The Wheel of Law pdf

The Wheel of Law
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The Wheel of Law
INDIA’S SECULARISM IN COMPARATIVE
CONSTITUTIONAL CONTEXT
Gary Jeffrey Jacobsohn
PRINCETON UNIVERSITY PRESS
PRINCETON AND OXFORD
Copyright  2003 by Princeton University Press
Published by Princeton University Press, 41 William Street,
Princeton, New Jersey 08540
In the United Kingdom: Princeton University Press,
3 Market Place, Woodstock, Oxfordshire OX20 1SY
All Rights Reserved
Second printing, and first paperback printing, 2005
Paperback ISBN 0-691-12253-9
The Library of Congress has cataloged the cloth edition of this book as follows
Jacobsohn, Gary J., 1946–
The wheel of law : India’s secularism in comparative constitutional
context / Gary Jeffrey Jacobsohn.
p. cm.
Includes bibliographical references and index.
ISBN 0-691-09245-1 (cl : alk. paper)
1. Hinduism and state— India.
2. Religion and state—India. I. Title.
KNS2162 .J33 2003
323.44'2'095409045—dc21 2002024301
British Library Cataloging-in-Publication Data is available
This book has been composed in Janson
Printed on acid-free paper. ∞

pup.princeton.edu
Printed in the United States of America
3579108642
For
Vince Barnett
Dave Booth
Mac Brown
Jim Burns
Fred Greene
Kurt Tauber
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CONTENTS
Preface xi
Acknowledgments xvii
CHAPTER ONE
Introduction: Ashoka’s Wheel 1
PART ONE: Three Models of Secular Constitutional Design
CHAPTER TWO
Nations and Constitutions: Dimensions of
Secular Configuration 21
Three Constitutional Models: A Preliminary Account 25
Conduct 33
Belief 38
Ritual 44
Conclusion 49
CHAPTER THREE
Secularism in Context 54
The United States: Assimilative Secularism 57
Israel: Visionary Secularism 72
Conclusion 88

CHAPTER FOUR
India: The Ameliorative Aspiration 91
“The Good of the People” 95
“The State Shall Endeavor” 104
A Conversion of Convenience 111
Conclusion 119
PART TWO: Constitutional Perspectives on the
Challenge to Secularism in India
CHAPTER FIVE
Religion, Politics, and the Failure of Constitutional Machinery 125
viii CONTENTS
Demolition, Dismissal, and Democracy 129
Federalism and Republicanism 133
The Brooding Omnipresence of Basic Structure 138
A Secular State: The Basics 145
Conclusion 157
CHAPTER SIX
Corrupt Practices: Religious Speech and Democratic Deliberation 161
What Is Political Corruption? 163
Religion, Equality, and Constitutional Essentials 171
Corruption’s Conceptual Expansion 172
The Contemporary Challenge 176
Corruption: Process and Substance 180
Conclusion 185
CHAPTER SEVEN
Adjudicating Secularism: Political Liberalism or
Religious Revivalism? 189
Story I: Liberalism Ascendant 191
Story II: Liberalism Subservient 197
The Conflation of Hinduism and Hindutva 202

Hinduism as a Way of Life 206
Postscript for Story II 209
Story III: Jurisprudence 211
Problem-Solving 213
The Method of Sociology 216
Conclusion: Liberalism, Communalism, and Jurisprudence 221
CHAPTER EIGHT
So You Want a (Constitutional) Revolution? Lessons from Abroad 227
Revolutions and Their Constitutions 232
Judicial Revolutionaries 236
Revolutionary Possibilities 239
Constitutional Harmony 246
Judicial Finality 249
Teachers to the Citizenry 251
Reverse Images 253
Conclusion 262
CHAPTER NINE
Conclusion: Toward Secular Convergence 265
CONTENTS ix
Reconsidering Smith 268
Reinventing the Wheel 283
Bibliography 291
Index 311
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PREFACE
“RELIGION,” wrote Jawaharlal Nehru from a prison cell in 1944,
“though it has undoubtedly brought comfort to innumerable human be-
ings and stabilized society by its values, has checked the tendency to
change and progress inherent in human society.”
1

