Editor’s note: Over the next week, Lawfare will be running a series of essays on federalist governance in the Middle East. This essay is the second in the series. Read the introductory essay here.
This is out there. It’s unrealistic. It’s a fantasy thought experiment. But it’s time to start talking about federalism in Israel—and ultimately in Palestine as well.
To be clear, I’m a two-state solution guy. I believed in the two-state solution before it was cool. I believed it in while it was cool. I kept the faith while others were busy losing it. And I continue to believe in it now that it’s decidedly no longer cool. I believe in it because I am sympathetic to the Zionist aspirations of Jews over more than a century, and I believe in it because I am sympathetic also to Palestinian national aspirations that have matured over the same time period. I believe in it because I believe that divorce is generally the best solution to a truly terrible marriage. The day we can get back to the negotiation of an equitable divorce arrangement for Palestinians and Israelis, count me in.
Indeed, I want to stress at the outset that I’m not writing this piece because I have given up on the two-state solution. I’m writing it because, to a great extent, the parties to the conflict have done so, or are in the process of doing so, and the conflict is thus drifting toward a one-state reality—either a one-state reality in which Israel actively incorporates the West Bank, as some of its politicians advocate, or a one-state reality in which the populations have become so intertwined as a consequence of the current stalemate that they become impossible to separate and the status quo thus becomes a permanent state of affairs. In either context, it strikes me as important to try to imagine the qualities and character of the state that will emerge. Will it be a state in which one ethnicity dominates another—the prospect that many people see in the recent passage by the Knesset of a new Basic Law on Israel as the nation state of the Jewish people? Will it be a unitary single state with bloc voting by ethnicity and religion? Or can Israelis and Palestinians be creative in designing structures that lower the stakes in what seem today like zero-sum disputes? And can we somehow enable this single state to express both communities’ national aspirations?
I want to stress something else at the outset too: I’m not delusional. There’s a known condition in the psychiatric literature called Jerusalem Syndrome, in which a person of previously sound mental health visits Jerusalem and experiences a religiously themed period of psychosis. These episodes are often accompanied by the perceived need to give a sermon at a religious landmark. There’s a related—related, at least, in my view—phenomenon in which outsiders to the Palestinian-Israeli conflict suddenly developing the delusion that they have some comprehensive plan to solve the unsolvable, to bring the parties both to their senses and to the table, and get done at long last “the deal.” Some who have suffered this diplomatic version of Jerusalem Syndrome have served at the most senior levels of American government. I suffer from Jerusalem Syndrome neither in its psychiatric nor its diplomatic form. I am not offering here any kind of peace plan, let alone a comprehensive one. I am fully aware that what I am proposing—as I said at the outset—is a kind of blue-sky fantasy that may well raise more questions than it answers. So consider what follows less of a proposal and more of a mood that might constructively guide us in a period of drift.
With those prefatory disclaimers, I think it’s time for a serious discussion of federalism, both in the context of the Israeli-Palestinian conflict and within the context of domestic Israeli politics themselves. I don’t mean federalism here in the sense that it’s sometimes used in the Israeli-Palestinian context, which is to say of some kind of confederation between Israel, the Palestinian territories, and—in some iterations—Jordan. I mean it in the far more ambitious sense of tearing up all internal borders within the combined territory of Israel and Palestine and carving the land up into a series of small and highly-autonomous provinces, cantons, or states—the specific terminology here carries symbolic importance to which I will return—unified by a national government empowered in the realms of foreign relations, national security, certain criminal enforcement, and human and equal rights protection. I am by no means the first to suggest this. A pair of articles in Ha’aretz in 2014 suggested carving up Israel into cantons as a way of handling internal divisions. Wrote Judd Yadid and Carlo Strenger:
Israeli cultural politics need not be a zero-sum game, imposing the values of one community over others. Solutions are to be found in countries like the United States, Switzerland, India and Spain. Just as U.S. states provide a framework for playing out America’s “culture wars” on a sub-national level, Israel’s cultural regions could create a more livable status quo. While the U.S. may dwarf Israel’s population and landmass, our cultural chasms are exponentially deeper. And just as the Swiss cantons afford their residents a high degree of autonomy in such areas as education, health and personal-status issues (including marriage), so should and can Israel’s.
Last month, writing in the Washington Post, former Foreign Service officer Daniel Hollander penned a short essay, entitled “Forget the Two-State Solution. Let’s Try Six” in which he floated the idea of a “a federalist, multistate solution.”
