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The argument over the constitutional revolution of 1992 has been going on forever. Yet while the judiciary branch has been methodically active in expanding its influence and reach, the Knesset has talked a lot but done very little. Its only countermeasure occurred in 1994, when the Knesset ratified an override clause to Basic Law: Freedom of Occupation. Ever since, many MKs have criticized the constitutional revolution a great deal but haven't legislated any other amendments to restore the balance between the branches, or at least mitigate the ongoing disruption of balance. If the Knesset yet again rejects an attempt to foster fundamental change, preferring instead to wallow in the same old mudslinging between the sides, it will have only itself to blame.

The idea of an override clause, or a notwithstanding clause, comes from the Canadian legal system and allows the legislative branch to temporarily override certain portions of the constitution through a regular majority vote. The question is why we would want to let the legislative branch to override anything of principle that is anchored in the constitution? This is a good question when talking about Canada. But the matter is more complicated in the case of Israel, which has never adopted an agreed-upon constitution, and whose constitutional revolution was unprecedented in terms of judicial overreach. If the judiciary has the power to unilaterally veto a law, then there should be a mechanism that allows the legislative branch to countermeasure or override such action.

But even if we ever do ratify an agreed-upon constitution, similar to Canada, it would still be prudent to adopt an override mechanism. Prof. Gideon Sapir explains that override clauses do not exempt the legislator from upholding the law. It is a mechanism for breaking deadlocks in situations of honest and real disagreement between the Knesset and court. Let's take as an example the law to prevent migrants from entering the country illegally, which the High Court of Justice vetoed three times. One could paint the legislators as heartless racists violating basic human rights, and wonder why their dark views should ever be allowed to supersede such enlightened rulings. But this is a fundamental disagreement between the judges and legislators over the correct balance between the rights of illegal migrants and the rights of the residents of south Tel Aviv and the principle of a Jewish state.

An override clause, as stated, is not an exemption from upholding the values entrenched in the country's Basic Laws; rather it affords the public its democratic right to decide, via its elected representatives, what the proper balance is on certain contentious issues. This a model of governance predicated on dialogue. The Knesset is attentive to the court's rulings on many such matters, and we can assume that most of the time even agrees with the court's rulings. In other situations, however, such as the case with illegal migrants, the public must be allowed to decide where to draw its ethical lines.

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A group of Israelis from communities adjacent to Gaza petitioned the High Court, asking that it instruct the government not to give Hamas money donated by Qatar. For political reasons, the government decided to allow the transfer of funds to the Hamas leadership. It was a controversial decision and there is cause to wonder whether the policy will improve Israel's diplomatic and security situation or worsen it. The decision also raises questions of principle. But as has been accepted practice here for a generation already, an issue of policy was brought before the Supreme Court.

Justice Stein expressed his sympathy for the petitioners' distress, but rejected their petition and made it clear that it was not the court's job to handle Israel's foreign or security policy. Without taking a stance on the political question itself, Stein stressed that the government's decision to transfer the Qatari funds to Hamas was not a legal question, and they could not expect the court to intervene. Thus, after three decades in which the Supreme Court has given itself the final say on political matters, it is now declaring that not everything can be decided in court.

Those who support the idea that the Supreme Court must remove its hand from political issues of foreign policy and security often warn that its intervention harms the public's faith in the legislative system. They argue that every time the Supreme Court steps in to decide a controversial political matter, it hurts the belief in the system of those whose stance is not adopted. This is an important factor. But Stein laid out a much more significant explanation when he mentioned that foreign policy cannot be measured by legal criteria. Not only does the policy of taking everything to court not pay off; it isn't even justified practically speaking.

We can illustrate the point using the High Court's ruling on a petition against Israel's 2005 disengagement from the Gaza Strip. The High Court refused to reject the petition, arguing that it could not be decided in court. The court then began looking into whether the evacuation of settlers for political reasons could be justified on moral grounds and whether the disengagement was likely to improve or weaken Israel's political and security status. Ten justices decided that settlers could be evacuated for political reasons and that the disengagement would improve Israel's security. One justice decided the opposite and sought to order that the disengagement be stopped.