About a century earlier,
Alexis de Tocqueville, after traversing the United States to examine its
prison system, instead reflected on the place of religion in democracy.
“When . . . any religion has struck its roots deep into a democracy, beware
that you do not disturb it; but rather watch it carefully, as the most pre-
cious bequest of aristocratic ages.”
2
For both Nehru and Tocqueville, reli-
gion was a restraining influence on changes in civil society, which for the
Indian nationalist was a problem and for the French legislator a blessing.
Their common devotion to constitutional democracy led them to weigh
the political contributions of piety and spirituality quite differently.
This divergence is certainly understandable. As much as the transition
to democracy in Tocqueville’s America had occurred without a protracted
social struggle, in Nehru’s India prospects for democracy were directly
tied to a transcendence of social divisions entrenched over many centuries
as natural and just. If in some democracies religion has been attractive as
a potential ally of regime principles, in others it has had a distinctly more
adversarial relationship with the democratic way of life.
Religion is most threatening to liberal democracy where it informs na-
tional identity or permeates everyday life. In such places the problem of
religion is more acute, and the task of securing religious liberty more ur-
gent. How can courts that aspire to defend religious liberty meet such
challenges? We have a surer grasp over how religious liberty is protected
in societies where religion is fragmented and where its reach into everyday
life is relatively shallow. The project of defending religious liberty and
secular aspirations in a deeply religious society—India—is the subject of
this book.
1
Jawaharlal Nehru 1997, 511.

2
Tocqueville 1945, vol. 1.
xii PREFACE
How do constitutional design and interpretation address this question?
I strive for an answer by exploring some striking facets of the Indian
experiment in secular governance. Though the book focuses on India and
the constitutional dimensions of its commitment to secularism, I hope
these pages will contribute more broadly to a spirited discussion within
jurisprudential circles that centers on the constitutional essentials of a
liberal democratic polity. Accordingly, I have placed the Indian case
within a comparative trio that includes the United States and Israel, whose
contrasting experiences in secular constitutionalism support an analytical
framework that illuminates the complex political interface between spiri-
tual and temporal concerns.
Why the United States and Israel? Through a long scholarly engage-
ment with the constitutional systems in these countries, I have come to
appreciate the wisdom in Seymour Martin Lipset’s observation that “Na-
tions can be understood only in comparative perspective.”
3
Comparing
both of these polities clarifies each; adding yet a third country only further
enhances the images. But a more compelling reason—certainly more so
than my personal interests—lies in the specific analytical perspectives Is-
rael and the United States offer for enriching a comparative study of secu-
larism, targeting India as its principal player.
Religion in Israel, much like in India, presents such a formidable chal-
lenge to constitutional forms and aspirations that the failure (or at least
extended delay) to codify a formal constitution in the Jewish State stems
from the centrality of religious identity in defining the nation’s political
identity. No similar commitment to religious nationalism has obstructed

the development of India’s constitution, even if some voices in India con-
tinue to deem Israel a model worth emulating. Rather, the strongest reli-
gious contender in India’s bout with constitutional ideals has always been
Nehru’s professed fear that ingrained theological beliefs and practices will
complicate the movement to embrace democratic justice. India’s complex
secularism is, at its core, a commitment to major social reconstruction. If
this commitment is to be undermined, the source of its undoing will likely
be the politics of ethno/religious revivalism, rather than any explicit cam-
paign to defend historically sanctioned social privilege. Viewed compara-
tively, the model of a nation as a homeland for a particular people may,
as in Israel, comport with a genuine secular regard for religious freedom,
yet elsewhere, as in India, contradict the essentials of secular aspiration.
The American approach to the Church/State divide recalls its Western
roots in assuming that religion can be distilled from the public sphere,
though whether they should be maintained separately is still debated. This
contrasts sharply with the Indian setting, where, despite a similar call
3
Lipset 1990, xiii.
PREFACE xiii
for State neutrality toward the country’s various religions, a profoundly
different view prevails on the possibility, let alone the desirability, of rele-
gating the spiritual life to the private realm. Religion pervades both
places, but how deeply it penetrates the fabric of daily life has decisive
constitutional implications for the two polities. Thus in India, where faith
and piety are more directly inscribed in routine social patterns, judges
cannot avoid the perilous jurisprudential vortex of theological contro-
versy as conveniently as their American counterparts. The pressures on
them to establish which contested practices are essential to the belief struc-
tures of religious communities can be, and sometimes are, resisted. But
more frequently than American judges, Indian jurists in religion cases are

