The (Non-)Prevalence Problem of CRT

Years ago, I remember reading a famous paradox concerning how Americans viewed the subject of foreign aid. If you asked them "should the US spend more or less on foreign aid," most Americans would answer "less" -- they thought we spent way too much money on the issue. But when you asked them to estimate how much the United States spent on foreign aid each year, they gave an answer that was an order of magnitude higher than what we actually spent. And worst of all, if you asked them how much they thought we should spend on foreign aid, their answer was still far higher than what we actually did spend -- and remember, this is from people who thought their position was that we needed to cut foreign aid!

At one level, this confluence mostly just shows that most people are innumerate. But taking it somewhat at face value, there is a nettlesome political puzzle here. What does one do if people say they want to adopt position X, but actually advocate for moving away from X, because they are under the misapprehension that the status quo is on the far side of X and thus believe that moving away from X actually means moving towards it?

This is a problem with some folks who've joined up on the "anti-Critical Race Theory" crusade. Of course, there are plenty of people who make no bones about their position -- they think CRT is a Globalist Marxist Socialist Communist Soros Triple Parenthesis plot, and they want to destroy it. But others at least purport to believe that Critical Race Theory should be taught, it just shouldn't be the only thing that is taught. For instance, David Bernstein of the "Jewish Institute for Liberal Values", a prominent anti-CRT voice in the Jewish community, took the position that any school which teaches a "traditional" narrative about civil rights should also teach a CRT perspective.

I absolutely believe any school that teaches a traditional narrative should teach a CRT based approach as well. I don’t know if there are more schools in the traditional category.

— David Bernstein (@DavidLBernstein) January 30, 2022

Now here's the thing. If your opinion is that every school should teach both a "traditional" and "CRT" style approach to civil rights, you are advocating for a position that is way to the left of the status quo. The vast majority of primary and secondary schools in the United States do not teach "CRT" at all. In some small number, you might get a CRT-influenced approach in conjunction with more traditional accounts. The number of students who are only being exposed to CRT, and no other perspective, is absolutely negligible. Objectively speaking, if your view is "students should hear both traditional and CRT views", you should be pushing for far more inclusion of CRT into public school curricula than is present in the status quo.

In other words, the entirety of the barrier to getting to the world Bernstein claims he wants to see comes from folks like the Speaker of the Wisconsin Assembly, who's trying to get the University of Wisconsin to rescind its hiring of respected scholar Jennifer Mnookin as Dean because Mnookin (this is a direct quote) "supports critical race theory being taught on campus". It's Texas passing laws limiting what can be taught in the classroom with the express goal of seeking to "abolish" CRT. It's Florida with a veritable cavalcade of legislation seeking to target and suppress "woke" ideologies.

Yet Bernstein, like the ill-informed respondent on foreign aid, has adopted a politics that sprints off in the exact opposite direction from where he claims he wants to go, because he has a wildly off-base assessment of how common Critical Race Theory is. He thinks CRT is everywhere, so getting to a position of even-handedness means pushing back against CRT's hegemony, even if it means making common cause with some unsavory actors. The reality is that CRT is still relatively obscure for most Americans, and so getting to evenhandedness would mean a more aggressive deployment of CRT into the American educational curriculum than would be dreamed by even the philosophy's most fervent supporters. 

Is he actually that ignorant about the true (non-)prevalence of CRT in the American educational system? I think he probably isn't; but there is something to be said for a certain type of elite who forgets the world exists more than 10 miles beyond Brooklyn and so confuses what is commonplace in a Williamsburg coffeeshop with the national status quo. A little of column B, a little (a lot) of column B, I'd wager. 

Virginia's Newly Anointed Death Cult High Priest Prepares Initial Sacrifices

Death may be an inevitability, but the current Republican Party ethos appears to be to do everything in its power to speed the process along. Freshly minted Virginia Governor Glenn Youngkin has rolled out an initial series of executive orders, and I have to imagine that Thanatos is pleased. He repealed state masking and vaccine mandates, so COVID can get us in the short-term, and he withdrew from a major anti-greenhouse gas initiative, so climate change can kill us in the long-term. No matter which way you turn, the GOP is cuddling up with the Reaper.

Oh, and there's also the unavoidable "ban on critical race theory" (perhaps soon to be paired with mandatory lessons on Abraham Lincoln's famous debates with Frederick Douglass?). Admittedly not death-related, unless you count the death of civics education.

This is, to reiterate, the opening gambits from a Republican who squeaked into office in a purple-blue state by a 2% margin. It's as if Missouri elected a Democrat as Governor in an off-year and his first move in office was to abolish the police. The gumption is nearly unfathomable.

But this is the great thing about being a purple state Republican. The media -- and, admittedly, a certain cohort of voters -- is so thirsty for a "reasonable Republican" that if you just hold off on biting off a baby head during the campaign, they will decide that you represent the very essence of sobriety and moderation, and anyone who tries to tell otherwise is just fear-mongering (cf. Scott Lemieux: "The greatest act of incivility in American politics ... is to accurately describe a Republican’s publicly stated positions."). 

