The New Nationality Law and Israel’s Constitutional Framework

Golda sat among the Jewish leaders—twenty-three men and one other woman who would sign the document that day. Wearing an unaccustomed tie and jacket, David Ben-Gurion rapped his gavel sharply as the clock struck four. The stillness became absolute. That was the moment when the orchestra in the gallery was scheduled to play the national anthem, but they, too, must have been mesmerized by the magic of the moment because nothing happened. Almost spontaneously, the entire audience stood up to sing “Hatikvah” with the words, “To be in a free nation in our own land. . .” They sang with full fervor, and many eyes were wet, including Golda’s.

“I shall now read the scroll of independence,” Ben-Gurion quietly declared. It took seventeen minutes to read the 979 words. Then came the time for the members of the provisional parliament to sign the scroll, and they did so in alphabetical order. As she waited her turn, Golda reminisced to herself:

“From my childhood in America, I learned about the Declaration of Independence and the geniuses who signed it. I couldn’t imagine these were real people doing something real. And here I am signing it, actually signing a Declaration of Independence. I didn’t think it was due me, that I, Goldie Mabovich Meyerson, deserved it, and that I had lived to see the day. My hands shook. We had done it. We had brought the Jewish state into existence. Whatever price any of us would have to pay for it, we had recreated the Jewish national home. The long exile was over. Now we were a nation like other nations, masters—for the first time in twenty centuries—of our own destiny.”1

That day was May 14, 1948. Two statements from the Declaration’s text stand out: 1) “We, members of the people’s council . . . hereby declare the establishment of a Jewish State in Eretz-Israel, to be known as the State of Israel” and 2) “it [the State] will ensure complete equality of social and political rights to all its inhabitants irrespective of religion, race or sex; it will guarantee freedom of religion, conscience, language, education and culture.”2

Preceding and succeeding events likely transformed how these two statements would be understood by the state of Israel. In particular, the civil war within the pre-state following the UN Partition Plan of 1947 and the regional war following independence revolutionized the demographics of Israel. The population of Palestine in 1946 comprised 543,000 Jews and 1.267 million Arabs, meaning 30% of the Palestinian population was Jewish. One of the goals of the 1947 Partition Plan was to divide the territory to create a Jewish majority state alongside an Arab one. The final plan in the Jewish majority division contained approximately 716,000 Jews and 450,000 Arabs or a 61 percent Jewish majority. However, the 1948–49 wars resulted in a massive displacement of Arabs. By the end of the war, Arab numbers dropped to 156,000, creating an 82 percent Jewish majority state. Today, Israel has a Jewish majority of 75 percent.3 Had the Arabs maintained a larger minority status, closer to the pre-state percentages, it is likely that Israel’s government and constitutional system would be very different from what exists today. It is unclear how the nation could exist as a Jewish state if the Jewish population barely exceeded or was less than the Arab one.

Nevertheless, within the two grand statements of the Declaration cited above lies a dialectic tension that has affected the country since its establishment, namely a Jewish state versus a democratic one. Do Jews enjoy legal privileges over others or are all residents/citizens treated equally?

As will be explained in this article, certainly since 1994, the nation has become more democratic, often to the detriment of the views and interests of more nationalistically minded Jews and their affiliated political parties. The Nationality Law4 enacted in 2018 seeks to address this trend and to bolster the Jewish nature of the State. How that will play out in practice remains to be seen, but will be discussed in the final portion of this article.

Declaration of Independence—Vision or Law?

What role does the Declaration of Independence play in established Israeli law? The Declaration was written and published prior to the establishment of the state’s constituent bodies, including the Knesset. The Israeli Supreme Court has ruled on several occasions that the Declaration of Independence is not a constitution. In a very early decision, Z. v. Gubernik,5 the Court wrote the Declaration of Independence expresses, “the nation’s vision and its basic credo.” Accordingly, when the Court examines the validity of state-passed laws, it must examine them in the light of the Declaration’s vision and credo.6 However, the Court said in Streit v. Chief Rabbi of Israel, “when there exists an explicit ruling of a law by the Knesset, which leaves no room for doubt, then it should be upheld even if it does not conform to the principles of the Declaration of Independence.”7

Thus, it is clear from court decisions that the Declaration of Independence lays out the vision for the nation but is not binding law, per se. It is influential and has been cited in numerous decisions to support the rulings of the court, but it cannot be relied upon solely to defeat a law passed by the Knesset. In many ways Israel’s Declaration of Independence functions like the Declaration of Independence of the United States in that it lays out the vision upon which the country is to be built. The difference, however, is that the United States adopted a constitution to create a governing framework, whereas Israel never did.

