Wrestling with the New Nation-State Law

“Everything You’ve Heard About Israel’s Nation State Bill is Wrong,” David Hazony observed recently in the Forward, calling out criticism of the Basic law legislation passed in July 2018 as so much “prefabricated outrage” from American Jewish liberals, anti-Zionists and anti-Semites.  Writings claiming that the legislation marks “the end of democracy,” he asserted, are just “nonsense,” and he defended the law as a reasoned statement about Israel’s reality, identifying it as neither the product of a right-wing conspiracy nor a harbinger of eroding democracy.

“Get Over It – Israel is the Jewish State,” echoed Eugene Kontorovich in Commentary Magazine, hailing the frank and plain recognition in the legislation that “Israel is the nation-state of the Jewish people.” Kontorovich affirmed that the law does not infringe on the individual rights of any Israeli citizens, including Arab citizens, and parallel with practice in many European nations offers a “constitutional” (symbolic) statement about the nature of the national project.  The legislation establishes the primacy of the Hebrew language without eroding the special status of Arabic, reaffirms the national commitment to the value of Jewish settlement, but is mum on those aspects of Israel’s Declaration of Independence that promise equal rights to all citizens.

But Hazony and Kontorovich wrote about the legislation quickly, before the rise of considerable opposition to and second thinking about the law.  Education Minister Naftali Bennett (Jewish Home Party) developed second thoughts after hearing the complaints of “blood brother” Druse citizens about how it makes them feel like second class citizens.  Finance Minister Moshe Kahlon (Kulanu) rationalized that the legislation was hastily put together and voted and should be improved.   Prime Minister Netanyahu was deaf to sounds of opposition from protestors in Tel Aviv but personally heard pleas from Druze spiritual leaders to amend the law and suddenly began talking about another Basic Law to cover the Druse.  Tzipi Livni (Zionist Union) went further, observing that on such legislation, “There are two sides – those in favor of the Declaration of Independence like us and the founding fathers of the state, and those who act against it….”

David Horovitz in The Times of Israel doubled down on i Livni’s take.  Livni told the Knesset that all the legislation needed was an affirmative phrase promising “equality to all its citizens” and there would be little controversy. But no such phrase was at the time acceptable to the authors of the legislation because Netanyahu was interested to show off a broad divide among Israelis and keep himself and his allies with the narrow majority.  David Horovitz observes what seems self-evident: “Those foundational principles [Jewish and democratic] must flourish together. Passing a piece of landmark legislation that needlessly and deliberately — as shown by the legislative process — omitted one of them is plainly harmful to Israel’s reputation.” Benny Begin (Likud) had also called for recognizing Israel as a Jewish state and for stating its parallel commitment to equality for all its citizens.

From where I sit, as the executive director of a national American faculty organization — the Academic Engagement Network — dedicated to countering BDS on American campuses, attempting to mobilize progressives, liberals, and conservatives to speak robustly and reasonably on behalf of the Jewish state, the legislation and its omission of words like democracy and equal rights is troubling and makes our task countering BDS harder.  The conflict over BDS on American campuses is a reputational competition and struggle about legitimacy:  BDS wishes to turn Israel into a pariah state in how Americans think about the Middle East and to portray Israel as a persistent enemy of human rights.

Passing basic legislation which by omission makes uncertain the status of equal rights for minority citizens in the national project gives the other side more fodder for their mistaken evil imaginary about Israel. One already hears voices arising on campus that the nation state law signals that Israel is on the way to becoming an apartheid state, that the legislation represents a triumph of right wing Zionism (Zionism of the land) over classic Zionism (Zionism of the state), and that it sets a tone focused more on realizing the values of the majority than on securing and protecting the rights of minorities.

Yet, in actuality, it remains  to be seen whether such declarations and tendencies as are in the new Basic law will be accompanied by any real narrowing of rights among minorities in practice. Hazony and Kontorovich may indeed be right in insisting that there is no backing up in commitment to the enforcement of equal rights in Israel.  All depends on how this Basic Law is read in conjunction with other Basic Laws like the Law on Human Dignity and Liberty in Supreme Court decisions (does the Law on Human Dignity and Liberty modify this law or does this law modify the earlier law?) Defending Israel on campus against the backdrop of passage of this law is similar to the dilemma of American liberalism amidst the current nationalist-populist Trump regime   Just as we think and know that America embodies and stands for key values regardless of what Trump and his minions presently do or say – think of the 14^th amendment, equal rights, democracy, being an immigrant nation  – so too we can and should think and speak positively about Israel and its accomplishments, Netanyahu and his followers and the new law notwithstanding.  The Jewish state represents the remarkable national liberation of the Jewish people and a remarkable state-building story, absorbing successive new waves of immigrants, accommodating multiple competing tribes, creating and strengthening democracy in a part of the world where it continues rare, and generating economic growth and innovation in high tech, medicine, agriculture, and environmental care. Yeah, and then there’s the new nation-state law…

From where I sit as well, it is difficult to see the statement that “the right to exercise national self-determination in the State of Israel is unique to the Jewish people” as anything but a prideful statement with overtones of exclusion and opposition to two-states. It is difficult to see the affirmation of settlement without any accompanying attentiveness to borders as anything but a veiled statement about a future one-state solution.  Former Knesset member Einat Wilf makes this important point.  As the law is silent on the geographic expanse to which it applies — the area inside the green line, or from the Jordan River to the Mediterranean – it appears a veiled statement about possible expansion. Yossi Alpher observes in the Jerusalem Post, Israel is sliding down a slippery slope toward an ugly, conflicted, non-democratic and non-Zionist one-state reality ….” American liberal Jews like Dennis Ross and Stuart Eizenstat in the Forward lament the law that “unlike Israel’s Declaration of Independence, drops any reference to democracy and equality.”

Defenders of the legislation rightly insist that we should learn about the broad historical context in which it arises. During the past ten years, Israel Arabs have called for annulling the definition of a Jewish state while establishing a consociational democracy, UN agencies have championed statements questioning the historical connection of the Jewish people and the Land of Israel, and several right wing Israeli parties have grown concerned about the Supreme Court and its rulings, which in their view  upset the balance between “Jewish and democratic.”  Those who passed the new Basic law have taken a stance, instantiating opposition to liberalization in a way that is also strategic to winning the coming election.  Netanyahu will paint those critical of the legislation as unpatriotic while waving the Israeli flag to aggregate support in the here and now to his right. So long as a right-wing coalition continues heading the regime, even narrowly, Israel will continue being a difficult sell on American campuses.