Saturday, December 01, 2018

"From the River to the Sea": A Guide to the Perplexed

So we're all talking about the phrase "from the river to the sea, Palestine will be free" -- which, after Temple Professor Marc Lamont Hill said it at a UN conference, reportedly caused his termination from CNN.

I don't want to talk about Hill directly though. Quickly: He should face absolutely zero professional consequences at Temple -- that's a straightforward academic freedom issue. There is no academic freedom analogue to a sinecure at CNN, but I probably wouldn't have fired him either -- then again, I have a pretty high bar for firing people in cases like these. Certainly, the network that employs Rick Santorum doesn't have much of a leg to stand on in this respect.

What I do want to do is give some context -- hopefully helpful -- to the slogan "from the river to the sea, Palestine will be free." I do not wish to directly challenge anyone's substantive political commitments on the score. Much the opposite: my assumption is that there are a great many people for whom the phrase "from the river to the sea, Palestine will be free" sounds wholly innocuous if not laudatory -- who doesn't want freedom for all people living between the Jordan River and the Mediterranean Sea? -- and are a bit baffled that such a statement could trigger such an intense backlash.

In particular, my target audience is someone I imagine thinking along roughly the following lines:
  1. They support freedom for all people who happen to reside between the Jordan and Mediterranean;
  2. They read "from the river to the sea, Palestine will be free" as a pithy way of expressing the above commitment;
  3. They've noted, with some confusion, that many Jews seemed to react extremely poorly to the use of this phrase; and
  4. They assume that there's at least a decent chance that the reason for this negative reaction is not that the Jews in question are opposed to all or some people between the Jordan and the Mediterranean being free, and accordingly wonder what the actual reason is.
That fourth proviso is important. I say that while fully recognizing the sad truth that there are plenty of people -- Jewish and not -- who really don't desire or care about the freedom of all people in Israel, Gaza, and the West Bank.

Still, I stress this element because I think that thinking along these lines is a good habit to get into: when a marginalized group reacts with strong negativity towards a statement or program which seems, on a facial semantic level, wholly unobjectionable or laudable, it's good practice to hold open the possibility that they have reasons for their rejection that are not purely venal, selfish, or stupid. 

This is habit shouldn't just extend to Jews, of course. In the recent controversies over Louis Farrakhan's antisemitism, for example, some Black (including some Black Jewish) authors expressed concern over the way discourse on antisemitism honed in on Farrakhan. Many White people, for whom Farrakhan's antisemitism, homophobia, and all-around awfulness seemed obvious and uncontroversial, were perplexed by this response, and some resolved that confusion by saying "wow, Black people just can't condemn even obvious bigots like Louis Farrakhan!" But this was a bad response. Certainly, some people had that problem (just as some people really do simply object to the notion of a free Palestinian people). But a cursory reading of many of the authors in question would demonstrate that their issues had nothing to do with failing to recognize Farrakhan's bigotry. The better move was to instead figure that the hesitation regarding how the Farrakhan/antisemitism discourse was proceeding stemmed from something more complicated than the naked inability to see obvious antisemitism for what it is.

So, to swing it back to the case at hand: when Jews respond poorly to a statement that you read as simply an uncontroversial call for freedom, you can either think (1) "wow, Jews sure do hate freedom!" or (2) "wow, there's probably something more complicated going on here -- I should investigate!" This post is dedicated to those who take door #2.

Enough throat-clearing. What is the "more complicated" that drives many Jews' sharp antipathy to the phrase "from the river to the sea, Palestine will be free"?

First, some history. This phrase does indeed predate Hamas. But its historical pedigree has tended to be tied to more maximalist elements of Palestinian politics -- the branch which really doesn't see a place for Jews (or at least an equal place) anywhere in Israel or Palestine, and who have at times quite explicitly endorsed the project of pushing Jews into the sea.

At the most basic level, then, the triggering aspects of "from the river to the sea" stem from its association with a brand of violent anti-Zionist maximalism which, particularly around the War of Independence in 1948, spoke of throwing Jews into the sea (the internet is replete with debates over whether this or that Arab leader really said this or that precise quotation, but there doesn't seem to be much controversy that the general rhetoric of "pushing them into the sea" was present at that time and was perceived as a genocidal threat).

The traumatic associations here cannot be overstated -- just a few years after a third of the world's Jewish population was massacred, a goodly chunk of the survivors living in the nascent Israeli state were threatened with a renewed genocide that promised the Jews living west of the river that they would soon find their final resting place in the sea. Insofar as "from the river to the sea" reverberates with that history, it should not surprise that it is viewed as a threat.

