by Dror Eydar
The much-debated nation-state law, which defines Israel's status as the homeland of the Jewish people, is the answer to the constitutional revolution that took away the Jews' national identity in Israel
"What are you afraid of?" The opponents of the recently passed nation-state law, which enshrines Israel's status as the nation-state of the Jewish people, keep asking. They callously dismiss the fears of the Jewish majority in Israel. After all, we, the Jews, have a long history of devastation – two national destructions, hundreds of wars against foreign invaders, two exiles (one of them lasting hundreds of years and including the expulsion of Jews from almost every place they sought to settle) and one Holocaust. Does that not justify a healthy dose of fear?
Even after the establishment of the State of Israel, the persecution didn't end. I'll put it another way: People who aren't afraid may not have the best grasp on reality.
Regardless, fear is not the motivation behind the nation-state law. The chief motivation driving this legislation is the understanding that over the last 25 years, the balance between the legislature and the judiciary in Israel has been upset.
Until today, we naively went to the polls and believed that our vote would decide our future. We believed that our vote would be deciding factor. Societies are made up of so many different groups with so many different beliefs, how do people decide a society's future? We get together in one place, agree on the rules of the game and take a vote. Majority rules. Once upon a time, this was done in the marketplace or the agora, but today, it is the Knesset or parliament.
But one day, we discovered that someone had changed the rules. It's not the public that decides, by way of elected representatives, but rather a small unauthorized group that simply seized the power to decide our future based on their values. The letter of the law has long ceased to guide our Supreme Court. The court interprets the law and adapts it to its own views, or, more accurately, to what the court believes the law should be, even if the legislature legislated otherwise.
How did this happen? It became possible thanks to former Chief Justice Aharon Barak's constitutional revolution. He turned Israel's Basic Laws into a constitution-to-be, and with years of legal interpretation, destroyed the equal footing shared by Israel's Jewish identity and its democracy. Within the confines of the court, Israel's Jewish identity became nothing more than declarative, a thin idea that mainly adapts itself to universal values, as understood by the Supreme Court justices, and only them.
For many years, we have been disappointed by the court. The nation-state law is an attempt at redemption. Ironically, the forefathers of this law are in fact Aharon Barak and his faction. The citizens of Israel, by way of their elected representatives, are trying to restore some of the freedom they once had, before the court decided to educate us. I have reiterated this point many times: The Supreme Court justices, including Aharon Barak, are no better than we are at understanding values. Their job description does not include telling us what is good and what is bad, or defining for us what is true. All we've ever asked of them is to rule according to the law – to decide whether one act or another complies with or violates the existing, written law.
But they, in turn, adopted Plato's Republic, in which the philosopher king rules over the ignorant masses. They found a clever way to impose a tyranny of the minority over the majority. The nation-state law was designed to slightly rectify this gross imbalance. Judicial activism is guided by hubris and aggression – the belief that you understand better than others what is worthy and the aggressive tendency to dismiss the will of the voters. Basic Law: Israel as the Nation-State of the Jewish People, as it is known by its official name, offers the tools to restore some of the eroded Jewish identity.
One proposal, to make the Declaration of Independence a law that would replace the nation-state law, is a joke. It is about as laughable as the nondescript, toothless nation-state bills submitted by Likud MK Benny Begin and by Yesh Atid leader Yair Lapid after him. It would be impotent and ineffectual. Neither here nor there, just like the general image that Yesh Atid is trying to sell the voters. Behind this proposal lies the strong will to perpetuate Barak's constitutional revolution, preserve the Supreme Court's power, dictate the public's values and keep the Knesset weak. The desired equality already exists – in individual and civil rights. Everyone is equal before the law.
But when it comes to defining the State of Israel as the nation state of the Jewish people (or the state of the nation of Israel, but in this instance they are one and the same) – there is no equality. As a rule, equality is a relative matter, and it lends itself to interpretation. Each person has his own idea of equality. If the world "equality" were to be inserted into the nation-state law, gradually, like in the case of the constitutional revolution, the Aharon Barak school of thought might very well use it to strike down the Law of Return as failing to comply with the criteria of equality. Watch how leftists like Meretz and parts of the Labor party already have trouble talking proudly about Zionism – just think what would happen if we were trying to legislate the Law of Return today.
For the hundredth time, I repeat my call: Please read the nation-state law as it is written. It will be the best antidote for the propaganda that has been mounted against it.
The exaggerated overuse of the words "racist," "fascist," "apartheid" and worse to describe the nation-state law hasn't convinced its supporters to reconsider. On the contrary, the public knows it isn't racist. The more the Left waves these accusations around, the more it will distance itself from the general public. The public, in turn, increasingly despises the accusatory Left. Thus, the Left perpetuates its political defeat. A healthy public will never vote for the camp that scorns it. Moreover, now that the nation-state law has drawn a clear line between its supporters and detractors, it is plain to see who has jumped on the anti-Zionist bandwagon, be it willingly or unwittingly, and denies the Jews' exclusive right to their land.
These deniers not only reject our right to the land, but they also deny our national identity. For years, the Arabs have argued that the Jews are part of a religion, not a nation. The global Left and its radical supporters in Israel claim that the Jewish national identity is a modern invention from the 19th century. The truth is that the European national identity was actually inspired by the national identity of the Israelites in the Bible.
It is clear to anyone with a sound mind that the issue here is not race. The Jewish people have a right to self-determination in their only historical homeland. People who despise their enemy – an enemy who seeks to kill them and remove them from their home – are not racists. They are normal human beings. We were here long before Arab MKs Jamal Zahalka and Ahmad Tibi and Palestinian Authority President Mahmoud Abbas.
In the 7th century, the Islamic conqueror arrived in the land of Israel. But even after the conquest, no other national entity existed here. Zionism achieved true justice and restored the Jewish people to Zion. In court, when human rights activists file anti-national petitions against the Jews’ right to live as a nation in their land, the human rights activists usually win. This suggests that it is not "human" rights that the petitioners seek, but rather the erosion of Jewish rights to their land and to self defense. The nation-state law seeks to restore some of the justice to the Jews.
When the Druze community became involved in the debate, arguing that the nation-state law ignores their enormous contribution to the state and brands them second class citizens as non-Jews, they did themselves a grave disservice. There is no correlation between the law, which speaks to the nationality issue, and the ethnic and religious groups living in Israel, whose issue is individual and civil rights. Riyad Ali, the prominent Druze journalist, gave a moving, emotional speech on television, but it had nothing to do with the law. By the same token he could have been a Mizrahi Jew accusing the Ashkenazi Jews of mistreatment. That, too, would have nothing to do with the nation-state law. Had there been a single supporter of the law in that television studio, they could have handed Ali a copy of the law and asked him: where are all these terrible things you are accusing us of?
The conversation about the nation-state law is vital to our existence and to our future, because it touches on deeply rooted issues that we have been repressing for years. For the sake of the debate, it would be worthwhile to discuss the original intent of the forefathers of Zionism, but not just. The fact is that we have never been satisfied with just a limited vision of a "state for the Jews." We have argued about the vision of the Jewish state for generations.
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