1. The High Court of Justice’s 6-5 decision rejecting a petition against the Citizenship Law, which legally bars Palestinians who marry Israeli Arabs from obtaining Israeli citizenship, opened a political, religious, and sociological Pandora’s Box. Even though the state’s position is predicated mostly on security considerations, underneath the surface is the emotionally charged issue of Israel’s identity as a Jewish and democratic state. Do the Jews have a basic right to a state with a distinct Jewish majority?
In the last few decades, hundreds of thousands of Palestinians have entered Israel by dint of family unification. What possible reason is there to negotiate peace with the Palestinians if their demand for a right of return is crawling toward realization right under our noses? The law that was originally passed in 2003 was primarily motivated by security needs, and a majority of High Court justices agreed with the state’s position on the matter. Still, why do we feel the need to conceal the essence of the matter, which is the demographic aspect that is critical to preserving Israel as a Jewish state? It is not inconceivable that Justice Edmund Levy, who penned a minority position, would have ruled in favor of the Citizenship Law if the main argument proffered would have stressed the Jewish character of the state and the regulations governing immigration to Israel.
2. The constant Arab argument which has also been seized upon by Western liberals posits that the Jews are not a nation, but a religion. Hence a religious grouping is not entitled to its own state. Those who espouse this view claim that it is the Palestinians who qualify as a nation. What clever logic. Creating a nexus between the tribes of Gaza, Hebron, Nablus, and the Galilee so as to form a national grouping is akin to the British colonialist practice of carving out artificial states like Iraq by lumping together the Kurds, Sunnis, and Shiites, or the French colonialist project that gave birth to the Syrian state inhabited by Druze, Alawites, Sunnis, and others. Due to the emasculating effects of political correctness, we have refrained from discussing the issue, instead preferring to emphasize the security arguments.
This twisted state of affairs has contaminated the toothless diplomatic and political discourse. Most of the time, we rely on defense-based arguments that emphasize security arrangements, the threats emanating from the north and the south, and the fear that the Samarian highlands will turn into a base for rocket launchers similar to what has taken place in Gaza. This is all well and good, but this argument should come AFTER discussing Jewish rights.
Every Israeli leader and diplomat needs to make clear at every meeting with their counterpart in the international community and during every appearance before the news media that the Jews are entitled to exercise their fundamental right to their land, a right that is anchored in law, history, morality, and jurisprudence. It should be emphasized much more forcefully than the wretchedness of the Palestinians and their demands. Senior government ministers say that in their meetings with European foreign ministers, they come away with the impression that their counterparts are convinced that Israel was established on the ruins of a Palestinian state that existed here before 1948. This is not some hallucination, but a myth that has been seared into the public consciousness. As a result, the fundamental truth must be reinforced at every opportunity.
3. Let us revisit the issue of the court’s ruling. In my view, the most interesting phenomenon was the reaction to the decision. To be more precise, it was the Israeli Left’s reaction that caught my attention. Until recently, the Supreme Court was viewed by the Left as the pillar of justice, wisdom, and enlightenment. Now, after the court’s composition was altered somewhat and the “Jewish-democratic” calculus is leaning more toward the Jewish side, the Left is beginning to voice blistering criticism that is remarkably similar to that which was leveled for decades by the Right. “The Supreme Court’s strength has been spent,” along with other invective-filled expressions and statements denouncing the high court’s authority have already been made.
Just like the Lapid Law that was retroactively shelved after it became clear that Yair Lapid would enter politics, the hysterical reactions from the Left prove – to our shame – that the Supreme Court has until now represented an alternative to the Knesset. Since the political upheaval of 1977, when the Left understood that it was in the minority, the main forum for the deliberation of weighty issues shifted from the Knesset to the courts. The constitutional revolution fomented by Aharon Barak [of judicial activism] in 1992 completed the picture. The Knesset became an object of scorn and derision, lawmakers serving in it – save for a few gifted individuals – were depicted as clowns while the halo of wisdom, foresight, and respect was seen as glowing above the heads of Supreme Court justices, who did not disappoint their adherents. “We have cast our hope upon the High Court of Justice,” one of the more prominent leaders of the Left would say years later. The court metamorphosed into an arbiter of moral dilemmas that lie at the heart of the cultural and political discourse in Israel. Slowly but surely, the assumption that elected officials were unfit to make key decisions on burning issues on the agenda gained significant traction. As a result, the belief was that these officials did not need checks and balances, but a guiding hand.
This state of affairs alarmed retired Supreme Court President Moshe Landau, one of the founding fathers of Israeli jurisprudence. Landau watched with dismay as his handiwork was being tossed aside into the abyss. In an interview with journalist Ari Shavit in 2000, he said: “I think that [Supreme Court] President Aharon Barak does not reconcile with and has not reconciled with the proper place that the court needs to assume between our branches of government.” When asked whether Barak’s goal was to impose legal authority over every aspect of our lives, Landau replied: “Not to impose legal authority, but to impose certain moral values as seen fit by him. And this is a sort of judicial dictatorship that doesn’t seem proper to me at all.”
In the same interview, Landau added that he noticed a tendency by Barak to concentrate “authoritative power” over the branch which he helmed, “and this, in my view, is not right. It leads to a dead end. Because the court is treading into water that is too deep, a challenging swamp of opinions and political beliefs, and this is dangerous both to the state and to the court. It’s dangerous to the state because it exacerbates the social fissures, and it is dangerous to the court because this is how the court loses its fundamental role upon which its standing is predicated: the belief in the neutrality of the legal system as it relates to public disputes.”
4. In light of the important changes that are taking place in the Supreme Court, last week we bore witness to the latest strategy employed by the liberal camp: nullification of the stronghold that has fallen. From now on, not only will the Knesset be the subject of ridicule and mockery, but the Supreme Court will also get its fair share of de-legitimization courtesy of those who until recently swore to protect it with their lives. I already read remarks by a well-known politician who kvetched over the fact that the Supreme Court president is a “conservative and a rightist,” a person whose appointment was made possible by the “extreme Right” (!), and that the court was somehow a lesser institution because its bench was inhabited by “a settler for the first time.”
Like in other centers of power – the press, academia, the cultural world, and the business sector – the conservative camp long understood that it can no longer stand feebly on the sidelines begging for its share of fairness from those who have taken it upon themselves to determine what it hears, what it reads, what it consumes, what it learns in schools, and what values, which they view as legitimate, will be used as a legitimate reference point from which society will be governed. Contemporary, and ancient history have taught us one key principle: change starts with the people. We must not yield to the ideological uniformity that has overtaken these fields, a uniformity that is a direct result of the individuals that inhabit these domains. Changes in the compositional makeup do not ensure a change in the ideological direction, but they are a basic condition for such a change. This is also a moral imperative, since it is the rectification of years-long injustice.
a court which seizes power to dictate is the same as a pm who seizes power to dictate.