burdened by interpretive responsibilities that exceed their field of exper-
tise. Once again, these alternative perspectives underscore Nehru’s cau-
tion against religion’s regressive tendencies. The American comparison
reveals an important constitutional reality: liberal indifference to the sub-
stance of religious belief more readily thrives where social conditions are
less dictated by religion.
Undoubtedly, including additional examples would appeal to some
readers. Were my main objective to test specific hypotheses about secular-
ism and constitutional democracy, a larger field of comparison would be
necessary. I hope, however, that even these readers will ultimately value
what is essentially an interpretive work that comprehends the “compara-
tive context” of India’s secularism. As I have suggested above, only a
broader political context illuminates the qualities that distinguish, or at
least highlight, the Indian constitutional experience. But this context also
incorporates the extended cultural setting that moors a constitutional
document or arrangement. Such an attempt to discern a system’s constitu-
tional logic from its background social and cultural circumstances em-
bodies the Tocquevillian method. Tocqueville, however, did not explicitly
discuss methodology, a void we have since filled through greater self-
consciousness about the methods in our social science. Recently, for ex-
ample, the term constitutional ethnography has come to define an ap-
proach that relies heavily upon “thick” accounts of actual polities to
probe how constitutional systems function.
4
I do not view my work as
quite as anthropological as this term suggests, but I have pursued its pro-
cess in scrutinizing context to develop theoretical possibilities about the
trajectory of constitutional design and experience. Above all, I trace the
ways in which regimes’ founding commitments become encoded in their
constitutional schemes and, in turn, inform such fundamental issues as

the role of religion in politics and society.
4
The term has been developed by Kim Lane Scheppele, a constitutional scholar at the
University of Pennsylvania Law School.
xiv PREFACE
Evidence of these commitments abounds in all the obvious sources:
constituent assembly debates, testimonies of key participants in the work
of constitutional construction, Supreme Court opinions, and, of course,
the official texts themselves. However, understanding how founding prin-
ciples—idealized abstractions—apply to concrete constitutional scenarios
should not depend solely on evidence from the printed page. When
Tocqueville arrived in the United States to begin his famous nine-month
visit, he immediately noted the strong spirit of religion and its salutary
political impact for democratic prospects. This diverged from his experi-
ence in France, where religion and freedom were in great tension with
one another. “My desire to discover the causes of this phenomenon in-
creased from day to day. In order to satisfy it I questioned the members
of all the sects; I sought especially the society of the clergy, who are the
depositaries of the different creeds and are especially interested in their
duration.”
5
From these encounters, he learned that the “peaceful domin-
ion of religion” in the United States was attributable “mainly to the sepa-
ration of church and state.”
6
Intrigued, he continued to troll for the mean-
ing and characteristics of this separation.
Through direct contact with India’s constitutional culture, I have sharp-
ened my understanding of that particular nation’s secular vision. I have
spoken with judges, politicians, scholars, journalists, and academics

about many topics, including their involvement in the controversies dis-
cussed in these pages. Others have helped me to appreciate more fully
the points of contact between the Constitution and the broader political
culture. The cab driver in Mumbai, who was “honored” to deliver me to
an interview with the leader of the most extreme Hindu nationalist politi-
cal party in India, worshipfully referred to this leader as “the King of
India.” The architect in New Delhi, who, while displaying all the worldly
characteristics one has come to associate with the burgeoning Indian mid-
dle class, allowed me to see how devoted he and his family remained to
a traditional discipline of religious practice and belief. Some of the insights
inspired by these and other encounters are, admittedly, possible to glean
from prose accounts available in many local American libraries; but to
satisfy myself of their import for, and relevance to, an interpretive work
of constitutional analysis, I relied very heavily on firsthand experience.
The book is divided into two parts. Part 1 presents India’s model of
secular constitutional design within an analytical framework that incor-
porates the Israeli and American alternatives. The term alternatives may
be questioned, since it implies a degree of freedom in the choice of a secu-
lar model that may, given my emphasis on the variability of religion’s
5
Tocqueville 1945, vol. 1, 319.
6
Ibid.
PREFACE xv
penetration into social institutions and practices, be difficult to justify.
Whether religion is “thickly” or “thinly” constituted determines the op-
tions available to constitution-makers and reformers alike. However,
there are always choices to be made, even if they are limited by circum-
stance. For example, though what I term the assimilative model of Ameri-
can secularism may not transfer seamlessly to the Israeli or Indian envi-