The above account explains why, for some Jews, the "river to the sea" rhetoric is perceived as outright genocidal, and for many, that's enough. But another line is that the "river to the sea" language is a call for the "destruction of Israel." In broad strokes, this claim is that the slogan seeks the elimination of the state "Israel" and its replacement with something else -- namely "Palestine" (think the "Make Israel Palestine Again" slogan). This interpretation presents a more complex case.

The question of when a state is "destroyed" is peculiarly metaphysical -- it evokes the Ship of Theseus -- but the slogan's defenders seem to have an apt rejoinder: they are not calling for the destruction of Israel, but its reformation. All they want, in Hill's articulation, is a secular, equal state -- not a "Jewish" state or a "Palestinian" state, but a state for all its citizens where all those permanently residing between the river and the sea enjoy the same, full, free rights. Just as America didn't stop being America when it passed the Fourteenth Amendment or the Civil Rights Act, neither would Israel cease to be Israel if it changed its laws to provide for that vision of secular liberal equality. It would simply be an Israel with better laws and institutions than Israel does now. And just as urging civil rights for American Blacks did not entail desiring the subjugation of American Whites, neither is calling for freedom for Palestinians a demand for the oppression of Israeli Jews.

One interesting feature of this rejoinder, however, is that it suggests that the slogan need not actually be "from the river to the sea, Palestine will be free." It could just as easily run "from the river to the sea, Israel will be free." Indeed, on a purely semantic level, that would seem to be the more accurate expression. The state that currently exists, and where objectionable unfreeness currently obtains, is Israel. The state which would be passing the equivalent of the Civil Rights Act would be Israel, not Palestine. If the political program on the table is really a set of statutory reforms designed to provide secular equality, the name of the state need not change.

Nonetheless, I suspect that most of those who chant "from the river to the sea, Palestine will be free" would reject the substitution. This suggests that there is a replacement going on: Israel-with-better-laws is not viewed as the same thing as a free Palestine. That, in turn, indicates that the political ambitions are not reducible to simply establishing political rules in the river-to-sea territory that replace "Israeli" or "Palestinian" or "Jew" or "Arab" with just "citizens".

The trick is that the slogan does not refer to freeing Palestinians. It speaks of freeing Palestine -- a territory, not a people. When we speak of freeing a people, we usually are referring to individuals who lack certain legal rights and prerogatives. When we speak of freeing a territory, we usually are speaking of a land that is under foreign dominion. The former is the language of, e.g., segregation -- people lacking full citizenship rights. The latter is the language of the occupation: Palestine, the land, is ruled by outsiders -- i.e., Israel. This status would not itself be cured by the extension of citizenship rights (any more than, say, France giving Algeria equality in the French state would have "freed" Algeria, though it arguably would have freed the Algerians). And this also explains why a slogan saying "Israel will be free" rings so odd: free from who? Israel already controls the territory in question; there's no foreign domination to speak of. It is Palestine that currently is occupied by an external power, and so it is Palestine, not Israel, that needs to be freed.

Put another way: the grammar of the slogan gives a hint as to what is meant by the word "free". It isn't the freedom of individual liberties implied by a call for a secular, equal state; it is the freedom of liberating an occupied territory from foreign domination. That's not wrong, it's just different. If I wrote "from California to Texas, Mexico will be free", any normal reader would take that to be saying that this entire stretch of territory should be under the rule of Mexico -- that these Mexican territories are under the foreign domination of the United States, but one day they will be freed (restored to Mexico). You can endorse that revanchist claim or not, but it'd be very weird for me to insist that this slogan actually was just urging that the Chicano/a community be treated fairly by whatever country happened to rule from California to Texas.

So let me stress: on its own, the claim that there is a territory "Palestine" that is currently under alien rule by Israel is not objectionable. Indeed, it is the locus insight of a two-state solution: there is a Palestine -- the West Bank and Gaza -- which Israel occupies or has occupied, that territory is not Israel's (i.e., Israel is a foreign or alien power to it), and that territory should revert to Palestinian control. Likewise there are territories which are properly Israeli (they are not foreign or alien, these lands are its "homelands"), and so those territories are rightfully under Israeli control. Put aside the usual half-million complications, and this is roughly my position: Israel should control Israel, and Palestine should control Palestine. Two states for two peoples.

