In its contempt for nationalism and democracy, Israel’s Supreme Court exemplifies a trend that endangers liberal values throughout the West
By Gadi Taub, TABLET Sept 20/21
The ideological fault line in the contemporary West runs between two opposing visions: an internationalist (or even globalist) orientation, which seeks to “transcend” the nation state, and a national view that seeks to reinvigorate it.
To the partisans of internationalism who dominate academia and the press, it is clear which occupies the higher moral ground. The globalist ideology, as they see it, is liberal: It is underpinned by an inclusive vision of universal human rights. By contrast, the nationalist vision borders on fascism, or even on racism, and is poised to break out into full malignancy at any moment. They believe that because nationalism tends to elevate the collective over the individual, and because it is “ethnocentric,” it is also suspicious of—if not downright hostile to—anyone who doesn’t belong to the national collective.
According to this account, the moral deficiencies of the nationalist stance are exposed by, among other things, the hot-button issue of immigration policy. Nationalists, we are told, are backward-looking reactionaries, clinging to some fantasy of a pure ethnic past and failing to see our common humanity. They huddle around their tribal fires, fearful of change and suspicious of strangers.
This description of nationalism is of course skewed. Nation-states have, for example, proven to be the single most effective vehicle for realizing the right of all peoples to self-determination, and for protecting individual rights and freedoms. But it is important to note not only the ways in which globalist rhetoric distorts the vision of its ideological adversaries, but also how it serves to obscure a crucial aspect of its own stance: The left-liberal version of globalism is, for the most part, decidedly antidemocratic.
The globalist critique of nationalism—made in the name of liberalism—has proved useful in diverting attention from what is in fact an attempt to dismantle parts of representative government. Because the citizens of liberal democracies tend to conflate liberalism and democracy, we rarely pause to note the ways in which the former has turned on the latter. Israel offers an instructive case in point, as its liberal elites make almost no attempt to conceal their fight against the mechanisms of Israeli democracy, especially in the legal sphere, where Israel’s Supreme Court leads the charge.
To say that Israel’s Supreme Court is “activist” would be an understatement. Although Israel does not have a written constitution, the court has accumulated and cemented the power to overrule the legislature and the executive, one precedent at a time, to an extent virtually unknown in the democratic West. The court now has, according to its own account, final authority to arbitrate any action taken by the other branches of government.
This process began in earnest with the court’s bold interpretation of two of Israel’s semi-constitutional laws, known collectively as the Basic Laws. The court asserted, in the style of Marbury v. Madison, that these two laws from 1992—Basic Law: Human Dignity and Liberty and Basic Law: Freedom of Occupation—gave it implied “constitutional” authority to strike down legislation. The two laws, which both passed by simple majorities in a more than half-empty Knesset, enshrine classic liberal principles, giving a high normative status to the kinds of individual rights that many democracies see as necessary checks on the majoritarian principle. The process by which the court’s constitutional authority was established is highly questionable, but the impact it had was not especially out of the ordinary by the standards of other contemporary democracies.
Israel and the Middle East
But the court’s landmark interpretations of the Basic Laws proved to be just the beginning of its antidemocratic turn. The court has since asserted the power of judicial review over the basic laws themselves—the same ones from which it believes it derives the power of judicial review. To understand the audacity of this move, imagine the U.S. Supreme Court striking down Article 3 of the Constitution as “unconstitutional.”
The court has used its new powers to throw its weight around in Israeli politics. It recently considered whether or not Benjamin Netanyahu was legally allowed to form a government while simultaneously under indictment. There is a law on the books that explicitly allows this, and the court indeed upheld it. Nevertheless, the court also announced that in “exceptional and rare” cases, it henceforth has the authority to override the Knesset’s prerogative to task an elected leader with forming a coalition. What this means in plain English is that under “exceptional and rare” circumstances (as defined, of course, by the court alone), it can void the results of a democratic election. That is a staggering presumption, by any legal standard.
At around the same time, the court ordered the Knesset to conduct an early vote on the appointment of its own new speaker, ignoring the prerogative of the current speaker to schedule such votes. The speaker of the Knesset resigned in protest. I am not aware of any comparable episode in a contemporary Western democracy.
It is not for nothing that the legendary scholar and U.S. federal appellate Judge Richard Posner called Aharon Barak, former president of Israel’s Supreme Court and the father of its judicial activism, a “legal buccaneer.” The court as Barak fashioned it has bullied its way into becoming Israel’s uber-government. As a result, it is no longer possible to say that Israel has three co-equal branches of government, or even a system of checks and balances. There is no longer any real check on the court’s authority, there is no defined limit to it, and there is no effective institutional way of balancing it. Moreover, its current composition—which is overwhelmingly progressive—is sealed off from the pressures of public opinion, as Supreme Court judges have for years duplicated their own DNA by wielding a veto power over the appointments of their colleagues.
