One of the first acts of the 112th United States Congress was to stage a reading of the entire constitution on the floor of the House of Representatives. The reading was planned as a way of acknowledging the strength of the new Tea Party faction in the House and its ideological commitment to upholding its particular understanding of the Constitution. There was just one problem: the U.S. Constitution, despite having been modified since, still contains references to its own codification of the anti-democratic beginnings of American democracy. Namely, the Constitution makes distinctions between citizens and “other persons,” or slaves, in counting population numbers for the purposes of apportionment of representatives and taxation. Article 1, Section 2, Paragraph 3 of the Constitution provides that population will be counted “by adding to the whole Number of free Persons…three fifths of all other Persons.” Not wanting to be reminded of the imperfections in our Constitution, or the contradictions encoded in our democracy, the House leadership decided to read a redacted version that eliminated all language later superseded by amendments.
Simply removing the language that codified the dehumanization and disenfranchisement of African-Americans, however, can’t make it disappear. This week brought further evidence that despite Constitutional amendments and other forms of political and judicial reform, the lingering effects of Article 1 remain. Last month’s decision by a grand jury in Ferguson, Missouri, not to indict the white police officer who killed the unarmed black teenager Michael Brown in August was a reminder that our country was founded on the principle that African-American lives are worth less (three-fifths, according to the Constitution) than white ones. That sentiment was everywhere evident at protests decrying the grand jury decision, on signs that read “Black Lives Matter.” The fact that we still need to be reminded that black lives have worth brings us back to the way the founding documents of our democracy have, in a sense, written some American citizens out of it from the start. As a line from the Ferguson tribute song “Don’t Shoot” puts it, “I’m a resident of a nation that don’t want me.”
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Right around the time those lines were being written this summer, the Palestinian Israeli Hebrew writer Sayed Kashua echoed the sentiment almost perfectly when he wrote, “I despair to know that an absolute majority in the country [Israel] does not recognize the rights of an Arab to live.” This echo is why it should be so troubling to American Jews watching, this very week, a similar codification of anti-democratic principles into the closest thing Israel has to a Constitution, its Basic Laws. Last Sunday, the Israeli cabinet approved a bill that would define the State of Israel as “the nation-state of the Jewish people” without any mention of democracy or equal rights for minorities. Although it seems unlikely to come to a vote now that the governing coalition has collapsed, the bill raised troubling questions about the direction of Israeli democracy. While nation-state law may simply seek to enshrine existing practices into law, as Kashua’s statement indicates, it nonetheless signals a larger, ongoing shift toward the kind of “three-fifths” codification of inequality and ethnic superiority that American democracy, however imperfectly, long ago began to move away from.
And the nation-state law was not introduced in isolation. Just weeks before, a ministerial commission of the Israeli Knesset voted to allow a bill to go forward that would extend Israeli law to Jewish settlements in the West Bank, thus formally establishing two systems of law for the occupied territories: one for Jews, one for Palestinians. Whereas American democracy was marred by this kind of separate and unequal system from the beginning, unwilling to give up the benefits of slavery for the perfection of its democracy, the origins of Israeli democracy lie in rather more utopian ideals. In 1902, Theodor Herzl, the founder of political Zionism, published a utopian novel called Altneuland that describes an idealized version of the community Herzl hoped Zionists might soon establish in Palestine. This community, called the New Society, is mind-bogglingly prosperous, on the cutting edge of technology, dedicated to the social welfare of its members, and, generally speaking, a fabulous place to live. There are overhead tramways, European opera, and no army – because there’s no need, of course! Everything is perfect. And at the heart of this perfection is a deep commitment to humanism and equal rights, expressed by one of the book’s central characters and a member of the New Society, David Littwak: “It would be unethical for us to deny a share in our commonwealth to any man, wherever he might come from, whatever his race or creed. For we stand on the shoulders of other civilized peoples. If a man joins us-if he accepts our institutions and assumes the duties of our commonwealth-he should be entitled to enjoy all our rights.”
The New Society has a Jewish majority (and a distinctly European-colonialist feel), but it is nonetheless a multiethnic, multilingual, multireligious society that includes members like the Arab Muslim Rashid Bey and the Prussian aristocrat Kingscourt. To be sure, these characters often seem tokenized and the utopian perfection of the New Society almost laughably idealized, but Altneuland nonetheless represents an abiding hope for a Jewish settlement in Israel committed to democracy (in the New Society, even women can vote, unheard of in 1902) and equal rights. The utopian origins of Zionism and the state of Israel, despite Herzl’s blind spots and naivete, sharpen the disappointment of its failures as the gap between Herzl’s New Society and contemporary Israeli democracy widens.
It was Herzl, too, who coined the famous phrase “If you will it, it is no dream.” Usually, the creation of the state of Israel is seen as the culmination of Herzl’s dream, evidence of the truth of his aphorism. In the United States, the passage of the Thirteenth Amendment in 1865 could be seen as the culmination of the dream of a truly democratic society, as we rewrote the inequality codified in our founding document. But the fact that 150 years later we must still march in the streets to remind ourselves of the fundamental inequality written into our system of law and government demonstrates the insidiousness and pervasiveness of codified discrimination. The consequences of the nation-state bill will persist long after it is gone. As our Constitution shows, the language of inequality cannot simply be erased or forgotten. Once you rewrite the dream, it may never be the same.
