Day

DAY GALLEYSFINAL 5/20/2010 2:49 PM
A NEW CONCEPTION OF THE ISRAELI GRUNDNORM: THE

JEWISH IMMIGRATION “TRUMP CARD” AS THE
SOLUTION TO THE FALASHA MURA EXCEPTION
INTRODUCTION
The common manifestation of the Israeli Grundnorm (basic norm),1 the
tension between the “Jewish” and “democratic” promises, is trumped by a de
facto Grundnorm construction—an individual Jew’s right to immigrate to
Israel—when matters of Jewish immigration are implicated. Although most
basic norm analyses, absent a constitution, do not contemplate the Grundnorm
as binding,2 the Israeli Grundnorm should be treated as a binding, inviolable
principle pursuant to the Israeli Supreme Court’s frequent utilization of
Biblical principles as fundamental legal precedent.3 Under this normative
construct, the Israeli policy barring, en masse, the immigration of a
controversial group of Ethiopians with Jewish ancestry, the Falasha Mura,
should be voided as a legally impermissible contradiction of the de facto Israeli
Grundnorm.
Israel’s Law of Return is the legislative expression of the Zionistic
worldview in which the Jewish state sprung into existence: Israel is not merely
the state of its citizens but is the state of all Jews, everywhere.4 Originally
passed in 1950, two years after Israel’s Declaration of Independence and the
subsequent Arab-Israeli War, the Law of Return today states that “[e]very Jew
has the right to come to [Israel] as [a Jewish immigrant].”5 “Every Jew” who
expressly states her wish to immigrate to Israel “shall be granted” an oleh’s
visa unless the individual “is engaged in an activity directed against the Jewish
people” or will likely endanger Israel’s public health, public welfare, or
1 Johan D. van der Vyver, Constitutional Perspective of Church-State Relations in South Africa, 1999
BYU L. REV. 635 (1999).

2 See generally HANS KELSEN, GENERAL THEORY OF LAW AND STATE 115 (Anders Wedberg trans.,
1946).
3 See infra Part III.
4 Edward W. Said, Invention, Memory, and Place, 2 CRITICAL INQUIRY 175, 190 (2000).
5 The Law of Return, 5710–1950, 4 LSI 114 (1950–51) (Isr.); The Law of Return (Amendment), 5714–
1954, 8 LSI 144 (1954–55) (Isr.) (“Every Jew has the right to come to this country as an oleh”). “Oleh” is a
Hebrew word meaning an immigrant to Israel, derived from the word “aliyah,” meaning, roughly, “ascending.”
“Aliyah,” in reference to immigration, means the act of immigrating to Israel. HIYA DIHAN, ENGLISH-HEBREW
DICTIONARY 601, 609 (1997).
358 EMORY INTERNATIONAL LAW REVIEW [Vol. 24
security.6 To qualify as a “Jew” under the Law of Return, a potential oleh must
either have a Jewish mother or have converted to Judaism and must not be a
“member of another religion.”7
Born in the heart of Theodore Hertzl’s Zionist movement, the Law of
Return facially resembles other nations’ leges sanguinis, legal immigration
privileges bestowed upon individuals with specific ethnic ties who are
currently citizens of a different nation-state.8 The Law of Return distinguishes
itself from other leges sanguinis, not by its content, but by its philosophical
and narrative depth. Israel’s first Prime Minister, David Ben-Gurion, described
the State of Israel’s roots as “go[ing] back to ancient times, and . . . nourished
by immemorial springs. Its rule is confined to its inhabitants, but its gates are
open to all Jews, wherever they may be.”9 The Jewish experience—God’s
“Chosen People” bound by blood and faith to a God-given land—adds a
6 The Law of Return, 5710–1950, 4 LSI 114, § 2.

(a) Aliyah shall be by oleh’s visa
(b) An oleh’s visa shall be granted to every Jew who has expressed his desire to settle in Israel,
unless the Minister of Immigration is satisfied that the applicant
(1) is engaged in an activity directed against the Jewish people; or
(2) is likely to endanger public health or the security of the state; or
(3) is a person with a criminal past, likely to endanger public welfare.
Id.
7 The Law of Return (Amendment No. 2), 5730–1970, 24 LSI 28, §4B (1969–70) (Isr.) (“For the
purposes of this Law, ‘Jew’ means a person who was born of a Jewish mother or has become converted to
Judaism and who is not a member of another religion.”). In regards to related rights under the Law of Return,
see also 4 LSI 114, §§ 4, 4A(a)–(b) which states that:
4. Every Jew who has immigrated into this country before the coming into force of this Law, and
every Jew who was born in this country, whether before or after the coming into force of this
Law, shall be deemed to be a person who has come to this country as an oleh under this Law.
4A. (a) The rights of a Jew under this Law and the rights of an oleh under the Nationality
Law, 5712-1952, as well as the rights of an oleh under any other enactment, are also vested in a
child and a grandchild of a Jew, the spouse of a Jew, the spouse of a child of a Jew and the
spouse of a grandchild of a Jew, except for a person who has been a Jew and has voluntarily
changed his religion.
4A. (b) It shall be immaterial whether or not a Jew by whose right a right under subsection
(a) is claimed is still alive and whether or not he has immigrated to Israel.
Id.
8 See, e.g., Grundgesetz für die Bundesrepublik Deutschland (federal constitution) § 116, ¶ 1 (F.R.G.)
(giving a right of citizenship to all individuals of German descent who enter Germany as refugees); see also
Polly J. Price, Natural Law and Birthright Citizenship in Calvin’s Case, 9 YALE J.L. & HUMAN. 73, 77 (1997)
(“[Jus saguinis] holds that, regardless of the place of birth, nationality is acquired by descent following the
status of at least one parent.”).
9 Menachem Elon, The Values of a Jewish and Democratic State: The Task of Reaching a Synthesis, in
ISRAEL AMONG THE NATIONS 177, 192 (Alfred E. Kellermann et al. eds., 1998).
2010] A NEW CONCEPTION OF THE ISRAELI GRUNDNORM 359
unique spiritual dimension to a question normally confined to simple ancestral

descent and genetics.
Existing far before Hertzl formulated his ideology, a different Jewish story
was being played out while the world remained oblivious. The story of the
Jewish community in Ethiopia resembles one of feral children: a people living
in the wilderness—in this case for millennia—forgotten by the rest of the
Jewish world, fending for themselves.10 By legend, the Jews of Ethiopia are
believed to be the descendents of King Solomon and the Queen of Sheba.11
One story in Sefer Eldad ha-Dani, a ninth century text, describes “an
Abyssinian exile of the tribe of Dan” which predated the partition of the
Kingdom of David into Israel and Judea in the tenth century B.C.E.12
Historically, due to the lack of written documentation from the era, the exact
source of the Ethiopian Jewish community is not known with certainty.13
However, the approximate age of this “feral community” can be ascertained by
an analysis of their customs and of where their customs diverge from the
mainstream: the unique strand of religious Judaism they practice (pre-rabbinic)
and lack of connection to the Hebrew language.14 How does a legal system,
with foundations in traditional Jewish and Western thought, process “feral
Judaism” as a part of its heritage?
For the purposes of the analysis in this Comment, the factual history of the
Ethiopian Jewish community is critical to an understanding of the legal
problem presented. As such, a somewhat detailed look into the historical
moorings of this community is required.
In Ethiopia, this group, now known to the world as “Beta Israel,”15 called
themselves “Falashas,” meaning “exiles and migrants.”16 Although the
community had adopted some traditions and practices over time from “native”
10 DAVID KESSLER, THE FALASHAS: A SHORT HISTORY OF THE ETHIOPIAN JEWS 63–64 (Frank Cass &
Co. 1996) (1982).

11 Id. at 1.
12 MICHAEL CORINALDI, JEWISH IDENTITY: THE CASE OF ETHIOPIAN JEWRY 48 (1998).
13 KESSLER, supra note 10, at 77.
14 Id. at 10, 16.
15 In Hebrew, this means literally “House of Israel.” Shalva Weil, Abstract, Presentation for IV Ciclo de
Conferências “Ciência nos Trópicos” [4th Annual Science of the Tropics Lecture Series] at Instituto de
Investigação Científica Tropical [Tropical Research Institute], From Beta Israel to Ethiopian Jews: Diaspora
and Migration (Sept. 1, 2009), available at http://www2.iict.pt/archive/doc/abstractLisbonLecture090901.pdf.
16 CORINALDI, supra note 12, at 55 (viewing the term “Falasha” as an indication that Beta Israel believed
themselves to be aliens in their own land).