But the formulation of viewing Israel as the alien outsider occupying the land of Palestine is not the same thing as a call for equal rights. More to the point,, this formulation takes an ugly turn when it is conjoined with "from the river to the sea". Whereas in the two-state model there is an equality between Israeli and Palestinian entitlements -- both are "home" in at least some of the territory, neither are wholly alienated or excluded -- if Palestine as a political entity extends from the river-to-the-sea, then none of the territory is "Israel's", Israel is foreign to all of it, and the demand that it be reverted to Palestinian control really is a demand that Israel disappear in a very tangible way. In a different way, this would be the (or a) problem with "Greater Israel" -- it implies that Palestine is nowhere, that there is no Palestine to be freed (which, of course, is a claim right-wing Israelis make all the time -- "there's no such thing as Palestine" -- and suggesting that Palestinians are foreign interlopers on Jewish land).

The "Make Israel Palestine Again" slogan crystallizes the view that -- beyond the particular legal regime that might be enacted -- there is something more fundamentally wrong about there being an "Israel" of any sort, that it represents a sort of alien intrusion whose existence in itself thwarts the existence of a free Palestine. Palestine is not fully free so long as there is an Israel, because any territory that Israel might occupy is occupied. When Hill said that he "just got off of a flight from Palestine", referring to a flight that almost assuredly departed from (pre-67) Israel, he's not making a statement about the existence or not of legal rights. He's making a statement about the true lawful ownership of land that has been usurped. The land -- all the land -- is Palestine. Israel -- all of Israel -- is a foreign occupation. And while I don't think it is fair to Hill to suggest he supports genocide against Israeli Jews, I do think it is fair to say he believes that the great bulk of Israeli Jews are fundamentally foreign interlopers anywhere the reside from the river to the sea -- which is why he can characterize the entire conflict is being "about land theft, expulsion and ethnic cleansing by foreign settlers to indigenous land."

If the entire presence of Israel anywhere from the river to the sea is an alien imposition on Palestine, then the net result is that Jews are deemed foreigners everywhere from the river to the sea. In addition to echoing some specific antisemitic tropes (the Jew as the eternal outsider/foreigner/wanderer), this sort of otherization very often comes attached to decidedly inegalitarian projects and attitudes towards Jews, and accordingly it tends to cause skepticism about the feasibility, durability, and sometimes sincerity of professed commitments to full equality in a secular state. At the very least, it isn't really compatible with the professed neutrality of this state -- one group is in its home, the other is at most a tolerated outsider. At the extreme, triggers those more terrifying "into the sea" worries (even if here the Jews might be given the courtesy of boats, that they might "go back where they came from").

This connection is far from speculative. When Helen Thomas snapped that Jews in Israel should "get the hell out" and "go back to Poland", Mondoweiss suggested that this was a salutary gesture -- it would certainly inject some new vigor into Polish Jewish life (as one Jewish wag replied, "I'm deeply touched by this gesture of philanthropic ethnic cleansing."). More recently, I recall reading a thread by a (Jewish) anti-Zionist who acknowledged that, if and when Palestine was freed "from the river to the sea", it was very likely that many Jews in Israel would leave. This, he assured us, was not a bad thing or a problematic thing -- it was a normal fact of decolonization, no different from the pied-noirs returning to France upon Algeria's independence. The incongruity of where "returning" would refer to in the Jewish case -- what, exactly, was our France in this scenario? -- was overlooked, as was the sheer historical audacity of just assuming that a sudden mass migration of Jews would be absorbed by the other nations of the world without any friction whatsoever. Such troublesome thoughts are easy to avoid thinking, when one sees Jews in Israel as settlers, colonizers, foreigners, and outsiders -- of course they can go back to "where they came from".

So in addition to the historical pedigree, another reason why "from the river to the sea, Palestine will be free" might provoke a strong reaction is that it is taken to imply that Jews are foreign to all of the land from the river-to-the-sea, that we are outsiders and interlopers in its entirety, that the goal isn't the creation of a Palestinian state but the elimination of a Jewish homeland, that Palestine will be freed only when Israel is gone, and that while our departure from the land may or may not be explicitly desired, it will not be viewed as any more tragic than any other colonizer uprooted from lands he had occupied.

So those are some associations or implications of the "river to the sea" slogan that help explain why many Jews react so strongly against it. There is a particular historical overlay between this rhetoric and the more explicitly violent, even genocidal, rhetoric that has been directed at Israel since its foundation; there is also the implied demand that "Israel" be struck down and replaced by "Palestine" -- suggesting that more than just a demand for equal citizenship and a neutral state is at issue -- and the corresponding portrayal of Jews as utterly and completely foreign presences in all the river-to-the-sea land.

Perhaps you find these rationales compelling, perhaps not. But -- as odd as this is to say -- my goal wasn't exactly to persuade.