Then, once you enter office, you can bite as many baby heads as you want! And everyone will be so shocked, and sad, and surprised, that he is doing exactly what Democrats said Republicans will do because it's also what Republicans said Republicans will do.

What if Critical Race Theory Doesn't Cause Antisemitism?

Note: This was originally going to be a column published in a Jewish media outlet -- it got caught in publishing purgatory for months before eventually being killed. Though it is now slightly dated, I republish it here. One significant modification is that JILV has revised its "white paper" since its initial publication -- you'll have to take my word on what the original version said, though I contemporaneously addressed some of the biggest howlers in this post shortly after the original was released (it actually is not entirely implausible that my post inspired several of the unnoted "corrections" in the revised document!).

* * *

It is time for the Jewish community to take seriously the question: Is critical race theory causing a surge of antisemitism in America?

And by “take seriously,” I mean take seriously the possibility the answer is “no.”

This is, after all, what it actually means to take a question seriously. One does not take a question seriously by presupposing a given answer, then clinging to that conclusion come hell or high water. That’s not rigorous inquiry, that’s dogma.

Yet the cottage industry of Jewish pundits, speakers, and institutes that purport to ask questions about the role of critical race theory in the growth of antisemitism aren’t really asking questions at all. For them, it is an article of faith that “critical race theory”, or “intersectionality”, or “critical social justice” (the terms are frequently used interchangeably, and with little precision), is a primary driver of contemporary antisemitism in America. Though they style themselves as bold truth-sayers, their conclusions come pre-loaded, held with a zealous fervor that brooks no naysaying.

But what happens when we try to actually put the hypothesis to the test? It is not hard, of course, to find examples of antisemitism emanating from progressives (or conservatives or centrists for that matter). Yet frequently, the case for “critical race theory” being a prime cause of antisemitism is nothing more than collecting a series of anecdotes of bad behavior by presumed progressive or non-white actors, then asserting that they’re all attributable to the theory. This slipshod practice is troubling for a host of reasons. 

First, critics of “critical race theory” or its cousins often are maddeningly vague in defining what the term(s) mean. A recent “white paper” by the Jewish Institute for Liberal Values attacking what it calls “critical social justice” is emblematic. “Critical social justice” is an invented term—it is not to my knowledge commonly used as a self-identification by anyone—but incredibly the white paper does not bother to give a definition of what the term means either. Hence, a rigorous reader has no way of assessing whether any of the forms of antisemitism identified in the paper—things like “the canard of Jewish privilege” or “the erasure of Jewish identity”—are elements of, or attributable to, “critical social justice.” Many readers might suspect that these practices are best criticized through a Jewish iteration of critical race theory methodologies (amusingly, one of the few academic sources cited, incorrectly, in the white paper as a supposed critic of “critical social justice” actually is a prominent advocate for developing what he calls “HebCrit”—Jewish critical race theory). But a writer or reader already steeped in the dogma doesn’t need “critical social justice” to be defined to be convinced it is to blame. For them, of course these antisemitic incidents are elements of “critical social justice” (whatever it is). 

Second, there’s little effort to show the scope or significance of the problematic activities as representative of the supposed theories that generate them. The JILV white paper, for instance, contends that “there is evidence that the more extreme versions [of critical social justice] are gaining ground and influencing public discourse.” In the white paper's initial formulation, the sole citation for this claim directed to a list of state rules and regulations seeking to ban critical race theory by force of law. Of course, such a list provides absolutely no evidence that theories of critical social justice, “extreme” or otherwise, are “gaining ground”—if anything it shows the opposite. What the list did show quite starkly is that the most overt threat to traditional liberal values in American politics today comes from the anti-CRT movement groups like JILV proudly attach themselves to.* 

Third, there is often the assumption that any antisemitic activity that occurs in an urban or coastal area must come from progressive people of color. Yet, as Laura Adkins has repeatedly emphasized, even when talking about, for example, antisemitic attacks on Orthodox Jews in New York, the data does not support the commonly-held assumption that the perpetrators are primarily Black or other persons of color. Moreover, it is grotesquely reductive to assume that any antisemitic action by a person of color is an instantiation of critical race theory, or even progressivism. Indeed, the latest data we have suggests that the highest levels of antisemitism among young people are found among non-White conservatives. This makes sense: there is nothing progressive about the extremist fringes of the Black Hebrew Israelite movement, so there is no reason to think antisemitic attacks committed by BHI adherents emanate out of any progressive philosophy. Yet how often have we seen writers lazily conflate “Black” with “left”?

Finally, even among the archetypical young, progressive, college-educated set, if “critical race theory” was responsible for generating antisemitism, then we’d expect to see spikes in antisemitism amongst persons (over)exposed to it. It is commonly claimed that certain academic disciplines, or even the collegiate system as a whole, are indoctrinating students with critical race theory and this suffusion is responsible for heightened antisemitism on campus. If this were true, we’d expect antisemitic attitudes to grow in intensity among students majoring in the problematic disciplines (the humanities compared to STEM), and/or students in their final year of college compared to their first. Yet the data does not support this either—it turns out that there is no measurable increase in antisemitism among students over the course of their college career nor among those majoring in the fields supposedly dominated by critical race theory.