In this essay, I want to flesh out the idea that a federal Israel may offer an approach to Israel’s drift toward binationalism. In Israel these days, there’s a fair bit of talk of approaching the conflict on the basis of “two states, one homeland.” I want in this essay to explore the idea of this sort of deep federalism both as a more concrete expression of the concept and as a means of alleviating certain tensions within contemporary Israeli society more broadly. The idea here is not to replace either Zionism or Palestinian nationalism with some binational secular vision, but to try to imagine a governance system that might give reasonable expression to the aspirations of both historical movements.
The Current Dysfunction and the Alternative of Federalism
Thinking seriously about, and trying to engineer, the character of the emergent state in the territory of Israel and Palestine is important because some kind of one-state reality is, in fact, emerging. Whether this reality ultimately emerges out of a deliberate Israeli policy of annexation or, more likely, out of failure to keep the populations separate enough to maintain a viable two state option—the slow encroaching drift of the anti-solutionist status quo—is less important than the fact that every passing year makes the two-state solution harder to achieve and thus makes some form of one-state governance more likely, whether one-state governance on the basis of domination or one-state governance on the basis of equality. Is this trend reversible? Sure. But it is the glide path on which the parties find themselves, and you wouldn’t put even money on their changing course. The reason is two-fold: dysfunction on the Palestinian side, and dysfunction on the Israeli side.
Any two-state solution requires execution, that is, tough decisions by leaders in both communities. It requires political risks. It requires leaders to join together, hold hands, and jump. On the Israeli side, the current government has no appetite for the two-state solution; many members of the government don’t even pay lip service to it. As the recent passage of the Israeli nation-state law shows, the current Israeli government is far more interested in defining the exclusively Jewish character of the current state than it is in yielding up sovereignty over any territory it controls. While the current government has at time shown caution about settlement building—despite its right-wing character—it has certainly continued settlement building and construction in Jerusalem that makes any eventual Palestinian state ever-less viable and ever-harder to envisage. There seems to be no prospect of this government’s replacement with one that would be committed to making a serious go at resolving the conflict on a two-state basis. The prospects of a government that would aim to freeze the conflict in place by preventing the outward growth of settlements and thus preserve the possibility of a two-state deal sometime in the future seems only somewhat more likely. The Israeli public has drifted perceptibly to the right, and the country’s commitment to the two-state outcome has dimmed accordingly.
The dysfunction on the Palestinian side is even worse. The Palestinian leadership is split between Gaza and the West Bank. On the West Bank side, it’s weak and corrupt and lacking in legitimacy. On the Gaza side, government is the province of a vicious and tyrannical terrorist group that actively targets civilians and treats war crimes as standard rules of engagement.
In other words, while large numbers of both Palestinians and Israelis still support a two-state solution in principle, the leadership of neither side is either able or willing to get there. This level of dysfunction on either side alone would be enough to preclude a two-state deal. The dysfunction on both sides—which is mutually reinforcing—all but guarantees that for the foreseeable future, progress will be incremental and set against a larger pattern of drift. That drift has been—and will, I suspect, continue to be—toward a reality in which separation is ever harder.
We tend to think about Israeli-Palestinian negotiations in the language of peace treaties. This flows from the two-state model; if you’re establishing the relationship between two separate sovereign states, you tend to think the language of international negotiations. But if you suspect, as I do, that neither party has either the will or the political capacity to effectuate that separation and we are thus really discussing the emerging qualities of a single state that will govern two peoples, a different vocabulary for the negotiations comes to mind: that of constitution writing.
One dirty little secret of the Palestinian-Israeli conflict is that the difference between the one-state solution and the two-state solution is at least a little bit less than meets the eye. Two states, after all, does not quite mean two real states. One state would be demilitarized; it would be entirely dependent on the other economically; and it would have certain other de facto or de jure limitations on its sovereignty. It would not be territorially contiguous. Palestine as imagined in the abortive attempts to birth it from the Oslo process—even in the Palestinian versions of the outcome—is an entity with all the symbolism of real statehood but something less than the reality of it.
