Israel’s High Court Won’t Stand for Jewish Supremacism

(Bloomberg Opinion) -- With elections looming, Israel is locked in a constitutional struggle for its democratic soul. The latest development: Israel’s high court, in a decision reversing the nation’s elections commission, has banned the leader of a Jewish-supremacist far-right party for running for Knesset while allowing a left-wing Arab party that calls for Palestinian equality and challenges the Jewish nature of the state.

The decision matters because of a change to Israel’s unwritten constitution. In 2018, the Knesset enacted a controversial new “basic law” — the closest thing to a constitutional amendment the country has — on the topic of Israel as a nation-state. The basic law declared self-determination to be the right of Israel’s Jews, but not of other Israelis.

On the strength of that new law, Israel’s prime minister, Benjamin Netanyahu, recently wrote that Israel is not a state for all its citizens, but for its Jewish citizens. His interpretation marked the first time an Israeli prime minister publicly suggested that Israelis of non-Jewish origin are second-class citizens.

Netanyahu is about to be under indictment on multiple corruption charges, and is fighting for his political survival. His statement was aimed at convincing voters not to pick his centrist rival Benny Gantz, because (Netanyahu claimed) Gantz will form a coalition that will rely on the votes of Arab-Israeli parties.

Netanyahu was effectively saying that the government of Israel should not rely on representation chosen by the roughly 20 percent of Israeli citizens who are of Palestinian origin. That’s a familiar argument in Israel, where a strong (but not unbroken) custom exists of Jewish parties trying to form government without relying on Arab parties.

Netanyahu, however, was making the new argument that this exclusionary practice is now justified by the nation-state law. In other words, Israel’s prime minister was saying that Israel’s constitution embodies the political supremacy of Jews over Palestinians.

Some leaders, including the largely ceremonial president, Reuven Rivlin, repudiated Netanyahu’s statement, albeit without mentioning the prime minister by name. Rivlin clearly stated, “There are no, and there will be no, second-class citizens, and there are no second-class voters,”

The high court’s judgment needs to be interpreted in the light of this controversy. By a vote of 8-1, the court was saying that Jewish supremacism violates democratic principles, and that Palestinian calls for full political equality do not.

The background to the case involves the far-right Jewish Power party. Its leader, Michael Ben Ari, says the party follows the teachings of the late Rabbi Meir Kahane, a Jewish supremacist whose party, Kach (which means “Thus,” as in “thus by force”), was in its day banned from the Knesset for racism.

Israel’s elections committee nevertheless allowed Ben Ari to run in the April 9 vote. And Netanyahu struck a deal that brought Ben Ari into the fold of the national religious party, a Netanyahu ally.

At the same time, the elections committee barred the participation of an Arab party called Balad-United Arab List (“Balad” is Arabic for “country” or “land”) as a well as a leftist Jewish politician, Ofer Cassif.

The high court’s reversal of these decisions is particularly noteworthy. For one thing, the high court followed the recommendations of Israel’s attorney general, Avichai Mandelblit, who had been ignored by the elections committee. (The independent Mandelblit is the same official who is following police recommendations to indict Netanyahu on corruption charges.)

There was plenty of evidence to show that Ben Ari incites violence against Palestinians. In contrast, the Palestinian and left parties criticize Israel’s constitutional structure, but don’t call for violence.

More important, however, the high court was weighing in at a crucial moment for Israel’s constitutional democracy — crucial because of the nation-state law and Netanyahu’s strident interpretation of it.

By banning the Jewish supremacist Ben Ari, the court was implicitly sending the message that the new law doesn’t authorize the view that Israeli Jews are superior to Israeli Arabs in the political sphere.

Allowing the critical Arab party (and the Jewish leftist) sent a corresponding message that even harsh criticism of the emerging right-wing constitutional position is permissible within Israeli politics.

It would be naïve to think that this high court judgment is the end of the matter. Far from it.

Netanyahu is still free to run on a platform of denying Arab Israelis equal political power. The norm of Jewish parties refusing to enter coalition with Arab parties will is difficult to change or to challenge in court. On Tuesday night, Gantz, who leads a centrist coalition, said in a TV interview that he won’t rock the boat. Although Israeli Arabs “are equal citizens,” he said, he would rule out forming a government with Israeli Arab politicians who “speak against the State of Israel.”

In the long run, the Knesset’s new basic law on the nation-state is still in place. And it will still be possible for Israel’s right wing to say that the law means that Arab Israelis’ political voices should count for less than those of Jewish Israelis.

Nevertheless, in the battle over constitutional meaning, the high court’s recent judgment is a modest victory for democratic equality.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

Noah Feldman is a Bloomberg Opinion columnist. He is a professor of law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “The Three Lives of James Madison: Genius, Partisan, President.”

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