Recall what I said my ambition was and who I said my desired audience was. My audience was those persons who found the slogan innocuous and who were confused why so many Jews reacted so sharply against it; my ambition was to explain those reactions in ways that don't reduce to "Jews hate the idea of Palestinians being free."

What had concerned me most about much of what I had been reading wasn't that many people thought this slogan was a straightforward and praiseworthy call for freedom. It was the jump from "this slogan seems to be about freedom" to "if Jews object to this slogan, it must be because they hate freedom." The jump should have been to "if Jews object to this slogan, there's probably something more at work -- and while I don't know if learning what it is will change my mind, I should at least by willing to hear it out".

I do not think that, if you had never heard "from the river to the sea, Palestine will be free", the case for why this slogan raises Jewish hackles is self-evident. I just dumped a lot of history and analysis on you; I fully get why someone who isn't versed in that history or analysis would hear those words and not have it raise any alarm bells whatsoever. Indeed, I get why some might be perplexed at how it even could raise alarm bells for someone else. I also get why someone who wasn't versed in the relevant history and was dropped from a mountain hut wouldn't immediately get why "all lives matter" is objectionable. Context is something acquired, it isn't innate. We can't ask for people to be born with the necessary context. We can ask that they be aware that there might be context left to acquire.

So I tried to give context, and hopefully you found the context informative and maybe even persuasive. But I'll frame my ambitions even more modestly: all I hope to have accomplished is that, even if you didn't find my above analysis ultimately persuasive, you would nonetheless agree it presents an explanation for Jewish unease or unhappiness about this slogan that isn't flatly risible, as it would be if we simply detested Palestinian freedom. At the very least, there's a genuine issue here that goes beyond the superficially absurd. And if that seems like a rather small victory, think of how big of a step it is from "these people just hate the idea of Palestinian freedom."

This is the habit I seek to inculcate. Whether we're talking about Jews or any other outgroup, it is good practice to assume that if alarms are raised, they're probably not raising them based on the obviously stupid, venal, or self-interested reasons. There's a strong chance there's something more complicated going on.

So go ahead and assume we have the basic capacity for empathy, reasoning, and analysis that would take us beyond the obvious traps, and see where the path takes you. Maybe you conclude we're still wrong. Maybe you conclude that we're right. Maybe there's a more nuanced position in the middle you end up landing on. No matter what, you've done us the service of treating us as epistemic equals. And that's no small thing.

Friday, November 30, 2018

The Farr Nomination and the Future of Senate Oversight

The announcement from Sen. Tim Scott (R-SC), the Senate's sole Black Republican member, that he would oppose the nomination of Thomas Farr to a federal district court seat in North Carolina has officially torpedoed the nomination. Without Scott (and Jeff Flake, who has said he will vote against all judicial nominees until a bill protecting the Mueller investigation is brought to a vote), Farr didn't have enough votes to be confirmed.

The reason Farr was a particularly controversial figure is that he was implicated in racist voter suppression efforts in North Carolina, dating all the way back to his time on the Jesse Helms campaign. I assume that, aside from that bit of historical pedigree, he is more or less identical to any other candidate the Trump administration might nominate for the seat.

It is interesting to me, then, that in all cases such as this the burning question is always "will these two or three Republican Senators vote no?" We're way past the possibility that the bulk of Republican Senators might in any way buck the Trump administration's dictates -- even in circumstances where the tangible impact of the defection is nothing. The man (or woman, but let's be realistic about probabilities here) who is nominated instead of Farr will no doubt be a conservative, FedSoc approved jurist whose pattern of voting on controversial cases will be almost impossible to distinguish from how Farr would have voted. When that jurist gets confirmed instead of Farr, there is no net loss for the conservative legal project.

And yet -- by all appearances, it is beyond the realm of possibility that more than a bare handful of Republicans would oppose Farr. Scott's defection did trigger a belated (and pointless) return back to undecided from Official Moderate Republican Susan Collins (surprising no one, when it looked like she'd be the decisive vote she announced she'd back Farr). One might think that -- especially after Scott sank the nomination anyway -- a cluster of, I don't know, 30 Republican Senators might announce that Farr's history of racist voter suppression made him unsuitable for the federal bench, bask in the praise the media would heap upon them for their independence, and then get ready to vote for the functionally-identical nominee Trump put forward instead. But no.

This, above all else, was my thought during the Kavanaugh hearing. Had Kavanaugh been defeated, the alternative would have been almost certainly "a judge whose predicted voting record on the bench would be substantively identical to Kavanaugh's in every respect, but who wasn't also maybe a sexual predator in his youth." Oh the sacrifices! But apparently it is one, since pretty much no Republican Senator has ever found this logic remotely compelling.