Conversely, the one-state solution cannot plausibly mean one unitary—in the sense that Israel is now unitary—binational state with a roughly equal number of Israelis and Palestinians each voting for the same representative institutions that Israelis vote for. This is a recipe for the worst sort of ethnic politics and majoritarianism. There is simply no history of such countries functioning well or staying together without federalism. The zero-sum nature of certain ethnic goods—the symbols of the state, for example, land use issues, control of a national education curriculum, and control of the army most notably—make a unitary state in this context an extremely fraught proposition. For an example of just how fraught, one need only look at Lebanon, Israel’s neighbor to the north, which has struggled with the politics of confessional balance since its independence and has remained a weak and divided state throughout its entire history—one that saw a lengthy and bloody civil war.
It is the desire to bridge this gap that has produced the many proposals for some kind of confederation between Israel and Palestinian controlled areas. In these discussions, the nature of the confederation in question is almost always underdeveloped as a concept, and it’s also nearly always focused on enclaves and borders as they currently exist—with whatever adjustments negotiators might make to them. This form of confederation represents an intellectual attempt to grapple with the fact that the Palestinian areas will, in fact, be something less than a full state, particularly in relation to the very powerful Israeli state. It thus doesn’t alleviate problems like borders, Jerusalem, or regional, ethnic, and religious diversity. It merely renames them. The map is still left with an Israel, a West Bank, and a Gaza, and the problems with any Palestinian state one might create still remain. A confederation requires not merely a resolution of those issues that both sides can sign onto but an additional agreement about some degree of joint governance between the resulting entities.
My point here is that if we are on a glide-path to some kind of one-state reality, either de facto or de jure, we have to ask ourselves what the democratic and institutional qualities of that one state will be. Will it be a single state in which a majority of Palestinians will have no right to vote and live as a subjugated people, with some form of limited autonomy? Will it be a crude expression of majoritarianism? Will it be a kind of fake state dominated by a real state with an overlay of confederation? Or is there some more imaginative vision of a single state’s constitutional arrangement that might offer more hope of satisfying both Jewish and Palestinian national aspirations?
It is possible, I believe, to imagine a different model of federalism, a more radical and ambitious one than the various confederation models put forth—one that offers equal rights to Israelis and Palestinians, one that would alleviate some (though not all) of the most difficult issues that define the conflict, and one that might also alleviate some intra-Israeli and intra-Palestinian tensions. This model, I want to stress, does not answer all questions. It is not a peace plan. It is just a way of thinking about the construction of a one-state reality if Israelis and Palestinians prove unable to effectuate a meaningful separation.
The structure I am suggesting here is highly alien to the nature of the Israeli state, which is resolutely unitary. Many decisions that in the United States belong to state and local governments in Israel are decided at the national level. This is partly because Israel is small, and we tend to think of federalism as a structure for managing big states. But it’s also a matter of choice and design. Switzerland is just as small as Israel is but it works entirely differently. Federalism can also work as a tool for managing ethnic divisions within diverse countries; this is the role it plays successfully in countries like Canada and India. By elevating issues like education and land use to the national level, Israel makes the stakes in unitary national elections extraordinarily high. One key to creating a sustainable one-state reality might be to lower those stakes by giving Israelis and Palestinians—religious and secular alike—a great deal more local autonomy and reserving fewer matters for national resolution.
An Overview of Federalism in Modern Israel
Before sketching out what such an arrangement might actually look like, let’s take a look at just how unitary the Israeli state is and contrast it specifically with the United States, which divides sovereignty between a national government of limited powers and state governments with general police powers. Those state governments then grant a great deal of authority over matters like education and land use to localities.
By contrast, Israel has no states. And its local governments have no explicit constitutional existence at all. There is no mention of local government at all in Israel’s Basic Laws, which function as its working constitution. Despite attempts at comprehensive reform of the legal framework that governs local government, including discussion of proposals for a Basic Law that would address its constitutional role vis á vis the central government, local government remains regulated by a patchwork of ordinary legislation, largely dating back to the British Mandate.
On the spectrum between wholly centralized government and decentralization á la American federalism, Israel is much closer to the former. But owing to the direct interaction between municipalities and those they govern around the various services they provide, along with Supreme Court case law that has empowered municipalities to regulate certain key aspects of public life, local government in practice plays a somewhat larger role in Israel than it may appear just looking at the law on the books.
The conventional expression of the relationship between central and local government in Israel, often articulated in case law and in the literature pertaining to local government, has been that local authorities are administrative branches of the central government that enjoy limited autonomy. For example, in 1992, the Ne’eman Public Commission report on local government spending described local government as follows:
A local authority is the “creation” of the central government. It is the central government that determines its roles and authorities, and accompanies it in all its decisions and activities. In practice, local government is financially dependent on the central government and serves as its arm, with some degree of autonomy.
