The real problem with the “Jewish State” Basic Law

Last week, PM Netanyahu pledged to promote a constitutional law, dubbed the Basic Law: Israel as the Nation State of the Jewish People. The Basic Law would declare the principle that Israel is the national homeland of the Jewish people and would weave basic elements of Israel’s Jewish identity into the fabric of its constitutional law. As yet, it is unclear whether Netanyah will promote the recent 2013 version of the law proposed by MK Yariv Levin and Ayelet Shaked, the earlier and further-reaching version proposed by MK Avi Dichter in 2011, or some other version entirely.

The context of Netanyahu’s new enthusiasm for the draft bill is well known. Netanyahu holds up Mahmoud Abbas’ refusal to recognize Israel as the national homeland of the Jewish people as proof of the Palestinian’s fundamental unwillingness to accept Israel’s existence and make peace with it. Now, the principled declaration that Netanyahu could not extract from Abbas he is seeking to bring forth from the Knesset.

For Netayahu, recognizing Israel as the homeland of the Jewish people is the logical corollary of the Palestinian demand for their own Stat – the very embodiment of the two-state solution. This is why Netanyahu expressed his “astonishment” that anyone in the two-state camp would resist the idea.

Indeed, what fault could anyone who believes in a Jewish State alongside a Palestinian State find with the law?

The first problem is that some versions of the proposed law seem to prefer Israel’s Jewish character to principles of democracy. Even the fairly benign 2013 Levin / Shaked draft bill seems to place Israel’s Jewishness above its democratic character, and promotes elements of Jewish national identity at the expense of inclusiveness. The 2011 version went even further, expressly subordinating all laws to the Jewishness of the State. Both draft bills lack any reference to equal rights among citizens, a central element of many democratic constitutions sorely missing from Israel’s Basic Laws.   This is a serious problem, and Justice Minister Tzipi Livni was right to quickly announce, shortly after Netanyahu’s statement, that she would resist any law that would subordinate Israel’s democratic character to its Jewish identity.

But supporters of a two-state solution have an even bigger reason to worry about the proposed Basic Law.

Beneath the rhetoric, proposing a Basic Law to bolster Israel’s Jewish character reveals a deep insecurity about the prospect that Israel will remain a Jewish State far into the future. Such insecurity seems irrational. After all, the Jewishness of Israel was among its founding principles and has faced almost no serious challenge from within Israeli politics during that entire time. Today, when approximately 75% of the population are Jewish, does anyone seriously foresee a time when “Hatikvah” will no longer be the national anthem, or the blue and white Star of David no longer appear on the flag? Do we need to worry that Israel will forsake Jewish education, stop promoting Jewish culture, or abandon the Jewish calendar, holidays, and Sabbath?

According to the 2013 Levin / Shaked draft bill–the likely model for Netanyahu’s proposal–an absolute majority would be required in order to change the Basic Law. Such an entrenchment clause is meant to ensure that changes to the Basic Law cannot be passed by a fleeting majority of the Knesset, only by the clear consensus of an absolute majority.  To be sure, the Knesset has occasionally seen controversial bills pass in poorly attended late night votes. But proposing to entrench Israel’s Jewish character in this manner begs the question – is there any risk that a fleeting majority of the Knesset would ever seek to get rid of Israel’s Jewish character?

Under a two-state vision of Israel with a solid Jewish majority living alongside an independent Palestine, such fears are unfounded. But those who foresee a shift toward a one-state solution have a real reason to worry. Under this future, Israel will absorb 1.5 million – 2.5 million Palestinians into its midst as citizens. When this happens, Israel’s Jewish majority within its borders will shrink to 60% or less, and Israel’s Jewish identity will come under significant strain.

It is not, perhaps, the imminent possibility of a one-state solution that is behind Netanyahu’s intention to promote the Basic Law: Israel as the Nation State of the Jewish People. But the fact that such a law might soon become necessary should be a real cause for concern.

About the Author
Akiva Miller is a Jerusalem-born researcher and lawyer, currently residing in New York.