The legitimacy of Israel’s nation-state bill (I): comparative constitutionalism

 Eugene Kontorovich  12-9-14

Israel’s proposed constitutional legislation to confirm its status as the “nation state” of the Jewish people has not only generated controversy within Israel, where it has helped bring down the current parliamentary coalition, but has also drawn criticism from the U.S. and Europe. The draft legislation has been decried as extreme and undemocratic. (To be clear, no draft bill has been approved, only a set of compromise principles for reconciling several rather different versions; apparently, people do not have to read the bill, or know any of its provisions, to oppose it.)

These objections do not hold water. For one, ensuring Israel’s status as a Jewish nation state is a goal expressly endorsed by the same critics, when it comes to pressuring Israel into diplomatic concessions. Second, the law is far from unusual by Western standards: it actually does far less to recognize Jewish nationhood or religion than provisions common in other democratic constitutions. This post will consider the general parameters of the legislation in comparison to constitutional provisions of other Western democracies. Tomorrow, a second post will relate the law to the “two state solution.”

The nation state bills mostly constitutionalize the national anthem, symbols, holidays, and so forth. There is nothing racist, or even unusual, about having national or religious character reflected in constitutional commitments, as research by my colleagues at the Kohelet Policy Forum demonstrates. Seven EU states have constitutional “nationhood” provisions, which typically speak of the state as being the national home and locus of self-determination for the country’s majority ethnic group. This is even the case in places like the Baltics, with large and alienated minority populations.

For example, the Latvian constitution opens by invoking the “unwavering will of the Latvian nation to have its own State and its inalienable right of self-determination in order to guarantee the existence and development of the Latvian nation, its language and culture throughout the centuries.” It continues by defining Latvian “identify” as “shaped by Latvian and Liv traditions, Latvian folk wisdom, the Latvian language, universal human and Christian values.”

Or consider the Slovak constitution, which opens with the words, “We the Slovak nation,” and lays claim to “the natural right of nations to self-determination.” Only then does it note the “members of national minorities and ethnic groups living on the territory of the Slovak Republic,” which are not part of the “We” exercising national self-determination.

Then there is language. Israel has Hebrew, the majority language, Arabic, and English (a leftover from the British Mandate) as its official languages – and new bill does not change that. This is very unusual. Most multi-ethnic, multi–lingual EU states give official status only to the language of the majority group. Spain’s constitution, for example, makes Castilian Spanish the sole official national language and requires all citizens to know it, even if their mother tongue is Basque or Catalan. Most exceptionally, Ireland grants “primary” official status to Gaelic, though only a small percentage of citizens actually speak it. This is an obviously enshrines the state’s special relation to the Irish ethnic group.

Then there is religion. Contrary to common conception, Judaism is not the official religion of Israel, the world’s only Jewish state. (It has no official religion, but all religious groups get funding from the government). Nothing in the proposed bills establishes a religion.

In this respect, Israel is far more liberal than the numerous European countries with an official religion. According to a study by the Pew Research Center, seven European countries (from Iceland to Greece) have constitutionally-enshrined official religions, despite large Moslem minorities, to say nothing of atheists and other Christian denominations. Moreover, in five European countries the head of state must actually belong to the official religion. In Israel, by contrast, the president certainly can be a non-Jew, and indeed a Druze has been one (on an acting basis).

It is noteworthy that most of the European constitutions affirming a particular national heritage are both recent and involve nations with sizable ethnic minorities. It is hard to understand why what works for them should be so widely denounced when it comes to Israel.

Eugene Kontorovich is a professor at Northwestern University School of Law, and an expert on constitutional and international law. He also writes and lectures frequently about the Arab-Israel conflict.