ABSTRACT

Attaining and maintaining a substantial Jewish majority in Israel has been one of the basic goals of the state of Israel since its early years. It is believed that a substantial Jewish majority within the borders of the state is necessary to preserve its Jewish nature. The Israeli preoccupation with securing a Jewish majority in Israel has therefore been a constant feature of Israeli society, culture, law and politics. The demographic consideration has been shaping immigration policies and issues of citizenship; land acquisition policies, urban planning and population dispersion; birth control and social security policies; as well as political initiatives such as the recent disengagement from Gaza that was justified by Ariel Sharon as a necessary step toward securing a Jewish majority in Israel.
Many believe that the demographic consideration also stood behind the enactment of The Citizenship and Entry into Israel Law (Temporary Provision), 2003. The law provides that Palestinians from the West Bank and the Gaza Strip shall not be granted Israeli citizenship or residency. This provision prevents, inter alia, Israeli Arabs from living in Israel with their Palestinian spouses. The law was enacted as a temporary provision, but it was extended several times, and it is still valid today.

In my Article I examine the legitimacy of the demographic consideration from the perspective of liberal political theory. I conclude that demography can, in principle, be a legitimate consideration in deciding immigration policy, and its justification can be derived from the liberal justification of the right to national self-determination. However, the demographic consideration must be assigned its proper role and weight relative to other important liberal values such as equality and other human rights. I will suggest that the demographic consideration might be legitimate only to the extent that it is not used to justify immigration policies that violate constitutional rights.

I then turn to discuss the Supreme Court decision concerning the constitutionality of the Citizenship and Entry into Israel Law. I demonstrate that, contrary to statements by the judges themselves, the demographic consideration played a key role in the opinions of several judges. It was, however, a hidden consideration. It was not openly acknowledged and discussed. Consequently, a careful examination and balancing of the demographic consideration could not take place. The result was that the actual influence of the demographic consideration on the outcome of the case was much stronger than can be reasonably justified according to liberal principles of justice.