Saturday, October 30, 2021

Are All Exemptions "Individualized"?

One of the many fun events of the past few years has been the Supreme Court deciding it is going to blow apart and reconstruct First Amendment free exercise doctrine in the middle of a pandemic, often on the shadow docket, with little warning and less argument, invariably in the direction of hamstringing the public authorities' efforts to impose basic common-sense limitations to stop the spread of a highly-infectious, contagious disease. We should all take a moment to pour one out for the courageous American people, who have largely been steadfast and resilient in the face of the federal judiciary's determined efforts to kill us all.

The latest salvo on this front was the 6-3 vote by the Supreme Court to deny emergency relief to health care workers who wanted a religious exemption from Maine's vaccine requirement. Maine allows vaccine exemptions solely for medical reasons; it does not permit religious (or, I believe, any other) bases for exemption. This vote does not necessarily mean that the case will come out the same way if it ever reaches the Court via normal avenues; Justice Barrett, joined by Justice Kavanaugh, concurred but suggested that part of their issue was that the case was inappropriate for resolution on the shadow docket. Glad they finally got the memo!

Justice Gorsuch wrote for three dissenters to stake out what would have been until, well, last week, a truly staggering position: that Maine's choice to exempt from a vaccine mandate only those for whom a vaccine is physically dangerous fails rational basis review, which is such an extreme departure from existing constitutional law doctrine I'm almost in awe of its lèse-majesté. Others can pick at other aspects of the opinion, but one element I wanted to flag was Justice Gorsuch's claim that Maine has a system of "individualized exemptions" in place for its vaccine mandate which it is unreasonably failing to extend to religious objectors.

The "individualized exemption" rhetoric picks up from the Court's halting attempt to harmonize its new free exercise jurisprudence with what had been the prevailing standard in Employment Division of Oregon v. Smith, which held that neutral and generally applicable laws needn't offer religious exemptions even if they happen to impinge upon the religious precepts of certain individuals. Smith distinguished some older cases, notably Sherbert v. Verner, on the grounds that in the latter there was a system allowing for individualized review and assessment of each applicant's claim. In Sherbert, which involved claims for unemployment benefits, the state individually checked to see whether each applicant had demonstrated "good cause" for declining any work offered to them; the case there involved a circumstance where the administrative agency declined to accept that refusing to work on the Saturday Sabbath constituted "good cause". As Smith observed, most laws do not offer that sort of case-by-case, highly-tailored individualized review, and so the Sherbert rule is difficult to reasonably extend to other cases.

Fast forward thirty years, and we have a Court that seems far more inclined to grant religious exemptions as a matter of constitutional entitlement, but has not (as yet) been willing to overturn Smith. So it relies on the "individualized exemption" angle to say that it's not actually making a change. This gives us Fulton v. City of Philadelphia, ruling against a Philadelphia policy which declined to give a religious accommodation to a Catholic organization that wanted to discriminate against gay couples notwithstanding that its anti-discrimination policy allowed for exemptions at the sole discretion of the relevant administrator for any reason whatsoever. Though Philadelphia had never actually granted an exemption, the Court interpreted this provision as essentially having Philadelphia look at each application for an exemption and decide, based on individualized assessment of the particular case, whether to grant one or not. This was akin to Sherbert rather than Smith -- a system of individualized review -- and if one is going to offer that sort of review than religious exemptions have to be permitted as well. Perhaps for that reason, Fulton was a unanimous decision -- it really could fit within the pre-existing doctrine, albeit only because Philadelphia had a crafted a broad and purely discretionary exemption system allowing for individualized assessment of every applicant.

Which brings us back to the vaccine mandate case. Justice Gorsuch, in his dissent, says that the Maine rule is like the Philadelphia rule -- it allows for "individualized exemption." What he specifically says is that "The State’s vaccine mandate is not absolute; individualized exemptions are available but only if they invoke certain preferred (nonreligious) justifications" -- namely, the health-based justification.