As a consequence, local government law in Israel is a sub-category of administrative law, rather than a wholly separate discipline. Municipalities are subject in principle to the same constitutional and administrative obligations that apply to the central government. The court system is hierarchical in the sense that no region within Israel’s legally recognized jurisdiction has an independent court system. The police force is national.
The legislative framework governing local government in Israel grants the central government intrusive oversight powers over the administration of municipalities and local authorities. The Minister of the Interior, for example, exercises a large measure of control over local authorities’ officials, budget and policy. The minister’s authorities include, among others:
- The authority to create and dismantle municipalities and to redefine their borders;
- The power to terminate local officials, including elected officials, to appoint local officials, and to require new elections;
- All bylaws promulgated by local authorities must be reported to the Minister of the Interior, who may then intervene and even strike down local measures;
- The Minister of the Interior approves the budgets of local authorities;
- The Ministers of the Interior and the Treasury may audit local authorities and intervene in their financial dealings if they find that they are not managing their finances properly.
While local authorities provide a variety of services to their residents, ranging from business licensing to planning and construction, health, education and even religious services, the framework for those services and their financing are largely dictated by the central government. For example, planning and construction policy is highly centralized—local planning and construction committees are subordinate to regional and national committees. Public health services are provided under the National Health Insurance Bill. The Ministry of Education determines the content of the core studies program that most Israeli schools are required to provide and even issues teachers their paychecks—though the curriculum varies in practice considerably between municipalities.
The central government also plays a major role in funding municipalities. Among other types of financing, the vast majority of Israel’s municipalities receive “balancing grants” from the central government to bridge gaps between their income and expenditures. At the same time, the central government has limited municipalities’ authority to impose taxes. In response to the inflation crisis that plagued Israel in the 1980s, the central government introduced legislation designed to substantially limit municipalities’ authority to collect municipal taxes and achieve greater uniformity among the different local authorities with regard to municipal taxes. Prior to this reform, municipalities regularly compensated for deficits in their budget by raising municipal taxes. The reform also limited the authority of municipalities to hand out tax breaks, responding to problems of corruption and lack of transparency in the way tax breaks had been handled (the history of the municipal tax reform and its aims are discussed here, at paragraphs 19-20, in Hebrew).
The situation is a little more complicated than this stark presentation might suggest. Indeed, both the descriptive and normative foundations of the conventional wisdom about the relationship between central and local government have been challenged.
As a descriptive matter, Israeli public law scholars have challenged the claim that local government is no more than a subordinate, limited arm of the central government. They have argued that despite what the law on the books seems to suggest, local authorities actually enjoy quite a lot of autonomy in practice and have a substantial impact on substantive public policy. For one thing, some have argued (see p. 57), the central government lacks the resources and manpower to actually exercise the kind of oversight that the statutory framework allows it to exercise over all of Israel’s municipalities.
Moreover, scholars have documented de facto delegation of key public policy issues to local authorities. At times, this delegation results from failure on the part of the various factions of the central government to agree on a national policy in certain areas. The result is that one area in which local authorities have had a key role is in the regulation of local conflicts between state and religion. For instance, municipalities have set their own rules regarding the operation of local businesses during the Sabbath, taking into consideration the religious inclinations of the local population. Over the past year, the Supreme Court, the Knesset and a number of municipalities have been tussling over this, with the court approving a Tel Aviv bylaw allowing certain business to open on the Sabbath, the Knesset passing legislation in response requiring approval from the Minister of the Interior for such local ordinances, and some municipalities seeking to pass similar bylaws before the new law goes went into force. The matter appears headed back to court now.
Another similar context in which local authorities have been consequential is the controversy over the sale of non-kosher meat, a highly contentious issue in Israel because of the religious and symbolic significance of non-kosher meat in Jewish tradition and history. In 1954, the Supreme Court held that a municipality lacked the authority to deny licenses to businesses that sell non-kosher meat, reasoning that balancing state and religion is a task for the central government. A similar decision struck down bylaws promulgated by local authorities that prohibited the sale of non-kosher meat. The Knesset responded by passing a broad authorization bill that empowered local authorities to ban the sale of non-kosher meat, essentially delegating the regulation of this issue to local authorities. In a landmark Supreme Court decision (See HCJ 953/01, Solodkin v. Minister of the Interior, 2004), the Court upheld this delegation but held that the exercise of the authority to ban the sale of non-kosher meat should take into account the composition of the local population. If most of the local population opposes the sale of non-kosher meat, the municipality may prohibit its sale. If there is little objection, it may not do so. In localities where the positions of the residents are mixed, the Court held, local authorities should be guided by the principle of proportionality and see to it that those who want to purchase non-kosher meat would have reasonable access to an establishment where they can do so.
