The New York Times vs. Israel


ny timesBy Jerold Auerbach

A deep sigh of editorial relief was discernible at The New York Times following the Supreme Court decision in Zivotofsky v. Kerry, the Jerusalem passport case. Upholding the exclusive constitutional power of the President to recognize foreign governments, the Court struck down a 2002 law stipulating that upon request “Israel” would appear as the place of birth on the passport of any American citizen born in Jerusalem. Its 6-3 ruling rejected the appeal by the American parents of Jerusalem-born Menachem Zivotofsky, who wanted “Israel” to appear on their son’s passport.

The case might be framed merely as a separation of power issue, raising a perennial question in American politics: who makes foreign policy, Congress or the President? But its implications for perceptions of Israel’s legitimacy were inescapable. For Times editors the decision was especially welcome. Ever since Adolph Ochs became its first Jewish publisher nearly 120 years ago, preparing the way for the Sulzberger dynasty that followed, Zionism and Israel have been a source of deep concern lest American Jews confront the dreaded accusation of divided loyalty for supporting the idea, and then the reality, of Jewish statehood.

“To whom does Jerusalem belong?” asked the Times editorial. It correctly noted that no American president since the birth of Israel in 1948 has ever recognized its sovereignty over the ancient holy city. To the editors, this blatantly prejudicial policy evidenced “neutrality.” Concerned about any abridgment of presidential power (at least while President Obama resides in the White House), the editorial sharply criticized the “unacceptable purpose” of the 2002 law: to recognize even West Jerusalem, within the boundaries of Israel ever since its establishment in 1948, as its capitol. The editors praised the Court’s “prudent response” and the denial of Jewish claims to the city that are memorably embedded in Psalm 137: “If I forget thee, O Jerusalem let my tongue cleave to the roof of my mouth…” They failed to mention that the Court’s three Jewish members – Stephen G. Breyer, Ruth Bader Ginsburg and Elena Kagan – voted to make the majority, perhaps inadvertently displaying themselves as Court Jews.

The refusal of the Court, and the Times, to recognize Israeli sovereignty over any part of Jerusalem may be the most striking aspect of the judicial ruling. By focusing exclusively on the separation of powers issue, as Justice Anthony Kennedy did in his majority opinion, the Court evaded that nettlesome problem, incurring praise from Times editors. Yet the issue of Jewish sovereignty at least somewhere in Jerusalem is too deeply embedded in the case to ignore. As Jonathan Tobin wrote in his Commentary blog (June 8) President Obama, with Supreme Court backing, can now “pretend that . . . Jerusalem isn’t the capital of Israel or even part of the Jewish state.” Indeed, the Times page 1 headlines noted that the Justices “side with the White House” in their “decision against Israel.” Nothing could please the Times more.

Supreme Court correspondent Adam Liptak, turning to reaction to the decision in the Middle East, gave primacy to the comment of chief Palestinian negotiator Saeb Erekat, who praised the decision for sending “a clear message to Israel that its policies of colonization are null and void.” But Jerusalem Mayor Nir Birkat said pointedly: “Just like Washington is the capital of the United States, London the capital of England and Paris the capital of France, so Jerusalem was and always will be the capital of Israel.”

Ari Zivotofsky was understandably disappointed with the rejection of his son’s claim. “It greatly disturbs us,” he said, “that the United States does not recognize Jerusalem as part of Israel.” Lawyers Nathan and Alyza Lewin, who argued the case as it wound its way through the judicial labyrinth for more than a decade, criticized “the absurd position that no country is sovereign over Jerusalem, and that no part of the city, including the western portion of Jerusalem, is in Israel.” As a lawyer might say: res ipsa loquitur.

The Algemeiner



  1. The law declaring Israel the state of the Jewish people is not about passing Torah legislation, but concerns accepting the definition of Jewish democracy in a post-modern world.
    Saturday, December 13, 2014

    Dr. Chaim Charles Cohen
    The writer, whose PhD. is from Hebrew U., is a social worker and teacher…

    What Is Jewish Democracy?

    The outgoing Knesset’s proposed law for constitutionally establishing the Jewish character of the Israeli state necessitates discussing the related question, “What is democracy?” This question arises because one of the things the proposed law attempts to define, from a nationalistic perspective, is the proper balance between the Jewish and the democratic character of our state.

    This article will use political philosophy to argue that democracy is not the monopoly of the Left. Rather, it will argue that there are two fundamental competing understandings of democracy, one a ‘liberal, universal’ understanding, and another, a ‘conservative, nationalistic’ understanding. The Torah understanding of democracy closely corresponds to that put forth by conservative political philosophy.

    The article will not address the political wisdom of putting this complex issue before the media and the Knesset at this time.

    A liberal, universalistic understanding of democracy

    The liberal, universalistic understanding of democracy states that all citizens, regardless of religion, gender or ethnicity, should be guaranteed the right to have equal input into the civil-political system of the state, and to receive equal ‘returns’ from this participation. This is because the purpose of a democratic political system is to guarantee both the degree of freedom and autonomy, and the degree of the distribution of societal resources, which will maximize the individual’s ability to pursue the life style that maximizes his understanding of self fulfillment.