Constitution v. Basic Laws

Israel’s Declaration of Independence included a provision for the adoption of a constitution:

We declare that, with effect from the moment of the termination of the Mandate being tonight, . . . until the establishment of the elected, regular authorities of the State in accordance with the Constitution which shall be adopted by the Elected Constituent Assembly not later than the 1st October 1948. . .8

On January 25, 1949, Israel held her first elections and formed the “Constituent Assembly,” later reconstituting itself as the First Knesset. Its first order of business was to enact a constitution, but after a year-long debate, agreement could not be reached as to even whether there should exist a constitution. Instead, the Knesset adopted a compromise transferring the powers of the Constituent Assembly to subsequent Knessets and introducing the idea of passing separate sections of constitutional law over time. After completion, this body of “Basic Laws” could be presented to the Knesset in toto for adoption as a constitution.9

Since that time Israel has enacted twelve Basic Laws, the first being Basic Law: the Knesset, and the last, the most recently enacted Nationality Law. Most of the Basic Laws relate to the institutions of the State; later enacted ones protect individual rights. These laws have special status and can only be amended under a specified set of restrictions. What has become the most important and also most controversial Basic Law is the Basic Law on Human Dignity and Liberty, enacted in 1992. With some exceptions, this Basic Law is comparable to the Bill of Rights in the US Constitution. Until this point individual and human rights were protected by judicial common law rulings. With the enactment of this law, they essentially became constitutional rights. But it was two years later that a “Constitutional Revolution” occurred.

Constitutional Revolution

Until 1994 acts of the Knesset were not subject to judicial review.10 What is judicial review? It is the means by which the judiciary, a theoretically non-partisan body, reviews laws or actions by the government to determine their legality or constitutionality. It becomes essential to protecting individual rights and liberty. In the United States, for example, it was the courts that helped to end racial discrimination by striking down so-called Jim Crow laws that had been enacted to deprive African-Americans of their rights.

Where does judicial review come from? In the United States, judicial review ultimately derives from the Constitution. In Israel it’s more complicated. Interestingly, however, the US Constitution does not specifically authorize the judiciary to review laws. But in Marbury v. Madison,11 a very early Supreme Court case, the Court asserted its authority under the Constitution as a separate and co-equal branch of government to review and potentially strike down laws and actions by the other branches when the Court deemed those laws or actions unconstitutional. In other words, the judiciary becomes the final arbiter of what is a permissible state action.

Similar to the US Constitution, Israel’s Basic Laws include the establishment of a Judiciary. Also, similar to the US Constitution, the Basic Law of the Judiciary has no provision authorizing the Judiciary to review other laws. Prior to 1994 the Supreme Court did not invalidate Knesset laws. That situation changed drastically in the 1994 United Mizrachi Bank v. Migdal Cooperative Village case.12 Legislation had been passed by the Knesset to undo certain debts owed to a bank. The bank claimed in its lawsuit that the Knesset’s action was unconstitutional and in violation of its property rights secured by the Basic Law of Human Dignity and Liberty. The Court used the case to assert judicial review of Knesset actions for the first time. It actually quoted from the US Marbury v. Madison case, and claimed that judicial review is an implementation of the principles of the rule of law, democracy, and the separation of powers. The Court asserted if a Knesset-passed law is deemed to be contrary to one of Israel’s Basic Laws, then the Court will strike it down.

Since that time Israel’s highest court has struck down several laws including, among others, laws shielding the ultra-Orthodox from the military draft, allowing Israel to build on privately owned Palestinian lands, and forcibly relocating Africans to other countries. This has led to a backlash from the Knesset and especially from more right-wing, nationalistic parties, who argue the court’s actions against Knesset-passed legislation are undemocratic and can lead to actions that undermine the Jewish nature of the State. The latter is especially true, opponents within the Knesset have argued, when the rights of non-Jews prevail over Jewish parties to an action. The legislative responses to the Court’s assertion of judicial review have been to 1) propose limiting the Court’s judicial review through a law authorizing legislative override of court decisions;13 and 2) the enactment of a Jewish Nationality law.

Jewish Nationality Law

Since the days of the Dispersion, Jews have longed and prayed for a return to their homeland. The 19th century rise of Zionism sought to effectuate the return of the Jewish people to their ancestral homeland and the establishment of a nation-state of Jews. This is what Theodor Herzl proposed in the Jewish State.14 This is what the various Zionist Congresses advocated. The Balfour Declaration of 1917, the first international statement on a Jewish homeland in Palestine, stipulated this. The Treaty of Versailles and the League of Nations helped to implement it. As a result, hundreds of thousands of Jews migrated to Palestine, eventually leading to the establishment of the nation of Israel.

