Rainy Day Constitutionalism: Israel’s Nationality Law for an Anxious Majority

I describe a constitutional strategy intended to prevent the majoritarian implications of demographic change – ‘rainy day constitutionalism.’ In nation states that identify civic membership with shared ethno-national ties, the notion that demographic trends can leave the dominant group in a minority can be a source of existential anxiety, and hence of defensive constitutional action. Israel’s recent Nationality Law is an example. The Law entrenches values and arrangements which seem to stand no risk of violation by any political majority in Israel. To the extent that it has legally operative meaning, its best explanation is therefore as a safeguard for a foreboding future in which Jews are no longer the majority in Israel. Against the growing calls in Israel to annex the West Bank, possibly along with its millions of Palestinian residents, this future may not be unrealistic. Such constitutional preparedness raises complex normative questions, for both the present and the future.

The Linguistic Angle of Basic Law: Israel as the Nation-State of the Jewish People

After determining that Hebrew is the exclusive language of the state of Israel, the nation-state law (2018) also regulates that Arabic will not be recognized as an official language, and will instead receive a “special status”. One could ask why the legislator chose to include language in a law that mainly deals with state symbols and national definition; or why it is even mentioned in a document about the Jewish definition of the State. In my presentation, I suggest the following three points: first, the marginalization of the Arabic language is key to understanding the political aims of the law and the sort of national collective the legislators have envisioned. Second, marginalizing the Arabic language doesn’t only draw borders between Arabs and Jews, it also alienates Jews from their own legacy, since Arabic language and culture lie at the basis of the ancient Jewish past. And finally, language is a pre-condition for the ability to express individual and collective justice.

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.