This is why I have no confidence in the GOP Senate's ability or interest in providing even a modicum of checks upon the Trump administration. Faced between the choice of a conservative nominee who is corrupt/racist/incompetent/criminal, and waiting another few weeks for a nominee who is just as conservative but doesn't have any of that baggage, the Republicans in the Senate have proven they'll choose Door #1 every single time.

Things People Blame the Jews For, Volume L: The Titanic

It's the 50th iteration of this series! When we began, way back with the Fukashima disaster, could anyone have imagined we'd find fifty random world events that people blamed on the Jews? (answer: yes, effortlessly)

On this special day, we explore blaming the Jews for The Titanic. The ship, not the movie (obviously, we get the movie by default since, you know, Hollywood. I'll leave it to the commenters to decide whether the 1997 Oscar Best Picture is something to be blamed or credited for).

Anyway. A Canadian Arabic-language newspaper has an account of why the Titanic was built, and why it sank. You might be surprised to learn that neither "luxury passenger travel" nor "icebergs" factor into the narrative:
The Jewish Freemasons built the giant Titanic ship and charged it with the fictional costs, only to kill three businessmen, who built it with a magnificent construction, to drag them on board, and then sink them into the ocean floor and bury the secret with them for ever. The [businessmen were against] the idea of ​​creating the Federal Reserve! They loved to be rid of them in order to pave the way for the new world order. 
This is the sort conspiracy theory that really riles me up. I mean, it's one thing to accuse Jews of murdering powerful global actors as part of a plot to retain dominance of the international financial system. It's another thing to have us take such a manifestly inefficient path towards the goal.

Do you really think that there aren't simpler ways to kill three businessmen than constructing the largest ship the world had ever seen, then sinking her during her maiden voyage? Think of how wasteful that is! You're an antisemite -- you're supposed to think Jews are stingy.

I can accept baseless conspiratorial hatred, but I will die before my tribe is charged with sloppy craftsmanship. There are lines, people.

Wednesday, November 28, 2018

On Israel's "60 Discriminatory Laws"

At a UN meeting commemorating International Day of Solidarity with the Palestinian People, Temple University Professor Marc Lamont Hill referred to the existence of "more than 60 Israel laws that deny citizenship rights to Palestinians just because they are not Jewish."

It's one of those claims I've heard bandied about, in various formulations, many times, and I thought it was worth digging into a bit.

The basic referent here, as far I can tell, is a list from the Israeli NGO Adalah (The Legal Center for Arab Minority Rights in Israel), which compiles laws which "discriminate directly or indirectly against Palestinian citizens in Israel and/or Palestinian residents of the Occupied Palestinian Territory (OPT) on the basis of their national belonging." The "or indirectly" matters quite a bit -- as Adalah confirms, while some of these laws represent explicit discrimination, "more often, the laws are worded in a seemingly neutral manner, but have or will likely have a disparate impact on Palestinians in their implementation."

Now, one might think that my objection here is to the conflation of "direct" and "indirect" forms of discrimination. And to be sure, there is a very large difference between a law which says directly "Israeli Jews, but not Israeli Palestinians, are entitled to X" and a law which is neutral in form but happens to have a disparate impact on Palestinians. Likewise, not all of the entries on the Adalah list seem like fair play. For example, Adalah includes a 2010 law which offers certain perks to soldiers discharged from the IDF. It contends this discriminates against Palestinian Israelis because, unlike other Israeli citizens, they are not subject to mandatory military service. But they aren't excluded from military service either -- they just (unlike Jewish Israelis) have the option to forgo it (one could argue that this is a law which favors Palestinian Israelis at the expense of their Jewish co-citizens). So to characterize this law as one that denies Palestinians equal citizenship seems like an extraordinarily deep stretch.

Others are likewise shaky calls. For example, the law which increases the threshold for entering parliament is attacked as a means of seeking to squelch Arab political participation. And to be sure, it seems evident that one motive (though not the only one) for that law was the belief that, given deep fragmentation among Arab Israeli parties, it would knock out some of the smaller groupings. But if that was the goal, it backfired: Arab parties instead united under a Joint List and surged to become the third-largest party in the Knesset. In any event, to characterize that law as one which " den[ies] citizenship rights to Palestinians just because they are not Jewish" is more than a bit of a stretch.