ronments, aspects of American Church/State jurisprudence could benefit
places where religion and political experience differ from the United
States. Similarly, the American and Israeli cultures may not welcome the
wholesale transplantation of India’s ameliorative model to their respec-
tive shores, but each could selectively borrow ideas and approaches from
Indian jurists and politicians. Whether such comparative reflection on the
diversity of secular experience can spark creative thinking about optimiz-
ing the performance of constitutional democracies is by no means certain.
But I would like to think it could.
Among the challenges to secularism and constitutional democracy in
India, the political ascendance of forces identified with Hindu nationalism
has attracted worldwide attention. In part 2 I consider this threat through
the lens of several landmark cases in which the Supreme Court became a
dramatic venue for the ongoing struggle to legitimize the conflation of
Hinduism and Indian nationhood. These cases implicate two controver-
sial pillars of Indian governance—one constitutional (the Center’s [Cen-
tral Government of India] power to dismiss elected governments in the
states), the other statutory (the rules for conducting elections)—that ex-
pand the argument over Indian secularism to include current questions
hotly debated among political and legal theorists. Are there features of a
liberal political order so fundamental that they should be protected from
ever being nullified by constitutional amendment? Does such a regime’s
commitment to democratic deliberation require that it ban religious rhet-
oric, which can be seen to conflict with reasoned discourse, from the pub-
lic arena?
These questions do not necessarily spring to mind when we first con-
sider secularism in the modern State. Particularly for Americans, a more
obvious list would include such matters as prayer in the schools, financial
aid to religious institutions, and the display of sectarian symbols on public
property. India too confronts issues arising from specific constitutional

provisions on religion that I have not addressed in part 2: for example,
religious instruction in educational institutions funded by the State, main-
tenance of religious charities without governmental interference, and legal
protection for cows. Had I endeavored to write a comprehensive survey
of religion and law in India, these and other issues would warrant greater
attention. I focus on dismissing elected governments, using religious ap-
peals in electoral campaigns, and (in part 1) practicing polygamy, because
xvi PREFACE
these controversies prove unusually instructive in highlighting, often in
surprising ways, the animating principles of Indian secularism. These ex-
amples, moreover, each contribute to the evolution of liberal constitu-
tional theory, the primary goal of the comparative enterprise. In the end,
Tocqueville’s motivation to study the United States best expresses my sen-
timents about India: “It is not . . . merely to satisfy a curiosity, however
legitimate, that I have examined America; my wish has been to find there
instruction by which we may ourselves profit.”
7
7
Ibid., 14.
ACKNOWLEDGMENTS
THE WHEEL OF LAW has taken me many places. At each stop along the
way, I encountered generous people who gave direction to an ultimately
long and fascinating intellectual journey. Ten years ago, after completing
a comparative study of Israeli and American constitutionalism, I turned
my sights to India, a country whose unique experience with democracy
had always intrigued me but never been my scholarly focus. Confronting
the complexity of that country and its constitutional culture was a daunt-
ing prospect, which only heightened my appreciation for the advice and
assistance I received while developing this book.
A year’s residence at the Woodrow Wilson Center for International