Finally, the Supreme Court has recognized that in certain contexts, local authorities may actively oppose the central government’s policy. For example, in one of the landmark judicial decisions concerning the authorities of local government (HCJ 2838/95, Greenberg v. The Katzrin Local Council, 1997), the Supreme Court held that a local authority is allowed to use its resources to launch a political campaign against a potential Israeli withdrawal from the Golan Heights. The Court reasoned that a local authority may launch a political campaign against national policy in cases in which it would be directly affected by that policy, as it would in the case of Katzerin. Justice Levin noted (see paragraph 7) that,
[t]oday, the local authority functions as a quasi-political community, assuming a wide variety of functions, reaching beyond the functions traditionally associated with municipalities and local government. The control exercised by the central government in Israel is weaker than is commonly assumed.
(Note that Justice Levin’s opinion provides a useful historical overview of the development of local government in Israel.)
Later on, in another case (HCJ 10104/04, Peace Now v. Yossef, 2006 (Hebrew)), the Supreme Court largely reaffirmed Greenberg and held that local councils in the West Bank were allowed to divert resources to organizations that campaigned against the Gaza disengagement plan. The Court also held, however, that any funds diverted for that purpose should be deducted from the government aid provided to the local authorities involved in that campaign.
From a normative point of view, the advantages of preserving a measure of autonomy for local government have received attention in both case law and legal scholarship. Those supporting increased local government autonomy have emphasized the role of the democratically elected organs of local government (like mayors and city councils), its proximity to voters, its expertise in local matters and its ability to recognize and respond to developing needs in dynamic local environments. Some authors have even advocated for a reassessment of the balance of power between central and local government in Israel that would better reflect the advantages of local government. Among other writers, Tel Aviv University Faculty of Law Professors Yishai Blank and Issachar Rosen-Zvi have called for local government reform that would replace the existing statutory framework (which, they argue, views local authorities as inefficient and often corrupt conduits for the central government’s policies that need to be tamed) with a new approach that would afford more weight to the democratic virtues of municipalities.
In sum, while it is inaccurate to say that Israel’s government is entirely centralized and there are important policy areas where local government has taken the lead, the Israeli state remains a highly-centralized body, one with pockets of local autonomy that are, well, pockets.
Imagining a More Federal Israel
Let’s now enter the realm of fantasy and imagine a far more federal Israel. Let’s start by erasing the Green Line, which has moral significance only if one is trying to separate the Palestinian and Israeli populations and create borders between states. After all, the Green Line is nothing more than the cease-fire line from 1948, the place where armies happened to stop. Jewish and Palestinian families and communities both straddled it. The line reflects nobody’s considered judgment of how one would best design governance units. If one were thinking from scratch, nobody would draw a line that looks anything like it. Thinking federally allows us to do something much closer to thinking from scratch.
So let’s imagine instead a series of self-governing enclaves, each with the same constitutional powers as one another—broad authorities over education, local land use, issues of religion and state, taxation, and service delivery. Some of these enclaves are majority Jewish; some are majority Palestinian. Some are almost exclusively one or the other; some may be very mixed. Depending on how the internal lines are drawn, there might be a few of these enclaves or there might be many of them. They might vary in size or not. (It is also possible to imagine these enclaves as having differential powers, what some scholars term asymmetric federalism, but let’s imagine the federalism, at least for now, as symmetrical.)
The terminology here is important. To call these enclaves “states” might raise hackles in a part of the world where the terms “Jewish state” and “Palestinian state” connote fully independent sovereigns and expressions of national ambition. Palestinians have long feared “cantonization” of the West Bank, so we need to avoid the Swiss terminology. So let’s adopt the Canadian term “province” as a useful placeholder term.