Still, it is absolutely fair to observe that "indirect" forms of discrimination nonetheless contribute in a very real way to tangible inequality. That's as true in Israel as it is in America; a focus on formal equality is manifestly insufficient to capture ways in which Palestinian citizens of Israel are disadvantaged in Israeli society. And it'd be unfair to accuse Hill of hypocrisy on this score, at least -- I have no doubt that he would, if asked, also deem American laws which are facially neutral but have a disparate impact on African-Americans as contributors to a racist American system.

Nonetheless, something slick is happening here, and I think it's important to zero in on what it is. The phrase "laws that deny citizenship rights to Palestinians" is vague, intentionally so, but it certainly connotes more explicit forms of identity-based discrimination that mimic something like South African apartheid or American Jim Crow. Hill could rejoin that this isn't what he means by the phrase -- he intends to sweep more broadly, because unjust inequality isn't limited to cases which mimic South African apartheid.

Fine -- but if that's the case, then we have to start asking whether a state having "60 laws" which are facially neutral but have a disparate deleterious impact on certain vulnerable minorities is comparatively abnormal. Put another way: if we adopted Adalah's standard for a law which "den[ies] citizenship rights" to a particular outgroup and applied it to America, how many discriminatory laws would we have? 20? 100? 1000? What about Poland? What about Cameroon? What about China? What about Kuwait? And so on. My strong guess is that, under this metric, having sixty discriminatory laws falls well within the normal range for countries of its size.

To be clear, despite the verbiage above my argument isn't "whataboutism". It is perfectly fair to say that the existence of such laws -- even the existence of more of such laws -- in many other countries wouldn't justify them in Israel's case. And I'd agree with that. But -- and here's the "slick" part -- Hill is not trying to make the argument that Israel is common among nations in having laws which in effect disadvantage certain outgroups. He's trying to assert that Israel is unique in this respect, or at least uncommon. Speaking of "laws that deny citizenship rights" is meant to suggest that Israel stands out and beyond the pale -- so much so that we should support (Hill is explicit on this point) violent resistance efforts against it akin to that which the ANC employed against apartheid South Africa.

What we have, in short, is a bait-and-switch. On the one hand, the rhetoric Hill employs is designed to give the impression of a narrower and more virulent set of wrongful conduct that is similar in form to apartheid and seems harmonious with a relatively aggressive set of responses. On the other hand, if you press him on the substantive meaning behind the rhetoric, he can fall back and say "no, no -- I'm talking about something much more expansive". But that class of wrongs is no longer in sync with the sort of remedies Hill is proposing -- unless he's willing to say that pretty much every country on earth should be subjected to violent insurgency on account of its failure to abolish laws which have a disadvantageous disparate impact on certain minorities in the state.

And if even he is willing to ride that slope all the way to its slippery bottom, he'll find that few are willing to follow him down. A theoretical consistency is overshadowed by an known and accepted practical inconsistency; the mobilizing force of his remarks depends on preserving an intentional asymmetry between substance and rhetoric, between the actual content of the wrongs he's alleging Israel commits and the connotations implied by how they're described. It is not feasible to get widespread support for the proposition that every country should be targeted for a terrorist insurgency as a means of overturning its unjust practices. It is feasible to get widespread support for the proposition that a particular country (preferably someone else's) be so targeted.

Again, the argument here isn't "well, if you don't criticize Romania and Sri Lanka for this, how can you criticize Israel?" I'm well aware that caring equally about everything is an impossible and unreasonable demand; people focus on what they focus on for all number of reasons. But there is a very large difference between arguing "this is a wrong we see everywhere, I just happen to focus on it in this particular place" and "this particular place stands out as wrongful in a way one doesn't see anywhere else." The former and the latter are different claims and demand different justifications.

And likewise, I'm concerned about the rapidity with which people are beginning to argue that a claim of double-standards is just a way of kicking up dust. Yes, it's true that no functioning program of political or social action actually comprehensively applies to every "like" case simultaneously. No, that doesn't mean that patterns of disparate or disproportionate focus on a particular group never can give rise to an inference of discriminatory maltreatment (hell, that's the entire basis for looking askance at disparate impact!). Curtis Marez's limp argument that academic BDS targets Israel because, hey, "one has to start somewhere" -- as if the focus on Israel was a sort of random precipitation, as if the next academic organization over might just as easily look at China or Turkey or America -- is an insult to everyone's intelligence.

