The midterm American elections take place today. If every eligible American votes in this election, about 230 million people will cast ballots. Over 30.6 million Americans (over 13% of eligible voters) have already voted, surpassing the 28.3 million (about 12%) who cast ballots before the last midterm elections in 2014. Then, there was an abysmal low turnout – 36%. 82.8 million Americans of 230 million determined the shape of American democracy for the subsequent two years.

In contrast, in the 2016 elections, 137.5 million Americans cast ballots, but that only represented a 60% turnout in a very dramatic presidential election. America, hailed (incorrectly) as the foremost and first democracy in the modern world, has a record of very low turnouts for elections. Many observers and Democrats were convinced that the low turnout was the main reason why they lost in 2014 and 2016. Many Democrats are comforted by the higher pre-election turnout this year.

However, some of the early results are not that comforting. Some states require registration by party affiliation. In those states, 36% of Republicans in contrast to 41% of registered Democrats voted. But that is little direct indication of voter patterns; it may only suggest the degree of commitment of the dedicated party members who want to free up their time to work in the election to get the vote out. Further, both parties are exceeding their previous turnouts where it counts for them.

But other indicators raise hopes for Democrats. In key swing states, voter turnout has been particularly strong, from youth in Florida, suburban women in Virginia and new midterm voters in Georgia where 36% of the 1.8 million ballots cast were new voters. In any case, tonight, we shall see.

Though I will observe the results with intense interest, I am going to take a break from my obsession with America for the moment. Part of the reason is that both my desktop and my laptop are in the process of being repaired. My desktop had evidently 3,657 attacks against it. The efforts never penetrated the protective barriers, but the computer was temporarily disabled and half of yesterday was spent getting it operational again and cleaning up the mess. The problem with my laptop largely just concerned my mouse pad and I have now shut off the mouse pad in favour of an independent mouse.

However, those were simply reasons for the pause over the last two days. This week is Holocaust education week and I want to write on some of the talks that I attend.

Last evening, I heard Donniel Hartman, President of the Shalom Hartman Institute in Jerusalem, speak to an almost full house at Holy Blossom Temple on “Nationalism and Democracy in Israel: The Aftermath of the Nation-State Law.” He was a terrific rhetorician and delivered his remarks, sometimes in relative quiet and at other times in a soaring voice. The audience seemed spellbound. However, the talk barely dealt with the aftermath of the nation-state law, except for some concluding remarks and prognostications at the very end.

As is often the practice in Torah study groups, he handed out some material for discussion. Other than the initial material describing Donniel’s publications and some material on the Hartman Institute, there were three documents:

• Basic Law: Israel – The Nation-State of the Jewish people (2018)
• The Israeli Declaration of Independence
• Basic Law: Human Dignity and Liberty (1992)

Donniel made a passing reference to the second and virtually none to the third document. The first half of his lecture focused on the Nation-State Law which I analyzed in some detail in a previous blog. While I had parsed its meaning, he read it clause by clause to insist there was nothing in the law to which he would object. He was a nationalist and a Zionist who supported each and every proposition. On the way, he discussed the relationship of universalism for him as well as distinguishing two types of nationalism.

On universalism, he said that the Jewish people were a people of the Book and a people of their own narrative. Their identity as Jews arises from that narrative. He made it very clear that he was a particularist; Jewish nationalism was rooted in religious narrative and not abstract principles. He was not a universalist who based his ideas on abstract ideas picked off the intellectual shelf of the supermarket of ideas. In the process, he alluded to Kant as a philosopher who set universalism in opposition to particularism.

Yet, as made clear in answer to a question I posed to him afterwards, he was also a universalist who borrowed one version of the categorical imperative from Immanuel Kant and another version from Hillel to allow the marriage of nationalism and universalism.

On nationalism, he distinguished between the simple notion of nationalism as patriotism, as loyalty to one’s people and one’s country, and a nationalism of aspiration whereby the vision of and for one’s people is embodied in certain values and ideals towards which you want your nation to aspire. In the second part of the talk, he introduced a third form of nationalism.

That second half was a “nevertheless.” Though he agreed with each and every clause of The Nation-State Law as eventually passed, with key repulsive clauses removed, nevertheless he opposed the law. Not for what it said, but for what it omitted. But primarily he pounced on the motives for the law. As I understood him, he distinguished three goals, one to isolate and send beyond the pale what the proponents of the law considered an existential danger posed by one group of Jews. The second focused on the centrality of the group promoting the law for the salvation and future of Israel. The third linked the Israeli Jewish community to other non-Jewish communities and nations throughout the world, not through shared values but through shared interests.