Yet Justice Gorsuch seems to be making a conflation here with huge ramifications -- between "exemptions" and "individualized exemptions". Yes, Maine's law has an exemption from its vaccine mandate for persons for whom the vaccine would not be healthful; this is eminently sensible if Maine's ambition is to promote public health. But these exemptions are not individualized in the way that was present in Sherbert or Fulton -- Maine does not make a free-standing commitment to assess every applicant "as an individual" and determine, based on the totality of the circumstances, whether an exemption is appropriate or not. It has a specific exemption for a particular class of persons -- those for whom the vaccine would be physically dangerous. Admittedly, Maine presumably has to do some individualized review to determine whether a person applying for an exemption under this demarcated policy qualifies for the exemption. But that is still not "individualized" review in the Sherbert/Fulton sense, unless every "exemption" in a law necessarily is an "individualized exemption".

Which actually does seem to be Justice Gorsuch's position: all exemptions are "individualized exemptions" -- the word "individualized" is superfluous. His proof that the vaccine mandate has "individualized exemptions" is that it is "not absolute", suggesting that any exception ipso facto qualifies as an individualized exemption which must therefore allow for a religious exemption as well.

This is staggering. One would struggle, I imagine, to think of a law that doesn't have some "exemptions" in it -- pretty much any law of substance has some "provided that such-and-such does not qualify" proviso in it somewhere. Our laws prohibiting stabbings exempt surgeons; our laws prohibiting possession of drugs exempt police officers seizing drugs; our laws prohibiting homicide exempt executioners of the death penalty. Are these all now "individualized exemptions", compelling religious adherents to get a similar exemption as well? In our soon-to-be-post-Roe world, most states which ban abortion probably still will have some "life of the mother" exception; does offering this exemption mean that any person for whom abortion is religiously mandatory in other scenarios must be permitted to have one?* I can't wait for the first Jewish plaintiff to sue on that theory; I can wait for her to inevitably lose because there is no question that the rule being expressed here is not a check liberal religious observers will be entitled to cash as against conservative rules.

At some level, this is all an academic exercise -- the reason we're focusing on the existence or not of "individualized exemptions" is not because Justice Gorsuch has any particular attachment to that as the standard, it's because this is the rhetoric one can find in Smith and so this is the best way to achieve the outcomes Justice Gorsuch wants in a world where there are not yet enough votes to overturn Smith. Nonetheless, the implications of Justice Gorsuch's position really is that any law which has any exemption for any reason must have a religious exemption too -- a position which seems perilously close to covering "all laws". That's a recipe for religious anarchy. I won't say "and that's the point", because again, we all knew who is going to be allowed to ride that train and who won't be. The likely upshot is far more likely to be the typical authoritarian-conservative structure: a favored class for whom the laws protect but do not bind, and a disfavored class for whom the laws bind but do not protect.

* It is amusing to me just how well Justice Gorsuch's logic for why a health exemption to a vaccine  mandate necessarily compels a religious exemption maps onto why a health/life exemption to an abortion ban necessarily compels a religious exemption there too. Justice Gorsuch's position is that we are per se forbidden from ever declaring a "religious" need as lesser than any secular need, including health and safety (this has been referred to as promoting a wrongful hierarchy privileging "life-sustaining" over "spirit-sustaining" needs). The only basis we have for declining a religious exemption is if the religious action uniquely threatens the state's interest in promulgating the general law in a way that the secular exemption doesn't. 

In the vaccine case, Gorsuch's argument goes, unvaccinated persons may be dangerous in a health care setting, but they're equally dangerous regardless of the reason they're unvaccinated -- it's not as if a virus is less transmittable if it's carried by someone who's unvaccinated because of health reasons compared to religious reasons. But so too in the abortion case -- the state's interest in protecting fetal life is equally implicated regardless of whether the reason the fetus is killed is because its necessary to protect the mother's life or because it's necessary to protect the mother's soul. Either way, the fetus is equally dead, and so once the state allows the, ahem, "individualized exemption" permitting abortion in cases where it is necessary to save a mother's life, it must allow them in any cases where a patient sincerely believes them to be religiously mandatory. 