That the crusade against critical race theory appears largely impervious to contradictory data or testing is worrisome. For one, it speaks to a troubling decay in our collective commitment to subjecting important hypotheses surrounding antisemitism, equity, and equality, to critical scrutiny and review. Helen Pluckrose, a hero of those rallying against critical race theory (she is the one who coined the term “critical social justice”), identifies laudatory “critical thinking” as “the examination of an argument or claim in the light of reason and evidence rather than accepting it uncritically …  looking for flaws of reasoning or unevidenced claims or unwarranted assumptions being made due to an ideologically biased interpretation of a situation.” If this is the value, it is largely absent amongst self-styled critics of “critical race theory,” whose assertions on the subject frequently assume conclusions not in evidence and who abjure critical engagement with actual CRT thinkers in favor of circular citation to members of their own ideological bubble.

The larger problem, though, is how we risk misallocating resources in the essential fight against antisemitism. Put simply, if we devote our resources toward fighting critical race theory as a means of fighting antisemitism, and it turns out that critical race theory has no significant relation to causing antisemitism, then we’ve just wasted a ton of time and energy! Polls of American Jews have been consistent in showing that most Jews see the primary instigator of antisemitism in America as being the political right, including the Republican Party. Increasingly, Soros conspiracies, tropes of shady “globalist” string-pullers, and what Deborah Lipstadt calls “softcore Holocaust denial” are normal not just on the right fringe, but the totality of the conservative movement. The insistence on clinging to a theory of antisemitism that is not backed by the evidence is blinding many of our communal institutions addressing a veritable tsunami of antisemitic sentiment surging through American politics.

The Jewish community has for years now labored under a torrent of tweets, YouTube screeds, public orations, and institutional white papers, all committed with a single-minded focus to the assertion that critical race theory is an enemy of the Jewish people. They have had much time to make their case. They have not done so—indeed, they’ve scarcely attempted to do so. That’s because their case is long since ceased to be a proposition that can be falsified by argument or evidence. It is a dogma. And it’s time we start seriously asking what happens if that dogma is not true.

* In the revised version, this list was removed and replaced by a hodgepodge of citations to companies or institutions allegedly practicing "CRT" -- though with no effort to draw the requisite comparisons between allegedly more or less "extreme" versions of the concept, let alone establish trends towards the former; and in some cases no effort to tie certain alleged practices to "CRT" at all.

It is notable that, with the deletion of the (perhaps inadvertent) citation to the long list of official governmental efforts to ban CRT, the white paper no longer addresses even indirectly the prominent, de jure efforts at censoring wrongthink being promulgated by its ideological compatriots. The closest it comes to doing so is in its discussion of filing lawsuits to chill the adaptation of diversity or equity initiatives -- a practice JILV endorses.

Three Feet Shorter

When the Supreme Court upheld an affirmative action program at the University of Michigan Law School as pursuing the compelling state interest of "racial diversity", Justice Scalia was scornful. The values of diversity -- inclusivity, tolerance, learning to work with people across differences -- were best taught to students "three feet shorter and twenty years younger" than the typical law student.

Four years later, though, when the Court in the Parents Involved case considered programs securing racial diversity in primary and secondary schools, this logic disappeared. It turned out that Scalia and the conservatives didn't want to inculcate these values at a younger age; they just didn't want them inculcated at all.

I was thinking about this upon reading Ayaan Hirsi Ali's fusillade against "critical race theory" in primary schools. The scare quotes are appropriate, since as Ali concedes, the racial justice initiatives she objects to in primary education do not go by the name "critical race theory" even as the right labors feverishly to place them under the label. In a truly spectacular leap of logic, that the right calls things "critical race theory" that are not "critical race theory" is not evidence that they're simply making things up, but rather is demonstrative of the theory's proponents showing a "remarkable ability to shape-shift".

But I digress. Ali's main argument is that affirmative action programs have been "clear failure", listing off a bevy of racial inequalities that still exist in the fifty years following the civil rights revolution. Of course, the crit would suggest that this shows the problems of racism in America run deeper than a few diversity initiatives can fix; and even the non-crit might find it odd to see evidence of ongoing racial inequality mustered as proof that we need to think less about matters of racial inequality. But Ali, ever the iconoclast, puts the entirety of the blame on affirmative action itself -- specifically, Richard Sander's "mismatch" theory. Leave aside the various criticisms one might have of that theory. Its core logic is that, by the time we reach the point of a collegiate affirmative action program, it's too late to undo the failures of the primary educational system to provide the foundations and skills necessary for students of color to thrive in elite university settings. The intervention occurs too late in the day.

So the obvious implication is that we should be investing our energies earlier in the process -- concentrating on students when they are twenty years younger and three feet smaller. And yet, it turns out, Ali -- like her fellow conservatives -- doesn't support this either. In fact, they're even more enraged when the persons concerned about racial inequity begin focusing on the primary rather than the collegiate level (even though the "mismatch" arguments that nominally undergirded their objection to the latter have no relevance to the former). The objection, it turns out, has nothing to do with the when, but is entirely about the what: an ideological opposition to trying to dismantle racial inequalities in education -- no matter how tall or short the students may be.

Are We Pro- or Anti-Enlightenment? And Other "Anti-CRT" Questions

On the one hand, the Jewish Journal's latest screed against the "Cultural Marxism" of Critical Race Theory, embarrasses me as a Jew -- not the least because (((cultural Marxism))) is a well-known antisemitic dogwhistle. On the other hand, the screed also embarrasses me as a political theorist, since the column's treatment of the political theories and theorists it mentions is so scattered and incoherent one can hardly remember what the underlying argument is supposed to be.

Some of the puzzles I was left with:

1. I thought Voltaire was a hero of free speech and Enlightenment liberalism. But here I'm told Voltaire actually is an evil harbinger of contemporary leftism.
2. For that matter, is the Enlightenment a good thing? I thought the anti-CRT folks were casting themselves as last guardians of the dying Enlightenment tradition, but here the Enlightenment is presented as a utopian nightmare opposed to "individual rights" and "free expression."
3. I thought CRT was bad because it supposedly presents biological race as an immutable and totalizing feature of the self. But here it's bad because it recognizes race is socially constructed?
4. What the hell is a "collectivist belief system" in this context? Telling me it is just "other words" for saying that race is socially constructed, racism is endemic, and racial progress tends to occur when it is to the advantage of racially dominant groups is less illuminating than one might think. Is "the new antisemitism" also a "collectivist belief system"?
5. When did Cheryl Harris promote the outright abolition of private property? Because it sure wasn't in her "Whiteness as Property" article. Is this just Christopher Rufo spreading lies again (all signs point to yes)?
6. What is the relationship of "cultural" to "Marxism" in "cultural Marxism"?
7. And what makes any of this non-class based activity "Marxist" in the first place? Is "Marxism"  now just any theory that claims a certain group is discriminated against and wants to change society so that it no longer is? Is Zionism "Jewish Marxism"? Was the American revolution "American Marxism"? (And if that is the definition then I still can't figure out what "cultural Marxism" could possibly mean)?
8. How on earth can "tech-titans and corporate leaders" be pursuing a Marxist agenda? If it's their agenda, isn't that a pretty glaring hint that the agenda -- whatever else it is -- is not "Marxist"?

There are so, so many more, but enough is enough. We sure could use a bit more rigorous inquiry, though.

The Epidemiology of Antisemitism

The New York Times has hired conservative columnist Bret Stephens, lately of the Wall Street Journal, to provide an additional conservative perspective to the Grey Lady. Controversy immediately erupted, first over Stephens status as a climate-change denier, and then more recently over a 2016 column that characterized antisemitism as "the disease of  the Arab mind" (it came in the context of an Egyptian Olympian who refused to shake the hand of his Israeli competitor).

NYT Cairo Bureau chief kicked off the discussion with this tweet:

Not cool: new NYT columnist @BretStephensNYT once wrote about the "disease of the Arab mind". https://t.co/duylYvCQSd (h/t @hahellyer)

— Declan Walsh (@declanwalsh) April 15, 2017

And his colleague Max Fisher succinctly articulating what I think is our legitimate squeamishness at hearing an entire group of people characterized as possessing a "disease of the mind."

@declanwalsh @BretStephensNYT I guess we just all have to agree to disagree as to whether it is acceptable or correct to call racial groups pathologically "diseased."

— Max Fisher (@Max_Fisher) April 16, 2017

Now, I've responded to a Bret Stephens column once, and it was not one I was impressed by -- a tiresome bit of neocolonialist claptrap seeking to establish which peoples are sufficiently civilized to deserve self-determination. So I don't have any particular interest in defending Stephens per se.

That said, this controversy did interest me because of an angle I don't think I've yet seen explored: the widespread literature on the "epidemiological" approach to racism. I first came across this view in an article by prominent Critical Race Theorist Charles Lawrence III, but it is hardly restricted to him. It is a perspective that is at least familiar to anyone who spends significant time in the literature on contemporary racism and prejudice.

The epidemiological view treats racism as, well, a disease -- a public health crisis that demands intervention. Among the motivations for articulating racism in this way is the belief that an epidemiological approach steps away from the focus on conscious choices (we don't choose to be infected) and with it, the politics of blame (we don't view cancer patients as being morally inferior because they have a disease). Rather, thinking of racism as a disease channels our focus onto (a) the devastating social consequences that can occur when racism is widespread and unchecked, and (b) what we can do to check the spread and, eventually, find a cure.

As it turns out, the use of the epidemiological approach for antisemitism has deep roots -- deeper, perhaps, than its use to analyze racism. Re-reading Lawrence's article while writing this post, I discovered that it actually contains a significant discussion of antisemitism as disease, as an epidemic -- and one that he investigates through the specific case of Black antisemitism right alongside the parallel case of Jewish racism.  Even more interestingly, a 1949 book by Carey McWilliams on "Anti-Semitism in America" claims to have found "hundreds" of examples of antisemitism being defined in epidemiological terms -- a "theme" that runs through descriptions of what antisemitism is. Among the statements he found was the claim that antisemitism is, simply, "a disease of Gentile peoples."

Under this view, then, the rhetoric of epidemiology and disease is meant to be gentler -- not stigmatizing to those it labels, not concerned with separating out the bad people from the good. But as Fisher observes, there is at the very least another set of tropes associated with "disease" rhetoric that is not so benign. Under the latter usage, "disease" connotes those groups which are dirty and mutated; those who need to be isolated, sequestered, or purged. Rhetoric of various outgroups -- including Jews, Arabs, immigrants of all backgrounds -- being "diseased" and therefore dangerous has a been a staple of racist fearmongering for generations. Again, it is not for nothing that we squirm when we hear talk of a group being "diseased".

I don't think that Stephens was intentionally referring to the literature on the epidemiology of racism. But leaving his particular case aside, here's my question: Do the concerns of Fisher et al mean that the epidemiological approach is inherently tainted and must be abandoned? If not, what interventions are necessary so as to use the method (and its necessarily attendant rhetoric of disease, infection, and so on) without triggering these problematic associations?

My familiarity with the epidemiological approach gives me some sympathy towards it -- I think it is at least a useful way of thinking through how racism and antisemitism operate, how they spread, and how they should be combatted. Yet at the same time, my familiarity with how rhetoric of disease is used to degrade and dehumanize means I am sympathetic to the concerns that it would do so here. The questions in the previous paragraph are those made entirely in earnest, and I in turn invite earnest replies.

The Master's Tools versus The Master's House

"The master's tools," Audre Lorde wrote, "will never dismantle the master's house." It's one of her more famous lines. I appreciate the appeal. I appreciate the poetry.

I've just never been convinced that it's right.

For starters, what tools aren't the master's? One of the perks of being master, it seems, is that one can grab any or all of the tools. Even if the slaves develop a tool of their own, the masters have proven quite adept at appropriating or co-opting it to preserve and ratify their own regime. "Color-blindness," for instance, didn't start off as one of the master's tools -- it was a radical attack on the very structure which underwrote slave power and white supremacy. A century and a half of ideological drift later, and now colorblindness is the ultimate master's tool.

Or take race itself. Lorde's essay is focused on the need to take race and racial identity (among other things) seriously if we are to remedy structures of racist exclusion. I couldn't agree more -- but isn't race the ultimate master's tool? It was the original instrument used to forge our system of racial supremacy itself. And again, I agree with Lorde that it would be impossible to tear down that structure without utilizing race as a central category of analysis. But that gets us to the opposite position: The master's tools are the only way to dismantle the master's house.

I was reflecting on this point when thinking about why I'm so committed to using the tools of progressive analysis against the problem of anti-Semitism, when so often those tools have been employed to justify, legitimize, and ratify anti-Semitic domination. One cannot be a progressive Jew today and not hear the sing-song snickers of the Jewish right calling you a deluded fool -- "why bother? What does the left have to do to prove they're not your friend?"

At one level, this betrays a naivete of the Jewish right, for the conservatives aren't their friends either. But I don't necessarily disagree with them that "the left", as constituted as a largely non-Jewish social movement, is not a friend of the Jews. It's long become clear to me that for the most part, people only care about anti-Semitism when the victims are people they like, and will excuse it when it happens to people they don't like. This isn't really different from how I view anti-racism commitments -- it's no accident that progressives don't seem to care about racism directed at Clarence Thomas, and it's no accident that conservatives seem to care about racism only when it's directed at Clarence Thomas. Most people are at most fair-weather friends. "Allies", primarily, exist in the mythical space that develops when a group's high-salience members and activities are generally liked by the ally.

The reason I use these tools, then, isn't because of some belief that the people who developed them or who mostly use them today are my friends. I use these tools because they work. Because they provide a more robust and realistic account of discrimination and oppression than their competitors, and anti-Semitism desperately needs to accounted for in a robust and realistic manner. If Jews ceded every instrument that had helped construct the edifice of anti-Semitic domination, we'd left with a rather pale and impotent toolbox. Why on earth would I be foolish enough to handicap myself so?

Lorde's essay, for example, makes a powerful argument for why the perspective of women like her -- and not just her, not simply a token -- is indispensable to doing progressive analysis right. If we're worried that people now feel they can exclude or marginalize Jewish voices (or at least, all but a few token Jewish voices who will tell non-Jewish audiences what they want to hear about Jews), this is an important tool in our toolkit. When progressive writers asked us to look at modern associations and to see how norms of exclusion and oppression are often woven into their histories without ever having been excised -- well, more than a few academic disciplines could stand to be reminded of that vis-a-vis the Jews. When progressive writers urged the broader community to stop reflexively assuming that all discrimination claims were just minorities "playing the race card", goodness knows that's a norm Jews are well accustomed to.

I am not a panglossian. I don't know if anti-Semitism will be cured in my lifetime, or even if we will see a net change in the right direction. But I do know that if anything is going to dismantle the house of anti-Semitism, it will be the tools the left has pioneered -- not because the left hasn't mastered anti-Semitism too, but because I believe we can use the tools better to liberate us than others can use  them to oppress us.

Today's Reading Assingment

Jonathan Zasloff, Left and Right in the Middle East: Notes on the Social Construction of Race, 47 Va. J. Int'l L. 201 (2006). It is one of the first academic examples I've seen which compares Israel and its identity as a "Jewish state" to the American affirmative action debate, and accurately notes that there is an inversion of the normal left/right split on the question. He also makes an intriguing parallel between the Palestinian "right of return" and the American debate over property rights and "takings", again noting that the rightward position would seem to favor Palestinians and the leftward one Israel.

On the one hand, my tenure-o-meter always winces whenever I see one of my ideas has already been taken. On the other hand, if I ever get around to organizing the "New Perspectives on the New Anti-Semitism" symposium I keep on running in my mind, an additional candidate for participation has just emerged.

Critical Jewish Studies?

This is cross-posted from Concurring Opinions. I don't think the content will be particularly new for long-time readers of this blog, but I figured some might be interested.

The first two areas I could say I had an actual scholarly interest in were Church/State law and Critical Race Theory. This wasn't an accident -- I got interest in CRT because the method of analysis it used really spoke to me as a Jew. It seemed to do a better job of capturing the various problems and barriers faced by members of marginalized groups beyond the standard, thin liberal story.

When I finally got access to Lexis as an undergraduate at Carleton, one of the first things I did was run a search for something approximating a "Critical Jewish Theory". And I came up with ... virtually nothing. With one very notable exception -- Stephen Feldman at the University of Wyoming (I know, I know: Jewish studies in Wyoming -- could it get any more cliched?) -- it was a virtual dead-end. Even Professor Feldman's work, which I admire and has influenced me greatly, focuses primarily on the American Church/State context. An important topic, to be sure, but hardly the only one which intersects with Jewish lives and areas of concern (international law, in particular, seems like a gimme).

This absence struck me as very strange. In general, the CRT movement has been pretty good about extending itself to a variety of different identities. Though the original works focused primarily on African-Americans (and really, African-American men), we now have Critical Race Feminism, LatCrit, Asian-American themed CRT, Queer Studies, and a host of others. The lack of an analogous school of discourse applied to the Jewish experience is not a function of disciplinary narrowness.

So what gives? I have some thoughts, but I don't find any of them particularly satisfactory. The cheap answer is that CRT is a "left" movement and contemporary anti-Semitism is primarily a leftist project. I reject that for two reasons: first, because I don't think right-wing anti-Semitism is as dormant as conservatives like to claim, and second, because the various crit movements have never really shied away from "friendly fire". There have been some particular points of tension between CRT writers and the Jewish community -- Mari Matsuda's famous hate speech article in the Michigan Law Review strongly considered the possibility of labeling Zionism "hate speech", one of Daniel Farber & Suzanna Sherry's critiques of CRT was entitled Is the Radical Critique of Merit Anti-Semitic? (83 Calif. L. Rev. 853 (1995)) -- but nothing severe enough to force a permanent fissure.

Possibly the best answer I have relies on the particular form in which anti-Semitism is often instantiated in the modern world. Most other -isms are predicated on inferiorizing their targets. This can be done contemptuously (as often is the case in racism), or clothed as paternalism (as often is sexism). Modern anti-Semitism, by contrast, does not treat Jews as incompetent or inferior at all. Much the opposite -- it views them as hyper-powerful; a conspiratorial, parochial sect whose tentacles control the government, the media, and the banks, but whose loyalty lies only with themselves. There's often a grudging respect to it, but the respect one gives to a particularly dangerous villain. It's easy to see these tropes popping up again and again in "anti-Zionist" discourse worldwide, where accusations of dual loyalty are very much part of the discussion and standard Jewish interest-group lobbying is seen as uniquely nefarious and abusive. Still, the crits, focused on groups whose problem is that they don't have enough voice or sway, are ill-equipped to talk about a group whose "problem" is that they are seen in the popular eye as being too influential. Couple this with the fact that Jews, as a group, are relatively well-off (though this flattens distinctions within Jewish subgroups) and it can be hard to see them as suffering from an "oppression" worth analyzing.

But obviously, economic wherewithal is not the alpha and omega of CRT-style analysis (after all, a considerable portion of the movement's energy is dedicated to refuting the idea that "it's not race, it's class!"). And Jewish history in particular is replete with instances of Jews being placed in the role of the "buffer", given a fair amount of influence but designed to be the targets of popular resentment. Simply taking at face value that Jews have it all and that prejudice against them has been relegated to sporadic acts of rabid hate by Klansmen is precisely the sort of quiescence that Crits tend to rebel against.