Scholars was the ideal setting to begin developing many of the thoughts
that have found a place in these pages. The Center’s staff provided a won-
derful environment to encourage the best from its invitees. To perfectly
complement this year of splendid isolation (gratefully shared, to be sure,
with stimulating colleagues), a Fulbright research fellowship to India al-
lowed me to discover, in the only way one truly can, the disjunction be-
tween ideas that looked so promising on paper and the facts on the
ground. I am particularly indebted to Rajni Nair of the Fulbright staff in
India, who was committed to making my stay in New Delhi as productive
as possible. While in India, I had positive affiliations with Jawaharlal
Nehru University (JNU) and the Delhi University Law Faculty. JNU’s Ra-
jeev Bhargava, Zoya Hasan, and Gurpreet Mahajan were especially help-
ful in honing my understanding of the Indian political scene. Venkatesh
Prasad, a graduate of the law school at Delhi University, was an exem-
plary research assistant, whose knowledge of the law and passion for its
elucidation proved invaluable to me. I am also very grateful for the assis-
tance given me by Gowher Rizvi, head of the Ford Foundation in India,
who unsparingly placed the resources of his institution at my disposal.
Gratitude, too, should be extended to those in India, the United States,
Israel, and Canada who invited me to present my work at forums whose
members invariably offered valuable feedback. The South Asia Seminar
at Harvard University and its organizers, Pratap Mehta, Ashutosh Varsh-
ney, and Divesh Kapur, deserve special recognition for having asked me
xviii ACKNOWLEDGMENTS
to discuss my ideas with them on three separate occasions. These visits
gave me hope that I might have something useful to say to an audience
possessing vastly more knowledge of my general subject matter than I.
Special thanks to Paul Brass, whose intimate knowledge of Indian poli-
tics justified the skepticism in his initial reaction to my project, but whose
eventual advice and encouragement were all the more appreciated be-

cause it did not come easily. Amelie Rorty, Mark Graber, Mark Tushnet,
Russ Muirhead, and Michael MacDonald contributed sharp insights and
suggestions in response to different parts of the book. And three Williams
College students—Hilary Barraford, Nishant Nayyar, and Andrew
Woolf—provided superb assistance in preparing the manuscript. They af-
firmed for me why teaching at Williams is such a privilege, demonstrating
in different ways that learning between student and professor need not
be unidirectional.
My deepest gratitude, as always, goes to the Jacobsohn family—to my
wife, Beth, and children, Joseph, Matthew, and Vanessa—whose support
extended halfway around the world to a place where they had not asked
to go. My greatest satisfaction lies not in the fact that they went, but that
they are all the better for having done so.
A revised version of some of the material in chapters 2 and 3 appeared
in “Three Models of Secular Constitutional Development: India, Israel,
and the United States,” 10 Studies in American Political Development 1
(1996). A section in chapter 8 appeared in an article, “After the Revolu-
tion,” Israel Law Review (2000). Much of chapter 6 appeared in an essay,
“ ‘By the Light of Reason’: Corruption, Religious Speech, and Constitu-
tional Essentials,” in Nancy Rosenblum, ed., Obligations of Citizenship
and Demands of Faith: Religious Accommodation in Pluralist Democra-
cies (Princeton: Princeton University Press, 2000). Permission to incorpo-
rate this material is gratefully acknowledged.
The Wheel of Law
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Chapter One
INTRODUCTION
Ashoka’s Wheel
IN 1989 THE United States Supreme Court considered the case of Gregory
Johnson, a young man whose fiery protest against the policies of the

American government became an occasion for reflection on the symbolic
significance of the American flag. The only thing that was certain about
Johnson’s defiant actions outside the 1984 Republican Convention, how-
ever, was that a cloth representation of some aspect of American identity
was incinerated in front of a number of passersby, including several who
were visibly outraged. Concerning the larger meaning of what was con-
sumed in the flames that leapt from a Dallas, Texas, sidewalk, much was
left in doubt.
For some, including Justices William Rehnquist and John Paul Stevens,
dissenters in Texas v Johnson, the flag was emblematic of American na-
tionhood and national unity; its desecration was therefore actionable re-
gardless of any message Johnson may have intended to communicate
through his act. Thus in the ashes that littered the space adjacent to the
convening politicians were the collective memories of a people, of sons
and daughters lost in war, and of the principles that gave meaning to their
sacrifice. But for others, notably Justice William Brennan for the majority,
these very principles—especially the “bedrock principle” of governmental
tolerance for offensive ideas—could be consumed in flames only if offen-
siveness were compounded by error, by misconstruing the symbolism of
the flag. Properly understood, the American flag represented the political
aspirations of a free people, whose forbearance in the face of extreme
and offensive provocation was the appropriate response to even the most
flamboyant of demonstrations.
1
1
In the parade of nations that traditionally opens the Olympic games, the United States
alone does not permit its flag-bearing athlete to dip the flag when he or she passes the head
of state of the host nation. This can easily be taken as a sign of disrespect; so it has become
2 CHAPTER ONE
This disagreement, and the intense emotions accompanying it, may ob-

