The more time passes, the clearer it seems that if the nation-state bill doesn’t pass in the Knesset, it will be a tragedy for future generations. The bill, which was designed to anchor as a basic law Israel’s status as a Jewish state as a way of balancing the human rights laws that were pushed through in the 1990s, will wind up missing its target twice over.
First, as seen by the proposal put forth Sunday by MK Roy Folkman (Kulanu) on minority rights, by the time the Knesset legislative process is completed, various human rights clauses will have been added to the bill that will establish the progressive ideas that have steered the High Court of Justice since the judicial revolution, snatching defeat from the jaws of victory.
Second, the thinking that a law can rein in judicial activism is very naïve. Devotees of judicial activism might cling to a reading of the “essence” of the bill and not feel obligated to its legislative language. In a situation like that, any wording that would try to check or balance them would be turned by creative interpretive minds into dead letters, or worse – another reason to interfere with the actions of the Knesset and government decisions.
This isn’t just a hypothetical. The Supreme Court justices have long since made it clear how they perceive the “Jewish” part of the phrase “Jewish-democratic”: they don’t see the national, religious, and traditional content that Jewish identity holds for the majority of Israelis, but rather its universal ideas, as expressed in the morality of the prophets and the social commandments. For them, “Jewish state” is a concept based on the ideas of Reform Judaism, not the dreams of religious Zionism or Shas.
Former Supreme Court Chief Justice Aharon Barak explains it this way in his book: ” If within the world of Halachah [Jewish law] there is a stream of particularism and a stream of universalism, it would be appropriate for the interpreter to adopt the stream of universalism, since this stream is more easily integrated with the values of Israel as a democratic state.” Or as Justice Dalia Dorner put it: “Jewish values as I interpret them … are the values of justice, peace, freedom, and integrity and broad cultural values such as Shabbat as the day of rest and Hebrew as the national language.”
Does anyone think that in the next petition against the Infiltrators Law, for example, it will be of any help to us that the High Court will be able to quote from the “universal stream” of Judaism’s values of “justice, peace, and freedom”?
Therefore, the nation-state bill can cause serious damage. Thus far, the justices had to point to some harm to freedom of employment or human dignity, which limited the High Court’s intervention to places where human victims could be indicated. The nation-state bill could eradicate this limitation and give judicial criticism a blank check on every subject related to an attack on the simplified values of the state, even if no one is harmed. It is an unqualified submission by the Knesset that will turn the Supreme Court into the ultimate legislative body in the country. If the Right can see what is unfolding, it should stop it now.
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