Bret Stephens
© Jason Smith
Bret Stephens
The new basic law declaring Israel the "nation state of the Jewish people" continues to create problems between Israel and the rest of the world, including many Jews. Notably a devoted British Zionist named Vivien Duffield, who has given tons of money to Israeli projects, announced "I hate Israel" and "My Israel is dead," and averred that the law establishes apartheid. And David Rothkopf, the former editor of Foreign Policy, said the racist law makes it the "duty" of American Jews to oppose Israel, including by boycott.

Such views must be taken on, and Bret Stephens does so in a column - in the New York Times of course - saying that while the law was unnecessary, provocative, and divisive, the press has misreported the law because it does not change anyone's real status in Israel. Alan Dershowitz's line, too.

Here are two ways Stephens is wrong.

First, the law privileges Jewish settlement.
"The state views Jewish settlement as a national value and will labor to encourage and promote its establishment and development." Stephens admits that "sounds like" West Bank settlements. But he goes on to excuse the language, saying it's a "mostly symbolic codification of Israel's Jewish character in the face of persistent efforts to deny that character."
But the law is already being used to justify annexation of large portions of the West Bank by Israel, for Jewish towns. Yossi Alpher told Peace Now earlier this week:
[T]he ultra-nationalist right, currently Israel's political mainstream, intends to continue absorbing the land of the West Bank into Israel. Simultaneously it seeks, in one form or another, to disenfranchise more than three million Palestinians living there lest they become Israeli citizens and tilt the demographic balance away from "Jewish" and (with a combined population including 45 percent Arabs but still excluding Gaza) toward "bi-national". A Jewish nation state in which only Jews determine the country's constitutional nature is the perfect "legal" legislative vehicle for taking the necessary apartheid-like measures to make this happen.
News reports state that Israel's government is citing the nation-state law to try to make legal illegal settlements in the West Bank.
But state attorney Harel Arnon [himself a settler] told the Walla news site that the clause promoting Jewish settlement would be used to back the so-called Regulation Law, which allows the state to legalize outposts built on private Palestinian land ex-post facto...

Arnon acknowledged that the rights of Palestinian property owners need to be taken into account. However, he pointed out that the nation-state law gives Jewish settlement a "higher normative hierarchy."
Indeed, Ori Nir of Peace Now explained that the law's definition of Israel as the "historic homeland of the Jewish people" furthers West Bank settlement.
The law... does not limit settlement to the lines of sovereign Israel. By doing so, the law gives a further push to annexationist trends that characterize this government's actions and legislation. Worse, it gives further legal coverage to the settlers' insatiable appetite for expansion with the stated goal of denying a future Palestinian state. Whenever establishing another hilltop outpost in the West Bank, unauthorized by the government, settlers could point to the law and argue that this Basic (constitutional) Law trumps any legal technicality complicating the ultimate goal of settling the land.
Second, there is the law's identity provision:
The right to exercise national self-determination in the State of Israel is unique to the Jewish people.
Stephens says this provision is unimportant.
"The bill's purpose was to codify into Israel's Basic Laws - akin to a constitution - aspects of Israeli identity long taken for granted by Israelis and outsiders alike."
David Bromwich responds that it has great significance.
"Self-determination" was the criterion for statehood promoted by Woodrow Wilson in the aftermath of the First World War. It gave central emphasis to the idea that the nation, based on blood and belonging, is the foundation of a legitimate state. "The people" thus endowed with the right to form their own state are, by definition, a mass of persons already unified by tribal or traditional affiliation. The only possible pragmatic reduction of the sentence in the Israeli law comes out of this understanding. "The Jewish people" can have no empirical meaning other than "Jewish persons" or "persons of Jewish descent." Only they, the new law affirms, can determine the nature of the state of Israel. Recognize that Jewish persons also means neither more nor less than "Jewish citizens endowed with the right to vote" and you see the inference.
Imagine an American law that declared "The right to exercise national self-determination in the United States is unique to persons of white Anglo-Saxon protestant descent." In fact, Stephen Douglas said something similar in reply to Lincoln's statement that the proposition "all men are created equal" was meant to apply to both black and white people. On the contrary, said Douglas, "this Government was made. . .by white men for the benefit of white men and their posterity forever."
That was during a debate in October 1858 in Illinois. And as Alpher said,
"A Jewish nation state in which only Jews determine the country's constitutional nature is the perfect 'legal' legislative vehicle for taking the necessary apartheid-like measures..."
We are going to get a lot of Stephens's argument. Nothing to see here, move along. Like Yaacov Lozowick, Israeli state archivist.
Look, Israel's Nation-State law wasn't necessary & we were doing fine without it; but all the frothing at the mouth is ridiculous. Or malicious.
These folks are doing damage control, but not effectively. As Yaakov Hirsch says, "No one is policing the Jewish discourse anymore."

Philip Weiss is Founder and Co-Editor of