scure the deeper unity embodied in these alternative symbolic renderings.
Both perspectives agree that the flag represents certain principles of Amer-
ican identity that, in turn, constitute the essence of what distinguishes
membership in the national community. Indeed, the emotions stimulated
by the sentiments of the first are linked to the intellectual content embed-
ded in the second, and are in the end mutually supportive of one another.
Thus locating the source of American nationhood in ideas and principles
necessitates a substantial reliance on patriotic symbol and ritual; while
the principles of republican government have the potential for generating
widespread formal support, for most people they are abstractions that
may require a more visceral evocation to strengthen political attachment.
Where bonds of unity do not flow naturally from such primordial attach-
ments as race, religion, or ethnicity, and are instead an inscribed extension
of the human imagination, the national symbol can be interpreted—per-
haps should be interpreted—in a way that joins memory and sacrifice to
reason and deliberation.
2
And so the burning of the flag produces two kinds of outrage: first, at
the seeming disregard for a shared past that has shaped the lives of all
Americans; and second, at a destructive act whose violence stands in ap-
parent repudiation of the “Republic for which it [the flag] stands.” The
flag’s shapes and colors reference national origins with its thirteen stripes,
and signify the essential meaning of the nation in the (now) fifty stars. If,
as has been often said, the United States was unique in its having been
founded on a set of political principles, it is also distinctive in the mutabil-
ity of the content of its flag. The addition of a new star to denote each
alteration of the physical boundaries of the country suggests (in theory at
least) that geography, rather than ascription, sets the salient parameters
of national identity. In the more recent past, the heightened correlation
of physical expansion, multicultural diversity, and inclusion underscores

this symbolism. Who one is should matter less than where one lives and
ultimately what one comes to affirm.
More important, there is nothing in the design of the flag that would
render its desecration offensive to any member of a particular group
necessary for American officials to explain that the refusal to participate in the simple ges-
ture is a matter of honoring the republican principles that are represented by the flag. How
convincing this is to the head of state who is witness to the display of principle is another
matter.
2
As Michael Frisch has pointed out, “In America, national identity is more political
than genetic, and thus the function of civil religion, which gives the country that identity, is
extremely important.” New York Times, December 16, 2000, A17. And as Sheldon Nah-
mod has observed, “However American civil religion is defined, the American flag is surely
one of its most powerful and dramatic national symbols.” Nahmod 1991, 537.
INTRODUCTION 3
within the larger “American” community. Someone, for example, who
chose to burn an American flag to express disdain for a religious group
would have a very difficult time being understood, unlike Gregory John-
son, whose gesture of defiance was relatively unambiguous in its purpose
of calling attention to policies he felt were immoral.
3
In fact, Johnson
might even have judged them to be so according to standards derived
from the very ideals represented by the American flag, in which case the
symbolic meaning of his act would have served a dual intent: the invoca-
tion of public philosophy to denounce public policy. On the other hand,
if the source of his anger were traceable, say, to his Christian beliefs, then
for his message to have been successfully conveyed, a further recourse to
words or symbols would have been required.
4

Of course, the burning of any nation’s flag usually means that the flag
burner is opposed to something that the nation is doing. But there are
other possibilities. The second most incinerated flag among the nations
of the world is likely that of Israel; here, however, motive is clouded by
the very different character of the national symbol. Is the flag burner pro-
testing Israeli policy on the Palestinian question or expressing ugly senti-
ments toward the Jewish people? For the skinhead in Chicago or Berlin,
the Star of David on the Israeli flag is the only stimulus necessary to pre-
cipitate an incendiary act of anti-Semitism. For the Arab demonstrator in
Cairo, the scorched flag doubtless reveals an intense hostility for the Zion-
ist entity to the east, which may also include some not very cordial feelings
3
Perhaps one notable exception: The burning of the American flag in some Muslim coun-
tries after the destruction of the World Trade Center in New York City can be seen as an
expression of solidarity with those who view the United States as the embodiment of the
contemporary Christian threat to Islam. Yet here too the act makes at least as much sense
as a gesture of rejection directed at modernity and the West, particularly the subversive
secular political ideas that these terms represent. As one observer, Scott Appleby, noted,
“[The Islamic radicals] would respect the U.S. more if we did not separate God from gover-
nance—if we were in fact a Christian state.” Newsweek, September 24, 2001, 68.
4
That is not to say that the desecration of the flag is without religious meaning. Indeed,
to desecrate is to profane, to violate the sanctity of something (that had been consecrated)
venerable. The dissenters in Johnson can reasonably be seen to have attempted to “sacralize
the flag.” Underlying their opinions is “the belief that our secular political community re-
quires patriotic symbols much as religious communities require religious symbols.” Nah-
mod 1991, 527. However, the effort to treat the American flag as sacred did not run afoul
of the Establishment Clause of the First Amendment, because, as Nahmod has pointed out,
it could not be associated with a preference for any particular religion. Ibid., 532. See also,
Goldstein 2000. Goldstein argues that, from the beginning, those involved in the flag protec-