Thursday, October 28, 2021

The Original Understanding of the Fourteenth Amendment is Not Just the Original Understanding of White People

Earlier today, I was having an internet discussion about a tweet from Ibram X. Kendi where he said that one element of racism "is to see books by White authors on White people as pertaining to *people* not race." This was in response to efforts in Texas to investigate and potentially ban a huge list of books that are on the subject of race (and/or sexuality).

Kendi's point, clearly, was not to say that books about White people are actually about aliens (I thought this was obvious, but some apparently need persuasion). Rather, his point was that books about White people are about White people, not "people" simpliciter. They are exactly as "raced" as books by Black authors about Black people. But the latter are pigeon-holed into being "Black" literature, while the former are thought just to be books about "people". And this is a very bad thing, that yields predictable distortions. 

Think of all the times that articles about "working class Americans" only talk to White working class Americans. The conflation gives a sharply skewed account of "working class Americans" -- for example, it makes them out to be far more conservative than they are. To be clear, that sampled only Black Americans' political attitudes also would give us skewed picture of "Americans'" political attitudes (it would tell us, for example, that 90% of "Americans" vote Democrat, which is ... not correct). But it is not an accident that nobody makes that mistake -- there are plenty of good reasons to poll Black Americans as to their views, but nobody thinks that a poll which sampled only Black respondents is giving a comprehensive picture of American political attitudes.

By coincidence, I was having this discussion at approximately the same time I came across a new article by James W. Fox on how Black Americans originally understood the 13th Amendment. This is an important contribution because very often "originalist" investigations of the Constitution -- those which look to see how people of the framing era understood the meaning of giving constitutional clause -- look almost-exclusively at the understandings of White Americans at that time. That isn't self-conscious or intentional -- to the contrary, it is almost entirely unthinking. But nonetheless, investigations that sample near-exclusively White Americans are used to generate inferences about the original understandings held by Americans, as a whole. And this feels very natural, just the way of doing "neutral" originalist thinking, such that we don't even notice until it's pointed out just how skewed our sample is.

In reality, it is not remotely surprising that Black Americans and White Americans in the 1860s may have had different understandings of what the 13th Amendment was supposed to do. There are absolutely important historical reasons to look specifically at what White people thought; there are certainly are good historical reasons to look specifically at what Black people thought. From an originalist perspective, there may be a good reason to try and synthesize these thoughts into a cohesive whole that does capture a unified "American" understanding of the document, if that is indeed possible. But you have to be self-conscious about it -- if you're only looking at what White people thought, you're not looking at what "Americans", as an undifferentiated whole, thought. The racism that Kendi is articulating is the racism that assumes that proper taxonomy is one where an investigation of Black perspectives on the 13th Amendment is categorized as specifically "Black", while an investigation of White perspectives on the 13th Amendment is categorized as just "people's" perspectives or "American's" perspectives.

A Buffalo Socialist in the Heart of America, Part II

The Washington Monthly has a good, short profile up on India Walton, the self-described socialist who is the Democratic nominee for Mayor of Buffalo. Walton earned that spot by upsetting the incumbent, Byron Brown, in the Democratic primary. While initially this made it look as if Walton would be a shoo-in for the general, Brown has waged a furious fight to keep his seat via a write-in campaign, and at least one poll has him with a sizeable lead.

While I have no particular dog in this hunt, I actually think it would be unfortunate if Brown prevails. This might surprise some of you, as I'm not especially oriented towards self-described socialist candidates. Partially, I'm of the view that, absent really strong reasons to the contrary, as a Democratic voter I'm going to support the Democratic nominee. But the larger reason is that, as I wrote back when Walton first won the primary, Buffalo actually seems like a really good candidate for experimenting with some of the socialist policies that Walton is putting forward, and seeing whether these ideas can be put into practice in an actual American city under "live fire" conditions. Buffalo is small enough so Walton won't constantly be under the national media microscope unless she deliberately seeks out the spotlight, yet large enough such that one actually has to manage various diverse stakeholders and entrenched interests -- which is something one has to do, if one seeks to govern and alter the society we have. Maybe Walton will prove up to the task, maybe not; maybe her ideas will have legs, maybe they'll be all smoke. But I'm curious to find out.

