Israel's Declaration of Independence
Israel's Declaration of IndependenceNational photo archives

Martin Sherman in his seminal post, Distorting the Declaration, after noting that the protestors support the following paraphrase by David Horovitz:

“Our Declaration of Independence promises that the State of Israel ‘will ensure complete equality of social and political rights to all its inhabitants irrespective of religion, race or sex; it will guarantee freedom of religion, conscience, language, education and culture…’”

argued, that while this is true, it was misleading. He wrote and proved,

“the focus of Israel’s Declaration of Independence is overwhelmingly on Jewish sovereignty and political independence in the ancestral Jewish homeland—not on liberal democratic governance” as the protestors would have you believe.

Rabbi Alan Silverstein, attended this year’s World Zionist Congress and heard debates between proponents and opponents of the proposed changes in the Israeli judicial system in which the meaning of Israel’s Declaration of Independence, was often at issue. Thereafter, he wrote, “The legal significance of Israel’s Declaration of Independence”.

“The word “democracy” was explicitly not included. Why? Ben-Gurion and his key deputy, Moshe Shertok (later, Sharett), were determined to obtain diplomatic recognition by the United States and the Soviet Union. Yet Soviet and American definitions of “democratic” were at odds; liberal democracy as conceived in the United States was very different from the communist version.

"As a compromise, Ben-Gurion turned to Judaism’s biblical heritage. In September 1948, he offered his point of view: 'As for western democracy, I’m for Jewish democracy. ‘Western’ doesn’t suffice. Being a Jew is…also a matter of morals, ethics…. The value of life and human freedom are, for us, more deeply embedded thanks to the biblical prophets more than western democracy…. I would like our future to be founded in prophetic ethics.'

So the scroll said the society of the new state would be “as envisaged by the prophets of Israel.”

In 1992 the Basic Law Human Dignity and Liberty was passed in the Knesset. Four years later, Freedom of Occupation [Career] Basic Law was passed.

“Barak affirmed that this formula “totally transformed the status of the Declaration [of Independence]. Not only did that document now enjoy legal validity, but the rights in it were not merely ‘legal rights’ as in other laws, but ‘constitutional rights.’”

Barak has just published a new article saying that the Declaration of Independence is to be a legal basis for a law's rejection or acceptance, leading to criticism claiming that his intention is that the interpretation of that basis is to be in the hands of judges. But both legal rights and constitutional rights require a Knesset majority to pass or amend them. So to my mind, that’s the real equalizer.

That law defined Israel as a “Jewish and democratic” state. UNGA Res 181 called for the creation of a Jewish and an Arab state in Mandatory Palestine. Thus, the UN had extended its formal imprimatur to the notion of a Jewish state.

But the question arises, are these two values complementary or contradictory? I suggest that when they are contradictory, being a Jewish State should take precedence. The Declaration demands it. The High Court thinks otherwise.

In 2018, the Basic Law: The Nation State of the Jewish People was passed. It was and remains very controversial because it was accused of inoring he democracy side of the debate.

The High Court denied all petitions against it by a majority of 10 of 11 Justices. Esther Hayut, the court’s President held:

"This basic law is but one chapter in our constitution taking shape and it does not negate Israel's character as a democratic state."

According toHaaretz ,

“the High Court ruled that there are no grounds for intervening regarding the law, but added that its provisions must be interpreted in light of Israel's other basic laws, in particular the basic laws on the Knesset, on human dignity and liberty and on freedom of occupation, which specifically address the dual character of Israel as a Jewish and democratic state.”

Thus she is saying the State can be Jewish so long as it doesn’t infringe on it being democratic. I would have it the other way around.

Several types of “rights” were to be protected by the Declaration, “National and historic” rights were granted only to Jews to enable them to once again become masters of their own fate.

In other words, “Jewish and democratic” are not equal values. The latter should not have the ability to diminish the former. Aside from that, I am all in favour of equal rights.

Remember the fight over the “Nation State Law”. The left wants Israel to be a state of all its citizens. The right wants it to be the state of the Jews. The Arabs must accept this limitation. Likewise the High Court.

This position is set out in my 2005 article, “It Pays to be Jewish”. In it, I paraphrase Paul Edelberg’s important book titled “Jewish Statesmanship”. He wrote,

“Contrary to the expectations of Jewish politicians and intellectuals who, out of fear of anti-Semitism, mindlessly portray Israel as a democracy so as to endow it (and themselves) with legitimacy and respectability, it is precisely this lack of Jewish national authenticity, this adulation of decayed democratic values, that underlies the international contempt for Israel.”

He characterizes this contemporary democracy as upholding “indiscriminate egalitarianism and unrestrained libertarianism.” Israel’s embrace, without question, of this form of contemporary democracy has led to Arab Israelis who are PLO surrogates, and thus, enemies of Israel, being elected to the Knesset. It also leads, among other things, to the PLO being permitted their own press in Jerusalem, where they mightily contribute to anti-Israel propaganda and incitement. In other words, this slavish adherence to these contemporary democratic values threatens not only the character of the Jewish state, but its very existence.

Instead, he argues that " Israel’s statesmen should emphasize Israel’s raison d’etre, as a Jewish State, and that this necessitates that democracy must be assimilated to Judaism. It means that an authentic Jewish Commonwealth should embrace the supremacy of Torah and not of democracy.”

Prof. Paul Eidelberg was a recognized expert on the American Constitution and made Aliyah in 1976.

In a similar vein, I call for a Bill of Jewish Rights which should include:

-The right of return for Jews, amended as desired,

-The banning of all promotion of the Palestinian Narrative including the Naqba

-The banning of all terrorist organizations along with the criminalization of membership in them.

-The criminalization of all calls for Israel’s destruction.

-The criminalization of all antisemetic statements and pictures

-The criminalization of antisemetic sermons

-Cancellation of the law permitting Arabs to move to Israel pursuant to the family reunification law

-The legal right to live in exclusively Jewish communities which have less than 1000 members or other number agreed to.

-The right of Jews to pray on the Temple Mount.

There are different kinds of “democracy”. The Basic Law doesn’t define it. Aharon Barak and the protestors want it to be a liberal democracy unconnected to religion like in the US. But there is no basis for this other than the Basic Law on Human Dignity which the High Court holds dear. But Basic Laws can be amended by a 61 vote majority if not by a simple majority.

The battle over which takes precedence cannot be avoided.

This Knesset has the ability to amend the law so that being a Jewish state takes precedence over being a democratic state. Better to do so before the battle commences.