a national church. Is England anti-democratic for establishing the Anglican church as the official one of the realm? The British don’t think so, because they extend equal privileges to non-established churches, as well as to Judaism and Islam. Is there, for that matter, any country that guarantees the right of self-determination to minority elements? Certainly not Spain to the Basques. And we won’t even talk about the Kurds and their difficulties. Extending such a guarantee is an invitation to national disintegration. In the US, we’re not ready to give it to Texas, any more than the Union was ready to allow it to the Confederacy. (Personally, I would support giving it to Berekely, and then towing it out to sea.) The charge is funny, because the first to level it were countries whose official names begin with “The Islamic Republic Of _____.”
  • The bill should have mentioned the rights of minorities. Nope. Read above. Those are already guaranteed.
  • By making Hebrew the only official language, Arabs are being shown the back door. Not at all. The bill does declare Hebrew to be the one official language, but hurries to add that this does not change the practical status of Arabic. Street signs are not going to be changed. But the Supreme Court will have to be a bit slower in ruling that both Hebrew and Arabic should be replaced by Esperanto, in order not to violate the human dignity of non-Hebrew and –Arabic speakers. Is California racist for treating English as the one official language – but still providing forms, classroom instruction, etc. to Spanish speakers as well as speakers of a host of other languages?
  • Making Hatikva the national anthem is a slap in the face of Arabs. Not really. It is a statement that Israel is a Jewish state with roots going back over 3000, even as the Palestinians deny any Jewish role in the history of the region. Arabs don’t have to sign it, and are free to sing The Star Spangled Banner, if they like. Which, come to think of it, is an anti-democratic song. “O’er the land of the free, and the home of the brave.” That sounds awfully close to disenfranchising prisoners in penitentiaries and cowards, two important and neglected groups in the failed American democracy.

Another important point. All of the grousing shows both bad faith in Israel’s track record over the last seventy years, and overestimates the efficacy of documents. Enter Groucho, who famously observed, “An oral contract isn’t worth the paper it’s written on.” To which should be added, “A constitution not backed by the will of the people isn’t worth a ream’s worth of fine print.” The Soviet Union had its 1936 Stalin Constitution, and it guaranteed a host of rights and liberties, including freedom of religion. Countless people enjoyed those rights in the Gulag or in the grave. Where a strong, monolithic ruling party is in control, a Constitution is no move difficult to subvert than many other obstacles. A Constitution is only as strong as the democratic ideals of the people.

Israel is a democracy. It is flawed, as is every other democracy. In the progress it has made in human rights, it has nothing to be ashamed of in comparison to any other country. There are, to be sure, areas that require serious improvement, including the underfunding of Arab communities on the Israeli side of the Green Line. But if you compare the rate of progress with either the first 70 years of American democracy, or even the last seventy, Israel will not come up second in the area of human rights, including those of minority populations like Muslims and Christians. (I began writing this article the same day that Hebrew U announced the appointment of the first female Arab dean.) It is the democratic streak that runs so deeply in the majority of Israeli society that ultimately precludes the new law from eroding minority rights- even if the other Basic Laws would not make this impossible.

Those who refuse to take note of this include too many people who simply look at everything that Israel does with a jaundiced eye. So many people will only tolerate an Israel if it is a paragon of virtue, or at least the only democracy in the Middle East. If Israel can be stripped of that distinction, then they can allow themselves to more vocally despise her.

Why is the uneasiness so widespread? Mistakes were made, to be sure. The Druze sheikh speaking out against the bill as breach of the special relationship between his community and Jewish Israel was a long time supporter of the bill! Those who introduced the final iteration of it made the mistake of not filling him in, of not making him part of the process. He turned against it, not so much for the real threat to his community, but because of a perceived slight. Some of those rallying to his side are not so much disturbed by the implications of the bill, as by the fallout in relationships. (I’m not sure anyone should be blamed for this reaction. But it should not distort our view of the essential need for the bill, and that it does not mean Israel turning its back on democracy.)