To Hartman, the first motive of the promoters was to target a ghost, a spectre, a phantom that did not exist – an enemy of the people, a group who threatened the Zionist state. Other than the Arab party, no other party in Israel espoused anything other than that the Jewish homeland was the historic homeland of the Jewish people, for the law did not say that the state was coterminous with that historic homeland; the state of Israel was the body politic of that people. The nation state was the expression and realization of the natural, cultural, religious and historic right to self-determination. The state symbols included the name of the state, its flag, its emblem, the Menorah, and its national anthem, Hatikvah. All parties, except the Arab party, were authentically Zionist and upheld the belief that Jerusalem was the complete and undivided capital of the State of Israel.

The official language was Hebrew, though Arabic had a special status. The ingathering of the exiles meant simply the openness to such an effort. The State of Israel had a special role in protecting, not only all its citizens, but Jews throughout the world, their relationship to the state and the cultural, historical and religious heritage of Jews in the diaspora.

And who can be opposed to Jewish settlements? Perhaps Jewish settlements as the avant garde of annexation, he implied, but not the principle of Jewish settlements in the homeland of the Jewish people. He could have noted that The Nation-State Law does not apply to the occupied territories.

The official calendar is the ancient Hebrew calendar alongside the civic one. The three state holidays – Independence Day and the Memorial Days for fallen soldiers and victims of terrorism, and the Holocaust – who can object? These are just facts, givens, as are the definitions of the day of rest for Jews and non-Jews.

What is there to object to in The Nation-State Law?

To repeat, Hartman’s response was the intentions of the movers. The law was unnecessary. It was merely a summary of givens. But the pushers of the law were determined to use the law to demonize Jewish groups such as the New Israel Fund. Secondly, it was used to advance the cause of those Jewish groups who espoused a third form of nationalism, an exclusivist nationalism, a nationalism that celebrated Jews at the expense of others, a xenophobic nationalism, a proto-fascist nationalism, a make Israel great nationalism. Third, instead of promoting a globalism based on universal principles that are also congruent with historic Jewish values, The Nation-State Law was promoted by a group that would identify Israel as a start-up nation, as a transactional state of Jewish interests rather than a state of the Jewish people, a state that exists in a world in which antisemitism is an eternal reality, and that Jews could only trust goyim and goyim could only trust Jews because they had interests in common rather than values.

As I suggested earlier, he did make some allusions to the aftermath of The Nation-State Law, namely that it was the canary in the coal mine that signalled new attacks against refugee rights and Israel’s commitment to the International Refugee Convention, to new attacks against the Supreme Court of Israel and the effort to make a simple parliamentary majority sufficient to overrule determinations by the court. Though Hartman did not specifically state this, the two issues are connected, for it is the Supreme Court of Israel that did not simply strike down specific legislation by the Knesset for violating universal rights, but required the government to take specific actions to protect refugees and not warehouse them in camps or simply send them back or onto Uganda without allowing them to make a refugee claim.

On Monday, the Knesset approved in its first reading a bill that would allow the government to deny state funding to organizations or events that: deny that the State of Israel is a Jewish, democratic state; incite racism, violence or terror; support an armed struggle or acts of terror against Israel by an enemy state or a terror group; mark Israel’s Independence Day as a day of mourning; or engage in any act of destruction or physical degradation of the flag or any state symbol.

One of the ironies, of course, is that it will be the Supreme Court that will rule on whether The Nation-State Law is or is not constitutional. If the Court does the latter, the attacks against the court for setting aside the will of the people and of their representatives will grow enormously. The Supreme Court will also decide if the law restricting cultural grants infringes on the rights of Israelis.

Was Donniel Hartman’s analysis and argument persuasive? First, note several paradoxes. He espoused a universalism that arose from the Jewish narrative rather than one abstracted from it, but the links between particularism and universalism were muddy. His singular focus was not on consequences, though there were some references to normative ends, but on intentions. And intentions are the signature of the ontological ethics of Immanuel Kant, whom he cited as a standard bearer of universalism divorced from particularism. Very simply put, with deep apologies to Kant, what makes one good are one’s good intentions. What makes one bad are one’s bad intentions. The pushers of the law had bad intentions.

That is why Hartman claimed The Nation-State Law was bad, not because of its substance, but because of the intentions of its promoters. He never attempted to document that these were the intentions. He simply asserted that to be the case. Secondly, he not only chastised the intentions of the pushers of the law, but also demonized them. Why? For demonizing groups of Israelis critical of government policies – the New Israel Fund mentioned above, but also Breaking the Silence, an Israeli NGO established in 2004 by veterans of the IDF that encouraged serving personnel and discharged veterans to tell their stories of their experiences in the Occupied Territories. He, himself, was critical of the latter for taking their complaints against the IDF to foreign countries, but he criticized those who tried to characterise its supporters as enemies of the state.

