The Baggage of Whiteness

There's a new essay being passed around by Megan Wachspress on "The 'New Antisemitism and the Logic of Whiteness." As one might imagine,* I have thoughts. The essay raises some interesting and useful points; it isn't bad by any means. But I do think its core hypothesis is not just wrong, but actually backwards. 

Wachspress argues that the panic amongst young Jews on campus stems from "the unconscious recognition that American Jews’ contingent whiteness may be threatened if 'the Jewish state' becomes a means by which other white people can disavow their own complicity in European colonialism," and that the Jewish response seeking safety from these emergent campus phenomena represents an effort to "double down" on their White status.

The notion that Israel is "a means by which other white people can disavow complicity" is, I think, an important one. But I don't think the Jewish response is aptly characterized as an effort to cleave to besieged Whiteness. Jews right now aren't worried about losing their White status, and they're certainly not trying to "double down" on it. To the contrary, they're worried that they're going to be left holding the bag for Whiteness.

To some extent, the wrongness of characterizing the Jewish call for safety as a plea to have their Whiteness respected is obvious -- it's hard to imagine a slogan less likely to be effective on contemporary college campuses than that one. But more to the point, what Jews are seeking to emphasize right now isn't "we're just like you" assimilation into dominant modes of discourse; they're emphasizing points of differentiation and separation, and asking for those to be respected and acknowledged -- to understand Israel and Zionism as Jewish categories, not "White" ones. To "double down" on Whiteness would not assist the campaign of campus Jews, it thwarts it.

To be clear, there absolutely are important ways in which American Jews are implicated into Whiteness -- in my essay, I reject both the simplistic notion that Jews are naught but White as well as the view that Jews are inherently and eternally non-White. I'm not here to endorse the slipshod view one sometimes sees asserting that it's wrong or antisemitic to ever identify a Jew with Whiteness. But with respect to the particular dynamics that Wachspress is analyzing, I do think more of the pressure she identifies is emanating from "over-Whiteneing" Jews compared to "under-Whitening" us.

Far from seeking inclusion under the umbrella of Whiteness and finding ourselves unceremoniously tossed out, what's happening on campuses today is that Jews are seeking to distinguish ourselves from Whiteness but are being involuntarily conscripted in. The very mechanism Wachspress talks about -- the utility of "'the Jewish state' [as] a means by which other white people can disavow their own complicity in European colonialism", an opportunity for young people to "work[] through their own discomfort with whiteness" -- only works if "the Jewish state" is categorized as a White one. Far from doubling down on Whiteness, Jews are being locked into it; ironically by other very-much-unconditionally White folk who are seeking to displace their Whiteness onto Jews. Jews aren't at risk of losing our Whiteness right now, because non-Jewish Whites need us to be White more than ever. They need us to be White so they can transcend their own Whiteness.

But even this, I think, is only part of the story. I've never met a progressive White person who holds any affinity for their identity as White. To be clear, they may hold quite a bit of affinity for their White privilege. But to be identified as White holds no positive valence for them -- there's no "White" traditions that they wish to pass down to the next generation, no "White" holidays they fondly reminiscence about celebrating. "Whiteness" holds no meaning for them other than as a repository of privilege. At most, there is a sort of a contingent pride in "acknowledging their Whiteness" as an awareness of their social positionality, the pride in not indulging in denialism surrounding their implication in White supremacist systems. But this is quite obviously a very different sort of "pride" than one might have in being, say, "Irish", or "Norwegian", or "Black", or -- at least in theory -- "Jewish". It's not pride in the substantive identity of Whiteness as something worth cheering and preserving; it's pride in recognizing a sometimes-obscured wrong and being committed to rectifying it.

This logic undergirds those who've argued for "abolishing Whiteness" -- as an identity, Whiteness lacks substantive content aside from its status as an organization point for unjust privilege. So the only thing that those raced-as-White would miss if "Whiteness" went away would be those privileges, and since those privileges have no right to exist, there's no legitimate loss in eliminating Whiteness altogether. Norwegian, Irish, French -- these at least conceptually have some genuine cultural content that isn't solely about domination and hierarchy, so why not revert to those registers and let Whiteness wither? And in a different register, the lack of affinity towards "Whiteness" as an identity is what buttresses many White people's support for radical colorblindness: they don't care any which way about being identified as "White" (the identity); they just want to keep the privileges. So if they can jettison the identity ("I'm just a person") while preserving all the privileges that Whiteness historically offered, that's a cost-free deal.

For Jews, though, things may be different. Notice, first of all, that the conscription of Jewish into White is not operating in the same way as it does for, say "Irish", where the ethnic identity demarcates the proper place to retreat to after the racial identity is abandoned. Irish may be associated with Whiteness, but Irish isn't conflated into whiteness; one might or might not characterize Ireland as a "white supremacist state" because of this or that policy, but I don't think it's common to say that the very concept of an Irish state is "white supremacist" by definition. By contrast, for Jews the "retreat" into the particular Jewish identity is taken to be the problem; paradoxically, it is taken to represent an embrace of Whiteness rather than a means of distinguishing oneself from it. In this way, while there are many ethnic groups which have in various ways been incorporated under Whiteness' umbrella, few if any have been so entirely conflated into Whiteness as has Jewishness, such that essentially any collective Jewish expression (no matter who does it, and in particular no matter the phenotype or social positionality of the expressor) can be immediately recategorized as "White" with no perceived loss of data (this also fits with what I'll talk about below, about Jews being seen as the paradigm or extreme case of Whiteness).