Dividing Israel and the West Bank (let’s leave Gaza aside for now) into provinces with equal and symmetrical constitutional authorities would immediately alleviate certain of the most vexing issues in the Palestinian-Israeli conflict. For one thing, it would eliminate the problem of the external borders of the state, replacing it with the question of the internal borders of its provinces. While that latter question would be a dicey one across a great many axes, the question of what province you live in in the context of a state that guarantees equal rights is at least a somewhat less heavy question than that of what country you live in. Without underestimating at all the challenges of drawing these internal borders, therefore, it’s plausible to imagine that they would be at least somewhat less fraught than the challenges of drawing borders to separate Israel from Palestine.
A federal Israel could also solve a chunk of the problem of Jerusalem. Jerusalem could be the capital of the national entity. Municipal Jerusalem could also be a very mixed province within it. Jerusalem Palestinians have, as a group, refused to vote in municipal elections since the annexation of the city. A self-governing Jerusalem province that was the capital of a national entity might provide a framework for their inclusion in the state and their involvement in municipal politics that they have long boycotted and that has ill served them.
The approach could also substantially alleviate the problem of settlements. In a two-state model, after all, settlements either have to be dismantled or borders need to be adjusted in order to accommodate their permanence. In a federal model, by contrast, it’s possible to imagine what would amount to Jewish neighborhoods or villages in Palestinian-majority provinces—just as there would be Palestinian villages and cities in Jewish majority provinces. Continued development of these communities would be subject to provincial law and government, just like any other community in the province, and the residents would be protected by strong national central enforcement of equality rights.
One could also imagine a more federal system’s ameliorating some of the fierce sectarian politics within Israel proper, politics that have analogous tensions on the Palestinian side. Right now, control of certain Israeli ministries comes with immense power to allocate money and goods to favored communities. The result is a kind of spoils system in which, for example, religious parties distribute money to their school systems, the housing ministry invests in housing for specific types of groups, and Bedouin communities in the Negev have violent clashes with the government over local building restrictions in their communities. A principle of letting Tel Aviv be Tel Aviv, letting B’nei B’rak (a uniformly religious community nearby) be B’nei B’rak, and letting Umm Al Fahm (a Palestinian Israeli city in the North) be Umm Al Fahm might have a lot to recommend it in reducing the stakes in who controls the national functions of the state. It could also reduce the problem of the neglect of the periphery; the center of gravity of Israeli society is the wealthy coastal plane and the area between the coast and Jerusalem. The country’s North and South tend to get left behind. Giving those regions more autonomy and budgetary and governance authorities will make them less dependent on a central government for which they are often not the focus of attention.
Finally, a more federal Israel would reduce—though certainly not eliminate—the pernicious politics of demography in the state. Right now, Israelis and Palestinians alike worry about birth rates and immigration as an expression of political power. Jews worry about maintaining a Jewish majority in the areas controlled by Israel, as Palestinian birth rates eclipse Jewish reproduction. Secular Israelis worry about maintaining a secular majority, as ultra-Orthodox birth rates eclipse secular reproduction by an even greater margin. Palestinians worry about Jewish immigration under the Law of Return, and Israeli Jews are dead set against any reciprocal recognition of a Palestinian Right of Return. The demographic politics are so ugly, in part, because the stakes are so high. Only one vote—the vote for the Knesset—ultimately controls both a demographic spoils systems and the power to define the nature of the state. Contrast that with Canada, where cultural policies in Quebec are genuinely and radically different from policies elsewhere in Canada, or the United States, where Nevada chooses to have legal prostitution and Utah tightly regulates alcohol and criminal law varies widely among the states; the stakes in national elections, for cultural and religious purposes, are consequently far lower. Spread the power to govern around a bunch of different Israeli provinces, and allow those different communities to be dramatically more self-governing, and you potentially lower the stakes in Israeli demographic wars too. The reason is that you make it less threatening to be a minority. Being a minority at the national level is less of a burden when you’re simultaneously a governing majority in the community that actually governs your day-to-day life.
The Problems Federalism Does Not Solve
There are, of course, also major problems between Israelis and Palestinians that a federal model simply does not address—and some that it actively creates. As I noted above, while it eliminates the problem of external borders, it creates a problem of internal borders. Some provinces could be easy: creating a province out of the Golan Heights, for example, would give autonomous government to thousands of Druze and a few Jewish communities at the expense of nobody. On the other hand, the creation of many provinces would be tough and would require line-drawing that involves the definition of political communities and coalitions. The risk here is gerrymandering and the picking of winners and losers. A province that includes both Tel Aviv and B’nei B’rak, after all, is a very different animal than are two provinces that separate them. The drawing of internal borders would thus praise profound and challenging questions: Is the goal to engineer autonomous Jewish and Palestinian provinces, and autonomous religious and secular enclaves of both communities, and to thus entrench and give voice to existing identity categories? Or is the goal, conversely, to create communal blends that force coalition-building across sectarian, ethnic, and religious lines? Or is the goal to do one thing in some communities and another in others?