Many more people oppose the bill because they fear that perception is more important than reality. If so much of the world community believes that the bill is anti-democratic, then Israel should not needlessly give them an excuse to further isolate her.

Reasonable people can disagree on whether or not appeasement of a world community hostile to Israel has ever worked. Some of the most oft-quoted words of Rav Yisrael Salanter deal with perception and reality:

Man is free in his imagination and bound by his intellect. His unbridled imagination draws him mischievously in the way of his heart’s desire, without fear of the certain future — the time when Hashem will examine all of his affairs… There is no one else to take his place. He alone will bear the fruit of his sin. The transgressor and the punished are one and the same.

Rav Yisrael reminds us that the imaginative side of Man prevails in our personal lives – usually to our detriment. Part of our human responsibility is to discard the imagined and replace it with the reality that reason points to. Perhaps it is not unfair to say that the same applies to the way we read the news. Hard as it is sometimes, we should strive to uncover the real nature of things. Sometimes, it can even triumph over perception.

But we should not become so fixated on the perception that we lose sight of the reality.

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14 Responses

  1. dr. bill says:

    A logician would make anyone who knows how precisely correct but practically wrong they can be a tad nervous. Since quoting the rav ztl in contexts different from those in which he spoke seems to have become a popular pastime,; I would argue that on occasion he opposed formalization of what was already the practical reality. Creating a theoretical boogeyman – the court – and ascribing all sorts of potential ills to it may be a logical possibility, but not a practical probability or reality. I say this with great respect for prof. koppel with whom I share a doktorvater.

    thank God we have a court that can control the coercion a minority can impose if it is part of a ruling coalition.

  2. Bob Miller says:

    Your mention of both Groucho Marx and the Soviet Union brought this to mind:

    I hope the Jewishness of the State asserted in this measure prompts a discussion of how the State should be more—not less—Jewish in fact.

    Also, the “world community” can mean a huge group of buffoons uniting around their pet hate, us.

  3. mb says:

    Antisemitism was illegal in the Soviet Constitution.

    In answer to your inquiry :
    National and racial chauvinism is a vestige of the misanthropic customs characteristic of the period of cannibalism. Anti-semitism, as an extreme form of racial chauvinism, is the most dangerous vestige of cannibalism.
    Anti-semitism is of advantage to the exploiters as a lightning conductor that deflects the blows aimed by the working people at capitalism. Anti-semitism is dangerous for the working people as being a false path that leads them off the right road and lands them in the jungle. Hence Communists, as consistent internationalists, cannot but be irreconcilable, sworn enemies of anti-semitism.
    In the U.S.S.R. anti-semitism is punishable with the utmost severity of the law as a phenomenon deeply hostile to the Soviet system. Under U.S.S.R. law active anti-semites are liable to the death penalty.
    J. Stalin
    January 12, 1931
    First published in the newspaper Pravda, No. 329, November 30, 1936

  4. Steve Brizel says:

    One should note the similar logic used by opponents to the law in Israel and those who oppose enforcing the law in inner city neighborhoods, meaningful screening of would be immigrants in the US. Judge Richard Posner of the Seventh Circuit and an eminent legal conservative once remarked that J A Barak would and should have been granted a Nobel Prize in inventing his theory of law and jurisprudence.

  5. Raymond says:

    I have really two responses to this article. The first part will be fairly simple and predictable coming from me, while the second part will be a bit more nuanced.

    Any normal country has its nationalistic pride. It is called patriotism. So the French are proud to be French, the Chinese are proud to be Chinese, and so on. Nobody questions any of this. If anything, it is so obvious that it hardly needs to be stated at all. And yet when we Jews express similar pride in our little Jewish country, proudly declaring what should be self-evidence, namely that it is a Jewish State, suddenly the whole world is up in arms. Far more maddeningly is this protest when it comes from our own Jewish people, although I suppose that Jewish self-hatred is nothing new. In any case, the fact that Israel declaring itself to be Jewish State is somehow so controversial, only goes to show that antisemitism did not die with the Holocaust. It has only metamorphosized into a somewhat different form.

