Is it anti-democratic for Israeli MKs to be required to pledge loyalty to the state?

Contrary to what critics might argue, pledges of loyalty are mandated by western political tradition. Opinion.

After the last Israeli election and before the installation of the current unity government, the Joint Arab List offered to support the Blue and White Alliance in forming a minority government and excluding PM Netanyahu and the right-wing block. In return, it was offered among other things the chair of the Knesset Labor, Welfare and Health Committee, which provides assistance for disabled IDF veterans and victims of terrorism.

This proposed deal struck many as incongruent, if not Kafkaesque, considering that some Joint List members have praised terrorists, engaged in anti-Zionist rhetoric, and demanded an Arab “right of return” intended to outnumber Jews in the Jewish state. The empowerment of those members who deprecate the country they were elected to serve begs the question of whether the current MK pledge “to bear allegiance to the State of Israel and faithfully to discharge my mandate in the Knesset” adequately reflects a commitment to national values.

The left opposes the concept of loyalty oaths, while the right has in the past demanded them as a condition for citizenship. The Knesset debated loyalty oaths in 2010 and penalties for treason in 2011 to much international consternation. Loyalty and seditious speech remain issues; and patriotism in government – if nowhere else – is relevant when any parliamentarian expresses support for those who engage in terror.

Uproar ensues whenever Israelis debate national loyalty or penalties for sedition, which critics claim weaken democracy. But such measures are neither anti-democratic nor uncommon. They do not contravene the principles establishing Israel as a Jewish nation in the ancient homeland while guaranteeing the rights of all citizens.

Leftists condemn Israel’s Jewishness as exclusionary, but they will not similarly criticize forty-seven Muslim-majority states (including twenty-two Arab nations) where Islam is the official religion, while ethnic and religious minorities are often persecuted, denied equal status, or excluded from privileges of citizenship.

While Israel is certainly a democracy, she is also a national homeland founded upon Jewish values and historical antecedents. Opponents have argued that mandatory oaths would compromise the rights of non-Jewish Israelis and often cite the U.S. Constitution as the gold standard for comparative precedent. The analogy is misdirected, however, because the Constitution does not prohibit mandatory declarations to promote loyalty or restrictions to protect national security.

Indeed, American courts have upheld speech restrictions during wartime and have affirmed mandatory oaths. And the Supreme Court has periodically let stand limited restrictions on civil liberties during times of national emergency.

Governmental authority to safeguard public health and welfare by limiting certain speech has long been recognized under American law. Writing for the Supreme Court in “Shenk v. U.S.,” for example, Chief Justice Oliver Wendell Holmes in 1919 observed that free speech does not include the right to “falsely shout fire in a theatre…”

The Supreme Court has also upheld speech limitations when necessary to preserve public order. However, government’s ability to restrict the content of speech is generally subject to “strict scrutiny”– the highest standard of judicial review – which is used to evaluate statutes or executive orders pertaining to content, but not those affecting the time, place, or manner of speech.

The earliest American laws regulating speech were the Alien and Sedition Acts of 1798, which were enacted to restrain or prevent anti-government agitation during an undeclared naval war with France. Though most such statutes expired by their terms, the “Alien Enemies Act” remained in effect to permit the apprehension and deportation of hostile resident aliens with little or no due process.

The U.S. government also has the power to demand declarations of loyalty. As a condition for naturalization, for example, immigrants must execute a detailed pledge stating:

“I hereby declare, on oath, that I absolutely and entirely renounce and abjure all allegiance and fidelity to any foreign prince, potentate, state, or sovereignty of whom or which I have heretofore been a subject or citizen; that I will support and defend the Constitution and laws of the United States of America against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I will bear arms on behalf of the United States when required by the law; that I will perform noncombatant service in the Armed Forces of the United States when required by the law; that I will perform work of national importance under civilian direction when required by the law; and that I take this obligation freely without any mental reservation or purpose of evasion; so help me G-d.”

In addition, loyalty oaths are constitutionally required for government service and are arguably broader in scope than the Knesset oath provided in the Basic Laws. Specifically, Article VI, Clause 3 of the Constitution requires that:

“The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.”

Swearing to “be bound…to support this Constitution” requires one to embrace all inalienable rights and values included in it. A similar affirmation is required for U.S. military personnel, who must swear to defend the Constitution.

Thus, contrary to what critics of required affirmations or speech restrictions might argue, both are mandated by western political tradition.

The need to restrict or compel speech is greatly influenced by particularized national experiences. Loyalty pledges in the US – an immigrant nation – are required for naturalization, government office, or military service, while anti-sedition laws address national threats during wartime or civil emergencies.

Israel exists in a perpetual state of the extraordinary, facing constant threats from without and within. In deprecating speech requirements or restrictions altogether, critics would apply a higher standard to Israel than to other democracies.

Considering the history of western speech regulation (including European hate-speech laws) and Israel’s unparalleled existential concerns, the issue is not whether it can require declarations of allegiance, but whether it should and, if so, what form they should take. And in crafting appropriate oaths – even if only for elected officials – it seems no less reasonable to acknowledge Israel’s raison d’etre as a Jewish homeland than for the American citizenship pledge to demand affirmation of the Constitution and by implication its values.

Those who oppose such oaths based on the belief that Israel should be “bi-national” (i.e., not Jewish) conveniently ignore Mideast demographic realities. Muslim and Arab states comprise the regional majority and none are multinational. Whereas bi-nationalism may have been a utopian ideal of intellectual theoreticians like Ahad Ha-am (Asher Ginsberg) during the pre-statehood period, it is just as unworkable in the Mideast today as it was in the Balkans a century ago.

Western governments clearly have a history of demanding loyalty, but the formula and scope of any pledge must perforce be weighed against the essential freedoms of democracy.

Those who question whether similar goals could be served by laws discouraging seditious speech should also look to the American experience for example. Members of Congress would face serious consequences for abetting enemies-of-state during wartime, irrespective of the daunting judicial standard for validating governmental speech restrictions. Openly supporting Germany during World War II or the USSR during the Cold War from the chambers of Congress would have been unthinkable. And yet some politicians in Israel have felt free to praise terrorists.

It seems that freedom of speech is actually broader in Israel than the U.S.

Though governmental intrusion should never be taken lightly, there is little doubt that democracies often enact laws to promote loyalty and punish seditious or hateful expression. And while mandatory oaths or speech restrictions may or may not be advisable, their implementation is a political question, not a legal one.

The availability of civil liberties is what distinguishes Israel from its neighbors and thus should be maintained. But democratic tradition suggests that, at the very least, these rights can be preserved even when elected officials are held to a higher standard of conduct.

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