    Philosophically, the democratic state is a result of a social contract of individuals who freely choose to relinquish a part of their autonomy so that the resulting political system will organize and manage society in a way that will equally balance the needs and desires of the individual with those of his fellow citizens.

    An important part of this social contract is the understanding that there are basic, civil liberties that are considered inalienable, and not subject to violation by the state.

    A conservative, nationalistic understanding of democracy

    In contrast, a conservative, nationalistic understanding of democracy states that the goal of the state is not to balance the distribution of liberties and societal resources among equal citizens. Rather, its purpose is to balance the needs and resources of the individual citizen with the needs and resources of the collective nation. Not only do individuals have rights and needs, but so do national entities.

    Judaism is a collective peoplehood whose defining essence is a Torah way of life.
    The individual citizen is not considered to be a contracting, autonomous being, but rather an integral, organic part of a collective whole, the nation. The collective national entity is not created by a social contract of citizens, but possesses a natural, independent social existence. (Tribes and nations throughout history are a natural, integral institution in human society.) The individual has an obligation to serve the nation, and the nation has an obligation to serve the individual.

    A national state can be considered democratic when it balances national-collective and individual needs in a way that 1) allows all citizens to have input into the political system’s decision making, 2) guarantees basic civil liberties, 3) and when its citizens sincerely feel that fulfilling their obligations to the national entity is a significant part of their own, personal self fulfillment.

    Jewish democracy

    It should be obvious that the ideal, Torah-based political system is very similar to the conservative, nationalistic model. Jewish religion and peoplehood are inseparable, two dimensions of a single entity. Judaism is a collective peoplehood whose defining essence is a Torah way of life.

    Similarly, a Torah way of life can only be actualized in its peoplehood . For example, a Jew is primarily legally a Jew not by freely contracting to be a member of the nation, but by being born into the covenantal collective. Further, Jewish mysticism teaches that a Jew is born with an eternal, inextinguishable soul that is both ‘organically’ a part of G-d, and a part of the Jewish collective (the Clal).

    Israel’s first Chief Rabbi, Rav Kook, interpreted this to mean that G-d’s relationship to the individual Jew is primarily through the medium of the Jewish ‘Clal’-peoplehood. Throughout the Jewish legal system, Jews have different statuses, obligations and rights than do non-Jews. Also, Torah wartime time military ethics is based on the understanding that a Jewish war of self defense is primarily a conflict between two national collectives.

    Maybe the most telling example of the role of the peoplehood collective in rabbinic thinking occurred in the Holocaust when German officials offered to allow able-bodied Jews to continue to live and work if ghetto officials would surrender the children and the elderly. Our rabbis forbid such a ‘rational, utilitarian’ agreement, and held that more important than the number of individuals who will live or die, is the fact that the national collective will preserve and pass on from one generation to another the sacred principle that human life belongs to G-d, and only He can determine who will live and die.

    The problems of marketing Jewish democracy to the Western world

    This conservative, peoplehood definition of democracy should obviously be the guiding principle in determining the balance between the Israeli state’s Jewish and democratic character. However, in 2014, it is a very difficult job marketing the justice of the concept of ‘the political rights of a peoplehood collective’.

    First, let us be honest. A Jewish state that gives political and budgetary priority to furthering the needs of the Jewish people (be that in the arts, media, defense, settlement and agriculture, or international diplomacy) means that me and my Arab or Druze neighbor will pay the same amount of taxes, do the same national service, but I as a Jew will reap greater benefits. The Jewish state will unequally develop my personal, national self identity more than theirs. The Jewish people will be sitting in the driver’s seat. Jewish national interests will determine the road map. Torahwise this inequality is historically just. The Jewish people have been backseat passengers for over two thousand years. Now it’s our turn to own and drive the car. But it is very hard to sell such a nationalistic perspective in the modern Western world.

    One, fascism and communism have given collective peoplehood a bad name. Instinctively, people now recoil from the terms ‘nationalism’ and ‘collectivism’. Second, Western culture is dominated by an empirical materialism and a radical individualism, both of which make it very hard to accept the Jewish concept of peoplehood.

    Jewish peoplehood is a political concept based on metaphysics and cannot be empirically proven. Jewish peoplehood also demands sacrificing self interest for that of a multi-historical age collective, at a time when radical individualism makes it hard for individuals even to obligate themselves to a long term marriage.

    So what do we do?

    So what do we do? First, we believe in the wisdom of the Torah. ‘Democracy’ as a political guideline in a Jewish state is an important principle, but not the most important principle. ‘Democracy’ must be understood and put into practice in the overriding political context of a Torah-based Jewish people hood.

    Second, because this principle is a difficult ‘socio-cultural- pill’ for a majority of citizens to swallow, we must we must try to implement Jewish peoplehood through our personal deeds, and not expect to implement it through governmental legislation.

    As I have written before, a Torah-based Jewish peoplehood will actualized when ‘Jews do Jewish things’ (settlement, arts education), and not when the Knesset passes ‘Jewish’ legislation. And G-d has now suddenly (after two thousand years) given us a state in the Land of Israel in order to help us happily and creatively do ‘Jewish things’ in an ever increasing abundance.


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