Indeed, the fact that the mechanics of anti-Semitism in particular are not adequately captured by contemporary stories of oppression is all the more reason why it desperately needs analysis akin to what CRT has provided in the context of race. And I do believe a similar approach has a lot to offer in the Jewish context. The allegedly pervasive presence of the "race card" is the old nemesis of anti-racist workers everywhere, but of late the "anti-Semitism card" has been an increasingly prominent method of dismissing claims by Jews of unfair treatment. The myth of the "Judeo-Christian" tradition (which, as a political trope, is invariably 100% Christian) acts to sublimate an independent Jewish political voice -- while there are many Jews in politics, there are very few who speak "as Jews", particularly when doing so would seriously challenge dominant conceptions of the Jewish role or place. It is highly notable, in my view, that "Judeo-Christian morality" is seen as a deeply conservative normative commitment, despite Jews being among the most socially liberal denominations in America today. That Christians politicians have appropriated Jewish experience in ways foreign to the actual Jewish political and theological tradition is an example of the boundaries on the "love" they have for us; that Jews have been unable to effectively resist is an example of our marked political limitations. And while Israel certainly has its fair share of sins, the massively disproportionate vitriol and condemnation directed its way (indeed, directed to the very concept of it existing) by international legal actors clearly implicates anti-Semitic norms (and the fact that I, an early supporter of J Street and a strong critic of the Netanyahu administration, feel compelled to verify that "yes, I can tolerate criticisms of Israel without labeling them anti-Semitic" is itself symptomatic of a discourse gone badly awry).

It's not the case that nobody has done any writing on these topics. In addition to Feldman, Albert Memmi's The Liberation of the Jew would have to be considered a foundational text in any "CJT" movement, and David Hirsh has recently written a stellar paper entitled Anti-Zionism and Antisemitism: Cosmopolitan Reflections (Hirsh also writes often for the Engage blog, which is essential reading for anyone interested in this subject). But there's a lot more to be done, and I still find it odd that the disciplinary gap has persisted for this long.

Rights and Left

Rights discourse is internally inconsistent, vacuous, or circular. Legal thought can generate equally plausible rights justifications for almost any result. Moreover, the discourse of rights imposes constraints on those who use it that make it almost impossible for it to function effectively as a tool of radical transformation. Rights are by their nature ‘formal,’ meaning that they secure to individuals legal protection for arbitrariness—to speak of rights is precisely not to speak of justice between social classes, races, or sexes. Rights discourse, moreover, simply presupposes or takes for granted that the world is and should be divided between a state sector that enforces rights and a private world of ‘civil society’ in which atomized individuals pursue their diverse goals. This framework is, in itself, a part of the problem rather than of the solution. It makes it difficult even to conceptualize radical proposals such as, for example, decentralized democratic worker control of factories.

Because it is logically incoherent and manipulable, traditionally individualist, and willfully blind to the realities of substantive inequality, rights discourse is a trap. As long as one stays within it, one can produce good pieces of argument about the occasional case on the periphery where everyone recognizes value judgments have to be made. [ Duncan Kennedy, Legal Education and the Reproduction of Hierarchy, 32 J. Legal Educ. 591, 598 (1982)]

Duncan Kennedy spoke for a large portion of the Critical Legal Studies movement when he wrote these words in 1982. CLS scholars were, at the time, launching a left-wing Marxist attack on the traditional structures and assumptions of legal institutions. Critical Legal Studies attempted to subvert the supposed coherence of our dominant legal categories, exposing them to be actually chaotic and incoherent, and then examine what sorts of entities would have the interest in (arbitrarily) constructing legal reality as we now find it. One of their favorite targets was the idea of "rights", which they thought were (to say the least) overrated. CLSers dedicated themselves, in fact, to "trashing" rights -- exposing them as indeterminate, inchoate, and manipulable to whatever ends desired by the empowered classes.

The Critical Race Theory movement grew out of CLS, and agreed with many of its observations. The writings of Derrick Bell, in particular, took the legal world by storm as an indictment of some deeply held assumptions about the utility of the legal system as a tool for effected civil rights reforms -- particularly given Bell's history as a front line attorney for the NAACP's Legal Defense Fund during the height of the civil rights era. Most Critical Race Theorists agreed with Bell that the efficacy of rights talk had been wildly overstated by self-congratulatory White folks, and that progressives needed to reevaluate their options.

Nonetheless, fissures rapidly began to appear between the largely White CLS movement and the more integrated CRT wing. These came to a head in 1987, when the Harvard Civil Rights-Civil Liberties Law Review published a symposium entitled, simply enough, Minority Critiques of the Critical Legal Studies. One of the primary angles of attack, ironically enough, was that CLSers had gone too far in their dismissal of rights, legal remedies, and formal legal protections. In her contribution, Patricia Williams -- one of the most important contributors to Critical Race Theory -- told the following story, which has stuck with me for a long time:

Some time ago, Peter Gabel [a founder of Critical Legal Studies] and I taught a contracts class together. Both recent transplants from California to New York, each of us hunted for apartments in between preparing for class and ultimately found places within one week of each other. Inevitably, I suppose, we got into a discussion of trust and distrust as factors in bargain relations. It turned out that Peter had handed over a $900 deposit, in cash, with no lease, no exchange of keys and no receipt, to strangers with whom he had no ties other than a few moments of pleasant conversation. Peter said that he didn't need to sign a lease because it imposed too much formality. The handshake and the good vibes were for him indicators of trust more binding than a distancing form contract. At the time, I told Peter I thought he was stark raving mad, but his faith paid off. His sublessors showed up at the appointed time, keys in hand, to welcome him in. Needless to say, there was absolutely nothing in my experience to prepare me for such a happy ending.

