David E. Weisberg

Ensuring a Jewish state

In the last unsuccessful round of negotiations with the Palestinians, one of many unresolved issues was the Palestinians’ refusal to agree to the Israeli demand that Israel be recognized as a Jewish state.  It always struck me as odd that Israel would seek to elicit such recognition from the Palestine Authority, for several reasons.

First, it is simply a matter of fact that the population of Israel is presently overwhelmingly Jewish; nothing the Palestinians say or do not say can change that plain fact.  Of course, it is possible, even if not very likely, that at some time in the future the composition of Israel’s population will change and Jews will be a minority.  In that unlikely event, a statement by the P.A. would again be unable to alter plain facts.  Secondly, even if the P.A. were to issue such a statement of recognition tomorrow, what confidence could anyone have that future leaders of the P.A., months, years or decades from now, might not refuse to continue the recognition, if it served their purposes to do so?  The P.A. has been known to renege on its commitments in the past.

It is certainly not difficult to understand why many Israeli Jews would want to take steps to ensure, to the extent possible, that Israel is recognized by the Palestinians, and indeed by all the countries of the world, as a Jewish state.  But the foregoing suggests that compelling the P.A. to make what many Palestinians will no doubt regard as a purely formal, ritualistic recitation does not really advance that particular ball at all.  I would like to propose, however, a different approach that, I believe, would give real substance to the identity of Israel as a Jewish state.  And the approach I will present does not rely to any extent on recognition from the P.A. or from any other government or international organization; it relies solely and entirely on the people of the State of Israel.

I believe it is fair to say that, second only to the fact that the population of Israel is mostly Jewish, the single most distinctive characteristic that serves to identify Israel as a Jewish state in the minds of people around the world is the Law of Return, which of course permits anyone who is Jewish to become a citizen of Israel.  What I propose is that Israel’s identity as a Jewish state be ensured, to the maximum extent reasonably possible, by elevating the Law of Return to an especially secure position in the pantheon of Israeli law.

Here is what I suggest: that there be a nationwide referendum throughout the State of Israel basically to confirm the Law of Return.  But, in addition to seeking confirmation of the Law of Return, the explicit terms of the referendum would provide that, if the Law of Return is indeed confirmed (which would of course require the affirmative vote of a majority of voters), then the Law of Return could not be modified or revoked in the future except by means of another nationwide referendum in which the percentage of voters agreeing to any modification or revocation was greater than the percentage of voters who had confirmed the Law of Return in the first referendum.

A simple numerical example will help.  Suppose, in a nationwide referendum, the Law of Return were confirmed by 80% of the voters, just to pick a number.  Pursuant to the terms of that referendum, it would follow that, if at some later time people proposed to amend or revoke that law, they could do so only through a second nationwide referendum in which some percentage of voters greater than 80% voted in favor of the proposed amendment or revocation.

The fairness of supermajority provisions can be tricky questions; one never wants to bind future voters unfairly by requiring them to do more than is required of today’s voters.  I would submit, however, that, if a supermajority of 80% confirms and approves a law on Day 1, it is perfectly fair to require that a supermajority greater than 80% approve an amendment or revocation of the law on Day 1+N, if that is what the original referendum explicitly provided.  There is no lack of fairness, I believe, in a procedure that provides that a supermajority vote (in percentage terms) in favor of a law can be reversed only by an even greater supermajority vote (again, in percentage terms) against that law, provided those requirements are all made explicit at the time of the first vote.

The proposal I’m offering has important consequences.  Again, imagine that an 80% supermajority were to confirm the Law of Return in a referendum.  Then, in the unlikely event that non-Jews were someday to become more than 50% of the population of Israel, it would not necessarily be the case that, even if every non-Jew voted to revoke the law, the “no” votes would constitute a sufficiently large supermajority to be successful.  A population that is just over 50% non-Jewish would not easily muster the vote of more than 80% necessary to revoke the law.

My proposal would, I believe, give real, definite, legal meaning to the identity of Israel as a Jewish state.  As I have said, the proposal does not depend in any way on the acquiescence or agreement of the P.A. or any other government or international organization.  It would be accomplished entirely by the efforts of Israelis, without reliance on anyone else.  A statement from the P.A. recognizing Israel as a Jewish state could be ignored or withdrawn whenever Palestinian leaders found it convenient to do so.  The proposal I have made elevates the Law of Return—and with it, the identity of Israel as a Jewish state—to a paramount place among all the laws of Israel.

I have tried, from the somewhat distant vantage points of my various places of residence in the U.S., to follow Israeli politics closely over the years.  I do not remember coming across a proposal of the kind I have suggested regarding the Law of Return.  It is possible, however, that a similar proposal has already been made, and I simply failed to notice it.  If that is the case, I apologize for taking up time and space on what may be stale news.  If, on the other hand, a similar proposal has not already been offered, I hope my suggestion will be of some interest.

About the Author
David E. Weisberg is a semi-retired attorney and a member of the N.Y. Bar; he also has a Ph.D. in Philosophy from The University of Michigan (1971). He now lives in Cary, NC. His scholarly papers on U.S. constitutional law can be read on the Social Science Research Network at: