A truly stunning own goal

How sad it was to see 45 Jewish members of the Knesset voting against a law that states Israel is the nation-state of the Jewish people.

Israeli flag (photo credit: REUTERS)
Israeli flag
(photo credit: REUTERS)
The Prime Minister complained that the debate about the just-passed Basic Law: Israel the Nation-State of the Jewish People, was superficial. What Netanyahu means is that the law’s opponents did not conduct a serious analysis and therefore jumped to wrong conclusions. However, a professional examination of the law – from both the legal and social perspectives – merely intensifies the sense that this is an error of historic proportions.
Much has been said about how the law is an insult to the non-Jewish minorities who live among us. The curtailment of the principle of equality buttresses the assertion by some Druze that when it comes to obligations they are treated like Jews, but when it comes to rights they are treated like Arabs. The cold shoulder that the Knesset has turned to the Declaration of Independence, reinforces the Arabs’ feeling that Israel is a Jewish state for the Arabs and a democratic state for the Jews.
While the disappointment felt by the Druze and the despair of the Muslims and Christians is clear to any fair observer, it is important to note the collateral damage it does to “us” – the Jews – as well.
The law’s proponents were moved by the desire to counter Supreme Court rulings which they say arrogate an authority that does not belong to the judiciary and assign Western liberal values precedence over particularistic Jewish values. As they see it, the Nation-State Law will restore the balance, not only by emphasizing the Jewish character of our public life, but also by returning control of identity issues to the Knesset.
In fact, the law might well do just the opposite. It is well known that Basic Laws reallocate power and authority from the legislature to the courts, because they provide the latter with grounds for striking down legislation passed by the Knesset. David Ben-Gurion understood this long before “judicial activism” became dirty words. That was why he made sure that the infant state did not enact a constitution, in contrast to the general practice all over the world. Ben-Gurion realized what the present coalition, scarred by the “constitutional revolution,” refuses to internalize; namely, that a constitution is the source of the court’s power to limit the Knesset’s and government’s freedom of action.
THE NEW Basic Law uses general and abstract language and does not define concrete rights. This wording expands the ability of the courts, which are empowered to interpret it in order to decide specific dilemmas.  For example, the new law refers to key terms that touch upon identity issues, such as “Eretz Israel,” the “right to self-determination,” the “ingathering of the exiles,” the right of “cultural preservation,” and the “cultural, historical and religious heritage” – whose future interpretation by judges could have major implications for our sovereign life.
It is quite amazing to behold the stunning own goal that the law’s proponents scored when they further empowered the judicial branch they want to weaken, precisely in the area that is most important to them – identity.
What is more, the law’s proponents wanted to strengthen the Jews’ national sentiments – but in fact, they actually weakened them. How sad it was to see 45 Jewish members of the Knesset voting against a law that states Israel is the nation-state of the Jewish people. Even worse, the saga of its path through the legislature turned the consensus of the overwhelming majority of the Jews in Israel into a matter of controversy.
In recent weeks there was an expansion of the circle of people located firmly in the center of the Israeli political map who came to identify “national home” as synonymous with “discrimination,” and “realization of the right of self-determination” as synonymous with “exclusion.” These false equivalencies – which have no real justification – are the poison pills that the current coalition has injected into the Israeli bloodstream.
Ben-Gurion and his generation understood that the legitimacy of the nation-state rested on its commitment to guarantee equality to all its citizens. That is why they incorporated references to both the “national home” and “full and equal citizenship” into the Declaration of Independence. The architects of the Nation-State Law clearly overlooked this lesson and proceeded with a step that divides us.
In recent years, fundamental elements of Israeli identity were removed from the public domain and left the private property of only one sector: “democracy” and “human rights” for the Left; “Jewishness” and “religion” for the Right. This recent maneuver is liable to be seen in retrospect as what made the “nation state” the exclusive value of the Right. What a mistake. 
The writer is vice president of the Israel Democracy Institute and a professor of law at Bar-Ilan University.