Brown has gone on a fundraising tear from developers and Republicans, and so is very well-financed; already Walton's backers are prepping a narrative where the Powers-That-Be conspired to keep her out of the seat in defiance of the popular will. I find such stories to be more than a little tendentious, even though it's true that Walton has admittedly been slow to consolidate formal Democratic Party support. Even still, and pat "establishment vs. insurgent" narratives aside, Walton was endorsed by both of New York's senators (Chuck Schumer and Kirsten Gillibrand), and from my vantage there are more big-wig Democratic figures who are trying to stay neutral than who are actively backing Brown. More to the point: if you can't beat your opponent when his name isn't even on the ballot, then maybe your "popular" support isn't as broad as you think it is (and according to the above-linked poll, Brown actually sports surprisingly robust approval ratings -- 60%! -- for a guy who lost in a primary). 

That said, just as a political observer (and admittedly, someone who doesn't live in Buffalo), I'd be very curious to see how a Walton stint in the Mayor's office would go. So for now, I guess I'm still rooting for her.

Tuesday, October 26, 2021

The Hardball Case for Democrats Abolishing Congressional Districts

How can Democrats respond to Republican attempts at consolidating power and locking out even future Democratic majorities? For example, aggressive Republican gerrymandering may subject America to perpetual minority rule even in the branch of government (the House of Representatives) meant to be most majoritarian in character. But what can Democrats do to stop it?

People often talk about "hardball" options, as if the only reason Democrats aren't acting to defend themselves is a failure of steely-eyed will. Admittedly, that is a vice some Democrats have. But it's not the only issue. A particular problem with many hardball tactics is they invite tit-for-tat retaliation. If Democrats engage in court-packing, for instance, Republicans can just re-pack the courts again the next time they take control of the presidency and Senate. By contrast, one advantage of DC statehood is that it is relatively immune from direct retaliation -- there are no obvious GOP-leaning states that can be admitted in response.

So the ideal hardball tactic is one that Democrats can use (a) in states they control, without Republican (or, perhaps as importantly, Sinema/Manchin) permission, and (b) where Republicans cannot easily respond in kind. And so here's my pitch, more as a thought experiment than anything else: in solid blue states, Democrats should abolish congressional districts entirely, elect all House representatives at-large without any form of proportional representation.

Right now, for example, California has 53 House seats (soon to be 52). Some of these districts are Republican, some are competitive, most are Democratic. Currently, California's delegation comprises 42 Democrats and 11 Republicans. But since California is reliably Democratic at the statewide level, if all representatives were elected at-large (without any nod to proportional representation) we can assume all 53 would be Democrats -- a net gain for Democrats of 22 seats.

Of course, by stipulation I say that Republicans are allowed to retaliate, and so if California passes this law, so does Texas. Texas currently has 23 Republicans and 13 Democrats;* but if all are elected statewide and Texas retains its red hue then all 36 seats would go GOP -- a net gain of 26 for team red (If this makes you think California more gerrymandered than Texas is, recall that Trump won Texas in 2020 by approximately 5.5%, while Biden won California by 29%).  And then there are the states where this doesn't matter, because they're already all-blue (Massachusetts) or all-red (Oklahoma). Switching to at-large would yield the same outcome as the status quo, just without defined districts.

So doesn't it wash out? Not if you play it out, no.

Let's make two simplifying assumptions to start: first, that all House seats in a state-wide at-large race will go to one party (there will be no ticket-splitting), and second, that each state will vote for the party it voted for in the 2020 presidential election. The first of these should under conditions of strong polarization remain true enough (and idiosyncratic exceptions should cancel out). The second is obviously dicier (what if we're in the universe of 2016 instead of 2020?), and I'll address it in more detail in a moment. The result would be basically be the same as the electoral college outcome if we remove DC and the distorting impact of the Senate (recall that every state gets two extra electoral votes from their Senate seats, regardless of population).

Right now, the House of Representatives is Democratic-controlled by a 220-212 margin (with three vacancies). But if all states voted at-large under the above assumptions, the House breakdown after the 2020 election would 253-182 -- a huge Democratic swing.

Now, of course, it is hardly guaranteed that the 2020 election results will replicate themselves in future House elections. Georgia, for instance, went Democratic at the presidential level but had voted for a GOP governor just a few years prior. It would be foolish for Democrats to pin their House majority hopes on Georgia reliably being a blue state and thereby giving all of its seats to Democrats. There is a live possibility, after all, that it goes red, then under my above assumptions all of its seats would go Republican instead. Ditto states like Michigan or Wisconsin or Pennsylvania. In 2016, for example, the House under the above model would have had a 246R-189D split.

So let's complicate the model slightly. In swing states (which we'll define as states where the margin of victory in 2020 was less than 5%), we will assume that the state will not adopt the at-large system but instead will prefer the (typically gerrymandered) status quo as the risk-averse option. For example, right now Florida has a 16-10 Republican advantage in the House notwithstanding that Trump won Florida by just 3.3%. The GOP-controlled Florida legislature might be willing to roll the dice on the at-large system in the hopes of getting all 26 seats; but of course doing so runs a non-negligible risk that they might lose all 26 seats. Better to preserve the status quo where they can, by redistricting, guarantee themselves most seats rather than go for broke. The case is even clearer in Georgia, where Republicans hold an 8-6 advantage in the House delegation in a state Biden won (albeit by a sliver). They're already getting more than they should via gerrymandering, why take a risk and potentially lose everything? In Nevada, Democrats face the same prospect in the opposite direction: they already have a 3-1 lead in the House delegation -- why risk letting the GOP run the table in a good year just to get one more seat?

If only the non swing states use the at-large system (while the swing states preserve the status quo and vote the same as they did now), the 2020 House margin would be 235-200 in the Democrats favor. The forty-two non swing states would break down 186-142 for team blue. The remaining eight swing states are Arizona (4R/5D), Florida (16R/11D), Georgia (8R/6D), Michigan (7R/7D), Nevada (1R/3D), North Carolina (8R/5D), Pennsylvania (9R/9D), and Wisconsin (5R/3D) -- this totals 58 Republican seats and 49 Democratic seats.


Pictured: The 2020 presidential map, with "very close" states greyed out. Note that each state's number of electoral college votes is two more than its number of House seats (House seats plus Senate seats). The 2016 map is below.

What about 2016?


There were even more very close states in 2016 than 2020 -- 11 were decided by five points or less. Of course, states can't necessarily predict in advance that they'll be close (who saw Minnesota coming?). But again, if we assume that only the non-close states would use the at-large (functionally) winner-take-all system, that would start us off with 167 Democrats and 156 Republicans. The eleven swing states were Arizona (4D/5R), Colorado (3D/4R), Florida (11D/16R), Maine (1D/1R), Michigan (5D/9R), Minnesota (5D/3R), Nevada (3D/1R), New Hampshire (2D/0R), North Carolina (3D/10R), Pennsylvania (5D/13R), and Wisconsin (3D/5R). That yields a final result of 223R-212D (thanks to a whopping 67-45 advantage in the swing states). Still a GOP win, but much narrower than its actual 2016 margin of 241-196 (and, in fairness, the GOP -- barely -- won the House popular vote in 2016). Also note that two of those states, Pennsylvania and North Carolina, were forced to revise their lines shortly after the election -- it is likely that the GOP lost enough seats just from those rulings such that, under the reformed lines, Democrats would have been able to win a narrow majority even in 2016.

So this is not a "Democrats always win" solution, by any means. But it does offer Democrats some advantages. For one, it allows Democrats to fully leverage their advantage in larger states where they are leaving more "meat on the bone", so to speak. Many solid red states already have all or nearly all GOP delegations -- switching to the at-large system wouldn't change much, say, Oklahoma or Utah, which currently have no Democrats in Congress at all and where Democrats in their best year maybe could squeak out one winner. Big solid blue states like California, New York, and Illinois would be rich prizes. Outside Texas, there aren't that many comparable opportunities for the GOP. Ohio would be a solid possibility, but Ohio is already gerrymandered so ludicrously aggressively (11R/3D) that the at-large switch wouldn't actually do that much -- just a six seat swing. Compare that to New York, where going all blue from the current 19D/8R status quo would net Democrats 16 seats.

But the other reason it works is because it neutralizes the specific GOP advantage in gerrymandering swing states. A major reason the House is so close right now is that the GOP has a nine seat advantage in the eight 2020 states that were decided by five points are fewer, even though Biden won six of them. In 2016, the Pennsylvania GOP's "gerrymander of the decade" gave them a 13-5 House advantage in a state that Trump won by less than one percent. That is largely the product of extremely favorable (to say the least) districting lines. Abandoning those lines for an effectively all-or-nothing at-large system would be incredibly dangerous for the GOP. But without going for it in these states, Republicans would be hard-pressed to overcome Democratic advantages in populous, deep blue states like California.

Again, as much as this might seem like stacking the deck, we should note that all that this system really does is make it more likely that the party which gets the most votes controls the chamber that is intended to be most responsive to majority preferences. The above analysis is fancy footwork that boils down to "under this system, the party with the most votes is most likely to win". In 2016, under the modified model where the swing states are risk-averse, Republicans would have narrowly won a House majority after narrowly winning the (House) popular vote. In 2020 under that model, Democrats would have secured a wider House majority after earning a wider (House) popular vote win. This is a good thing.

That said, putting aside its tactical utility as a hardball play that forces recalcitrant players towards more robust democratic solutions, do I think abolishing congressional districts is a good (as in virtuous) idea? That is, would I support it on its own terms, regardless of its usefulness in counteracting GOP gerrymandering? Honestly -- not really. There are good reasons to have politicians represent smaller geographic districts to whom they feel particularly accountable towards -- someone looking out for Fresno or Tacoma or Springfield specifically. An at-large process could still account for that somewhat -- the Democratic "slate" in California could self-consciously include figures from around the state who would hold themselves out as responsive to the needs of a particular community and would take point in responding to local constituent concerns. But there's no doubt there'd be a genuine loss there.

My preference, then (to the extent we're moving this beyond "thought experiment") is for this proposal to be expressly set to sunset at the moment there are uniform federal rules governing redistricting (and forbidding partisan redistricting). Basically, it tells Kevin McCarthy "agree to national rules on voting rights or you can kiss your precious California House seat goodbye". If he agrees to cooperate, lovely. If he doesn't, well, then you make good on the threat.

[Note: It took me about an hour to write this post and then another two to check and recheck my math. I'm not a math guy, so I can't guarantee the math is perfect now -- but I think it should be close. If I made any gaping mistakes, please let me know.]

UPDATE: Turns out that federal law (2 U.S.C. 2c) appears to forbid this, insofar as it requires states establish an equal number of districts to the number of representatives they're entitled to (with each district only electing one representative). I suppose one could try to skirt this by establishing multiple "districts" which overlap the same geographic territory (or better -- detach districts from geography altogether and randomly assign voters to districts). But alas, seems like this thought experiment must stay firmly in the realm of the thought.

Monday, October 25, 2021

Anti-Vaxxers Aren't Funny Anymore

As recently as, oh, two years ago, if you asked the media to imagine its archetype of an anti-vaxxer, they would have given you some crunchy-granola type who mistrusts vaccines because something-something-natural living-something-something-big pharma. You know, like this:

 

And so long as this was our anti-vaxx image -- a hippy Hollywood Jenny McCarthy sort -- the media was quite happy to laugh and laugh at how stupid anti-vaxxers were. Which, to be clear, was richly deserved.

But now, of course, we see that the image of the anti-vaxxer has shifted. It's no longer some out-of-touch flower child. It's the Republican base. And suddenly, the media has decided that this isn't funny anymore. Now it's a policy dispute, see? Now it is a matter of principles, a dilemma between admittedly important scientific and health care necessities and deeply-rooted American values of freedom. Anti-vaxxers are not silly cranks and are not to be treated that way. We can make fun of left-wing hippies, but heaven forfend we show anything but the utmost seriousness and respect towards exurban churchgoing conservatives.

It's worth noting that there were, well in advance of the COVID pandemic, plenty of signs that the stereotype that anti-vaxx sentiment was a province of the hippy-dippy left were at best outdated. For one, even before anyone was thinking about COVID we were already seeing Republican politicians start to dip their toes into anti-vaxx conspiracy theories. For two, we should not have been so quick to assume that crunchy-healthful-living and conservatism are oil and water. Marjorie Taylor Greene owns a cross fit gym! The anti-vaxx private school academy in Miami, owned by rabid Trump backers, provides meal options that would normally read like the farr-right's parody of a soy-boy ("Our menu is consistently 100% organic, 100% non-GMO, gluten-free, light on dairy, no added sugar, never processed, always fresh and locally-sourced when possible. We incorporate Superfoods such as ginger, hemp, quinoa, spices such as cinnamon, turmeric, curcumin, and herbs such as rosemary and basil.").

But it took the pandemic to make it clear that anti-vaxx sentiment in America is primarily a conservative phenomenon. And once we did realize that, and realized alongside it that anti-vaxx paranoia wasn't just a matter of hippie punching, well, the media suddenly decided that it just wasn't that much fun to joke about it anymore.

Sunday, October 24, 2021

On Losing in History, from Bundism to Liberal Zionism

What does it mean, to be part of a political movement that ... loses?

Most political organizing, as I understand it, is not primarily about predicting the future. It's about fighting for the future that one wants to see, at a time where there are multiple plausible futures that could come to pass. Given that, it will inevitably be the case that many people will join political movements that are fighting for a plausible, defensible future and who -- fast-forward twenty years -- will have lost.

Consider the Bundists of the early 20th century. They fought for a world in which Jewish equality and self-determination would flower and be protected in the places where Jews already were -- "hereness". Certainly, this is a defensible vision of the world, one that one would be perfectly justified in fighting for in the early 20th century. And yet, as we know, the future the Bundists fought for did not come to pass. They lost their battle, and lost it in the most horrifying manner possible to the Nazis. And so in the future that did come to pass, the Bundists, like all Jews, suffered horribly.

Does this discredit the Bundists? Does the end of the story necessarily mean that they made the wrong choice in what they sought to fight for at the start of the story? Many say yes. I'm unconvinced. It seems unfair -- cruel, even -- to judge an ideology by the consequences of a future that they unsuccessfully sought to resist. The Bundists had a plausible vision of the future that they reasonably thought was worth fighting for. And they did, and they ... lost. Are all political campaigns that are lost thereby proven to have been wrong to fight for in the first place?

It is easy to say they should have known better, with the benefit of hindsight. Knowing how the story  played out, of course the Bundists look like fools. But nobody should be so confident in their ability to win political struggles. One can have the best moral judgment in the world, and a will of iron, and a keen strategic mind, and one can in politics still lose. Too much depends on what other people do. You can make all the right moves, or at least defensible moves, and still lose. It is, in many ways, a sign of our own egocentrism that we blame ourselves for "picking the wrong side", as if history's arc would have been materially different if we, personally, had chosen to be liberals or socialists or Marxists or nationalists or pragmatists in the moment of fighting. Any one of us changing sides would almost certainly not change matters one whit. Sure, maybe if everyone had switched sides that would've made a difference. But not even the most powerful and influential among us has that amount of sway. The choices other people make will always be largely uncertain to us. And so while utter naivete about the choices others will likely make is not always excusable, we should not act as if only a fool would not have known how events would play out. The Bundists could not have known that Nazism would end up carrying the day in Germany, and that all their work would be for less than naught.

Liberal Zionism in 2021 perhaps looks much like Bundism in 1931. Make no mistake: we are losing. Perhaps we have already lost, though the revitalization of neo-Bundism today makes me think that no ideology of this sort truly can be said to have lost forever. Maybe in some future world there will be a new set of conditions making Liberal Zionism a winning team again (for example, if we live out the "Czechoslovakia gambit", where a one state solution eventually leads to a two state solution on equitable terms, I can very much imagine a New Liberal Zionism flowering). 

