http://www.washingtonpost.com/news/volokh-conspiracy/wp/2014/12/09/the-legitimacy-of-israels-nation-state-bill-i-comparative-constitutionalism/
The legitimacy of Israel’s nation-state bill (I): comparative constitutionalism
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 Forumdemonstrates.
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, and Arabic 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 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.
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