Kenneth Jacobson

The Nation State Law: an American Perspective

Nothing exposes the awkwardness and superfluity of the recently passed Nation-State law in Israel better than the protests by the Druze community and the contortions that Israeli leaders are going through in order to calm the waters.

Right-wing Israeli leaders, such as Naftali Bennett, Israel’s Minister of Education claim that in no way are they against the notion that Israel is both a Jewish and democratic state, but that the balance between the two has tilted too far in the direction of democracy and the law is intended to redress the balance.

This, in fact, is a straw man. As noted by many, the Jewishness of the state of Israel has never been stronger and never in doubt. If anything, by dividing the public on these issues which have been taken for granted for decades, the law could even weaken in time the ardor for seeing Israel as a Jewish state.

So where do we go from here? I’d like to add an American perspective to this story. As an American Zionist, whenever the subject of Israel’s Declaration of Independence enters the conversation about the new law, which it does frequently, I can’t help but think of the impact of America’s Declaration of Independence on American society.

Let’s step back. Several months ago, Israel’s minister of Justice, Ayelet Shaked, in her ongoing critique of Israel’s Supreme Court, asserted that the Declaration of Independence of the Jewish state was not the nation’s constitution. She was referring to the tendency of the Court often to base and justify its judicial decisions on the language of the Declaration.

On one level, the Justice Minister was correct. A nation’s constitution, not its declaration of independence, is the law of the land.

On a deeper level, however, Minister Shaked missed the boat, and not only because,  ironically, Israel has no constitution. More significantly, a nation’s declaration of independence often articulates the fundamental values that undergird constitutional legalities.

Nowhere was this more in evidence than in the United States during the Civil War. Gary Wills, writing in his book “The Gettysburg Address and the Second Revolution,” expresses the thesis that Abraham Lincoln used the values of the 1776 Declaration, particularly the ringing phrase “all men are created equal,” to fulfill American democracy left short by the Constitution.

That document, one of the most historic and progressive in the history of mankind, failed in its treatment of African-Americans. Lincoln’s pivoting to the Declaration, as representing the essence of the American idea, began to turn that around. For Lincoln, the Declaration, while not having the power of law, had an even greater force, capturing the values of the nation that could be used to remedy historic wrongs.

The results were the13th and 14th amendments, ending slavery and providing the basis for equality for African-Americans. The values of the Declaration were now enshrined in constitutional law.

In Israel too, its Declaration carries tremendous weight. Without a constitution, the closest thing it has to it are its Basic Laws, passed periodically through its history, most recently in the case of the Nation-State law.

Just as in America, however, the fundamental values that have represented Israel as a Jewish and democratic society throughout its history have been embodied in its Declaration of Independence.

Here are some of the principles stated in the 1948 Declaration:

“The land of was the birthplace of the Jewish people.”

“The State of Israel will be open for Jewish immigration for the ingathering of exiles.”

“It will guarantee freedom of religion, conscience, language, education and culture.”

“It will safeguard the Holy places of all religions.”

All of these assertions speak to the best that is Israel: proud of its Jewishness; a commitment to uphold democratic principles, including freedom of expression and religion; and protection of the rights of all its citizens.

Like the American Declaration of Independence, this should not be seen as partisan or political. It speaks to the values of the nation, whether one is on the left or the right, religious or secular, Jewish or non-Jewish.

As the debate over the nation-state law continues, Israel should consider following the American lead under Lincoln: transform the values of its Declaration of Independence into being the law of the land. In America’s case, that meant passing amendments to the Constitution.

In Israel’s case that means taking up and passing a new basic law, using the exact language of the country’s Declaration that has served the nation so well.

Nothing embodies Israel as well as its Declaration. It’s time to make it the law of the land.

About the Author
Kenneth Jacobson is Deputy National Director of the Anti-Defamation League.
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