The question arises: What professional tools did each justice use to reach his or her decision? They were addressing the same political questions that divided the public at the time into those wearing orange ribbons (in solidarity with the settlers and against the disengagement) and those wearing blue (in support of disengagement.) When a judges rule on matters of foreign policy and security, their rulings rest on their own political views. What justification is there to give the political worldview of these judges priority over that of the citizens who elected the government? How does a political issue become a "professional" one that is handed over to experts to be decided?

It is important to emphasize that the restoration of limits to what can be decided by the courts extends beyond the courts themselves to the legal counsel given to the government and the Knesset. Because diplomatic issues became matters to be decided by courts, legal counsels have become part of the decision-making process on diplomatic issues. Stein's ruling will restore elected officials' responsibility and authority to decide on policy. Stein ruled correctly that "our government answers to the Knesset and the voters, not to us."

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In light of its unequivocal wording, the nation-state law provided its opponents with the opportunity to attack it head-on, but their position has been ambiguous. There have been calls among the law's opponents to anchor the Declaration of Independence in a Basic Law, but seeing as the nation-state law does indeed enshrine most of the principles of the Declaration of Independence, and the rest of its principles, including equality, are already anchored in Basic Law and Israeli case law, the public discourse is now hungry for a substantive alternative to the nation-state law. Dear opponents of the law, what, may I ask, is the alternative?

A number of petitions against the nation-state law have been submitted to the High Court of Justice. Let us ignore for the time being the question as to what authority a court, which gets it authority from a Basic Law, has to sever the branch upon which it sits and deliberate the disqualification of a Basic Law. The petitions make an important contribution to the public discourse, as they force the petitioners to present an alternative position to the law they attack. The first in a string of petitions to the court came from by the Druze Lawyers' Forum, which made interesting if irrelevant claims about the law. This was followed by a thorough and well-founded joint appeal by the Joint Arab List, the Arab Higher Monitoring Committee and Adalah – the Legal Center for Arab Minority Rights in Israel, which put an end to the ambiguity and presented without qualification an intelligent and clear alternative to the nation-state law.

The concept of a nation-state in general and the Zionist idea in particular, rely on the differentiation between individual and collective rights, in which all citizens are equal regardless of religion, race or sex, and the national self-determination in which there is no equality of rights and which affords the right to self-determination to one nation only in any given nation-state. The Joint Arab List's petition flat-out rejects this differentiation, and in the name of the principle of equality, rejects the very right to self-determination, even though these petitioners paradoxically recognize the right to Palestinian national self-determination. To their mind, even at the national level, "there is no nation whose rights are superior to those of another nation," and prioritizing the Jewish people at a national level "violates the collective right to dignity." The right to dignity, the petitioners argue, is not just the individual right of every citizen, but the Arab Israelis' national right for the State of Israel to be a binational state.

In theory, the Joint Arab List presents only two legitimate alternatives in its view to how the state should relate to the national idea – or to civilian nationalism, a "state of all its citizens," in the style of the United States, which is blind to people's affiliation to natural nations, or a binational or multinational state, which affords equal self-determination to both majority and minority groups.

The petitioners condemn the Zionist idea of a nation state, adopted by numerous countries around the world, including in Western Europe, as a racist concept the likes of which have not been since South Africa's apartheid regime. The petitioners as a result object not only to the clause in the law that allows for the prioritization of Jewish settlements, which does indeed demand in-depth discussion, but also to the clause that anchors the Law of Return in a Basic Law and the clauses that establish the state's Jewish symbols, anthem and official holidays.

In the past, the court invalidated a decision by the Central Elections Committee to prevent the Balad party from running in the elections, claiming that its call for a "state of all its citizens" was directed only at the individual level and not the national level. Now the tables have turned and the court wants to deliberate the nation-state law because it negates the idea of a state of all its citizens on the national level.

The petition contributes to the Israeli discourse a clear alternative to the nation-state law. All that remains is for the Israeli public to choose which side they are on.

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Most of the arguments against the nation-state law have nothing to do with the text of the law. Other arguments express an anti-Zionist agenda, whereby the fact that Israel is a Jewish national state – rather than a binational or multinational state – is racist in and of itself. One comment, however, put forth by former MK Shachiv Shnaan, the father of one of the murdered police officers, cannot go with a response. Shnaan asked why the nation-state law doesn't include an equality clause. In his view, the lack of such a clause harms him as a Druze citizen.