Ethiopian sources,17 Beta Israel custom revolved around the Orit, a Ge’ez
translation of the To’rah and other ancient Jewish Biblical texts.18 Like
mainstream Judaism, Beta Israel viewed the Sabbath as holy; any breach of the
community’s Sabbath provisions was a capital offense.19 In addition, the
community circumcised their young men in accordance with Jewish law, albeit
by “Falasha ritual.”20 Members of Beta Israel purified themselves in ritual
baths, similar to mainstream Jewish mikveh purification rituals.21
Beta Israel faced anti-Semitism like the rest of the Jewish world. In
Ethiopia, Beta Israel faced violent persecution. In the fifteenth century, the
Ethiopian ruler Zar’a Yaqob was known as “the exterminator of the Jews,”
cutting out tongues and proscribing books in which Jews were said to eat
children.22 When the Portuguese came to Ethiopia in the sixteenth century, the
Ethiopian Christian Church increased their antagonism of the Jewish
community.23 Severe penalties were inflicted on individuals who refused to
work on the Sabbath.24 Forced conversions were commonplace:
[A]ll the [Ethiopian Jews] . . . in the low countries immediately in the
king’s power, were ordered upon pain of death to renounce their
religion, and be baptized. To this they consented, seeing there was no
remedy. . . . Many of them were baptized accordingly, and they were
25
all ordered to plow and harrow upon the sabbath day.
In the middle of the nineteenth century, Protestant missionaries succeeded in
converting some Ethiopian Jews by deceptively declaring that “Jews all over
the world had recognized” the Messiah, Jesus Christ of Nazareth.26 After
centuries of indignities, targeted Protestant missions, mass executions, and
enslavement, one scholar estimated that the Ethiopian Jewish population had
been reduced “from a powerful tribe of one million to a vulnerable remnant of
two hundred thousand.”27
17 Id. at 59.
18 Id. at 58.
19 Id. at 60.
20 Id. at 116.
21 Id. at 74–75.
22 KESSLER, supra note 10, at 95.
23 Id. at 98.
24 Id. at 103.
25 Id. at 102 (internal quotations omitted).
26 CORINALDI, supra note 12, at 122.
27 EDWARD ALEXANDER, THE JEWISH IDEA AND ITS ENEMIES: PERSONALITIES, ISSUES, EVENTS 199
(1988).
European Jewry only became substantially aware of the potentially

legitimate Jewishness of Beta Israel after Professor Joseph Halévey was sent to
examine the situation in Ethiopia in 1868.28 Beta Israel, who practiced Judaism
openly, began arriving in Israel after Sephardi Chief Rabbi Ovadia Yosef ruled
that the Beta Israel were Jews29 and Chief Rabbi Shlomo Amar ruled that they
were the lost Biblical tribe of Dan.30
In 1984, approximately 7,000 members of the Beta Israel community
traveled on foot from Ethiopia to Sudan where they were airlifted to Israel in a
daring Mossad-led escape known as “Operation Moses.”31 Because Operation
Moses was an unannounced, secret evacuation, the State of Israel halted the
operation once the news became public.32 Following Operation Moses, many
Ethiopian Jews converged on the Ethiopian capital of Addis Ababa where a
significant number were brought to Israel following screening and international
negotiations.33 In 1991, “Operation Solomon” brought approximately 15,000
Ethiopian Jews to Israel from Addis Ababa.34 It is estimated that the Ethiopian
Jewish communities that daringly ventured from Ethiopia to Israel during the
last quarter of the twentieth century lost between one-eighth and one-tenth of
their population along the way.35
The State of Israel, without a clear, universal definition of what it means to
be Jewish, recognized and admitted many immigrants who had tenuous links
with Judaism.36 However, during Operation Solomon in 1991, Prime Minister
Yitzhak Shamir ordered Mossad not to retrieve the “Falasha Mura,”37
Ethiopian Jews who had converted to Christianity generations before—some to
28 Id. at 200.
29 Id. at 202.
30 Aron Heller, Israel’s Welcome for Ethiopian Jews Wears Thin, DAILY BREEZE, Aug. 13, 2008,
available at http://www.dailybreeze.com/lifeandculture/ci_10179978; Anshel Pfeffer, Watchdog: State’s

Decision to Limit Falashmura Aliyah Was “Reasonable,” HAARETZ, Sept. 29, 2008, available at
http://www.haaretz.com/hasen/spages/1023782.html.
31 Ayelet Shachar, Whose Republic?: Citizenship and Membership in the Israeli Polity, 13 GEO. IMMIGR.
L.J. 233, 244 n.69 (1999).

32 ANDREA S. ARBEL, RIDING THE WAVE: THE JEWISH AGENCY’S ROLE IN THE MASS ALIYAH OF SOVIET
AND ETHIOPIAN JEWRY TO ISRAEL, 1987–1995, at 134–35 (2001).

33 Id. at 136–37.
34 Shachar, supra note 31, at 244 n.69.
35 ALEXANDER, supra note 27, at 203.
36 Heller, supra note 30.
37 Editorial, Israel Is Losing Its Sovereignty, HAARETZ, Apr. 14, 2008, available at http://www.haaretz.
com/hasen/spages/974474.html [hereinafter Israel Is Losing Its Sovereignty]. The term “Falasha Mura” is
often found with several variations in spelling, e.g., Falas’ Mura, Falashmura. See Heller, supra note 30;
Pfeffer, supra note 30.
escape persecution, others to increase their social standing.38 Some of the

Falasha Mura claim never to have been converted at all.39
Two years after Operation Solomon, the Tsaban Committee—a panel
appointed by Israeli Prime Minister Yitzhak Rabin to decide the rights of the
Falasha Mura under the Law of Return40—ruled that some Falasha Mura
would be allowed to immigrate to Israel on a case-by-case basis under the Law
of Entry, in consideration of family reunification and humanitarian concerns.41
However, the Tsaban Committee stated that there was “no possibility of giving
a positive reply to the question of granting the [Falasha Mura], as a group, the
privileges of the Law of Return.”42 Thousands of the Falasha Mura immigrated
to Israel following this ruling, but Israeli government support of the Tsaban
Committee’s ruling eroded over the subsequent years.43 In 1999, Israel’s
Interior Ministry stated that only 30,000 more Falasha Mura were eligible to
enter Israel for the purpose of family reunification.44 In 2003, Israel ramped up
its efforts to end Falasha Mura immigration, stating that 300 Falasha Mura who
could prove their Jewish roots would be allowed to immigrate each month.45
With every group of Falasha Mura brought to Israel, more kept arriving in
refugee camps.46 As such, Ethiopians with even a glimmer of hope of proving
their Jewish ancestry continued to emerge.47
The Ethiopian communities who arrived in Israel were the toughest to
assimilate to Israeli culture when compared to all other immigrant
communities in the country.48 Some Ethiopian immigrants needed to be taught
the basics, such as the purposes for a refrigerator and how to flush a toilet.49
Due to their general lack of modern skills, Ethiopian immigrants, as a whole,
have proved to be a strain on the Israeli economy: The Jewish Agency has
38 Heller, supra note 30; Israel Is Losing Its Sovereignty, supra note 37.
39 Daniel Friedman, The Case of the Falas Mura, in THE BETA ISRAEL IN ETHIOPIA AND ISRAEL: STUDIES
ON ETHIOPIAN JEWS 70, 76 (Tudor Parfitt & Emanuela Trevisan Semi eds., 1999).
41 Id.; Israel Is Losing Its Sovereignty, supra note 37.
43 Israel Is Losing Its Sovereignty, supra note 37.
44 Editorial, Just 8,700 More People and That’s It, HAARETZ, Feb. 7, 2008, available at http://www.
haaretz.com/hasen/spages/998051.html.
45 Anshel Pfeffer, Falashmura Dream of Aliyah Fades as Deadline Approaches, HAARETZ, Apr. 11,
2008, available at http://www.haaretz.com/hasen/spages/973966.html.

46 Anshel Pfeffer, Groups Appeal State Bid to Wrap up Mass Ethiopian Immigration, HAARETZ, Dec. 27,
2007, available at http://www.haaretz.com/hasen/spages/938789.html.

48 Id.
49 Id.
suggested “most Ethiopian immigrants over the age of 35 go straight onto

welfare after reaching Israel.”50 In light of these policy concerns, and because
Israel does not recognize the Falasha Mura as Jews, then-Prime Minister Ehud
Olmert upheld the policy that indicates that the last of the Falasha Mura
eligible to immigrate have already arrived in Israel.51 The Jewish Agency
declared that the Israeli infrastructure in Ethiopia in place to assist the Falasha
Mura would be dismantled in June 2008.52 State Comptroller Micha
Lindenstrauss, at the behest of the Israeli Knesset’s State Control Committee,
stated “there was nothing preventing the government from taking a decision
about the [Falasha Mura]’s eligibility to immigrate and at a later stage taking
an ‘operative’ decision to limit their number.”53 As such, government-assisted
Ethiopian immigration to Israel has come to an end.54
Still, questions remain regarding the appropriateness of dismissing the
Falasha Mura’s claims of Jewishness. Individuals sent to Ethiopia by the
influential Shas mentor Rabbi Ovadia Yosef between 2002 and 2003 were
“convinced that the Falash[a] [M]ura have returned to Judaism.”55 The director
general of the North American Conference on Ethiopian Jewry stated: “As far
as I’m concerned, they [the Falasha Mura] are Jews . . . [T]hey are as much
Jews as any other Jew from Ethiopia or New York.”56
More befuddling questions emerge from personal statements of many of the
Falasha Mura themselves. Sixty-six-year-old Ethiopian Tegabie Jamber
Zegeye claims to “feel[] Jewish at heart” but admitted that he “lived like a
Christian, like all the Jews.”57 Objective reports state that many of the Falasha
Mura describe their Christianity very hesitantly and with reservation, which is
markedly different from the manner in which other Ethiopian Christians
announce to all their religion with pride.58 Israel’s response to such sentiment
compounds the situation further: The Falasha Mura who arrive in Israel must
50 Id.
51 Id.
52 Anshel Pfeffer, Ethiopian Jews to Protest Gov’t Decision to End Falashmura Immigration, HAARETZ,
Dec. 18, 2007, available at http://www.haaretz.com/hasen/spages/935824.html.

53 Pfeffer, supra note 30.
54 Id.
55 Mazal Mualem, Yishai to Ask Gov’t to Approve 20,000 Falashmura, HAARETZ, Sept. 1, 2003,
available at http://www.haaretz.com/hasen/pages/ShArt.jhtml?itemNo=250387&contrassID=1&subContrass
ID=0&sbsubcontrassID=0.
57 Id.
58 Friedman, supra note 39, at 71.
go through a government-sanctioned conversion to Orthodox Judaism.59 Is this

not an insult to the “Jewishness” of their ancestral Ethiopian Jewish traditions?
Was the capping of Falasha Mura immigration to Israel a valid exercise of
the government’s discretion? This Comment will begin by showing the legal
significance of the Grundnorm, the basic norm that permeates all state legal
paradigms. Next, this Comment will describe the theoretical Israeli Grundnorm
as the tension between a “Jewish” and “democratic” promise. This Comment
will then attempt to show that an individual Jew’s right of immigration to
Israel trumps all democratic concerns and stands as the functional Israeli
Grundnorm when dealing with matters implicating Jewish immigration. After
defining the Israeli Grundnorm, this Comment will argue that any attempt to
prevent or dissuade the entry of any self-proclaimed Jew on the basis of
communal membership or external group perception should be considered
invalid as a contradiction of the Israeli Grundnorm, the fundamental moorings
upon which the Jewish state of Israel is based. Finally, this Comment will
humbly suggest that the Supreme Court of Israel should invalidate Israeli
policies that contradict the Israeli Grundnorm by limiting the immigration of
potentially eligible Falasha Mura under the Law of Return.
I. EXTRATERRITORIAL JEWISH IMMIGRATION IS THE HIGHEST

MANIFESTATION OF THE ISRAELI GRUNDNORM
From where does a state derive its authority? If someone cracked open the
shell of a physical manifestation of any given state, what governing principle
would she find on the inside? Professor Johan D. van der Vyver states:
The Grundnorm of any particular political community—the basic
norm that irradiates and modifies all its laws and institutions—
derives from the history of the people, and is quite often, in a
reactionary sense, conditioned by a lamentable past which the current
60
constitutional dispensation seeks to overcome.
The concept of the Grundnorm was first explored in Hans Kelsen’s The Pure
Theory of Law during his quest to derive “a theory of law purified of all
political ideology and all natural-scientific elements . . . .”61 The Grundnorm is

60 van der Vyver, supra note 1, at 670–71.
61 HANS KELSEN, PURE THEORY OF LAW 1 (Max Night trans., Univ. of Cal. Press, 2d ed. 1967) (1934).
the foundation for all other legal statements made within and in regards to any
given legal system.62
The Grundnorm of a state is often defined in the context of its constitution.
Emmerich de Vattel stated in his eighteenth century work Droit des Gens that a
constitution is “the fundamental regulation that determines the type and
manner in which the public authority should be exercised . . . how and through
whom a people should be governed, which are the rights and duties of the
governed.”63 Professor Frederick Schauer believed that the “validity of the
constitution is established by the Grundnorm, whose validity is in turn
presupposed or hypothesized as valid.”64 Kelsen’s view of the state has been
described as having an absolute normative character with no existence separate
from the law and no identity past its consistency with its own laws.65 Thus, the
validity of a constitution is based on the existence of a valid Grundnorm,
whose validity is “presupposed.”66 In practice, as a “fundamental regulation,” a
state’s constitution acts as a sort of introspective declaration of its own basic
principles.67
How then is the Grundnorm of a given state defined within the context of a
constitution? First, this section will give greater texture to the concept of
Grundnorm through an American case study and a historical-metaphysical
approach. Second, the Israeli Grundnorm will be defined theoretically, then
functionally, through the unique prism of Jewish immigration. Finally, this
section will attempt to show that the pure Jewish immigration formulation of
Grundnorm trumps the traditional formulation of the Israeli basic norm.
62 Id.
63 CARL SCHMITT, CONSTITUTIONAL THEORY 95 (Jeffrey Seitzer ed. & trans., 2008).
64 Ryan P. Farley, Comment, Ireland and Divorce: Is a Little Rebellion Now and Then a Good Thing?,
11 EMORY INT’L L. REV. 515, 521 (1997) (quoting from Frederick Schauer, Amending the Presuppositions of a
Constitution, in RESPONDING TO IMPERFECTION: THE THEORY AND PRACTICE OF CONSTITUTIONAL
AMENDMENT 149 (Sanford Levinson ed., 1995)).
65 SCHMITT, supra note 63, at 5.
66 Id.
67 Id.
A. The Grundnorm of a given state permeates the entire system of laws as the
most fundamental norm from which all other legal elements gain their
character. Its content is derived from a historical analysis.
The U.S. Supreme Court explored the issue of Grundnorm in the famous
case of Schneiderman v. United States.68 In Schneiderman, the United States
attempted to revoke the citizenship of the petitioner twelve years after he
received full citizenship status.69 The United States claimed that the petitioner
illegally procured his certificate of citizenship because, as a member of the
Workers (Communist) Party of America, he was in violation of the Act of
1906,70 which provided in pertinent part:
It shall be made to appear to the satisfaction of the court admitting
any alien to citizenship that immediately preceding the date of his
application he has resided continuously within the United States five
years at least, and within the State or Territory where such court is at
the time held one year at least, and that during that time he has
behaved as a man of good moral character, attached to the principles
of the Constitution of the United States, and well disposed to the good
71
order and happiness of the same.
The petitioner testified that he believed in the correctness of Marxist theories
and the principles of Lenin but did not believe in a military takeover of the
government.72 The Court was forced to answer the question: What does
behavior antithetical to the Constitution of the United States mean?73
The United States claimed that because the petitioner desired a massive
overhaul of the Constitution, he could not be attached to it.74 The Supreme
Court responded that “[t]he constitutional fathers, fresh from a revolution, did
not forge a political strait-jacket for generations to come.”75 The Court instead
stated that the main values in the Constitution that warrant “unqualified
attachment” are the guarantees in the Bill of Rights, specifically the First
Amendment guarantee of freedom of thought76 (which, the Court stated, is also
found in Article V, which regulates procedure for constitutional
68 Schneiderman v. United States, 320 U.S. 118 (1943).

69 Id. at 120.
70 Id. at 121–22 n.2.
71 Naturalization Act of 1906, ch. 3592, § 4, 34 Stat. 596, 598 (emphasis added).
72 Schneiderman, 320 U.S. at 127.
73 Id. at 133.
74 Id. at 135–36.
75 Id. at 137.
76 Id. at 144.
amendments).77 Stating that there is a difference between agitation and calls

for violent uprising, and finding that petitioner believed in the former, the
Court held that petitioner’s beliefs did not render him unattached to the
Constitution.78
The Schneiderman decision presents the American Grundnorm as a
functional, tangible object, firmly within the normative structure of Professor
van der Vyver’s definition of the basic norm. Freedom of thought fills up the
Constitution—from the Bill of Rights to Article V regulating constitutional
amendments to the very way republican democracy functions as a stage for the
exchange of differing points of view.79 The United States was founded on the
Enlightenment principles of freedom of thought, expressed by Thomas
Jefferson and Thomas Paine, among others.80 The Supreme Court referenced
the founding fathers in the Schneiderman judgment—indeed, one of the
primary impetuses for the creation of the United States was the absence of a
platform to express serious grievances with the British Crown.81 Thus, as
Professor van der Vyver notes, the Grundnorm is often “conditioned by a
lamentable past which the current constitutional dispensation seeks to
overcome.”82
Likewise, the Grundnorm of a given state must be permanent and
unchanging. In the seventeenth century, Oliver Cromwell described a written
constitution as something that must be inviolable against the shifting
majorities, something utterly unbreakable.83 While Cromwell’s view of written
constitutions continues to live on, visions of living constitutions also thrive.84
The Grundnorm provides the basis for both of these systems, regardless of
which overarching, constitutional-analytical worldview one follows.
77 Id. at 137.
78 Id. at 151 n.36, 157.
79 See U.S. CONST. amends. I–X; U.S. CONST. art. V.
80 See Gordon S. Wood, Thomas Jefferson, Equality, and the Creation of a Civil Society, 64 FORDHAM L.
REV. 2133 (1996); R. B. Bernstein, Rediscovering Thomas Paine, 39 N.Y. L. SCH. L. REV. 873 (1994).
81 See Grant Dorfman, The Founders’ Legal Case: “No Taxation Without Representation” Versus
Taxation No Tyranny, 44 HOUS. L. REV. 1377, 1412 (2008).

82 van der Vyver, supra note 1, at 671.
84 See, e.g., Aileen Kavanagh, The Idea of a Living Constitution, 16 CAN. J.L. & JUR. 55 (2003); ALLAN
HUTCHINSON, EVOLUTION AND THE COMMON LAW (2005).

B. The theoretical structure of the Israeli Grundnorm is the tension between

the “Jewish” and “democratic” promises.
Israel has no written constitution. In 1951, following Israeli independence
and the passage of the Law of Return, Israel passed the Harari Resolution to
fill its constitutional void.85 The Harari Resolution declared that, in lieu of a
constitution, separate Basic Laws would be passed that, when combined,
would form a sort of constitution.86 Although some scholars suggest that the
Knesset87 never explicitly gave the Basic Laws any special, reserved status
above that of an ordinary statute,88 retired Deputy President of the Supreme
Court of Israel Menachem Elon stated that “[b]y virtue of the enactment of
[the] Basic Laws, which protects life, bodily integrity and dignity, property,
personal freedom, right to travel, privacy and freedom of vocation, this vision
now has binding legal force.”89 The Basic Laws are the prism through which
all other laws must be viewed.90
Elon and other scholars contend that the expression of the fundamental
principle of Israel is found in the 1992 Basic Law: Human Dignity and
Liberty.91 The Knesset defined the Basic Law: Human Dignity and Liberty’s
purpose within the Basic Law’s text itself: “to protect human dignity and
liberty, in order to establish in a Basic Law the values of the State of Israel as a
Jewish and democratic state.”92 The values of a Jewish and democratic state,
85 ESTHER M. SNYDER, ISRAEL: A LEGAL RESEARCH GUIDE 5 (2000).

86 See id. at 5.
87 The Knesset is the Israeli parliament. For more on the Knesset, visit its homepage at http://www.
knesset.gov.il/.
88 See, e.g., YAACOV S. ZEMACH, POLITICAL QUESTIONS IN THE COURTS: A JUDICIAL FUNCTION IN
DEMOCRACIES ISRAEL AND THE UNITED STATES 25 (1976).

89 Elon, supra note 9, at 178.
90 See id. at 182.
91 Id. at 178; see Yoram Shachar, The Dialetics of Zionism and Democracy in the Law of Mandatory
Palestine, in THE HISTORY OF LAW IN A MULTI-CULTURAL SOCIETY: ISRAEL 1917–1967, at 95, 97 (Ron Harris
et al. eds., 2002).
92 Basic Law: Human Dignity and Liberty, 5752–1992, 1391 LSI 150 (1991–92) (Isr.) (amended at Basic
Law: Human Dignity and Liberty, 1994, S.H. 1454) (emphasis added). The Law states that:
1. Fundamental human rights in Israel are founded upon recognition of the value of the human
being, the sanctity of human life, and the principle that all persons are free; these rights shall be
upheld in the spirit of the principles set forth in the Declaration of the Establishment of the State
of Israel.
1. (a) The purpose of this Basic Law is to protect human dignity and liberty, in order to establish
in a Basic Law the values of the State of Israel as a Jewish and democratic state.
....
11. All governmental authorities are bound to respect the rights under this Basic Law.
and the fundamental human rights they encompass, shall be “upheld in the
spirit of the principles set forth in the Declaration of the Establishment of the
State of Israel.”93 Elon stated that since the enactment of the Basic Law:
Human Dignity and Liberty, Israeli courts must apply a balancing test in all
rulings and decisions; all statutes must comply with the values of a democratic
and of a Jewish state.94 More specifically, the Grundnorm of Israel is the
tension found in this Basic Law between that state’s “Jewish promise” and its
“democratic promise.”95
The Israeli Grundnorm is, on its face, a paradox. How can a state be both
wholly Jewish and wholly democratic? Does not democracy prohibit the
preferment of one group over another for the entirety of history? Much like
Oliver Cromwell’s belief that the unthinkable act of Parliament declaring itself
a permanent body would be incompatible with English constitutional
jurisprudence, the two Israeli promises are incompatible.96 The fundamental
clash of values here resembles the paradox of the divinity of Jesus Christ
presented by Søren Kierkegaard in his work Philosophical Fragments: The
Christian vision of Jesus as both man and God are wholly incompatible.97 Like
Kierkegaard’s solution to the unbreakable riddle, can one merely jump into the
Israeli Grundnorm paradox and embrace it on faith?
The “democratic promise” seems simple enough. Israeli scholars have
found “dozens of normative sources such as ‘a universal principle in every
democratic country,’ basic principles of equality, liberty, and justice which are
the heritage of all orderly and enlightened States . . . .”98 The issue presented
here is that the principles of the “democratic promise” come from a set of rules
derived from a common heritage with all enlightened states.
The limiting reagent in this amalgam must be the issue of the “Jewish
promise,” as this element makes the Israeli Grundnorm unique. Unlike
democratic principles, which radiate from around the world, Jewish principles
can only be found in the history of Judaism, the Jewish people, and the Jewish
Id.
93Id.
94Elon, supra note 9, at 180.
95 Shachar, supra note 91, at 97.
97 See SØREN KIERKEGAARD, PHILOSOPHICAL FRAGMENTS (David F. Swenson trans., Princeton Univ.
Press 1962) (1844).

98 Allen Zysblat, Protecting Fundamental Rights in Israel Without a Written Constitution, in PUBLIC
LAW IN ISRAEL 47, 51 (1996) (emphasis added).

historical experience. It must be noted that in the first draft of the Basic Law:
Human Dignity and Liberty, the “Jewish promise” was absent; only after the
Basic Law had been run through the grinder of the Legislative Committee of
the Knesset was the “Jewish promise” added.99 Elon whole-heartedly endorsed
the comments of the Chairman of the Legislative Committee of the Knesset
while speaking of the phrase “the values of a Jewish state”:
The law provides . . . that we are required to follow the values of the
Jewish people . . . and of Judaism. Similarly, there is no doubt that
the term “Jewish” includes the values of the period of National
Awakening, as expressed by the Zionist movement, which led to the
establishment of the State of Israel, which in turn enacted these Basic
100
Laws.
Here, rather than descending into what “Judaism” means at its religious and
pseudo-historical roots, a discussion of Zionism as Judaism is more than
sufficient for the purposes of this Comment because Zionism is a modern
offspring of traditional Jewish values, and the Basic Law: Human Dignity and
Liberty declares that the rights found in the Basic Law “shall be upheld in the
spirit of the principles set forth in the Declaration of the Establishment of the
State of Israel.”101
C. The factual and ideological climate from which the State of Israel emerged
points to Jewish immigration as the highest functional manifestation of the
Israeli Grundnorm.
Kelsen in General Theory of Law and State noted that all legal norms are
created on the validity of other, “higher” legal norms until the analysis is
terminated at “the [Grundnorm] which, being the supreme reason of validity of
the whole legal order, constitutes its unity.”102 Because the Grundnorm is
presupposed as valid,103 a non-legal analysis is required to determine its
content. Looking to the U.S. Supreme Court’s analysis in Schneiderman for
guidance, it is clear that an historical examination into the circumstances and
ideology surrounding the birth of a state is absolutely fundamental to the
99 Elon, supra note 9, at 178.

100 Id. at 180.
101 Basic Law: Human Dignity and Liberty—Amendment, 1994, S.H. 90.
102 KELSEN, supra note 2, at 124.
103 Frederick Schauer, Amending the Presupposition of a Constitution, in RESPONDING TO IMPERFECTION
145, 149 (Sanford Levinson ed., 1995).

correct derivation of that state’s Grundnorm.104 However, as Zionism has

ideological foundations far older than the Enlightenment, this historical
examination must begin in antiquity.
The roots of Zionism cling tightly to the ancient ideals and beliefs deep
within the heart of the Hebrew Bible. One of the basic premises of Zionism is
the concept of the “Promised Land” given by God to the Jewish people
throughout the generations:
[T]he LORD said to Abram [later Abraham], “Go from your country
and your kindred and your father’s house to the land that I will show
you. And I will make of you a great nation . . . .
....
. . . To your descendants I give this land, from the river of Egypt
105
to the great river, the river Euphrates . . . .”
Following this initial declaration, God reaffirmed this promise to Joshua after
the Exodus but before the sacking of Jericho, stating: “[G]o over this Jordan,
you and all this people, into the land that I am giving them, to the people of
Israel. Every place that the sole of your foot will tread upon I have given to
you . . . .”106 As such, the land of Israel itself is the crux of much of the Jewish,
especially the Zionistic, worldview: a holy covenant of the Jewish people’s
eternal birthright to the “land flowing with milk and honey.”107
After the Israelites had conquered much of what is today modern Israel,
Biblical tradition states that the spirit of God would literally reside within the
Temple in Jerusalem.108 However, during the reign of the Israelite kings, the
Prophets Isaiah and Jeremiah predicted the future destruction of Jerusalem and
the exile of the Israelites from the Promised Land109—prophesies which came
to fruition during the military campaign of the Babylonian King
Nebuchadnezzar in 586 B.C.E.110 A brief repatriation in the Promised Land
104 See Schneiderman v. United States, 320 U.S. 118, 135 (1943) (“We agree with the statement of Chief
Justice Hughes . . . that the behavior requirement is a general phrase which should be construed . . . in accord
with the theory and practice of our government in relation to freedom of conscience.”).
105 Genesis 12:1–2, 15:18.
106 Joshua 1:2–3.
107 Exodus 3:8.
108 See 1 Kings 8:10–11.
109 Isaiah 1–3; Jeremiah 6, 11:10–13 (“[T]he house of Israel and the house of Judah have broken my
covenant which I made with their fathers. Therefore, thus says the LORD, behold, I am bringing evil upon them
which they cannot escape . . . .”).
110 2 Kings 24:10–17, 25:8–12; Louis Rene Beres, Response to John Quigley, 12 AM. U. J. INT’L L. &
POL’Y 509, 514 (1997).

was short-lived, as Jerusalem was sacked again by the Romans in 70 C.E.111

Following this event, the Jews again were forced out of the land of Israel for
nearly 2,000 years, forming the global Jewish diaspora.112
In the nineteenth century, Theodor Herzl, “the father of Zionism,”113 stated
famously: “If you will it, it is no dream.”114 In 1896, convinced of the
permanence and pervasiveness of anti-Semitism worldwide, Hertzl wrote The
Jewish State, transforming modern Jewish thought into a Jewish-Zionist
hybrid, and gave the Jewish people the impetus for the Jewish state in Palestine
by organizing the First Zionist Congress.115 Although not the first to think of
this goal of Zionism—the reunification of the Jewish people in the Promised
Land—he brought a realistic, workable plan of action to match the fervent
idealism.116
The ideal of the ingathering of Jewish exiles to a common spatial and
temporal area, connected by the common bond of their ancestral Judaism, is
perhaps best represented by the revival of the Hebrew language and the work
of Eliezar Ben Yehuda, the great Jewish linguist. Ben Yehuda referred to the
rebirth of the Hebrew language as “[a]mong the many miracles . . . in our day
[which] will stand out for generations as the greatest and most wonderful.”117
He stated poetically that “with the nation’s language the nation’s soul, too,
began to revive.”118 This further exemplifies the importance of the unification
of the Jewish people under a common and independent cultural regime.
When viewing the creation of the State of Israel as a product of Zionist
ideology, it has been noted that Israel “was not formed in a void, but
rather . . . it was lawfully established as a continuum, part of the
internationally-recognized transition of political power from the British
Mandate to a Jewish State.”119 As history shows, the essential “Jewishness” of
111 Rabbi Burton L. Visotzky, The Myth of Divine Law in Secular Society, 51 DEPAUL L. REV. 1061, 1065
(2002); see also FLAVIUS JOSEPHUS, THE JEWISH WAR (E. Mary Smallwood ed., G. A. Williamson trans.,
Penguin Books 1984) (75).
112 Sharon Harzenski, Terrorism, a History: Stage One, 12 J. TRANSNAT’L L. & POL’Y 137, 140 n.17
(2003).
113 JAY Y. GONEN, A PSYCHOHISTORY OF ZIONISM 18 (1975).
114 Id. at 31.
115 Id. at 42.
116 MICHAEL PRIOR, ZIONISM AND THE STATE OF ISRAEL: A MORAL INQUIRY 3–4 (1999).
117 Eliezar Ben Yehuda, The Revival of Hebrew, in ZIONISM: PROBLEMS AND VIEWS 115, 115 (Paul
Goodman & Arthur D. Lewis eds., 1916).

118 Id. at 118.
the State of Israel and the importance of immigration to this end has a legal
history that predates the existence of the state itself. In 1917, during British
rule of Palestine, the famous Balfour Declaration, a letter from Arthur Balfour
to Lord Rothschild, stated the British position on the future existence of a
Jewish state:
His Majesty’s Government view with favour the establishment in
Palestine of a national home for the Jewish people, and will use their
best endeavours to facilitate the achievement of this object, it being
clearly understood that nothing shall be done which may prejudice
the civil and religious rights of existing non-Jewish communities in
Palestine, or the rights and political status enjoyed by Jews in any
120
other country.
In 1922, the Council of the League of Nations then stated that the British King
was responsible for securing the establishment of the Jewish state in
Palestine.121
In 1939, after years of Jewish and Arab conflict and Jewish agitation and
terror campaigns against British Rule, the “White Paper” declared that,
because 450,000 Jews had already settled in Palestine under the British
Mandate, Jewish immigration would be limited to 75,000 for five years and
later only by Arab consent.122 Speaking on the White Paper, Justice Brandeis
of the U.S. Supreme Court declared that Great Britain assumed a legal
obligation which was the basis for the Jewish state construction in Palestine
and that the legal right could not be undone for “private advantage.”123 Even
Winston Churchill declared at the House of Commons in May 1939 that the
White Paper was “a plain breach of a solemn obligation.”124 In these formative
years, Jewish immigration was inexorably linked to the creation of the state.125
The Holocaust was the most extreme and horrific episode in the ancient
saga that forms the basis for the practical and humanitarian justifications for
the necessity of the Jewish state: an escape from violent, near-universal anti-
120 Letter from Arthur James Balfour, British Foreign Secretary, to Lord Walter Rothschild (Nov. 2,
1917), available at http://www.mfa.gov.il/MFA/Peace%20Process/Guide%20to%20the%20Peace%20Process/

The%20Balfour%20Declaration.
122 Colonial Office, White Paper of 1939 (U.K.), available at http://www.jewishvirtuallibrary.org/jsource/
History/paper39.html.
123 LOUIS D. BRANDEIS, BRANDEIS ON ZIONISM: A COLLECTION OF ADDRESSES AND STATEMENTS BY
LOUIS D. BRANDEIS 155 (Hyperion Press, Inc. 1976) (1942).

124 Id.
125 See AHRON BREGMAN, A HISTORY OF ISRAEL 45 (2003).
Semitism. Daniel Goldhagen’s controversial work, Hitler’s Willing

Executioners, made the argument that anti-Semitism ran so deep in Europe that
the Holocaust was the “natural,” violent by-product of this hatred.126 Accounts
of violent anti-Semitism may be found around the world throughout history:
the Muslim Hadith,127 Shakespeare’s depiction of Shylock in The Merchant of
Venice,128 the Christian Gospels,129 and the Inquisition130—just to name a few.
Due to the actual and perceived severity of global hatred towards the Jewish
people, anti-Semitism became the driving force behind the finalization of the
global plan for the Jewish state.131 This, within Professor van der Vyver’s
definition of Grundnorm, is part of the “lamentable past which the current
constitutional dispensation seeks to overcome.”132
In 1947, the U.N. General Assembly passed the Partition Resolution
granting the Jewish people a patchwork land of Israel.133 Then, only several
days after the end of the British Mandate in Palestine, the provisional Israeli
government passed the Law and Administration Ordinance of 1948, declaring
that “[t]he law which existed in Palestine . . . shall remain in force . . . .”134
Thus, the State of Israel provided in legislation that the immigration policies of
the British Mandate would remain as Israeli law until further legislation was
contemplated and passed.
The Law of Return is the statutory expression of the “Jewish promise”—
the principle value that brought about the establishment of the State of Israel,
in both Zionistic terms (which are Jewish terms as defined by the Basic Law:
Human Dignity and Liberty and the Declaration of Independence) and in real,
finite terms.
126 See DANIEL JONAH GOLDHAGEN, HITLER’S WILLING EXECUTIONERS: ORDINARY GERMANS AND THE
HOLOCAUST 597 n.1 (1996).

127 See, e.g., 4 AL-HAJ MAULANA FAZLUL KARIM, AL-HADIS 24 (3d new ed. 2001) (quoting the Islamic
Prophet Muhammad as declaring that “[t]he Hour shall not occur till the Muslims fight the Jews, and the
Muslims will kill them so much so that the Jews will seek shelter behind stones and trees and the stones and
trees will proclaim ‘O Muslim! O servant of Allah! this is the Jew behind me. So come and kill him’ . . . .”);
see also Ilya Feoktistov, Preaching Hatred at Dartmouth, DARTMOUTH, June 29, 2004, at 4.
128 See, e.g., WILLIAM SHAKESPEARE, THE MERCHANT OF VENICE, act 2, sc. 8 (mocking Shylock “[a]s the
dog Jew did utter in the streets: ‘My daughter! O my ducats!”’ among other, seemingly senseless slanders).
129 See, e.g., Matthew 27:25 (describing the Jews as declaring “[Jesus’] blood be on us and our
children!”).
130 MICHAEL ALPERT, SECRET JUDAISM AND THE SPANISH INQUISITION 11 (2008).
131 See BREGMAN, supra note 125, at 40, 44.
132 van der Vyver, supra note 1, at 671.
134 Friedman, supra note 39, at 194.
The Law of Return states that every Jew has a right to immigrate to
Israel.135 This right stems from the fact that Israel, both in development and
practice, views itself as the one and only state that represents the Jewish
people. In Ben Shalom v. Central Elections Committee, the Israeli Supreme
Court ruled that, given the factors which led to the creation of the State of
Israel, an individual cannot run for office “if [his] goals and actions explicitly
or implicitly negate the existence of the State of Israel as the state of the Jewish
people.”136 This view of Israel as the state for all Jews was reemphasized by
two specific government actions: (1) the capture and trial of Adolf Eichmann
for crimes committed against the Jewish people, not against the state137 and
(2), as previously noted, the daring extraction operations of the Beta Israel in
the 1980s and 1990s.138 This worldview of Israel was best expressed by the
Former Israeli Prime Minister David Ben Gurion, who stated that “[t]he Law
of Return is a foundation stone for the laws of the State of Israel. It reflects the
central goal of our state—the in-gathering of exiles . . . . [T]hat right is part of
the natural heritage of every Jew, if only he desires to join in the settlement of
the land.”139 If Israel speaks for all Jews, then the Law of Return grants a right
of immigration to all Jews, wherever they may be.
Furthermore, from a very realistic standpoint, the principle of the
ingathering of exiles upon which the Zionistic Jewish immigration paradigm
stands is, in actuality, the foundation of the Israeli state. Without the Zionistic
impetus to return to the Promised Land and the evident necessity to escape
virulent anti-Semitism, the State of Israel would not exist as it does. The
territory of Palestine held only a smattering of Jews before the birth of modern
Zionism.140 Following waves of immigration between the years 1941 and
1950, a time span encompassing the Declaration of Independence of the State
of Israel, the Jewish population rose from approximately 470,000 to
approximately 1.2 million.141 The State of Israel in 2005 had over 5.5 million
135 The Law of Return, 5710–1950, 4 LSI 114 (1950–51) (Isr.).

136 Ben Shalom v. Cent. Elections Comm. [1989] IsrSC 43(4) 221 (emphasis added).
137 Cf. Matthew Lippman, Genocide: The Trial of Adolf Eichmann and the Quest for Justice, 8 BUFF.
HUM. RTS. L. REV. 45, 100–01 (2002).

138 See supra notes 31–35 and accompanying text.
139 Elon, supra note 9, at 192 (emphasis added).
140 TOM SEGEV, THE SEVENTH MILLION: THE ISRAELIS AND THE HOLOCAUST 121 (1991); see also
Procon.org, Population Statistics, http://israelipalestinian.procon.org/viewresource.asp?resourceID=636#chart1

(last visited May 6, 2010) (stating that the Jewish population of Israel in 1914, more than a decade after
modern Zionism as an accepted ideology came to fruition, was approximately a mere 60,000).
141 Id.
Jewish inhabitants.142 Prime Minister Ben Gurion understood the demographic

necessity of immigration and recognized, in practical terms, the impact that the
Holocaust had on the State of Israel, stating: “Hitler harmed more than the
Jewish people, whom he knew and hated: he caused damage to the Jewish
state . . . He destroyed the country’s main support and central force. The state
appeared and did not find the nation that was awaiting it.”143 Thus, Jewish
immigration is the very tangible rationale for any Jewish state existing in
Palestine.144 Therefore, the Zionistic Jewish immigration to Israel as an
individual right is both the philosophical and tangible foundation of the Jewish
promise. Jewish immigration is infused in all other formations of Israeli law
and state, shaped from the beginning by its history and lamentable past.
D. The strength of the Jewish promise in the Israeli Grundnorm is so

compelling that it should trump the democratic promise entirely when
issues of Jewish immigration are implicated.
How does Jewish immigration fit within the common manifestation of the
Israeli Grundnorm—the tension between the Jewish and democratic promises?
Elon has stated that when dealing with issues of the Law of Return, priority is
given “to the Jewish values over the democratic values . . . .” The Law of
Return must give more than just priority to the Jewish promise: Jewish
immigration has been, and will be, essential for the perpetual continuation of
the Jewish State of Israel.
The paradox of the Israeli Grundnorm, its components so diametrically
opposed, is that the State of Israel cannot exist as a Jewish state in the modern
age without external immigration propping up the Jewish promise.145
Democracy is an unstoppable force based on equality among individuals. To
maintain the Jewishness of the state, the Jewish population must constitute the
majority or be forced to relinquish the Jewish promise. Otherwise, the
“democratic promise” may decay into an abomination: the rule of the few. In
the 1950s, nearly 20% of the Israeli population was Arab, until massive Jewish
immigration reduced that fraction to about 11%.146 However, in 1986, the Arab
142 Population, by Religion, 60 STAT. ABSTRACT OF ISR. 88 tbl. 2.2 (2009), available at
http://www1.cbs.gov.il/reader/shnaton/templ_shnaton_e.html?num_tab=st02_02&-CYear=2009.
143 SEGEV, supra note 140, at 113.
144 See id.
145 See Shachar, supra note 31, at 243–44.
146 Id. at 242.
population represented about 18% of Israeli citizens.147 The annual Arab

population growth rate was at 4.1% while the annual Jewish population growth
rate was slightly higher, at about 4.3%; however, 45.7% of the Jewish growth
rate was due to immigration, whereas only 1.6% of Arab population growth
was derived from immigration.148 With non-Jewish immigration rising149 and
the Arab-Israeli population’s birthrate holding steady at nearly double that of
the Israeli-Jewish population’s, not only should Jewish values be given priority
over democratic values when dealing with Jewish immigration questions, but
they should so overshadow the democratic values as to make the categorical,
relative worth of democratic considerations de minimis. The democratic regime
in Israel owes its very existence, a heavy debt, to historical Jewish immigration
and the Zionistic philosophy shaped by millennia of communal and individual
stories of Jewish experience and tragedy. Thus, Jewish immigration should be
applied and considered the de facto Israeli Grundnorm with respect to all
immigration matters.
II. THE DE FACTO JEWISH IMMIGRATION GRUNDNORM AND EN MASSE

EXCLUSION BASED ON PERCEPTIONS OF HISTORICAL GROUP IDENTITY ARE
IRRECONCILABLY OPPOSED
As previously stated, Israel is the only state that is “not the state of its
citizens but of the whole Jewish people wherever they may be.”150 How is this
reflected in the statutory language in the Law of Return? The Law of Return
states in pertinent part that:
4. Every Jew who has immigrated into this country before the
coming into force of this Law, and every Jew who was born in this
country, whether before or after the coming into force of this Law,
shall be deemed to be a person who has come to this country as an
oleh under this law.
....
4A. (b) It shall be immaterial whether or not a Jew by whose right a
right under subsection (a) is claimed is still alive and whether or not
151
he has immigrated to Israel.
147 Id. at 243.

148 Id.
149 Id.
150 Said, supra note 4, at 190.
151 The Law of Return (Amendment No. 2), 5730–1970, 24 LSI 28, § 4B (1969–70) (Isr.).
These clauses teach us several things. First, the retroactivity of the law shows
the strength and primacy of the Law of Return itself. Secondly, the use of the
singular, yet unlimited, phrase “every Jew” shows that the determinations of
the validity of an oleh’s status are both individual, yet unlimited, even by
death.152
This Part will begin by defining an oleh’s rights under the Law of Return as
an individual’s choice to freely associate with the Jewish people: a choice
borne of that individual’s own volition. Next, this Part will show numerous
historical and anecdotal accounts regarding how both individual members and
a group of Falasha Mura were in one way or another denied or hindered in
their desire for free association. Lastly, this section will attempt to show that
denying oleh status to an individual member of the Falasha Mura under the
Law of Return due to the State of Israel’s perception of the Falasha Mura as a
whole is irreconcilable with the de facto Israeli Grundnorm of Jewish
immigration by individual right.
A. An individual’s right to oleh status under the Law of Return requires a free
association with the Jewish community defined by personal choices.
The determinative issue for the Falasha Mura rests in Section 4B of the
Law of Return which states that “[f]or the purposes of this Law, ‘Jew’ means a
person who was born of a Jewish mother or has become converted to Judaism
and who is not a member of another religion.”153
It must be noted that Section 4B did not exist in the original versions of the
Law of Return. In the case of Shalit v. Minister of Interior, the Supreme Court
of Israel decided whether the Halakhic definition of a Jew, as born from a
Jewish mother, applied in regards to the citizenship benefits of the Law of
Return when only the father of the child was Jewish.154 The Court held that the
government did not have the legal authority to determine the religious
affiliation of any given individual.155 It held that “the only relevant criterion
was a person’s bona fide statement of such an affiliation.”156 However, in
response, the Israeli Knesset amended the Law of Return to include the current
152 See id.

153 Id. (emphasis added).
154 HCJ 58/68 Shalit v. Minister of Interior [1970] IsrSC 23(2) 477, translated in Selected Judgments of
the Supreme Court of Israel: Special Volume 35-191 (Asher Felix Landau & Peter Elman eds., 1971); see
Shachar, supra note 31, at 245 n.72.
155 See Shachar, supra note 31, at 245.
156 Id.
language in Section 4B.157 Although Section 4B seems to contradict the de

facto Israeli Grundnorm of Jewish immigration through individual right as an
impediment for a “Jew” to claim her birthright, it is still possible to work
within the existing legal framework to achieve a result consistent with the de
facto Grundnorm. Thus, the crux of the argument against mass-Falasha Mura
immigration is based in the sub-clause: “and [] is not a member of another
religion.”158
The preeminence of “religion” to the Jewish experience is visible within
the words of the Law of Return: One can be a Jew by either blood or
conversion but is limited by the religious exclusivity requirement.159 Scholars
have long stated that the “religion and the group known as Jews should be, and
should be recognized as, a free association composed by acts of individual
choice.”160 The voluntary choice to be Jewish is considered by some to be
preferable to one based on descent because the latter plays into “medieval”
definitions of Jews as a race.161 Indeed, the diversity of Jewish religious
practice and physical outward appearances “testif[ies] to the richness and
complexity of the Jewish heritage . . . .”162 This complexity was what
necessitated the creation of common threads of experience, like the innovation
of modern Hebrew.
B. There are numerous accounts that many Falasha Mura were denied the
ability to freely associate with the Jewish community at large due to severe
external pressures.
The Israeli government has recognized the Jewish heritage of the Falasha
Mura. The Jewish Agency and the Falasha Welfare Association of England
took a census of Beta Israel villages in 1976, supervised by Gershon Levi.163
The census did not take into account any statistics of Falasha Mura villages,
instead referring to the Falasha Mura as “non-practicing Falasha.”164
How then is “free association” defined relative to the Falasha Mura? They
are clearly descendents from the same clan as the Beta Israel who “converted”
157 Id.
159 See id.
160 ELMER BERGER, JUDAISM OR JEWISH NATIONALISM: THE ALTERNATIVE TO ZIONISM 38 (1957).
161 Id.
162 EMMA KLEIN, LOST JEWS: THE STRUGGLE FOR IDENTITY TODAY 109 (1996).
164 Id.
to Christianity in generations past.165 However, there is evidence that many of

these conversions were brought about, at the time, by nothing less than
necessity, as shown by the fact that the Beta Israel’s population was reduced
from almost 1 million to 200,000 over the span of only several generations.
Are forced conversions or conversions of necessity a valid reason to take away
one’s birthright?
Over the past two centuries, the Ethiopian Jewish community’s existence
was threatened by a barrage of obstacles and dangers directed against the
continued open practice of their religion. Michael Corinaldi stated that from
1855 onwards, the Ethiopian Jewry faced “serious threats, ranging from natural
calamities to missionary pressures, and religious persecutions, in addition to
socio-economic dislocations that greatly reduced their capacity to resist
negative impacts on their religious tradition.”166 In 1862, Ethiopian Emperor
Tewodros II asked, “How is it that there are people who believe not in what I
believe? . . . [L]et them adopt my religion and be baptized.”167 That same year,
due to “unrelenting missionary pressure,” many groups of Ethiopian Jews
attempted to make the long trek to Jerusalem, only to have the journey end in
tragedy when the group was all but decimated by sickness and starvation.168
During a series of events from 1888 to 1892, invasions from Sudan and an
unrelenting famine composed kifu-qen: the “awful days.”169 This short era bore
witness to the death of between one-half to two-thirds of the Ethiopian Jewish
population, which greatly hampered the practice of traditional ways of life for
the Jewish communities.170
The all-but-forcible extraction of many Ethiopian Jews from their ancestral,
religious ways of life was described to the European Jewish community by
members of Beta Israel. One letter from Ethiopian Jewish leaders stated that
“[i]n the time of the dervishes, a frightful number of people died from
famine . . . . [The missionaries] travel all over [the region] urging us to be
baptized. Our books have been destroyed, the dervishes burnt them by fire, we
no longer have any schools, they are in ruins.”171 The picture painted is of a
165 Michael Corinaldi, Protecting Minority Cultures and Religions in Matters of Personal Status Both
Within State Boundaries and Beyond State Frontiers – the Israeli System, in FAMILIES ACROSS FRONTIERS 390
(Nigel Lowe & Gillian Douglas eds., 1996).
166 CORINALDI, supra note 12, at 120 (citations omitted).
167 Id. at 123.
168 Id.
169 Id. at 124.
170 Id.
171 Id. at 125.
time when the Ethiopian Jewish communities’ walls were crumbling around
them, their heritage and knowledge was in the process of being destroyed, and
community members were dying, while external pressures to convert
abounded.
Jacques Faitlovich, in 1905, stated that “the tyranny of the missionaries and
of an ignorant clergy, supported by the violence of the chiefs” brought about
the conversion of many Ethiopian Jews to Christianity.172 He described a
situation where chiefs would treat the Jews inhumanely, forcing them to erect
churches, eat forbidden meat, and work on the Sabbath.173 Faitlovich noted the
desire of many to return to practicing Judaism and the counteracting penalty
for reversion:
I was able to notice . . . how many [Falasha Mura] do in fact wish to
return to the cult of their fathers, and how much they are hampered
by . . . chiefs who act under the influence of the Orthodox clergy.
Such chiefs punish them, rob them, confiscate their possessions,
174
abduct their women and children.
It should be noted that these observations by Faitlovich were taken down
several decades before the establishment of the State of Israel and almost one
century before any “free ticket to Israel” could have been considered by the
Falasha Mura as a realistic possibility.
The reign of Haile Selassie I later brought new pains upon the Jews due to
his policy of “Amharaisation.”175 Amharaisation was a “cultural
subjugation . . . which accorded the Amhara culture pride of place as a national
culture” within the Ethiopian state and resulted in many Falashas being
converted to Christianity.176 Although more controversial,177 there are
individuals who contend that some 15,000 Ethiopian Jews led a “double life,
secretly maintaining the traditions of the [Jewish] community.”178 If these
accounts are true, living a double life—with the outward appearance of a
172 Id.
173 Id.
174 Id. at 126–27.
175 Id. at 127.
176 BERTUS PRAEG, ETHIOPIA AND POLITICAL RENAISSANCE IN AFRICA 65 (2006); see KESSLER, supra
note 10, at 148.