As noted earlier, Israel’s Declaration of Independence proclaimed the nation of Israel to be a Jewish state. Israel’s original Law of Return, enacted in 1950, gave Jews from anywhere the right to come to Israel and to apply for Israeli citizenship. Israel’s Nationality Law of 1952 grants citizenship to Jews applying for it as well as others in limited situations. Two of Israel’s Basic Laws state that Israel is a Jewish state: 1) Basic Law: Human Dignity and Liberty; 2) Basic Law: Freedom of Occupation.

The Jewishness of the State of Israel is rooted in history and national and international law. However, as noted above, the Constitutional Revolution beginning in 1994 led to striking down several Knesset-passed laws that privileged Jewish interests over others. The recently passed Nationality Law was intended to protect Israel’s Jewish character from being further undermined by the Supreme Court’s emphasis on the democratic nature of the State.

Proposals for a new Basic Law were introduced into the Knesset over a period of several years and went through numerous permutations. With the formation of a very right-wing government in 2015, the possibility of passage became greater. In the spring and summer of 2018, the full Knesset finally considered and debated the new Nationality Law. Several controversial provisions were stripped from the legislation, including requiring the courts to rely upon rabbinic law in certain instances and permitting communities to exclude others for whatever reason they choose.

On July 19, 2018 the new Basic Law: Israel as the Nation State of the Jewish People passed the Knesset in a close vote.15 The following is the law’s text:

Basic Law: Israel as the Nation State of the Jewish People

1 — Basic principles

A. The land of Israel is the historical homeland of the Jewish people, in which the State of Israel was established.

B. The State of Israel is the national home of the Jewish people, in which it fulfills its natural, cultural, religious and historical right to self-determination.

C. The right to exercise national self-determination in the State of Israel is unique to the Jewish people.

2 — The symbols of the state

A. The name of the state is “Israel.”

B. The state flag is white with two blue stripes near the edges and a blue Star of David in the center.

C. The state emblem is a seven-branched menorah with olive leaves on both sides and the word “Israel” beneath it.

D. The state anthem is “Hatikvah.”

E. Details regarding state symbols will be determined by the law.

3 — The capital of the state

Jerusalem, complete and united, is the capital of Israel.

4 — Language

A. The state’s language is Hebrew.

B. The Arabic language has a special status in the state; Regulating the use of Arabic in state institutions or by them will be set in law.

C. This clause does not harm the status given to the Arabic language before this law came into effect.

5 — Ingathering of the exiles

The state will be open for Jewish immigration and the ingathering of exiles

6 — Connection to the Jewish people

A. The state will strive to ensure the safety of the members of the Jewish people in trouble or in captivity due to the fact of their Jewishness or their citizenship.

B. The state shall act within the Diaspora to strengthen the affinity between the state and members of the Jewish people.

C. The state shall act to preserve the cultural, historical and religious heritage of the Jewish people among Jews in the Diaspora.

7 — Jewish settlement

The state views the development of Jewish settlement as a national value and will act to encourage and promote its establishment and consolidation.

8 — Official calendar

The Hebrew calendar is the official calendar of the state and alongside it the Gregorian calendar will be used as an official calendar. Use of the Hebrew calendar and the Gregorian calendar will be determined by law.

9 — Independence Day and memorial days

A. Independence Day is the official national holiday of the state.

B. Memorial Day for the Fallen in Israel’s Wars and Holocaust and Heroism Remembrance Day are official memorial days of the State.

10 — Days of rest and Sabbath

The Sabbath and the festivals of Israel are the established days of rest in the state; Non-Jews have a right to maintain days of rest on their Sabbaths and festivals; Details of this issue will be determined by law.

11 — Immutability

This Basic Law shall not be amended, unless by another Basic Law passed by a majority of Knesset members.16

Analysis of the Law

At first blush most of the law’s provisions seem innocuous. Many restate provisions from existing laws and, as already noted, other Basic Laws and the Declaration of Independence declare Israel to be the nation-state of Jewish people. Without question the new law unequivocally bolsters the fact that Israel is a Jewish state, in part, defined by the adoption of Jewish symbolism as state symbols and the promotion of the Jewish people, even worldwide. Certainly, for the authors and supporters of the legislation, it gives hope that Knesset passed legislation addressing issues related to Jewish interests will not be summarily ignored and dismissed by Supreme Court rulings. In their view, it moves Israel into a more democratic direction because the appointed and “elitist” Court must now give more consideration to certain laws passed by a democratically elected Knesset. Nevertheless, this new Basic Law has the potential to seriously erode more generalized democratic principles in the country.

