The Dynamics of Exclusionary Constitutionalism

What does Israel's definition as a 'Jewish and democratic' state mean? How does it affect constitutional law? How does it play out in the daily life of the people living in Israel? This book provides a unique and detailed examination of the consequences of the 'Jewish and democratic' definition. It explores how the definition affects the internal ordering of the state, the operation of the law, and the ways it is used to justify, protect and regenerate certain features of Israeli constitutional law. It also considers the relationship between law and settler-colonialism, and how this relationship manifests itself in the constitutional order.

The Dynamics of Exclusionary Constitutionalism offers a novel perspective on the Jewish and democratic definition rooted in constitutional theory and informed by a socio-legal approach. Relying on a wide range of court cases and statutes as well as secondary sources, the book shows how the definition is deeply embedded in the constitutional structure, and operates, as a matter of law, in a manner that concentrates political power in the hands of the Jewish citizens and excludes the Palestinian Arab citizens in Israel from the political process.

Mazen Masri's study is a timely intervention in an increasingly important question, and is essential reading for those who want to understand Israel's character, its relationship with the constitutional order, and its impact on society.

1. Introduction
I. Israel as a Jewish and Democratic State
II. The People and Their Constitution: Theoretical Approaches
III. Settler-colonialism
IV. The Argument in a Nutshell
V. Outline of the Book
2. A Jewish and Democratic State: Theoretical Justifications and Critiques
I. Introduction
II. The Ultra-nationalist Approach
III. The Nationalists of the Liberal Nationalists
IV. The Pragmatists of the Liberal Nationalists
V. The Liberals of the Liberal Nationalists
VI. Classic Liberal Approaches
VII. Critical Approaches
VIII. Conclusions
3. Locating the People in Israel: The Social Contract, the Basic Norm and the Beginnings of the State
I. Introduction
II. The People in Israel between Theory and Practice: Social Contract, Basic Norm and Nation
III. Beginnings I: The Declaration of Independence and the Colonial Encounter
IV. Beginnings II: The Declaration and the Constitution
V. Summary and Conclusions
4. Engineering the People I: Law and the Dissolution of the Native Population
I. Introduction: Immigration, Citizenship and the Numbers Game
II. The First Years (1948–52)
III. The Citizenship Law: Exclusion and Elimination by Other Means
IV. Summary and Conclusions
5. Engineering the People II: The Legal Foundation of Settler Citizenship
I. Introduction
II. The Law of Return: Jews-only Immigration Policy
III. Demography and Equality
IV. Summary and Conclusions
6. Drawing the Red Lines: Political Representation and the Jewish and Democratic Definition
I. Introduction
II. The Evolution of a System of Exclusion: From Yerdor to Section 7A of Basic Law: The Knesset
III. The Introduction of Section 7A of Basic Law: The Knesset and the Interpretation of Jewish and Democratic State
IV. Debating Section 7A: Settler-colonialism, the People and Defensive Democracy
V. The Jewish and Democratic Definition and the Elected Representatives
VI. Summary and Conclusions
7. The Constitution in Action: Constitution-making, Law and Governance
I. Introduction
II. The Jewish and Democratic Definition in the Process of Constitution-Making
III. Making Law: The Jewish and Democratic Definition of the State and Legislation
IV. The Jewish and Democratic Definition in Other Legislation
V. Conclusions and Summary

“What the author skillfully shows, with an impressive exposition of Israeli legal rationalizations, is how Israeli demographic concerns exerted a structural influence on lawmaking with respect to the differential rights of return enjoyed by Jews and Palestinians, as expressed in immigration laws and interpretations of citizen rights... Masri's contribution... offers a frightening template for how law can serve the purposes of injustice if deployed even by individuals endowed with subjectivities of goodwill yet pursued for the sake of unworthy goals.” –  Richard Falk, Journal of Palestine Studies

“The Dynamics of Exclusionary Constitutionalism is a welcome and long overdue contribution to Israeli constitutional scholarship, going far beyond the agonized hand-wringing of the “balancing” model.” –  Darryl Li, University of Chicago, I•CONnect