177 See Daniel Summerfield, The Impact of the Italian Occupation of Ethiopia on the Beta Israel, in THE
BETA ISRAEL IN ETHIOPIA AND ISRAEL: STUDIES ON ETHIOPIAN JEWS, supra note 39, at 58 (“[V]arious pro-
Falasha organizations attempted to place the Falashas in the arena of world Jewry by exaggerating the impact
that the [Italian] occupation had on Beta Israel . . . .”).
Christian and the internal, spiritual life of a Jew—would demonstrate the near-
impossibility for free association with the Jewish community.
It was well known that many of the Falasha Mura followed the practices
and traditions of Judaism to some extent and formed a community apart from
the Ethiopian Christian majority. In the middle of the twentieth century, it was
noted that intermarriage and family relationships were maintained and
continued between the Falasha Mura and Beta Israel, while such relations
between the Falasha Mura and Ethiopian Christians were rare.179 The
Ethiopian Christians were “aware” of the fact that many Falasha Mura
“follow[ed] the traditions of [their] fathers” and, thus, rejected them as
members of their own community.180
Given the historical and anecdotal evidence available regarding individual
members of the Falasha Mura community and their choice, or lack thereof, to
freely associate with the Jewish community at large, it is possible to see how
many Ethiopian Jews would be denied their birthright to immigrate to Israel as
an oleh under the Law of Return due to Israel’s policy of denying these rights
based on group identity.
C. The Israeli government’s policy of placing all Falasha Mura into one
common group for the purpose of denying oleh status under the Law of
Return is incompatible with the de facto Israeli Grundnorm of Jewish
immigration by individual right.
In 1991, Prime Minister Yitzhak Shamir appointed Eliakim Rubenstein to
head what became known as the “Rubenstein Committee” to decide whether
any Falasha Mura could claim a right of immigration under the Law of
Return.181 The Rubenstein Committee reported that the Falasha Mura became
Christian converts “[n]ot by force or under duress, but voluntarily, prompted
by the desire to improve their social and economic standing within the
Ethiopian society.”182
In this context, the Israeli classification of a large group of individuals as
having one categorical motivation for conversion is most problematic. The
Law of Return states that “[e]very Jew” shall have the benefits of the Law of
179 SIMON D. MESSING, THE STORY OF THE FALASHAS: “BLACK JEWS” OF ETHIOPIA 98 (1982).
181 Id. at 133–34.
182 Id. (quoting RUBENSTEIN REPORT (1991), reprinted in MENAHEM WALDMAN, FROM ETHIOPIA TO
JERUSALEM 243–49 (1992).
Return, not “every group, community, or organization of Jews.”183 The

necessity of viewing a potential oleh under the Law of Return as an individual
is further evinced in the Law of Return’s definition of a “Jew” as “a person
who was born of a Jewish mother or has become converted to Judaism and
who is not a member of another religion.”184
Presumably, if the Law of Return were to apply to groups of people who,
as a whole, exhibited in public the characteristics of a “Jewish community”
that freely associated with other Jewish communities, then individuals who
quietly and privately denounced Judaism and who secretly believed in the
tenants of a different faith would be eligible for aliyah. Obviously, this is not
the correct application of the Law of Return, and yet, the mirror-image of this
application is the one utilized by the Israeli government in denying the whole
Falasha Mura community rights under the Law of Return, despite the fact that
every individual’s ancestors had a unique, individual motivation for
conversion. While many of the Falasha Mura were not absolutely compelled or
threatened into conversion, it is clear that there are certainly many examples of
those who were forced to convert or who continued to openly, privately, or
secretly adhere to the Jewish faith.185
The most notorious forced conversions of the Jewish people in history
occurred in fourteenth and fifteenth century Spain during the Spanish
Inquisition. During the reign of King Henry II of Castille in the late fourteenth
century, “the Jewish communities were physically persecuted, fined and, if
unable to pay, their members were sold into slavery.”186 From 1391 to the
second decade of the fifteenth century, the Spanish converted Jews en masse
with large communal baptismal rituals, which nearly brought an end to the
public practice of Judaism.187 However, while some who were baptized
unwillingly came to accept Christianity as their faith, others “remained secretly
Jews.”188 Because of public awareness that some of the new converts, or
conversos, were still practicing their Jewish faith, King John I enacted
legislation making it illegal to eat, dress, and behave like a Jew.189
183 The Law of Return, 5710–1950, 4 LSI 114 (1950–51) (Isr.).

186 MICHAEL ALPERT, SECRET JUDAISM AND THE SPANISH INQUISITION 11 (2008).
187 Id.
188 Id.
189 Id. at 12.
Now, imagine that there was another larger segment of the Jewish
population in fourteenth and fifteenth century Spain that was subjected to
persecution but were not forced, per se, to convert to Christianity; instead, this
group converted to Christianity to improve their social influence and living
conditions. Would a member of the former Jewish community, who was forced
to be baptized into the Christian faith on pain of torture or slavery and who
ceased to publicly act like a Jew, really be considered a “member of another
religion” under the Law of Return? Would such a person be said to have
forfeited her birthright? Would a Spanish Jew during the Inquisition who held
personal Jewish beliefs but was a descendent of those who were forced to
convert be excluded under the Law of Return? If the Falasha Mura test
presently applied by the State of Israel is at all instructive, the answer to all of
these questions is a resounding “Yes.”
This cannot possibly be the result intended under the Law of Return, a law
rooted in religious traditions of personal fulfillment of an individualized
spiritual journey imbedded in the larger framework of the Jewish nation. Just
as the Prophet Isaiah could not be considered as blameworthy, under any moral
or normative standard, as those to whom he prophesied,190 one cannot be
excluded from a birthright based on the external perception of the beliefs,
motives, and practices of those around her.
Given that one of the strongest roots of the moral justification of Zionism
and the creation of the Jewish state has been global anti-Semitism, the
exclusion of Falasha Mura who lived like Christians but who profess to feel
Jewish at heart191 is a gross contradiction of the de facto Israeli Grundnorm of
Jewish immigration by individual right and should be considered invalid as
being irreconcilable to the entire ethos of the nation.
III. SOLUTION: THE SUPREME COURT OF ISRAEL SHOULD VOID ALL

GOVERNMENT ACTION THAT HAMPERS THE ABILITY OF ELIGIBLE FALASHA
MURA TO MAKE ALIYAH
What then can be done? The importance and difficulty of a fair resolution
to this question is evident when looking at the way the term “Falasha Mura”
itself is seen as representative of the entire community’s motivation and intent
for conversion. In the 1990s, the Israeli media often described the Ethiopians
190 See Isaiah 6.