    Now, as to the question concerning the seeming incompatibility between the notions of a democratic State and a Jewish State, that gets a bit more complicated. First of all, I do not believe that Judaism is incompatible with democracy at all. On the contrary, when Thomas Jefferson wrote about how all people are created equal, he might have been inspired by G-d Himself, who very early on in the Torah explicitly states that Adam, and by implication all of us, are created in the Image of G-d. That is the ultimate statement of equality, how none of us are inherently better than anybody else, which in turn logically leads to each person having exactly one vote, no matter what station in life that one happens to find oneself in, since we are all equal.

    Given that to be the case, what about the Jewish State of Israel? Should it be a pure democracy? The answer is not quite yes and not quite no, but rather, that it depends, not quite on how one was born, but rather on one’s actions. When it comes to non-Jews living in Israel, they must agree to abide by the Seven Noachide Laws. If they are unwilling to do so, then they should not be welcome in Israel. Thus the islamoNazis are quite proud to either murder Jews or throw their support behind their fellow islamoNazis who murder Jews. Israel therefore needs to vomit those savages out of our Jewish land. A bit more delicate is the issue of Christianity, since many of them are some of Israel’s strongest supporters, and yet their idolatry also violates one of the Seven Laws of Noah, and therefore Christianity is also incompatible with the inherent holiness of the Jewish Land of Israel.

    Now what about among Jews ourselves? The vast majority of Jews in the world today, are not even religious. Are they, too, not welcome in Israel? The answer has to be no, since Israel is meant for us Jews. But what kind of a Jewish State would it be, if it were totally run by completely secular Jews? If Israel is not run as a religious state, then it has very little meaning to it. And yet for the State to force Jews to be religious, would be a really terrible solution to such a problem. G-d wants our hearts, not for us to be slaves.

    So my answer to this seemingly insoluble problem, actually comes from what I perceive to be the way of Chabad. Chabad Rabbis are sent all around the world to bring Jews back to the Torah, but it is never done in a coercive manner, and yet even in Chabad shuls where everybody there may start out being not religious, it is understood that Torah Judaism is the ideal to aspire to, with the Rabbi of the shul serving as their role model. Similarly, while the people of Israel should have the inherent right to choose for themselves how religious that they wish to be, the government itself should consist of religious Jews, with their religiosity helping them formulate public policy, and in that way they serve as a standard for the average Israeli citizen to aspire to become. In that way, democracy remains intact, while the standard for Israel would then be Torah Judaism.

  6. Bob Miller says:

    Regarding the comment by Raymond – August 3, 2018 at 12:23 am:

    The nations of the world can only harm us in proportion to our desire to be like them. We can’t deny that Israel is meant to be ruled exactly as Halacha prescribes. Any other arrangement is at best temporary and transitional. The question is how to act together to achieve the transition over time. The answer is to voluntarily correct our outlook and our actions toward one another so as not to push off our final redemption any longer.

    About the basic law:

    If I read Rav Adlerstein’s article correctly, declaring the State to be Jewish is meant to be a check on Israel’s Supreme Court. Do we really think this arrogant, elitist, inbred Court that is responsible to no one will curb itself because of a basic law that challenges its core philosophy? Is this law an immovable object that will block the previously unstoppable force that the rest of the government has felt compelled to obey? Miracles do happen.

  7. Steve Brizel says:

    Judge Posner’s review can be accessed

  8. dr. bill says:

    Raymond, a government of religious Jews committed to democracy and religious freedom would have two challenges. 1) it would have to be democratically elected. 2) if only Jews committed to democracy and religious freedom could run you would have a very restricted set of religious Jews from which to find candidates.
    I can think of a fair number, but almost all from traditional Judaism’s so-called left wing and NONE who would feel subject to anything more than rabbinic advice – not authority.

