Jewish Past, Mnemonic Constitutionalism and the Politics of Citizenship

Dancing in the storm
We got nothing to hide
Take me home
And leave the world behind
And I promise you that never again
I’m still wet from this October rain […]

(Avi Ohayon, Keren Peles & Stav Beger, “October Rain / Hurricane”, the original lyrics of the later amended 2024 Eurovision entry of Israel, performed by Eden Golan) 

Introduction: constitutional law, anti-Semitism and “never again”

Since the 1980s, the theme, “never again”, has been central to the existing plethora of memory laws, with legal counteraction to Holocaust denialism forming the core of the edifice of the legal governance of historical memory in Europe. As I previously demonstrated on Verfassungsblog (here and here), that approach unfolded not without contestations regarding the question of the uniqueness of the Shoah. In particular, a case about the Armenian genocide at the European Court of Human Rights several years ago vividly exposed this controversy. Memory laws these days constitute a very diverse nomenclature of the state-authorised regulations transcending exclusively criminal provisions about the denial of Holocaust from the 1980-1990s, and found in abundance, even beyond Europe. In fact, most of those regulations are non-punitive and not – albeit explicitly – about Holocaust, which does not resolve the controversies of such laws with freedom of (in particular, academic) expression, minority protection and the rule of law. Yet underneath the legal culture of memory governance in liberal democracies there arguably lies a wider (than pure memory laws) normative phenomenon, which I conceptualise under the heading of mnemonic constitutionalism.

The heading “constitutionalism” implies that limitations can, and should, be placed on governmental powers. Mnemonic constitutionalism positions the authority and legitimacy of a state into the boundaries of a certain historical paradigm, whereas  current and future attitudes and behaviours of state actors derive from, and are limited by, moral lessons of the past translated into constitutional memory. Within mnemonic constitutionalism, the historical past becomes the foundation underlying the collective identity prescribed by either the national constitution itself, via constitutional symbols, by legal provisions which traditionally shape the substructure of national constitutional law, most prominently, via citizenship laws, or statutes shaping collective identities by virtue of imposing specific understandings of the historical past. The “never again” theme, addressed in this Verfassungsblog symposium, has been a core historical paradigm in Europe, fostering a certain culture (Erinnerungskultur) of mnemonic constitutionalism. Furthermore, these patterns have been implicitly or explicitly replicated elsewhere in the liberal democracies too – even beyond countries directly affected by the tragedies of the Shoah.

For this symposium essay, I will focus on the Jewish past, with its tragedies extending beyond and preceding the Holocaust as a master narrative unfolded by mnemonic constitutionalism. Specifically, I will reflect on how citizenship laws – as the foundational cluster of constitutional law in liberal democracies, including the countries without a formal constitution – have built constitutional ontologies upon the Jewish past and the “never again” theme through three central examples involving “Jewish citizens”.

German constitutional law and citizenship

The master narrative of the tragic Jewish past has significantly influenced the development of the German constitutional law throughout various historical decades. The unification of the country under the German Empire in 1871 marked a pivotal moment for Jewish emancipation, a process largely facilitated by Napoleon’s earlier conquest of the continent. The new constitution granted Jews civil and political rights. Yet this formal legal equality was followed by rising anti-Semitism, the term coined and the phenomenon propagated by Wilhelm Marr (1819-1904) in the late 1870s. Later in 1919, the Weimar Constitution was shaped significantly by Jewish intellectuals, including prominent lawyer Hugo Preuß (1860-1925), resulting in the establishment of a democratic framework in Germany which ensured extensive civil liberties, despite the ever-growing anti-Semitism of the epoch. The situation deteriorated dramatically with the rise of the Nazi regime and the promulgation of the horrific Holocaust practices. In advance of the Shoah, the Nuremberg Laws of 1935 stripped Jews of their German citizenship and, consequently, of basic civil rights, barring them from marrying or engaging in relationships with non-Jews, and further excluding them from most professions and public life.