I, meanwhile, had friends who found me an apartment in a building they owned. In my rush to show good faith and trust-worthiness, I signed a detailed, lengthily-negotiated, finely-printed lease firmly establishing me as the ideal arm's length transactor.

As Peter and I discussed our experiences, I was struck by the similarity of what each of us was seeking, yet in such different terms, and with such polar approaches. We both wanted to establish enduring relationships with the people in whose houses we would be living; we both wanted to enhance trust of ourselves and to allow whatever closeness, whatever friendship, was possible. The similarity of desire, however, could not reconcile our very different relations to the word of law. Peter, for example, appeared to be extremely self-conscious of his power potential (either real or imagistic) as a white or male or lawyer authority figure. He therefore seemed to go to some lengths to overcome the wall which that image might impose. The logical ways of establishing some measure of trust between strangers were for him an avoidance of conventional expressions of power and a preference for informal processes generally.

I, on the other hand, was raised to be acutely conscious of the likelihood that, no matter what degree of professional or professor I become, people would greet and dismiss my black femaleness as unreliable, untrustworthy, hostile, angry, powerless, irrational and probably destitute. Futility and despair are very real parts of my response. Therefore it is helpful for me, even essential for me, to clarify boundary; to show that I can speak the language of lease is my way of enahncing trust of me in my business affairs. As a black, I have been given by this society a strong sense of myself as already too familar, too personal, too subordinate to white people. I have only recently evolved from being treated as three-fifths of a human, a sub-part of the white estate. I grew up in a neighborhood where landlords would not sign leases with their poor, black tenants, and demanded that rent by paid in cash; although superficially resembling Peter's transaction, such "informality" in most white-on-black situations signals distrust, not trust. Unlike Peter, I am still engaged in a struggle to set up transactions at arms' length, as legitimately commercial, and to portray myself as a bargainer of separate worth, distinct power, sufficient rights to manipulate commerce, rather than to be manipulated as the object of commerce.

Peter, I speculate, would say that a lease or any other formal mechanism would introduce distrust into his relationships and that he would suffer alienation, leading to the commodification of his being and the degradation of his person to property. In contrast, the lack of a formal relation to the other would leave me estranged. It would risk figurative isolation from the creative commerce by which I may be recognized as whole, with which I may feed and clothe and shelter myself, by which I may be seen as equal--even if I am stranger. For me, stranger-stranger relations are better than stranger chattel. [Patricia J. Williams, Alchemical Notes: Reconstructing Ideals from Deconstructed Rights, 22 Harv. C.R.-C.L. L. Rev. 401, 406-408 (1987)]

Williams story evokes part of the general CRT discomfort with the CLS/Marxist attack on "rights" as a concept. People of color, Williams argued, are well aware that rights aren't all they're cracked up to be. They are not a panacea, and they can be manipulated to support near-infinite policy ends -- including brutally oppressive ones. But at the same time, Williams knows well the difference between even nominally being part of the rights-world and being excluded from it. One has the luxury to be alienated by legal formalities only when can be secure that informality will still accord you basic respect and dignity -- a luxury not held by people of color of all classes and backgrounds. The right to hold rights at least provides an foothold -- an avenue which the dispossessed can pivot from and assert claims against those wronging them; the pages upon which one can write a counter-narrative to the dominant conception of rights interpreted solely to protect the privileged.

Even losing a rights-claim is superior to not being allowed to assert the claim in the first place. The act of “[n]aming violence inside and outside the courtroom bears witness to it and preserves the possibility of judging it.” Undoubtedly, the forces of the legal system will attempt to refract the claims and stories so as to ratify the existing order. But stories are fickle things – they are not always read the way their authors intended them to be. Martha Minow points out that even losing arguments can still remain quite powerful “if they continue to represent claims that muster people’s hopes and articulate their continuing efforts to persuade.” One can lose a lawsuit, but still win “pages in the works of historians and anthropologists, and a chance at reviving and recasting memories." [ Martha Minow, Interpreting Rights: An Essay for Robert Cover, 96 Yale L.J. 1860 (1987); Martha Minow, Not Only For Myself: Identity, Politics & the Law 82 (1997)]

Critical Race Theory today remains a vibrant field; Critical Legal Studies, by contrast, is nearly moribund. The reason, I submit, is because the groups it thought it was speaking on behalf of still saw a use for rights, for legal formalities, for contracts, and for law -- all entities that CLS was seeking to "trash". Elsewhere, Williams wrote:

To say that blacks never fully believed in rights is true. Yet it is also true that blacks believed in them so much and so hard that we gave them life where there was none before; we held onto them, put the hope of them into our wombs, mothered them and not the notion of them.... [Patricia J. Williams, The Alchemy of Race and Rights 163 (1992)]

The promises rights hold out: to speak freely, to bargain equally, to be treated fairly -- these are powerful things. Even when dominant legal discourse seeks to squash them of any life, the concepts they represent do not die so easily. The seeds of life are always there, yearning to germinate.