A federalist Israel would also have to struggle with the delegation of powers between the regional and national governments. The more ambitious the federalism, the more it would necessarily involve denuding a powerful central state of authorities that constitute the source of its power. That’s a wrenching process, particularly in a country that has a paternalistic governance tradition going back to deep socialist roots. Israel is not the United States or Switzerland, where federalism emerged from existing states banding together to create a national pact; it is a country where federalism would have to emerge from a powerful central government’s willingness to be less powerful. That’s a tough sell.
Another hard problem would be the protection of individual rights within the context of provinces that might be quite illiberal or have deep splits. A B’nei B’rak province would not be a pleasant place, for example, to be non-Sabbath observant. And a Hebron province dominated by Islamist fundamentalists would be a highly uncomfortable place to be a member of the Jewish settlement enclave that is currently protected by a heavy military presence in the city. This problem already exists to some degree, and it’s actually mitigated by the power of the central government. Reduce that power and empower instead those local communities, and we can expect it to worsen—and to require mechanisms of active alleviation. We can probably also expect some degree of self-sorting of a type we have already seen. Jerusalem today is far more religious than it used to be, for example.
Related to all of these issues are certain broad challenges a more federalist Israel would have to face, challenges that go directly to the nature of the Israeli state itself. One is the governance of security. At the macro level—and this is a deep challenge—a truly federalist Israel which granted equal rights and obligations to all of its citizens necessarily would mean a binational army, which is simply unthinkable for many Israeli Jews. Importantly, however, this is not a creature of a federalist Israel per se. It’s unavoidable in any one-state reality that isn’t going to be a deeply undemocratic expression of Jewish rule over a large non-voting, non-Jewish minority (or even majority). It would be theoretically possible, of course, to maintain the current system of exempting Palestinian citizens of Israel from compulsory military service, but it would be hard in the long term to square such a policy with the larger structural ambition of creating provinces of symmetrical powers composed of citizens of equal rights. Exempting 20 percent of the population from military service, after all, is a different animal from exempting half of it.
In addition, federalism creates a question of local policing that a binational unitary state does not face. Who is responsible for criminal enforcement within the provinces? And most particularly, who is responsible for protecting local minorities from oppression by their provincial leaderships or the majority members of their communities? For federalism in an Israeli context to have a hope of success in not devolving into a patchwork of crude and corrupt local majoritarianisms, it seems to me that the national government would need to retain strong enforcement powers at least over anti-corruption and individual rights protection.
This problem of the governance of security has a particularly acute manifestation in the specific problem of the competing necessities of preventing terrorism and allowing freedom of movement between the provinces. In any functioning democratic polity, after all, people can move freely between jurisdictions. Yet asking the residents of Israel proper to accept free movement of Palestinians from the West Bank—let alone Gaza—for labor, visitation, or residence is the toughest of tough sells. Terrorism has been a long-term reality of Israeli life and controlling Palestinian movement is one of the key tools available to the Israeli state in managing it. Moreover, Israelis would reasonably worry about flight into Israeli provinces by Palestinian economic migrants. Why would one live in an impoverished village in the West Bank, let alone in Gaza, if one has the right to life in Haifa? The flip side of this problem is no less fraught. No Palestinian would regard a state that did not allow freedom of movement as one that took equality seriously.
Finally, a more federalist Israel faces the broad problem of the challenge federalism inherently poses to the modern Zionist ideal—an ideal that receives expression in the symbols and name of the state itself. The power of the centralized Israeli state is partly a function of the fact that the Israeli state was a deliberate engine for forging identity. And the identity it aspires to forge—itself a highly contested question—is imagined by virtually nobody as an organic expression of the regional diversity of a collection of provinces, some Jewish, some Palestinian, some religious, some secular, and some mixed. A federalist Israel would thus face not only the very tangible question of representation in and domination of the residual national institutions of the state, but also the question of those symbols. Is the state in question even called Israel? Does it have a flag with a Star of David? Is its national anthem “Hatikvah”? That is, a federalist Israel would face the question of in what sense is it meaningfully a Jewish state at all—a question that is currently roiling the Israeli political system. These are questions, of course, inherent in any drift towards binationalism. But they arise acutely in the federalism context because the outcome would have to be engineered, not reached by passively following the path of least resistance. This point has its mirror image on the Palestinian side. Palestinian nationalism has never aspired to a political system of shared power in a federal mosaic with Zionist-dominated entities. In its secular forms, it has imagined an ethno-nationalist state; in its religious forms, it has imagined an Islamist state. A federalist Israel would require major ideological adjustments for both communities.