The question, though, isn't whether we are for equality. The question, rather, pertains to the potential legal impact of adding an equality clause to the nation-state law – on the Supreme Court's ability to intervene in governmental and parliamentary decisions. Is the scope of the court's interventionism, the type of which we saw with the release of the terrorists' bodies, already too wide, or should it be expanded further?

Some people believe the Supreme Court doesn't intervene enough in the government or Knesset's decisions and want to give it more tools to do so. They are exploiting the authentic voices of those citizens who hold the value of equality dear to expand the scope of a legal interventionism – which elevates the private rights of the families of the Temple Mount terrorists.

On the other hand, others believe the court's scope of influence and the emphasis it places on individual rights over national interests is excessive and therefore should not be extended. I believe the court's scope of influence over the Knesset's decisions is excessive.

In any case, the nation-state law is not the proper arena for this debate. The law deals with Israel's Zionist definition as the state of the Jewish people on the national level. It doesn't deal with individual rights that are already well-protected and enshrined by other basic laws. We must continue to debate the appropriate degree of High Court influence in the name of individual rights, but not when certain individuals are trying to hijack the argument at the expense of a law that has nothing to do with the matter.

It's important to note that equal rights are solidly anchored in Israeli law. The Supreme Court interpreted Basic Law: Human Dignity and Liberty as legislation that encompasses equal rights, even though lawmakers removed the equality clause from the original bill due to concerns over the potential for unbridled activism – as I explained above.

The purpose of the demand to add an equality clause to Basic Law: Israel as the Nation-State of the Jewish People isn't to establish constitutional protection for equality – because that already exists. The demand aims at something else entirely: expansion of the Supreme Court's scope of intervention. If the court has already established that equality is protected by the right to dignity, then on the basis of equality, the court could seek even broader areas in which to intervene. As stated, a considerable portion of the public sees this intervention as a violation of the people's democratic will.

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Some say that Israel's Jewish character is self-evident. They say that a bill that makes it official just antagonizes Israeli Arabs and the international community, noting that it simply states the obvious. In the song "Do You Love Me?" from the musical "Fiddler on the Roof," Tevye the milkman and his wife Golde discovered that their love must be reinforced despite it being obvious. Moreover, that very fact that some people in Israel are against proclaiming that Israel is the nation-state of the Jewish people underscores the need to make it more obvious.

The very fact that foreign ministries of certain Western countries and various groups in leading universities around the world consider Zionism to be a form of racism means that the nation-state bill says something that is anything but self-explanatory. The nation-state bill sends an important and timely message – that Israelis are all-in when it comes to the Zionist idea of having a Jewish national home and are willing to set it in stone through a basic law. Since Israel's basic laws are its de facto constitution, the definition of Israel as a nation-state will now be at the pinnacle of Israeli law.

The nation-state bill fills a void when it comes to Israel's relations with the Jewish diaspora. People have been lamenting that Israelis and young Jews around the world no longer share a strong bond. A new basic law that details Israel's Zionist underpinnings as a state for all Jews will serve to renew the covenant between the Jews here and abroad and will bolster the ties between the two groups.

But above all, the new bill's main audience is Israel's judiciary, which has consistently eroded the state's Jewish character through various rulings.
Israel's Jewish character was once considered a legal consensus, but lately, judges no longer seem to accept this. In 1965, then Supreme Court President and civil liberties giant Shimon Agranat ruled that Israel is not just a democracy that espouses freedom and human rights; it is also a Jewish state because of the Jewish people's natural right on the land. Agranat disqualified a party from competing in the general election because its candidates rejected Israel's Jewish character.

But today courts are struggling to uphold Israel's Jewish values. When the justices deliberate on family reunification of 130,000 Palestinians, and when they deal with the massive influx of illegal migrants from Africa, they render rulings that are based on values such as security and sovereignty and individual rights. They have no legal foundation to issue rulings that cite the state's Jewish character and the need to preserve it. That is because Israel's basic laws currently deal extensively with governance and personal freedoms but make no clear statement that guarantees Israel's national character.

Thus, the nation-state bill sends a Zionist message to the Israeli public on both sides of the political divide; it sends a clear message to backers and detractors of Israel abroad; it provides a strong embrace for our brethren abroad; and it creates a Zionist legal revolution that would restore the welcome equilibrium between the rights of the individual and Israel's character as the nation-state of the Jewish people.

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