Certainly, Hill understands this well in his case -- defending his friendship with and admiration of Louis Farrakhan (with whom he is far closer to than, say, Linda Sarsour), Hill contended that "Black people are the only people who are demanded to throw people away". Regardless of whether it is in fact true that this is only demanded of Black people (and I might respond with: "Hi! I'm a Jew! My people should talk with your people about our shared experiences on this dimension!"), would it really suffice as a response to reply by saying "well, maybe 'throwing away' open bigots is only demanded of Black people -- but it's still the right thing to do, and we should demand it everyone, so what grounds have you to complain"? In reality, it isn't an accident that such demands disproportionately fall on certain groups and not others, and that non-accidental non-proportionality does not exist outside of valid discourses about justice and equal treatment.

In any event, we've strayed afield from where we started. In broad sweep, the move Hill is making is a similar play to that which I critiqued in my column on accusing Israel of "genocide". That allegation likewise attempts to harness the moral gravity of a narrow set of wrongs and apply it to something substantively much broader -- switching back and forth between the rhetorical force generated by the former (genocide as death camps) and the substantive sweep captured by the latter (genocide as "losing your culture"). The move only works if one consciously blurs the pivot, but that obfuscation is fair to call out. Here, it's paired with the more prosaic problem I identified with those omnipresent maps -- a failure to use consistent metrics across cases, such that the statement "laws which deny citizenship rights" doesn't mean "nothing short of explicit segregation or denaturalization" in Turkey and "any law which isn't arrived at through a perfect simulacrum of the Rawlsian original position" in Israel.

The problem with the "60 laws" formulation isn't that there aren't valid objections to some or even many of the laws Adalah has in its database. Nor is it the self-serving (and transparently ridiculous) argument that Palestinians (whether citizens of Israel or not) face systematic and serious discrimination in Israel, much of which emanates directly from the Israeli state. The problem is that the move Hill is pulling relies on a set of disingenuous rhetorical tropes that deliberately mislead as to the content of the claims he's making. The substantive content of his claims absolutely establish that Israel commits wrongs -- but only within the normal bandwidth. That's a problem, because Hill needs to characterize Israel as especially evil, especially mendacious, especially corrupt, and especially worthy of revulsion. Why? Because he knows full well that the sorts of demands he wants to make -- a full boycott coupled with a violent military insurrection -- only fly if people believe he's talking about an especially horrible Other.

And that's how you get a phrase like "more than 60 Israel laws that deny citizenship rights to Palestinians just because they are not Jewish."

Monday, November 26, 2018

Racial Discrimination isn't a First Amendment Right (Yet)

I've written a bit about First Amendment Lochnerism -- the use of the First Amendment to strike down a bevy of (generally progressive) government regulations as violations on "free speech". Because an expansive view of "speech" can encompass all manner of activities hitherto thought of as unremarkable subjects of public regulation (consider laws which force drug manufacturers to disclose potential side effects -- compelled speech!), a hyperactive First Amendment jurisprudence can threaten huge swaths of the modern regulatory state. And indeed, it seems as if the First Amendment has been the conservative judiciary's weapon of choice against disagreeable liberal policy victories -- from campaign finance reform to public sector unions.

Anti-discrimination law, in particular, is vulnerable to this trend because it is very easy to view an anti-discrimination rule as a form of compelled association (why should I have to engage in a business transaction with a group I don't want to associate with), and because most discrimination has a self-consciously expressive character (I'm not doing business with this group as a means of expressing my disdain for them).

A few days ago, the Ninth Circuit encountered another probe in this direction when Charter Communications, the third-largest cable distributor in America, defended itself against a § 1981 charge of racial discrimination by claiming its application would violate its First Amendment rights.  Charter was accused of refusing to distribute the channels of a Black-owned cable company due to racial animus. It denies the claim, of course, but it also argued that even if it had been engaging in racial discrimination, such a choice would represent an exercise of Charter's "editorial discretion" and thus was immune from governmental oversight under the First Amendment. To the extent § 1981 -- one of the oldest civil rights laws in America, forbidding race-based interference in the creation of a contract -- is applied to such "editorial" choices, it is unconstitutional.

The Ninth Circuit rejected this defense and allowed the suit to proceed. But we're still seeing more and more data points suggesting that the First Amendment is viewed as a promising avenue for derailing discrimination claims, and I think there are ample grounds for civil rights activists to be very anxious about the trend.

Sunday, November 25, 2018

Cynicism as "Realism" as Cowardice

Among the many, many terrible things Mort Klein has written -- well, I don't actually want to rank them, because there's a lot bad. But this is bad.
Indeed, it's not just bad. It is one of the more despicable rhetorical ploys one sees in politics today. It is cynicism dressed up as realism. But it's worse than that, because what it's really intended to do is to serve as a buoy, a life raft to allow people to ignore obvious moral obligations by pretending that nobody really follows them anyway.

