In this Article, I consider the strategic use of constitutional history, as reflected in national collective memories, and analyze, as a case study, the State of Israel’s treatment of the recent surge of illegal entrants into Israel. The rise of entry of asylum seekers/infiltrators (the ambiguity is central to Israel’s policies on the matter) from Africa into Israel via Egypt, which began around 2006, led the government to design stricter rules for treatment of entrants. The treatment of tens of thousands of entrants from Sudan and Eritrea, who could not be returned to their country under international law, remains the most pressing aspect. To tighten the policy, the government transformed a 1954 statute that was originally enacted to answer the challenges of Arab infiltrators (Fedayeen) into Israel in the mid-1950s. I discuss a series of four legislative amendments, enacted between 2012 and 2016, as a response to three Supreme Court decisions that found the first three amendments unconstitutional and place this recent history in the context of law-makers’ reliance on the State’s collective memory of the Holocaust and other mnemonic narratives of oppression. Collective memory, a central socio-cultural aspect of the ways histories are rendered and used to shape national identity, is addressed in this Article as a construct that can be implemented strategically to promote policy-and law-making. A quantitative analysis of oral presentations by members of Israel’s parliament in the process of the legislation of those four amendments, compared with some presentations in the context of the removal of international sanctions against Iran, offers proof of the claim that collective memories are used strategically by policy-makers and law-makers, and, more generally, history, as translated by state officials, is highly malleable.
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