Rabbi Prof. Dov Fischer
Rabbi Prof. Dov Fischerצילום: PR

The Land of Israel belongs to the Jewish people because G-d gifted it to us through our Patriarchs Avraham, Yitzchak, and Yaakov. After G-d first gifted it to Avraham, we might have wondered whether Yishmael, another son of Avraham, also might have a claim to it. But the Torah tells us that G-d thereafter repeated the gifting to Yitzchak, and he to Yaakov. As for Yishmael and Avraham’s other six sons, our first Patriarch gave them “presents.” Gen. 25:2-6.

In the United States we all know that there is secular law, and judges interpret law. We also know that some law is terribly wrong-headed law, but a society must obey its laws, even the bad ones, to function civilly. Even so, horribly misguided laws must be changed over time so that society ultimately can function properly. Thus, America legally permitted slavery, and the U.S. Supreme Court upheld it in Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1857).

In due time, America changed its laws and made slavery illegal through such legislative initiatives as the “Reconstruction Amendments” — the 13th, 14th, and 15th Amendments to the U.S. Constitution. Nevertheless, America continued allowing racial segregation as long as offerings were “separate but equal.” Separate water fountains, separate bathrooms, separate train cars. The Supreme Court upheld that concept in Plessy v. Ferguson, 163 U.S. 537 (1896). However, in time the Court reversed itself in Brown v. Board of Education of Topeka, 347 U.S. 483 (1954).

Like America and all other countries, Israel has some laws that make no sense, some that are vile, some that are repugnant. But civilization requires that laws must be followed. Bad laws may and must be changed within the system. Similarly, it once was that, beyond the bad laws, Israel was dominated by a “protektzia insider system” (known as Vitamin P) that gave unfair favors to people with the “right connections.” Thankfully, that has mostly changed. Nowadays in Israel, a person no longer needs “protektzia” to advance — just as long as he knows the right people....

The problem in Israel is that its Supreme Court has been in the hands of leftists from Day One because the country and its reins of power were dominated by Ashkenazic socialists, leftists, and Marxists from its pre-state years through its founding and until the 1977 Menachem Begin Revolution. Therefore, when legitimate questions would come before the justices for honest interpretation, they honestly would see everything from a leftist perspective. The Left assured its stranglehold on the judicial system by creating a system tilted to reproduce the leftist status quo when naming new justices.

When she became Justice Minister five years ago, Ayelet Shaked made some, but far from enough, real breakthroughs towards balancing the injustice of the justices. Until her, Israel’s supposedly more conservative political party, the Likud, was like the American Republican Party, foolishly failing to prioritize and focus more attention on judicial appointments. “Mundane” matters like courts and judges did not attract the particular interest of Menachem Begin (who idealized the Supreme Court), Yitzchak Shamir, and other founding Likud patriarchs whose universe had been constructed in the Irgun and Lechi underground fights for independence.

Aharon Barak's legacy continues to infuence Supreme Court decisions
Aharon Barak's legacy continues to infuence Supreme Court decisionsצילום: גיל יוחנן, POOL, פלאש 90

If Jabotinsky had focused as much on judicial appointments as he did on “shtei gadot” (Israel’s right to the lands on both sides of the Jordan River), maybe Begin and Shamir would have attended more wisely to the system for appointing new judges. Maybe Jabotinsky needed to write a song with lyrics like: “There are 15 justices on the Supreme Court. Most of the first eight are leftists belonging to socialists, Marxists, religion haters, and secularists. So are most of the other seven.”Because Israel’s Supreme Court has been dominated for all its first seventy-plus years mostly by leftist, their interpretations of Israel law always are tilted. Now, with three new openings on the Court and with a Knesset that numbers between 66 and 72 Knesset seats in right-wing hands (depending on how one views Avigdor Liberman), the day of glory finally has arrived to fix the Court — once and for all.

But, actually, no it has not. Rather, to their shame — and history will indict them terribly — Naftali Bennett, Matan Kahana, Ayelet Shaked, and the rest of Yamina now are proven liars who stole six seats of right-wing votes and handed them to socialists, other leftists, Marxists, Yair Lapid, Labor, Meretz, and an Arab party loosely affiliated with the terrorist Muslim Brotherhood. In their perfidy, Yamina’s liars are joined by Gideon Saar, Ze’ev Elkin, and the rest of the “New Hope” party who also promised voters a right-wing turn, but instead decided that their only goal was removing Netanyahu from the PM's office. So instead of straightening out the Court, they are allowing a status quo to fester, and Israel pays a steep price. Such a court can declare Chomesh to be Arab land.

The Israel Supreme Court ruled a decade ago that Chomesh is built on private Arab land. But really? Are Judea and Samaria capable of being private Arab land? For argument’s sake, let’s imagine yes.

Israeli government leaders and many secular Israelis, driven by a deep inferiority complex, constantly look to America for moral guidance — to see what American morality prescribes, American ethics. They ask, seeking spiritual guidance not from the Torah and Judaic sources but from the United States: “What would America do in such a case?” OK. So here is what America would do:

When Daniel Boone and other American pioneers cleared the way westward, expanding America’ s borders beyond the Mississippi, they encountered Indians and ended up in wars with them: Navajo, Cherokee, Algonquin, Apache, Muscogee, Creeks, Iroquois, Sioux, Choctaw, Comanches, Seminoles — more tribes than those of Israel. Indians killed them, and they killed Indians. Every so often, the fighting ended, and some 500 peace agreements were signed over the years. Later, when it suited them, the Americans broke and abrogated virtually every important covenant and treaty they signed with Indians. Likewise, Indians broke their treaties whenever they could get away with doing so. (Oslo anyone?) President Andrew Jackson force-marched the Indians from North Carolina through Kentucky and ultimately into Oklahoma. Tens of thousands died.