After World War II, the Nie wieder! (never again!) principle and memories of the Holocaust deeply impacted the drafting of the German Basic Law (Grundgesetz) in 1949. Framers of the Grundgesetz were determined to design a constitutional order that would prevent the resurgence of totalitarianism and ensure robust human rights protections. The Basic Law included several provisions aimed at preventing discrimination and protecting human dignity, influenced by the atrocities experienced by Jews and other minorities during the Nazi regime​. Arguably, the Basic Law of 1949 has fostered a specific culture of mnemonic constitutionalism, consolidating militant democracy with a narrative of German guilt and responsibility, in particular, with regard to the Jewish community. As aptly summarised by Aleksandra Gliszczyńska-Grabias, a leading scholar of anti-Semitism, “Germany has reshaped and reestablished its constitutional order and political life by embedding into in the pledge of ‘Never again!’ […], including by legal bans on denialism” (see in particular, Articles 20 & 21, Grundgesetz). This self-inculpatory mode of mnemonic constitutionalism was equally reinforced by the restoration of German citizenship after World War II to the Jewish community (Article 116, Grundgesetz). This restorative mode paved the way for the powerful mnemonic constitutionalism in the domain of constitutional citizenship, later picked up elsewhere (Spain, Portugal, Hungary, Austria, etc).  Arguably, this mnemonic constitutional paradigm sets up aspirational constitutional commitments for securing special relations with Israel, whereas Germany is implicitly committed to safeguarding the ontological security of the Jewish state as part of the Staatsräson (national interest). In the aftermath of the brutal massacre that Hamas inflicted on the civil Israelis in October 2023, it has been announced that a commitment in writing for the “right of the State of Israel to exist” now constitutes a requirement to become a German citizen in the eastern state of Saxony-Anhalt. Likewise, the recent reform of the German Citizenship Act, adopted by the Bundestag in January and effective as of June 2024, underscores a commitment to protecting Jewish life and includes a naturalization requirement to acknowledge the right of the state of Israel to exist. The German socio-political rhetoric has been systemically underlining the German’s responsibility for the Holocaust, thus, shaping a specific outlook on mnemonic constitutional citizenship.

Iberian constitutional law and citizenship

The second example deals with the case of granting citizenship in a way that extends the “never again” ethos of mnemonic constitutionalism towards the Jewish past (as ontological restoration of historical justice) and the types of anti-Semitism formally preceding the Holocaust. Namely, Spain and Portugal have enacted laws opening the “reparative” citizenship to descendants of Sephardic Jews expelled from the Iberian peninsula during the Inquisition epoch, in particular, by Isabella I of Castille and Ferdinand II of Aragón following the 1492 Alhambra Decree. These laws reflect significant cultural recognition of the Sephardic Jewish community’s plight and the ethos of historical reconciliation on the level of citizenship laws, without formally changing the constitutional texts. This ontological constitutional symbolism is distinctly captured in the famous ¡Cuánto os hemos echado de menos! (“How we have missed you!”) declaration of Spain’s King Felipe VI at the ceremony in June 2015, celebrating the passage of the Spanish law that allowed Sephardic Jews to obtain citizenship if they could prove their ancestry and a special nexus to Spain. The Sephardic heritage was meant to be verified via extensive documentation such as genealogical records, family names, and the Ladino language. This law, however, included additional requirements like a Spanish language test and cultural knowledge test, and applicants had to apply before the law was formally meant to expire in October 2019.

Portugal’s similar law, enacted in 2015, remained active until very recently, though it risks being suspended from this year onwards. Applicants must provide evidence of Sephardic lineage and a traditional connection to a Sephardic community of Portuguese origin. Unlike Spain’s law, Portugal does not require a language or cultural knowledge test, and it was possible to finalise the process even without travel to, or residence in, Portugal. The genealogical records and certifications issued by Jewish communities have been deemed sufficient. These citizenship laws constitute a broader constitutional effort to reconcile with the historical injustices faced by the Jewish community and to acknowledge their durable impact on the Iberian Peninsula, thus, shaping another example – albeit in this case, via naturalisation practices – of an enduring mnemonic constitutionalism with a strong nexus between historical past and constitutional citizenship.