  9. Raymond says:

    Dr Bill, aren’t you assuming that most religious Jews would want to force their fellow Jews to be religious? Because that is essentially the situation that Jews in Israel would find themselves in, if Israel would suddenly become a theocracy overnight. However, it is my distinct impression that that is the last thing that truly religious Jews would want, simply because Free Will is one of the biggest hallmarks of Judaism. We Jews are constantly taught how G-d gave us Free Will so that we follow His Ways not because we are robots unable to make our own decisions, but rather free human beings who decide how to live our lives. And so, to be logically consistent, religious Jews would advocate that Israel be a democracy for Jews, so that individual Jews can freely decide how religious they wish to be, rather than having it imposed on them by an overarching, coercive government. And I advocate that the government itself have its representatives be religious, both to serve as role models for the general public to aspire to, and also to help them inform policy. If this sounds like a rather odd idea, it really isn’t, as I compare it to the Founding Fathers of America. The Founding Fathers forbade the establishment of an official State religion in America, and yet all of its Founders were very strongly influenced by the Judeo-Christian ethic, and thus formulated policy consistent with that. It is no accident that virtually every President of America have been Christian Zionists.

  10. Allan katz says:

    The law is more about making a political statement than making meaningful change on the ground. In fact , it has changed things on the ground alienating the Druze community, endangering the partnership between the state and the Druze , which will change things on the ground. Israel has always lost the propoghanda war and sometimes because of its stupidity – making Ahed Tamimi into a hero world wide and now this. Sometimes as the saying goes , rather than being in the right , be wise and clever.

  11. dr. bill says:

    Raymond, I am assuming nothing; I am extrapolating from the behavior of chareidi politicians who currently occupy various elected offices. You can have a democratic state; you can insist that elected officials comport to a religious lifestyle. You cannot have both.

    Your analogy to the US is faulty to the extreme. the US elected officials represented views supported by a majority who elected them: a majority of Israelis do not support your desired qualifications for a candidate. if they did, we would already have something close to what you desire.

  12. Steve Brizel says:

    Dr Bill-there is an alternative to your two suggestions-that is known as the status quo-in which Halacha is respected and viewed as paramount in determining such issues as that of personal status and public Shemiras Shabbos as well as having a vote in all issues of pubic concern.

  13. Steve Brizel says:

    Dr Bill-please define what you mean by “religious freedom” in Israel? Does it mean an American style establishment clause ? Does it mean that halachic norms have no right to be heard and considered on issues such as personal status and public observance of Shabbos?

  14. Raymond says:

    I have to acknowledge that Dr Bill has made a valid point. In fact, I have to thank him for pointing out a major flaw in the position I took above, a flaw that is big enough that I need to somewhat modify my position. For the truth is, that my using America as a role model did not quite fit the stance I had taken. See, while it is true that every President with the possible exception of Baraq Obama have been Christians, it is also the case that the American Presidency has never had a religious test for that political office. Christians have thus dominated the Presidency not because the law required it, but because that has been the will of the American people, expressed through their voting preferences.

    So the question then becomes, would the same thing happen in Israel? Would the will of the people voting in Israel’s elections, naturally choose to vote for Jews loyal to the Torah? So far, it has overwhelmingly not done so, but at least part of that may be due to the fact that Israel’s Parliamentary system resembles Western European countries more than it does the American system.

    Regardless if that is the explanation, the most important part of what I originally wrote above, still stands. Turning Israel into a Torah State from the top down, that is, through government force, would be to turn Israel into a Jewish version of Iran. Such a system by virtue of it being Jewish would surely be a whole lot more humanitarian than what Iran has, but I hardly think that most Jews would accept living in such a coercive, repressive regime. Nor do I see that as the Jewish way at all. Just as Judaism opposes forcing non-Jews to convert to Judaism, so common sense would tell me that Judaism would oppose forcing Jews to live a Torah life. And thus we return to what the foundation of Judaism is has always been about anyway, namely education. Really the only hope for Israel to be a State based on the Torah, is to educate Jews in the ways of the Torah, one individual at a time, and only when each individual Jew is ready to make such a radical change in their lives.

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