When Indians rose up and killed Gen. George Armstrong Custer — who, by the way, graduated 34th in his West Point class of 34 students — they not only left him with his last stand but guaranteed their own demise soon after. America was expanding throughout the Continent, and the Indians were not going to stand in the way. Ultimately, having squashed the Indians as a civilization, America set aside certain areas to be reserved for the Indians — the “Reservations.” As a sop, Indians were permitted to self-govern in their reservations by their own laws. As a result, today’s Indian reservations are known mainly for their gambling casinos because most American states regulate and even ban gambling, but Indian reservations may follow their own laws. Consequently, Indians are known for gambling, which generates them $27 billion annually, and their children are reared to work in the casinos from a young age, ending up alcoholics through life.

That is how American ethics and morality dealt with the issue that in some ways parallels Israel’s challenge when Arabs claim that certain land is their privately owned land. In fact, a crucial difference in Israel's favor is that Jews and Indians are the indigenous inhabitants of the areas in question while both Arabs and Americans are not. Yet American European transpants solved the ethical-moral challenge of finding another people long-residing on land by warring, massacring, and cheating the people who were there before them. Today America can pontificate on how Israel should deal with Arab terrorists, Hamas, Hezbollah, and Abu Mazen (Mahmoud Abbas) because there are no more Indian problems to deal with except for assuring that the poker and blackjack decks are shuffled honestly.

However, today, when contemporary American governments want to seize land, such property disputes do not entail battling Indians. Modern America grabs land humanely, with gentility, when an American local or state or federal government wants a piece of territory that a private citizen can prove really belongs privately to him and his family. Under the American Constitution's Fifth Amendment, which is most famous for protecting the right to refuse to testify against oneself, there also is a section called the “Takings Clause.”

Under that law, the Constitution allocates to government the right of “eminent domain.” (“[N]or shall private property be taken for public use, without just compensation.”) That means the government may take any person's property against his or her will — as long as they compensate monetarily for it.

If I do not want to sell the government my house, but my house is needed so that the government can knock it down to clear a path for a highway they are building, the government can simply seize my house and pay me for it. Usually, they get to set the price. Is that fair? Well, that is how it goes.

IDF destroys homes in Chomesh
IDF destroys homes in Chomeshצילום: ישיבת חומש

Chomesh now is the site of an Arab terrorist murder. Yehuda Dimentman of blessed memory was gunned down because he learned Torah at the Chomesh yeshiva. If he were not a student at that yeshiva, he almost surely would be alive today. That land, by virtue of that murder, now is Jewish land for even more reason than it was before. Not only did G-d give that land to the Jewish people, but that terror attack now has consecrated that land with Jewish blood.

It is like Gettysburg. Robert E. Lee had marched his Confederate soldiers to the north, and some Union lookouts spotted them in Gettysburg, Pennsylvania. Fighting erupted. As a result, three fierce days of battle were fought in open land that otherwise had no particular significance. But once the fighting ended, there were 7,000 dead, some 40,000 casualties in all, and Abraham Lincoln declared that their blood had consecrated that land. Yehuda Dimentman’s blood now has consecrated Chomesh.

The Israel Supreme Court ruled a decade ago that Chomesh is Arab land. Israelis who seek moral guidance from America ask what America would do in such a case. America would take that land and, at most, would compensate the supposed private owners monetarily. But that land would be taken.

There also is another American precedent. Robert E. Lee was one of the most brilliant American generals ever to graduate West Point. Abraham Lincoln named him to lead the American military. However, Lee was an even greater patriot to his state of Virginia. He resigned his commission in the United States army to lead the Confederacy’s main army in Virginia.

Interestingly, Lee had married into the George Washington – Martha Custis family. They lived on a magnificent estate in Arlington, Virginia. It had been built by the step-grandson of George Washington, George Washington Parke Custis, who was Martha Washington’s grandson. That grandson’s daughter, Mary Custis, later married then-Lieutenant Robert E. Lee, whose mother was a cousin of Mrs. Custis. Lt. Lee and his wife lived in Arlington for thirty years. Six of their seven children were born there.

In 1861 Robert E. Lee resigned his commission in the American army to lead the Army of Northern Virginia. Only one year later the United States Congress enacted laws that resulted in America seizing the enormous Arlington estate from Lee and Custis. The land was auctioned, and America bought it, soon after converting the property into a cemetery for Civil War soldiers to assure that it never again would be Lee’s residence. Robert E. Lee’s oldest son, George Washington Custis Lee, sued America years later to get back his family estate, and the U.S. Supreme Court ruled by a 5-4 vote in 1882 — twenty years after the land had been seized — in his favor. By now, however, it was a full-blown cemetery and literally unlivable. All Lee could do was negotiate a price of compensation, and he was paid for the land.

If Israel must abide by its leftist judges, the next step is to pay whoever has to be paid for the Chomesh land. If those Arabs refuse to sell, then a fair market value price can be set and placed in escrow, perhaps for the UNRWA to use to teach Arab children to hate Jews or perhaps to help fund Mansour Abbas’s next run for Knesset with Bennet, Kahana, Shaked, Saar, Elkin, and the rest of their coalition partners.

But that land now is consecrated with Jewish blood and must remain in Jewish hands, where a full Jewish community must be built and a yeshiva must be expanded and beautified.