Seven Principles of Federalism in Israel and Palestine
It is important not to underestimate the magnitude of these challenges. It is also important, however, to realize that, in meeting them, Israel has certain strengths to bring to the table. For starters, it is a highly functional state with a particularly high-functioning legal system, including a first-rate judiciary. This judiciary has a developed tradition both of balancing the democratic will of the majority against the needs of minority communities and also of balancing the desires and norms of local communities against the rights of individuals. While the Israeli judiciary—and the High Court of Justice, in particular—is controversial within contemporary Israeli society and its role is actively the subject of political contest, it remains a relatively empowered set of institutions that already, to some degree, plays the roles it would have to play in a more federal governance structure.
Moreover, because Israel is a highly functioning state, it actually can arrange and implement governance reforms on its own, without negotiating with anyone. That is, we have the possibility of gradualism here. Unlike a peace deal, which has to be negotiated in a major set of agreements, Israel could establish some of the governance structures I’m describing here within the Green Line first, and then admit new provinces at a later date if and when the structure provides an attractive mode of governance that Palestinians would actually wish to join. One could imagine, in other words, a federalist Israel developing over time, starting with a series of domestic reforms and with provinces in the West Bank being absorbed over time. The particularly thorny problem of Gaza could be deferred for a much longer period of time. This approach has some potential to mitigate the now-dicey problem of Palestinian governance too; it’s much easier to design a functional small-area provincial government, after all, than it is to create and make functional an entire state.
From this very long windup, let me now distill what I think are seven basic principles of a federalism that might plausibly constitute a stable, democratic governance equilibrium for a one-state reality.
- First, each province has the same rights and authorities. We are not talking about limited regional autonomy, in which the Israeli state delegates—or subcontracts—some powers to a Palestinian autonomous region. The Nablus province has to have the same governance powers as the Tel Aviv province. (One could imagine a form of asymmetric federalism having application here—for example, giving certain provinces specific constitutional functions with respect to sites and populations within them. Think of the unusual authority, for example, that Canada allows Quebec to protect French language and culture. This approach might make the ultimate incorporation of Gaza into the country more conceivable. But by and large, provincial functions need to be sufficiently symmetrical so as not to give rise to anxieties about privileging one community at the expense of another.)
- Second, every citizen must have equal rights under provincial law in every province.
- Third, every citizen must have equal rights under national law.
- Fourth, the national government must constitutionally guarantee a democratic form of government at the provincial level.
- Fifth, the national government must be ultimately responsible for the enforcement of individual rights within the provinces, so that the provinces don’t—in secular areas—ban religious expression in a French-like fashion or—in religious areas—impose religious law in a fashion oppressive to secular minorities.
- Sixth, beyond that, a federal Israel would have to tolerate radical local autonomy—provinces that may be quite Islamic, provinces that may be Ultra-Orthodox Jewish, provinces that may be radically secular, and provinces that may be deeply mixed.
- Seventh, the national government should constitutionally be empowered in the realm of national security, anti-corruption, and individual rights protection.
In closing, I want to say a word about how one might think about implementing federalism in Israel-Palestine. Specifically, it is important not to think about it as a peace plan or a matter of negotiation between Israeli and Palestinian interlocutors. For federalism to be attractive, it has to be attractive as a means through which Israelis—Jewish, Palestinian, religious, and secular—can govern themselves. It must be self-justifying on those terms. The hope is that the creation of federal structures might also, probably later, offer a basis for voluntary incorporation of West Bank provinces into a vibrantly democratic and federal Israeli state. But the initial task is the creation of provincial structures that allow meaningful self-government for the diversity of the citizen population within the existing Israeli state—that is, the creation of state governance that gives meaningful expression to the national aspirations of a diversity of populations with radically divergent ideas of the nature and purpose of a state that exists within a tiny territory.