Third, and most important, he claimed that there was a war underway for the soul of Israel, a war over fundamental values. The promoters of the law were demonized, just as these groups apparently demonized the critical left as dangers to Israel. Hartman demonized the right pushers of the law as threats to the very soul of the Jewish people. When I asked whether there was a possible contradiction in taking such a stance – demonizing those who demonized – he claimed that he was not demonizing them. But if they were threats to the soul of the Jewish people, if they were cultural enemies in a war over the identity of the Jewish people, was this not a form of demonization?

If we go back to the issue of intention, the Torah recognizes the import of intention, of kavvanah. But not as an abstract underlying a priori principle that is a condition of being moral altogether – a somewhat different version of Kant than the one I believe Hartman adopted – but as a matter of substance. It mattered whether someone killed intentionally, for murderers were not given protection in sanctuary cities. Those who killed unintentionally, those guilty of manslaughter, were. The norm was applicable whether or not one was a Hebrew or a non-Hebrew.

How do we distinguish between the two forms of killing? By documenting in detail that one deliberately and intentionally aimed at the death of the other. Hartman’s point was that The New Israel Fund and Breaking the Silence had no intention of killing Israel; they were just critics of government policy. However, as I heard Hartman, the promoters of The Nation-State Law were accused of trying to murder the Supreme Court as the final authority on whether a specific law runs contrary to universal principles of human rights. The promoters of The Nation-State Law were out to murder the International Convention protecting refugees, which I argue is not rooted in human rights law as Hartman suggested, but in humanitarianism and rights to membership in a nation-state.

In sum, I found Hartman confusing on his connection between universalism and particularism and contradictory on the issue of demonization. There were many other misgivings I had about the talk because, as I interpret The Nation-State Law, I agree that it is mainly a reiteration of what Israel is and what it stands for. But, unlike Hartman, a nation state does not define itself at the beginning before the nation state is born, such as in the Israeli Declaration of Independence, but in the laws it develops along the way.

Canada, for example, replaced immigration rooted in ethnic identification with the majority in favour of a universalist approach in the immigration laws passed in the 1960s and 1970s. Countries do define their identities as they develop and many political fights are about identity. But a fight about identity is not a fight about the soul of a nation. The latter can lead from verbal spats to violent ones as in the American Civil War where legislation is used to advance one view of the soul rather than another. For either “religious” view may be a form of puritanism. And it may be critical. But if The Nation-State Law did not do this, then it offers no evidence of a cultural civil war and the existence of a threat to the very essence of the Jewish people. Such hyperbole may be the danger rather than the intentions and positions of most defenders and most critics of the law.

With regard to the latter, unlike Hartman, there are many criticisms of the substance of the law – one is the primacy given to Israel in the protection of Jews around the world rather than a stress on partnership between the diaspora and Israel, a position with which Hartman seemed to sympathize. A second is that the law engages in diplomatic creative ambiguity allowing delicate issues, like Israeli expansionism through settlement, to be skirted while allowing interpretations over time to clarify the meaning – which I took to be implicit in Hartman’s defence of the law in its wording – as only making explicit what already is fact. Third, there are many Israeli Jews, though not nearly a majority, who object to defining Jerusalem as the undivided capital of Israel.

Many Israelis, led by Tzipi Livni, were also critical of the omission of any obligation of the state to protect the equality of all its citizens. Zouheir Bahloul, an Arab member of a Zionist political party, resigned from the Knesset over this issue, arguing that the law made Arabs second class citizens.

Others argued that the issue of equality was redundant since the Declaration of Independence already does that. Minorities, such as some Druzim, who serve in the army and in the border police, usually with distinction, were critical of the law for its omissions – something to which Hartman alluded, though Druze MKs Hamed Amar and Ayoub Kara not only voted for the bill, but cosponsored the bill in its original iteration. Were they intent on demonizing a group of critical Israelis as enemies of the state? Hartman, on the other side, never mentioned another omission, leaving out making Judaism the official religion of the state as is the case in many countries, including many European ones.

More seriously, there are Jewish groups in Israel, sometimes in alliance with other non-Jewish groups, who do not support Israel as an exclusively Jewish sovereign state. They object to the Israeli state being defined primarily by its Jewish identity rather than as a state primarily that protects all its citizens.  Many would interpret the intention of the law as pre-empting moves towards a non-ethnic definition of the Jewish state or even the development of a bi-national state. The target of the majority of supporters was not critics of the government, but critics of Zionism as the reigning philosophy of Israel.

In sum, though I agreed with Hartman that the criticisms of the law itself have been greatly, and without warrant, amplified, I find his objections based on intentions to be put forth in an empirical vacuum, in considerable confusion on the relationship of universalism and particularism, and totally unresolved over the issue of who was being demonized.

 

With the help of Alex Zisman

Editorial assistance: bsg communications