Since the 1992 enactment of the Basic Law: Human Dignity and Liberty, and the Court’s interpretation of it as a constitutional basis for human and individual rights, the Court has struck down several laws discriminating against minorities in the country, including the Arab population. The beauty of Israel’s Declaration of Independence is the recognition of Israel as a nation state of the Jewish people while calling for the equal protection of all the residents of the country and the guarantee of their religion, language, and culture. This has led to a growing and stable democracy where all the citizens have equal rights under the law. While there exists economic and social inequality in the country, there is little, if any, legal inequality.

Under this new Basic Law only Jews are granted the right to self-determination. While this may make sense since Israel is a Jewish state, does this mean that the current twenty-five percent of the nation’s population that is not Jewish has no right of self-determination, such as adhering to different symbols or identifying with their own heritages? The counter argument is that everyone is already protected by the provisions of the Basic Law of Human Dignity and Liberty. Yet, there is nothing in that Basic Law about the right of self-determination. If one group’s self-determination is exalted over another’s, it can lead to eventual discrimination against the non-protected class.

For the first time, religion is introduced into a Basic Law, this time as one of the means of self-determination. Because of the nature of Israel as a Jewish and democratic state, religion already plays a significant role in Israeli society. For example, public transportation generally is barred from operating on Shabbat. Most stores are prohibited from opening on Shabbat. Marriage and divorce are regulated by religious bodies. Many in the secular community balk against these restrictions. Sadly, many of these religious laws have unintended consequences. For instance, because public transportation is unavailable on Shabbat, only those with private vehicles can travel. This restriction has led to the proliferation of more private vehicles in an already traffic-congested country. Or because civil marriage does not exist in the country but is rather controlled by a closed and doctrinaire Rabbinate, around twenty percent of Israelis marry outside of the country.17

By including the term “religious” in the rights of the Jewish people for self-determination, it unintentionally may expand the role of the Rabbinate in the country. Unlike Jewish religious expression in the Diaspora, known for its pluralism, religious expression in Israel is highly restricted. Since religion in Israel is controlled by a small minority of the ultra-Orthodox, this could lead to further enhancing their control and the imposition of more religious restrictions.

For Messianic Jews, their plight becomes more precarious. For all practical purposes, the only legal inequality Messianic Jews face is immigration. The Court has ruled that Messianic Jews cannot receive the benefits of Israel’s Law of Return, including the right to immigrate. However, in all other respects Messianic Jews have equal rights under the law. Messianic Jews can purchase homes, work where they want (including the government), own congregational buildings, and establish their own schools. It is possible the new Basic Law will be used as a means of discriminating against these and other Messianic Jewish endeavors because it can be determined that their efforts are not “Jewish” in nature.

In a broader sense, the new Nationality law can be used to support Knesset legislation that expropriates property belonging to non-Jews or to uphold legislation that blacklists organizations critical of the government or even censure the press. A recent article published by Just Security, “‘We the Jewish People’—A deep look into Israel’s new law,” states,

But while arguably the promotion of the Jewish national cause remains subordinate at least to the principle of individual equality, the Jewish Nation-State Law does weaken the protection granted to individuals under the Basic Law on Human Dignity. When the Supreme Court reviews laws that limit individual dignity, it applies the “limitation clause,” which requires, among other things, that the law “befit[s] the values of the State of Israel” and is “enacted for a proper purpose.” Attempts to challenge discriminatory legislation could now be answered by invoking the new Basic Law as conveying the “values of the State of Israel” and “a proper purpose.” What remains for the affected individual is to convince the court that such discrimination is disproportionate—“to an extent greater than is required.”18

Because this law is brand-new, it remains to be seen what effect it will have upon the courts and the country. Only when new Knesset legislation becomes subject to judicial review can it be known whether this law will erode the protections afforded under the judicial interpretations of the Basic Law: Human Dignity and Liberty. Yet, clearly this law could have included a limiting clause such as exists in the Declaration of Independence that accords equal protection to all the residents of the country. In fact, during the debate on the Nationality Law numerous legislators proposed that very language be added to the new law, including Benny Begin, a Likud Knesset member and son of former Prime Minister, Menachem Begin.19 Many argued, including Yair Lapid, head of the Yesh Atid party, that by including a provision similar to the equal protection statement in the Declaration, the legislation would have garnered far more support in the Knesset.20 The fact that it neglected to do so speaks volumes, and raises questions about whether the authors of the legislation were interested in upholding the democratic principles embodied in Israel’s Declaration of Independence.

Jamie Cowen is a Partner with Cohen, Decker, Pex & Brosh Law Offices, Petach Tikvah, Israel. Former rabbi of Tikvat Israel Congregation, Richmond, Virginia, and former UMJC president, he made aliyah to Israel with his wife, Stacy, seven years ago.

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