The Constituent Power to Discriminate

The Basic Law: Israel as the Nation State of the Jewish People culminates the process of democratic backsliding the Israeli society has experienced in recent years. Yet the reading of the law against the backdrop of the broader global trend of democratic backsliding reveals its distinct features. One such distinct feature is the explicit use of the constitution to enhance discriminatory measures of the majority against the minority. While populist governments in different corners of the world use constitutional measures to undermine institutional checks and balances, this chapter in the Israeli constitution undermines the principle of equality itself. This paper argues that exercising the constituent power to discriminate some of its members is not compatible with principles of democracy and modern constitutionalism. If further points to the prospects of the annexation of the occupied territories as a possible explanation for introducing this unique constitutional measure.