When Wrong Is Right

From a logical perspective, the Zivotofsky family is, of course, right in their demand that their son’s passport should indicate that he was born in Israel.

The longstanding U.S. policy of refusing to acknowledge the undeniable fact that Yerushalayim isn’t only part of Israel, but also its capital, is downright absurd. There is no rational explanation for why someone born in Bnei Brak gets listed as born in Israel, and someone born in Yerushalayim doesn’t.

In fact, if one were to apply the type of reasoning that the State Department puts forth to defend this policy across the board, most countries wouldn’t be listed on passports.

My passport states that I was born in New York City, U.S.A.

But does America really have an ironclad right to the Big Apple?

Granted, Peter Minuit, the then-director of the Dutch West India Company, bought the island of Manhattan in 1626 from the American Indians. (According to legend he paid only $24, but some historians have argued that he may have actually paid as much as $2,000.) And yes, the Dutch later traded away Manhattan Island to the British in exchange for the Indonesian island of Run.

But the problem is that the Indian Chief Seseys, who struck the deal, was actually the leader of a Lenape tribe based in Brooklyn known as the Canarsees. While his tribe owned part of Manhattan, most of the island was under control of the Weckquaesgeek tribe, which took no part in the sale.

In other words, since the original sale of Manhattan was in essence a swindle, it never belonged to the Dutch, and therefore was never theirs to trade away to the British. When America won the Revolutionary War and took control of Manhattan, the right thing would have been to give the island back to the Weckquaesgeeks, or at least to their closest heirs.

In addition, even the most dovish of the Israeli leftists — those who are all but begging the Palestinians to take away as much land as possible from the Jews living in Eretz Yisrael — acknowledge that most of Yerushalayim would stay in Israeli hands as part of any hypothetical “peace deal.” Furthermore, Menachem Zivotofsky was actually born in the uncontested, western part of Yerushalayim.

Nonetheless, the High Court was correct in ruling against the Zivotofsky family.

That’s because the issue before the court wasn’t a political or moral one about whether the U.S. policy is correct or just. This legal case was all about whether Congress gets to make foreign policy on its own.

As Justice Kennedy noted in his decision, the Constitution does not use the term “recognition” when it comes to foreign entities. But it does clearly state that the president “shall receive Ambassadors and other public Ministers.”

During the ratification debates, Alexander Hamilton — the fellow on every $10 bill — claimed that the power to receive ambassadors was “more a matter of dignity than of authority,” a ministerial duty largely “without consequence.”

However, once President
Washington recognized the French revolutionary government by receiving its ambassador, Hamilton changed his tune.

He wrote that the so-called Reception Clause “includes the power of judging, in the case of a revolution of government in a foreign country, whether the new rulers are competent organs of the national will, and ought to be recognized, or not.”

While he has to seek the Senate’s approval, it is the president that nominates the nation’s ambassadors and dispatches other diplomatic agents. Congress may not send an ambassador without his involvement. Beyond that, the president himself has the power to open diplomatic channels simply by engaging in direct diplomacy with foreign heads of state and their ministers. Congress, by contrast, has no constitutional power that would enable it to initiate diplomatic relations with a foreign nation.

It was Harry Truman, not Congress, who recognized the State of Israel in the first place, and while the U.S. policy is illogical from a moral perspective, this is a decision for the White House and not Congress to make.

The real reason that every U.S. administration since 1948 has declined to recognize Yerushalayim as part of Israel isn’t because it is “contested” or they really think it will ever be handed over to the Palestinians.

Instead, it is simply because, in their view, it wasn’t worth the hassle, the uproar it would cause in Arab countries always eager for an excuse to agitate against Israel, and among a Palestinian leadership constantly seeking a reason to incite their population to attack Jews.

While I empathize with the disappointment of the Zivotofsky family, part of me is very glad they lost. A passport that says Israel would have given them much joy. But if it would have indirectly caused a single Jew to get hurt from rioting Palestinians, the victory would have been a pyrrhic one.