191 See Heller, supra note 30.
who had converted to Christianity and who now wished to immigrate to Israel
as either “anusim, or forced converts (evoking the Fifteenth-century Iberian
conversos), or as mitnazrim, voluntary Christianizers.”192 In the end, the Israeli
media called them “Felashmura,” a term essentially meaning “Falasha who
exchanged his religion,” as it was considered a more neutral term.193 Professor
Don Seeman viewed the battle over the nomenclature as significant:
The difference between anusim and mitnazrim is a difference
between victims of catastrophe, who are in principle deserving of
“Jewish solidarity” (in the words of one expert witness to the 1994
interministerial committee), and traitors for whom the State of Israel
bears little or no responsibility. . . . [Voluntary] [c]onverts and their
descendents were portrayed as individuals who had abandoned their
people for personal gain during periods of persecution. This was
significant because although apostasy as a religious sin may be
canceled by repentance, . . . this kind of secular apostasy is a stain
from which [voluntary] converts and their descendents may never
194
recover.
Although the neutral term “Falasha Mura” was chosen, the debate surrounding
the naming of the group exhibits two important issues: the importance of
individual intent and purpose in conversion and the inherent dangers of group
characterization.
In the end, considerations for upholding the basic principle upon which the
state rests must trump all concerns that some Falasha Mura, if granted oleh
status under the Law of Return, will arrive in Israel as “unwanted ‘economic
refugees,’”195 or as anusim. According to Hans Kelsen, because the
Grundnorm of a state is permanent and inviolable, only a revolution that
changes the essence of the state will bring about its alteration.196 However,
while the concept of Grundnorm is one formed in a purely positivist
construct,197 it is not necessary to follow it to its final, legal positivist end. Here
is the point of divergence for Kelsen:
192 Don Seeman, Agency, Bureaucracy, and Religious Conversion: Ethiopian “Felashmura” Immigrants
in Israel, in THE ANTHROPOLOGY OF RELIGIOUS CONVERSION 29, 33 (Andrew Buckser & Stephen D. Glazier
eds., 2003).
193 Id.
194 Id. at 33–34.
195 Id. at 33.
196 KELSEN, supra note 61, at 118 (stating, in reference to one hypothetical revolution, that “[i]t is no
longer the norm according to which the old monarchical constitution is valid, but a norm according to which
the new republican constitution is valid, a norm endowing the revolutionary government with legal authority”).
197 Id. at 116.
That a [Grundnorm] is the basic norm of the national legal order does
not imply that it is impossible to go beyond that norm. Certainly one
may ask why one has to respect the first constitution as a binding
norm. The answer might be that the fathers of the first constitution
were empowered by God. The characteristic of so-called legal
positivism is, however, that it dispenses with any such religious
198
justification of legal order.
While positivists such as Kelsen may not recognize as valid a religious
justification of legal order (although implicitly admitting that such a
justification could be considered valid under a different philosophical regime),
the State of Israel clearly has. In the case of State of Israel v. Guetta, Israeli
police officers performed a full body search, stripping the defendant naked in
public.199 The Supreme Court held that the removal the defendant’s clothing in
public was an illegal act, stating:
The infringement of “human dignity” signifies the humiliation or
denigration of the image of God in man. . . . The Halakhah
strenuously objects to humiliation or denigration of the image of God
that is in man . . . there is no difference between the denigration of
God’s image in a fellow human and the denigration of God’s image
200
in oneself.
The fundamental belief in man’s creation in the image of God comes from the
first chapter of Genesis, where “God created man in His own image; in the
image of God He created him; male and female He created them.”201 As such,
Israeli law allows, if not demands, that powerful religious and Biblical
principles form the basis for its judicial decisions.202
According to judicial precedent, the State of Israel does not have the power
to restrict the immigration of any individual who qualifies as an oleh under the
Law of Return.203 As the Supreme Court may use Biblical law in deciding the
merits of the cases within its jurisdiction, the de facto Israeli Grundnorm of an
individual Jew’s right to immigrate to Israel may be considered a “binding
198 Id.
199 CrimA 2145/92 State of Israel v. Guetta [1992] IsrSC 46(5) 704, reprinted in Elon, supra note 9, at
194–95.
200 Id.
201 Genesis 1:27.
202 Elon, supra note 9, at 194–95.
203 Cf. HCJ 7052/03 Adalah v. Minister of Interior [2006] IsrSC 1, 114 (“[I]ndeed, I accept that every
state, including the State of Israel, may determine for itself an immigration policy. Within this framework, it is
entitled to restrict the entry of foreigners (i.e., persons who are not citizens or immigrants under the Law of
Return) into its territory.” (emphasis added)).
norm,” in that its philosophical basis originated from God (and His covenant
with Abram).204 As the Supreme Court of Israel has the power to overturn the
laws and acts of the Knesset,205 the Supreme Court should overturn all official
Knesset declarations, executive decisions, and legislation which would hamper
the possible aliyah of any of the Falasha Mura who would qualify on an
individual basis.
In reference to the Falasha Mura’s “Return to Judaism,” the conversion to
Orthodox Judaism required under the Law of Entry, Professor Don Seeman
stated that Israeli authorities functioned as “religious gatekeepers,” noting “the
agents of the state construct plausible narratives of human motivation and
circumstance in order to determine who benefits, and how, from the protective
network of state and international law . . . .”206 As such, it is imperative that
such a “religious gatekeeper” paradigm not only apply to determine the “purity
of heart”207 of those who wish to re-convert to Judaism, but also to determine
the validity of the individual’s claim that she has never truly left Judaism by
her own volition. The traditional Orthodox Jewish response to penitents is to
show flexibility “so as not to lock the door before those who return . . . .”208 If,
in the process, many of the Falasha Mura who left Judaism for personal gain
subsequently re-convert and are let into Israel, the benefit of those few whose
valid birthright will be redeemed will outweigh all harms through the legally
unsurpassable value of affirming the Grundnorm of the state.
CONCLUSION
The common formulation of the Israeli Grundnorm—the tension between
the Jewish and democratic promises—should be considered trumped in all
matters relating to Jewish immigration by a de facto Grundnorm: an individual
Jew’s right to immigrate to Israel. In the case of the Falasha Mura, the State of
Israel’s policy mandating the absolute exclusion of all individuals deemed to
be members of the Falasha Mura community from the rights of an oleh under
the Law of Return is a clear violation of the de facto Grundnorm. In response
to this violation, the Supreme Court of Israel should void all government
204 See Genesis 15:18–20.

205 See Saed Bannoura, Israeli Supreme Court Judge Says Court Will Overturn Citizenship Law, INT’L
MIDDLE EAST MEDIA CTR., May 18, 2006, http://www.imemc.org/index.php?obj_id=53&story_id=18702.
206 Seeman, supra note 192, at 30.
207 Id. at 29.
208 DON F. SEEMAN, ONE PEOPLE, ONE BLOOD: ETHIOPIAN-ISRAELIS AND THE RETURN TO JUDAISM 257
(2009).
measures that prevent an eligible individual within the Falasha Mura

community from immigrating to Israel. While the author does not share the
following opinion, it is clear that there are heavy ideological issues at stake—
in the words of Michael Eitar, Minister of the Knesset: “Israel [does] not have
the right to exist if it tried to prevent the aliya[h] of Jews in distress.”209
DAVID D. DAY∗
209 Id. at 277.

∗ Executive Symposium Editor, Emory International Law Review; J.D. Candidate, Emory University
School of Law (2010); B.A., Dartmouth College (2007). The author would like to thank Professor Michael
Broyde for his help developing this Comment and the Emory International Law Review staff for their help in
editing. The author would like to thank the unbelievable Miss Abbey and his parents, Dana and Akiko, for
their love and support.

Day

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A NEW CONCEPTION OF THE ISRAELI GRUNDNORM: THE

BYU L. REV. 635 (1999).

358 EMORY INTERNATIONAL LAW REVIEW [Vol. 24

6 The Law of Return, 5710–1950, 4 LSI 114, § 2.

2010] A NEW CONCEPTION OF THE ISRAELI GRUNDNORM 359

unique spiritual dimension to a question normally confined to simple ancestral

Co. 1996) (1982).

themselves to be aliens in their own land).

360 EMORY INTERNATIONAL LAW REVIEW [Vol. 24

2010] A NEW CONCEPTION OF THE ISRAELI GRUNDNORM 361

European Jewry only became substantially aware of the potentially

available at http://www.dailybreeze.com/lifeandculture/ci_10179978; Anshel Pfeffer, Watchdog: State’s

L.J. 233, 244 n.69 (1999).

AND ETHIOPIAN JEWRY TO ISRAEL, 1987–1995, at 134–35 (2001).

362 EMORY INTERNATIONAL LAW REVIEW [Vol. 24

escape persecution, others to increase their social standing.38 Some of the

2008, available at http://www.haaretz.com/hasen/spages/973966.html.

2007, available at http://www.haaretz.com/hasen/spages/938789.html.

2010] A NEW CONCEPTION OF THE ISRAELI GRUNDNORM 363

suggested “most Ethiopian immigrants over the age of 35 go straight onto

Dec. 18, 2007, available at http://www.haaretz.com/hasen/spages/935824.html.

364 EMORY INTERNATIONAL LAW REVIEW [Vol. 24

go through a government-sanctioned conversion to Orthodox Judaism.59 Is this

I. EXTRATERRITORIAL JEWISH IMMIGRATION IS THE HIGHEST

59 Heller, supra note 30.

2010] A NEW CONCEPTION OF THE ISRAELI GRUNDNORM 365

366 EMORY INTERNATIONAL LAW REVIEW [Vol. 24

68 Schneiderman v. United States, 320 U.S. 118 (1943).

2010] A NEW CONCEPTION OF THE ISRAELI GRUNDNORM 367

amendments).77 Stating that there is a difference between agitation and calls

Taxation No Tyranny, 44 HOUS. L. REV. 1377, 1412 (2008).

HUTCHINSON, EVOLUTION AND THE COMMON LAW (2005).

368 EMORY INTERNATIONAL LAW REVIEW [Vol. 24

B. The theoretical structure of the Israeli Grundnorm is the tension between

85 ESTHER M. SNYDER, ISRAEL: A LEGAL RESEARCH GUIDE 5 (2000).

DEMOCRACIES ISRAEL AND THE UNITED STATES 25 (1976).

2010] A NEW CONCEPTION OF THE ISRAELI GRUNDNORM 369

Press 1962) (1844).

LAW IN ISRAEL 47, 51 (1996) (emphasis added).

370 EMORY INTERNATIONAL LAW REVIEW [Vol. 24

99 Elon, supra note 9, at 178.

145, 149 (Sanford Levinson ed., 1995).

2010] A NEW CONCEPTION OF THE ISRAELI GRUNDNORM 371

correct derivation of that state’s Grundnorm.104 However, as Zionism has

POL’Y 509, 514 (1997).

372 EMORY INTERNATIONAL LAW REVIEW [Vol. 24

was short-lived, as Jerusalem was sacked again by the Romans in 70 C.E.111

Goodman & Arthur D. Lewis eds., 1916).

2010] A NEW CONCEPTION OF THE ISRAELI GRUNDNORM 373

1917), available at http://www.mfa.gov.il/MFA/Peace%20Process/Guide%20to%20the%20Peace%20Process/

LOUIS D. BRANDEIS 155 (Hyperion Press, Inc. 1976) (1942).

374 EMORY INTERNATIONAL LAW REVIEW [Vol. 24

Semitism. Daniel Goldhagen’s controversial work, Hitler’s Willing

HOLOCAUST 597 n.1 (1996).

2010] A NEW CONCEPTION OF THE ISRAELI GRUNDNORM 375

135 The Law of Return, 5710–1950, 4 LSI 114 (1950–51) (Isr.).

HUM. RTS. L. REV. 45, 100–01 (2002).

Procon.org, Population Statistics, http://israelipalestinian.procon.org/viewresource.asp?resourceID=636#chart1

376 EMORY INTERNATIONAL LAW REVIEW [Vol. 24

Jewish inhabitants.142 Prime Minister Ben Gurion understood the demographic

D. The strength of the Jewish promise in the Israeli Grundnorm is so

2010] A NEW CONCEPTION OF THE ISRAELI GRUNDNORM 377