First of all, as Jill Jacobs notes, it's not like anybody has polled these migrants, so we actually have no idea how they might vote if and when they become U.S. citizens. The blithe assumption that they'll obviously vote Democratic is itself a pretty brutal self-own -- "clearly, given how terribly we've treated immigrants there's no way they'd ever vote for us!" is now right-wing orthodoxy -- and the Republican extension that this justifies xenophobic policies is the epitome of murdering your parents and crying orphan.

But if we lived in a different sort of world -- one where Republicans weren't committed to explicit policies of gratuitous cruelty towards refugees and immigrants, one where bipartisan immigration reform had succeeded instead of being torpedoed by an ascendant racist right -- would these groups be automatic liberal constituencies?

I hardly see why. It wasn't that long ago that Latinos were a swing bloc. It wasn't that long ago that Asians were a swing bloc. It wasn't that long ago that Muslims voted Republican by crushing margins. To the extent these groups are now viewed as reliably Democratic, it's caused less by unalterable cultural properties and more by the GOP's increasingly brazen embrace of open White Supremacy.

And on the other side: there have been refugee groups whose politics have coded "right" -- generally those fleeing socialist authoritarian nations. Cubans and Vietnamese would fall into this category, as would (I suspect) Venezuelans more recently. Yet contra Klein, I've seen no evidence that Democrats have abandoned their generally positive pro-refuge stances as applied to these groups. Just because conservatives can't imagine not acting based on partisan motives doesn't mean nobody does it. It just emphasizes how morally bankrupt contemporary conservatism is -- it's lost the ability to even fathom a principled stance. And as for Democrats, when faced with new constituencies that might start off suspicious of progressive politics, you know what we do? We try to win their votes, by making the case that our policies are better. Our success in doing so has translated to flipping a few south Florida and southern California House districts -- and that's the way it should be. Oh boo hoo -- it's so unfair that you need to actually appeal to different constituencies, even when they're not White! Welcome to democracy!

What's going on here? Why is Klein making arguments of this sort? The specific answer, obviously, is that Klein is a xenophobic hack with a loose allegiance to factual reality. The general answer, though, is that it's offering conservatives a way to be moral cowards while saving face.

Here's the thing: everybody understands that morality makes certain demands of us in the political realm. And everybody also understands that those demands might sometimes incur costs, or cause dissonance, or otherwise make us feel uncomfortable. So we're all vulnerable to pied pipers suggesting that we can dispense with those commitments -- who tell us what we already long to hear, who let us recode our cowering instincts as a form of nobility, or at least savviness.

Klein's cynicism styles itself as realism -- the hard-headed political realist understands that all this noble talk about "loving the stranger" is only so much political posturing, you'd be a sucker to be taken in by it. It's an attractive message because it disguises moral cowardice for clear-eyed vision, and that's exactly why it's so despicable. Messages like these do immense damage to the moral fabric of our political world; they don't just unravel the sense that we have duties to one another that extend beyond momentary political advantage, they undo that sensibility in a way that is masked as a virtue.

But make no mistake: it is cowardice. Telling oneself that just treatment of refugees is a sucker's game because it's just Democrats playing politics is a way of avoiding an obvious moral duty. It exploits a vulnerability in our collective psyches to make our politics coarser and crueler, and that makes the activists who peddle it utterly beneath contempt.

Nazi Saluting Students Won't Get Punished

The Baraboo (Wisconsin) School District has so decided, contending that it "cannot know the intentions in the hearts of those who were involved" and that any proposed discipline would violate the First Amendment.

I don't want to get into the merits of either these justifications. Hearts are notoriously hard to read (itself a good reason not to hinge our approach to discrimination on the fickle organ), and I'd have to do more research to feel confident appraising the merits of the First Amendment question (on the one hand, presumably the school's power is limited in cases of off-campus speech like this, on the other hand, remember "Bong Hits for Jesus"?).

All I want to say now is something I've said before: They would say it about Jews; they'd say it about others too. Sometimes one hears claims to the effect that "nobody would ever tolerate such-and-such behavior if it was targeting Jews", as a claimed contrast to cases where social actors are tolerating some form of bigoted behavior which targets another group. It's an ugly bit of victim-competition which attempts to cast Jews as having yet more unearned privileges and advantages that set them apart from the truly marginalized.

But, as we see here, people do target Jews with hateful acts, and other people do let them get away with it. The myth that -- alone amongst the oppressions -- any hostile act towards Jews (and -- the implication often goes -- many acts that aren't really hostile at all) is met with immediate and overwhelming punitive firepower is just that: a myth. It isn't reflected in reality, and it shouldn't be relied upon.