The ideological thrust of the court’s interventions has accordingly been pretty uniform. What began with classical liberal checks on the majoritarian principle has evolved into gradual and persistent encroachment on the national character of the Jewish nation state—all made in the name of individual rights. Nowhere is this more apparent than in immigration policy, the area in which the court has intervened most intensely and struck down the largest number of laws.
Control of who enters a country, who lives in it, and who becomes a citizen are all essential aspects of a state’s sovereignty. Israel’s immigration policy is based on a repatriation law, “The Law of Return,” which is designed to secure the state of Israel not just as a haven for persecuted Jews, but also as the one country where the Jews as a people exercise their collective right to self-determination. Many other democratic nation-states have such laws, which give priority to members of the nation in the process of naturalization, but Israel’s Law of Return is the most radical. This isn’t very surprising given the Jews’ history of persecution (it’s no accident that the law echoes, though is not limited to, the Nazi definition of who counts as Jewish). The message is clear: If you can be persecuted as a Jew, Israel will protect you as a Jew. Israel’s Law of Return offers immediate, unconditional, and full citizenship to Jews upon arrival. It offers non-Jews no such thing.
The court is subverting the Law of Return, and thus to undermine the Jewish character of the state, by using its interpretation of the twin liberal Basic Laws to discourage the enforcement of laws against illegal immigration. The court’s reasoning serves not only to incrementally change the demographic composition of Israeli society but also gradually casts a shadow of delegitimization over Israeli nationalism as such. By chipping away at the legal differentiation between the rights of Israeli citizens and the rights of people who have illegally entered Israel, it has manipulated the Basic Laws on human rights to impugn the national character of the state itself as borderline racist.
Thus does an allegedly narrow critique of nationalism lead more broadly to the subversion of democracy. Since the majority of Israeli citizens cherish the country’s national culture, identity, and right to self-determination, the only way to impose a non-national ideal on it is by subverting the democratic decision-making process.
It can be said that the case of Israel is unique, and that its Supreme Court is an anomaly. This is true in important ways, of course. But when it comes to the underlying ideological struggle, how different is the case of the United Kingdom? The decision made in 2015 in the name of liberal values to open the doors of the European Union to more than a million migrants—led by German Chancellor Angela Merkel, without sufficient democratic deliberation or popular buy-in—led precipitously to Britain’s vote in favor of Brexit in 2016. Predictably, the internationalists of the U.K. and the EU took pains to ascribe the outcome of the referendum to racism, jingoism, xenophobia, and even fascism. These were, we were told, the deplorables of Britain, who had turned their backs on the liberal future of a borderless world.
Yet the supporters of Brexit saw themselves quite differently. In their view, the issue was not simply immigration but that the Remainers had turned their backs on democracy, and thus on the sovereignty of British citizens. Brexit as they saw it was a call for national independence—that is, a demand to regain democratic control over the nation’s fate. Their repeated complaint was that the U.K. had ceded control of its policy and legislation to a Brussels-based liberal bureaucracy over which the British people have little or no influence.
The rise of antidemocratic liberalism is also a central feature of the American political landscape (which, to be sure, differs from other Western democracies in important ways, not least of which is the balkanization of national identity wrought by identity politics). Over several decades, a network of international trade agreements, political alliances, and military obligations—maintained and in some instances created by unaccountable bureaucrats and administrators—submerged the national economy in a global free market and prioritized the state’s international role over its domestic obligations. Working Americans began to feel that they were losing control over their own fate (along with their jobs), and that their government is failing to represent their interests.
Naturally, the Americans who expressed frustration with their country’s antidemocratic liberalism by voting for Donald Trump were portrayed by liberal elites as—what else?—jingoists, racists, and xenophobes. Like the Brexiteers, many Trump voters saw themselves differently: as supporting national self-determination, namely citizens’ control over economic, immigration, and foreign policy.
As in Israel, liberal elites in the United States believed that the election of a nationalist head of state justified extra-legal “resistance” to the results of the democratic process, and that “nationalism” should be understood less as the basis for democratic self-determination, and more as a harbinger of fascism.
The dilemma facing Western elites is that it is difficult to run a healthy and functioning democratic society without some form of nationalism. Democracy, after all, depends on an emotional bond that compels separate individuals to participate in advancing what they perceive as the common good. Liberal values are for the most part unable to thrive once they are plucked from the soil of national identification. Until internationalists find some other way to bridge the gap between their global ambitions and the democratic rights of citizens, we who believe that government derives its just powers from the consent of the governed would do well to keep our distance.
Gadi Taub is an author, historian, and op-ed columnist. His Hebrew bestseller The Rise of Antidemocratic Liberalism: Israel, the United States, and the West is being translated into English.