Israeli constitutional law and citizenship

The third example focuses on the Israeli aliyah, namely, various aspects of the immigration politics in Israel centred on the 1950 Law of Return and the 1952 Nationality Law as being central to both Israeli constitutional law,  and in the absence of the Basic Law, to a wider model of Israeli mnemonic constitutionalism. These laws form the cornerstone of Israel’s approach to Jewish immigration and citizenship, reflecting the state’s foundation as a homeland for Jews worldwide. The Law of Return (1950) grants every Jew the right to come to Israel as an oleh (immigrant) and become an Israeli citizen. The law demarcates a Jew as someone who was born of a Jewish mother or who has converted to Judaism and is not a member of another religion. This legislation reflects an ontological security provided to the Jews worldwide whereas Israel is postulated as a refuge and homeland for Jews globally, especially in the aftermath of the Holocaust. The Nationality Law (1952) complements the Law of Return by defining how individuals can acquire Israeli citizenship. Accordingly, Jews who immigrate to Israel under the Law of Return automatically acquire citizenship. Non-Jews can acquire citizenship through naturalisation, residency, or marriage (with the latter process being more rigorous).

Significant amendments and legal interpretations have shaped the application of these laws. To give an example, the 1970 amendment to the Law of Return expanded the right of return to the (grant-)children of Jews, as well as their spouses, to facilitate the immigration for the families with mixed Jewish heritage. The Israeli Supreme Court has played a pivotal role in interpreting these laws, notably in cases concerning the definition of who is considered a Jew and in situations involving divergent streams of Judaism and conversion processes. Unsurprisingly, both of these laws have been subject to various debates. The Orthodox establishment manifests a crucial influence over Jewish religious matters in Israel, which leads to a broader controversy about the boundaries of religion and state in Israeli society.

Another significant development in the uncodified – and increasingly more mnemonic – Israeli constitutionalism was marked by the enactment of the Nation State Law, on 19 July 2018. This law proclaims that Israel is the nation-state of the Jewish people and asserts their right to exercise national self-determination in Israel. While it further reinforces the Jewish identity of the state and the mnemonic type of constitutionalism, it has been under criticism (including here on Verfassubgsblog) for potentially marginalising non-Jewish citizens and challenging equal rights. To summarise, Israeli constitutional law on citizenship is deeply rooted in a specific type of mnemonic constitutionalism, unfolded without a former codification of the constitutional text, via the principles established by the Law of Return (1950), the Nationality Law (1952), and arguably the Nation State Law (2018). These laws reflect Israel’s version of “never again”, based on the idea that the best guarantee of this ontological security aspiration is the establishment of a Jewish state as a historical homeland. These laws have evolved through legislative amendments and judicial interpretations, and continue to shape the legal landscape of Israeli citizenship.

Nie wieder: mnemonic constitutionalism and Jewish citizenship

Despite what Joseph H.H. Weiler once addressed as “Shoah fatigue” in his Epilogue to a prominent edited volume that reflected on the “darker legacies in Europe”, it appears that the theme of Holocaust and the “never again” slogan have remained deeply foundational and recurrent themes in comparative constitutionalism. Atrocities committed by the Hamas in Israel in October 2023, as well as the subsequent military operation of Israel in Gaza, have amplified the references to Jewish history and the never-again principle under various – at times, very divergent and mutually contradicting – angles. The concept of mnemonic constitutionalism refers to the use of constitutional law and its legal frameworks (inclusive of citizenship laws), to shape collective memory and national identity, often by institutionalising official narratives about historical events. In this context, the Jewish past and the ethics of “never again” as ontological constitutional foundations have played crucial roles not only in Germany and Israel, but also elsewhere, as demonstrated with the Portuguese and Spanish examples where the restorative commitment to the Jewish past transcends Holocaust history. Mnemonic constitutionalism in all of those country studies included citizenship regulation in shaping national identity, legal norms, and policies, and in ensuring that the lessons of history underscore present and future governance.