But whether one retains faint hope or not about the present or not, there is no question that the liberal Zionist vision is losingI did not begrudge anyone for cheering Netanyahu's demise, but it is certainly emblematic of how weak the liberals are that Naftali Bennett counts as a savior. Or, for that matter, Benny Gantz, who himself has spoken of the need to preserve Israeli sovereignty over far-flung settlements "forever" and just designated an array of respected Palestinian human rights NGOs as terrorist entities. How excited can we be, when men such as these excite us?

And these are the high notes! On the other side, the far-right is ascendant and makes no bones about its desire to raze liberal rule of law values to the ground. Traditional pillars of liberalism and rule of law in Israel -- the judiciary, cultural institutions, academia -- are under assault from all sides and are slowly wilting. The liberal parties in Israel are moribund, to the point where it's now no longer a given that Labor can cross the electoral threshold unaided. The right surged to victory in the last WZC election and rapidly began consolidating power. With the exception of the Abraham Accords, it is hard to think of any aspect of Israeli life where the liberal ideal has not decayed significantly over the past twenty years (and even the Abraham Accords, as much as I celebrate them, still ultimately represent compacts with largely authoritarian nations -- not exactly a liberal seed). 

And things look slated only to get worse. The younger generation in Israel is far, far more conservative than the older one; in Israel it is not bigotry and prejudice that might eventually die out with age, but tolerance and democratic values. Among young Jewish Israelis, levels of hatred towards Arab citizens are staggeringly high; half of young religious Zionist Jews in Israel think Arabs shouldn't be allowed to vote. The larger mainstream Jewish organizations are still stuck in patterns of passivity and obeisance, and will not stick their necks out to actually organize for liberal values in Israel -- in their best moments the most they can offer is to stay out of the way. Seeing groups squabble over something as seemingly mundane and unoffensive as the Two State Solution Act is as disheartening as it is unsurprising. The idea that they will ever have the boldness to pick a stick to go along with their carrots is ludicrous

And those who are still fighting for liberal values in Israel from a place of genuine attachment to Israel are increasingly alone, and are on the defensive. All their energy is devoted to slightly slowing down the liberal decay; they cannot even imagine what going on the offensive would look like, and they wouldn't have the resources or time to do it even if they could. Elsewhere on the left, there are no reinforcements, but rather cheers for our demise. At best, we have no role in their strategizing. We're non-factors. Just as often, the liberals are seen as nothing more than an annoying set of gadflies standing between the decolonizers and the fascists; the left cannot wait to see us wiped out, and if they see an opportunity to accelerate the process -- squeeze out those beleaguered universities and cultural institutions and academics -- they'll jump all over it

Even the SunriseDC fiasco -- objectively, a crushing defeat for anti-Israel fundamentalists -- is a sign that we're losing, for SunriseDC would not have tried this gambit if it hadn't at least thought it might succeed. Five years ago, it would have been inconceivable to imagine a call to expel the NCJW from progressive spaces succeeding. Even in the wake of its failure, one could see the Overton Window shift, and people for whom perhaps this particular play was a step too far start to rationalize how other, similar moves, that also would result in kneecapping Jewish liberal organizations or imposing special litmus tests us to "earn" or "claim" our seat at the progressive table, could be justified, and how a policy of slow strangulation of liberal Jewish political activity could begin anew. The cavalry is not coming. We are losing.

I don't want to say it's hopeless. But we are losing, and losing badly enough that we have to start imagining actual defeat. If we do lose, outright and utterly, we can only hope first that the consequences of our defeat are not as staggeringly catastrophic as they were for the Bundists. Probably they won't be -- actual industrial genocide remains a rare thing. But an unrepentant authoritarian apartheid Israel would be bad enough.  Or the eradication of Jewish self-determination in Israel, a return to being a minority at others' sufferance, that would be bad enough. And we will ask ourselves, "could it have all been averted, if we had switched sides? If we had not fought a losing battle?" Knowing the end of the story, does the indict our choices at the beginning?

As with the Bundists, perhaps it will be unfair, to blame us for a future that we fought against, just because we did so unsuccessfully. A small consolation indeed.