tion movement “deliberately and systematically sought to create what amounted to a ‘cult
of the flag’ by ideologically transforming it into a sacred object to be treated only in a highly
reverential manner.” Ibid., 13. In like manner, Michael Welch has noted that “It is precisely
Old Glory’s venerated status that makes its destruction such a potent form of protest.”
Welch 2000, 10.
4 CHAPTER ONE
for the Jewish people. And for the Arab in Nazareth, whose minimal con-
tact with Israeli Jews has perhaps disabused him of at least some of the
negative stereotypes that typically underlie anti-Semitism, the flames of
anger are still directed at the Jewish majority, whose societal privileges are
only too flagrantly revealed in the chosen symbol of Israeli nationhood.
5
Unlike its American counterpart, the Israeli flag thus invites viewers to
respond to its symbolism in ways that acknowledge the special place of
a particular group. One’s eye is immediately drawn to the center of the
representational pattern, which suggests the centrality of the Jewish peo-
ple to the meaning of Israeli nationhood. The Declaration of Independence
refers to the “self-evident right of the Jewish people to be a nation,” and
the flag is an unambiguous testament to that commitment. However, a
flag can reveal only so much; thus for Israel the prominence to be attached
to the religious, rather than ethnic, content of the Jewish people is left open
for interpretation. The profound political ramifications of this interpretive
question have emerged when the Israeli flag has been burned by ultra-
Orthodox Jews in Israel, who view the establishment of a Jewish State
prior to the arrival of the Messiah as a grotesque theological travesty. They
are so deeply offended by the blasphemous symbolism of the flag that they
feel compelled to act in ways that are in turn grossly repulsive to most
Israeli Jews, for whom the flag represents the triumphant culmination of
the historic Zionist longing for a homeland for the Jewish people.
5

A 1997 law requires that all government-funded schools, including those of the Arab
and ultra-Orthodox communities, must fly the Israeli flag. Until very recently the law was
ignored, but the decision in 2001 by the education minister to have it enforced provoked an
interesting debate about the use of symbols to encourage patriotism among all the citizens of
Israel. In response to a member of the Knesset who questioned the wisdom of requiring
Arabs and ultra-Orthodox Jews to fly the Israeli flag, another member said: “The flag of the
country belongs to everyone, whatever they may think of the government. This value must
be internalized by the minorities IntheUnited States, they’ve understood this for a long
time. There the requirement to fly the flag applies not only to the educational system. Every-
one there identifies with the flag, rich and poor, black and white, even if they have ethnic
and economic divisions. I would like to see a similar attitude in Israel.” To which the first
member said: “Of course, I believe that the Arab minority should identify with and show
loyalty to the state. The question is one of sensitivity. Building bridges with a minority
culture is the sign of a strong country, not a weak one.” The second then replied: “We live
in a society in which pluralistic differences are valued. This is good, but we must remember
and remind others of our common denominator—Zionism. The flag symbolizes Zionism
and democracy.” The Jerusalem Report, July 2, 2001, 56. This dialogue reflects very well
the basic tension or contradiction at the core of Israeli nationhood. Thus the Knesset mem-
ber who defends enforcement of the law looks to the United States for guidance, but he fails
to distinguish between the assimilative assumptions prevalent in American citizenship from
the visionary ones that prevail in Israel. (This distinction will be developed in detail in subse-
quent chapters.) When he sees the flag, he thinks of Zionism and democracy without permit-
ting himself to join in his colleague’s more empathetic understanding in which the symbol-
ism of the flag bears a message of exclusion as well as unity.