The state of Israel’s democracy

The real motive behind the Loyalty oath proposal is to exclude political opponents from the ballot, dressed up though it may be in patriotic flummery.

By YITZHAK KLEIN
December 7, 2010 23:35
4 minute read.
Yitzhak Klein.

yitzhak klein_58. (photo credit: Courtesy)

The Israel Democracy Institute’s latest Democracy Index reports that 54 percent of Israelis favor requiring citizens to take an oath of loyalty to Israel as a “Jewish and democratic state” as a condition for being allowed to vote. This bad idea should be opposed on principled and pragmatic grounds alike.

Freedom means that society may not coerce the expression of an opinion.

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Society is not free if government may impose sanctions upon those who refuse to express orthodox opinions.

How much more so is this the case if the proposed sanction is to withhold the most fundamental right of citizenship from those whose opinions are deemed politically incorrect? Democracy rests on the freely given consent of the governed. It is no democracy if government, which always represents the opinion and the interests of particular parties, has the power to penalize those who disagree with it. How much more so is this the case when the penalty inflicted is withholding the right to determine the balance of political power in the country? Grant governments the right to impose loyalty oaths as the price of political participation, and they will design those oaths to exclude their political opponents from the ballot.

This is the real motive behind the loyalty oaths currently being proposed, dressed up though they may be in patriotic flummery.

The classic expression of these principles appears in the decision of the US Supreme Court in West Virginia vs. Barnette. At the height of World War II, the state of West Virginia passed a law requiring schoolchildren to pledge allegiance to the flag. The sect of Jehovah’s Witnesses refuses to express allegiance to any worldly authority. The children of Jehovah’s Witnesses were expelled from the schools, and their parents threatened with fines and imprisonment.

The court ruled that “the very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, [and] to place them beyond the reach of majorities and officials... One’s right to life, liberty and property, to free speech, a free press, freedom of worship and assembly and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.

“We set up government by consent of the governed, and the Bill of Rights denies those in power any legal opportunity to coerce that consent. Authority here is to be controlled by public opinion, not public opinion by authority.”

PERSONALLY, I find the values that the proposed oath is supposed to support unobjectionable. It is the oath itself that undermines those values. If required to take the oath, I might refuse, even though I agreed with every word of it.

I was intimately involved during the terms of the 16th and 17th Knessets in efforts to adopt a constitution. In the end, the constitutional project failed. It proved impossible to achieve a consensus on the values to be safeguarded in the constitution, and on the relative power of Knesset, government and judiciary. No constitutional draft could garner the support of a majority. Even if one had, it would have left hundreds of thousands if not millions feeling that the constitution had been deliberately written to exclude them.

And yet the State of Israel carries on, and de facto support for the sovereign Jewish state that now exists in Eretz Yisrael thrives. Hundreds of thousands of haredim wish the sovereign Jewish state well, whatever their rabbis say, and increasing numbers share in its defense. Their representatives and (increasingly) their students in higher education use the vocabulary of civil rights and liberties, even if such terminology is taboo in the beit midrash.

Many of them would refuse to take an oath that their formal ideology refuses to sanction, even though their actions and their politics affirm the values contained in that oath every day.

Hundreds of thousands of ordinary Arab citizens go about their daily business, working alongside Jews and enjoying liberties and opportunities they could never attain 20 kilometers to the east, under the Palestinian Authority. Their leaders, too, fulminate against the Jewish state, but the last thing ordinary Arabs want is for Israel to go away.

A loyalty oath requires people to swear allegiance to a particular state of Israel – the existing one, with its public culture, policy errors, ideology and political institutions. For many Israelis the state is far from their ideals, whatever their ideals, and not something they would swear allegiance to. And yet this flawed state and society attracts their support in practice. Many are willing to fight, even to give their lives for what we have, however far removed it is from what they desire.

A loyalty oath would do nothing to increase allegiance to the State of Israel.

It would needlessly alienate citizens whose sentiments, if not their ideology, support the state, divide and weaken society rather than strengthen and bring it together. It is neither just nor expedient, and should be opposed.

The writer heads the Israel Policy Center, whose mission includes strengthening Israel as a Jewish democracy. The views expressed in the article are his alone.


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