Netanyahu’s government is trying to replace the Palestinian population with Jewish settlers. That’s not some fictional replacement theory. They’ve been expanding the territory that Jewish Israelis are allowed to seize, squat on, and defend, against the prior Palestinian owners, settlers and communities. Nothing subtle about it.
Their so-called “justification” is that the land belonged to the Jews in Biblical times. But the land was owned, occupied and cultivated by others both before and after the Hebrew settlements. Biblical times were a sacred but historical blip.
If their “justification” were allowed, ALL of us, everyone, across the world, on every continent, lives and works on land once settled, owned, occupied, cultivated by some other group, who claimed it was blessed by their deity. That’s how the world worked. Property rights are historically recent. Native Americans have powerful claims. But to force present occupants off that ancestral land would invite chaos, war, mutually assured destruction. Far better to make sure they benefit from the universal principles proclaimed in the Declaration of Independence and the 14th Amendment – equal rights to life, liberty and property. Only that way can we respect everybody while keeping the peace. I deliberately said “benefit” – it’s insufficient to admit we screwed them before but they’re free to compete now that they no longer have the resources – land, property, tax base, or access – to compete. Colorblindness perpetuates old wrongs. But taking land based on ancient claims creates new ones.
American law provides rights to “quiet title” and “adverse possession,” designed to end property disputes and keep the peace. Without the notion that there needs to be an end, there is no end – no end to war, displacement, refugees, and murder. It’s got to stop. Israel has no rights created by Biblical times. And its moral claims as a people are completely undermined by its treatment of the Palestinians.
Louis Brandeis, whom lawyers remember as one of our greatest Supreme Court justices, also a founder of the American Jewish Congress, and a leader of world Zionism, understood. He believed Jews had the same right to a homeland as other nationalities. BUT he warned that Palestine must not be claimed by war but by purchase and settlement, “with clean hands ... [so] as to ennoble the Jewish people. Otherwise,” he added, “it will not be worth having.”[1]
It is fitting to quote a Jewish, Zionist, American Supreme Court justice on the rights of the population Netanyahu and his wrong-wing partners are trying to displace. They should hang their heads in shame, somewhere other than the Biblical lands of a people who lay claim to a strong moral backbone.
What does it mean to be a Jewish state? That people wear yarmulkas, prayer shawls, tefillin and the clothing Jews wore in Germany centuries ago? That they’re genetically related? Or does it mean obeying the Torah, the first five books of the Old Testament, which commands “Justice, justice, shalt thou pursue.” It’s not justice to drive innocent people out of their homes or to impose collective punishment for the crimes of individuals.
[1] Quoted in Unfit for Democracy: The Roberts Court and the Breakdown of American Politics 34 (NYU Press 2016).
Steve Gottlieb’s latest book is Unfit for Democracy: The Roberts Court and The Breakdown of American Politics. He is the Jay and Ruth Caplan Distinguished Professor Emeritus at Albany Law School, served on the New York Civil Liberties Union board, on the New York Advisory Committee to the U.S. Civil Rights Commission, and as a US Peace Corps Volunteer in Iran.
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