And to the extent that Jewishness gets conflated and forcibly assimilated into Whiteness, then Jews who are asked to slough off their "White" identity are being asked to dispense with something important. Even if we think that the existence of Israel means that Jewishness grants "privilege" (in Israel, perhaps; in America, hardly so -- as Wachspress observes, Israel doesn't seem to actually be making diaspora Jews all that much safer), Jewishness does have substantive content as an identity that, unlike Whiteness, is not reducible merely to privilege. And part -- not all, but part -- of that identity relates to a connection to Israel. Indeed, one can see how the efforts to present Israeli culture as entirely invented and concocted -- purely a product of theft or appropriation -- is an attempt to forcibly locate it into "Whiteness" by depriving of it any genuine substance that might carry value aside from structuring a form of domination. It's no accident how often the more extreme anti-Israel activists return to this well of fictiousness -- "Israel" in quotes, "the Zionist entity", any way of denying that Israel has any authenticity or truth to it, a tangibility that might engender real and thick bonds. It's an effort to slot Israel into the Whiteness framework; other identities may have bitter parts of their history or practice along with the sweet, but Israel, like Whiteness, only has existence as a tool of violently unjust hierarchy. But the lie of this move illuminates the truth of the problem: unlike Whiteness, Israel is a part of many Jews' substantive identity, it is not simply a manifestation of colonial privilege made real. And therefore, it is not cost-free -- not remotely -- to be asked to jettison it.

For non-Jewish Whites, disassociating Israel is the best of all worlds: it removes oneself from an identity they do not care about, in service of abandoning "privileges" that they do not actually possess.  Wachspress understands this: as she says, "for these non-Jewish white students, Israel presents a way to condemn whiteness without implicating oneself, to support anti-racist ideology in a way that doesn’t lead to shame and self-abnegation." Or as I wrote back in 2010, "all the joy of liberal guilt-induced self-flagellation, except the wounds show up on someone else's body."

But for Jews, things land differently. Disassociating from Israel may or may not, depending on the circumstance, abandon privileges some Jews possess; but it almost always does represent cutting oneself off from a live, vibrant, and meaningful aspect of Jewish identity -- again, not the whole identity, and not one shared by all to the same degree, but also not a concocted or invented identity either. So at one level, we can see how for the White non-Jews, it is essential that the Jew = White conflation be retained -- that's how Israel can serve as this ideal, cost-free mode of disassociating from Whiteness. But even to the extent White non-Jews do offer a pathway for diaspora Jews to follow them, it's demanding a very different form of sacrifice. "Join us," they say, "all you need to do is cut yourself off from Israel, just as we cut ourselves off from Whiteness." But these choices are not the same. Non-Jews are asked to remove themselves from an identity they do not care about in order to dislodge privileges they have not earned. Jews are asked to remove themselves from an identity they are absolutely within their rights to care about in order to dislodge privileges that are, to say the least, far more ambivalently held.

At the end of the day, there's almost no chance that Jews will be able to do this. For one, non-Jews actually don't want Jews to do it since, to reiterate, Jews successfully disassociating ourselves from Whiteness threatens the coherency through which being not-like-the-Jews lets other White people work through and past their own Whiteness. The pressure from progressive non-Jewish Whites is not for Jews to cease "doubling down" on Whiteness, it is for Jews to obediently accept their new anointment as the paradigmatic Whites. For two, the forcible conflation of Jews and Whiteness makes the implied demand that we slough off not just our Whiteness but a large part of our Jewishness (almost half the world's Jewish population! A land that is and always has been the centerpiece of Jewish liturgy, theology, and cultural reference!) an impossible one to realize -- to quote Du Bois, we would not leave it if we could, and we could not leave it if we would. And of course, the functional impossibility of the "choice" on offer is in service of the implied desire that the choice not be made; it is better for non-Jewish Whites that Jews remain White, so they can serve as an exemplar of the demon they've successfully wrestled within themselves.

So what we're left with, perhaps, is a world where everybody but the Jews is able to successfully work through and past their Whiteness. Whether this would actually entail diminution of those privileges hitherto associated with "Whites", or if it would be closer to the aforementioned radical colorblindness, is an exercise I'll leave to the reader. The point is, when the music stops and the reshuffling is complete, the only people who the left can agree are still unambiguously White will be the Jews. Just as historical antisemites viewed modern Jewry as a fossilized relic that contrasts to Christianity's superior evolution, Jews-as-White will stand as the paradigm case of that which the more civilized, enlightened (former) White people have left behind.

At the end of this road, Jewishness exists as Whiteness' crystallized, undislodgeable core -- Whiteness at its absolute apex. This, too, is a well-established trope: in my "White Jews" essay, I wrote about those who see Jews as the "iciest of the ice people"; and how this hyper-Whiteness allows "'Jewish [to] simply displace[] white.' Jews ... stand in for those Whites who are irredeemably supremacist in orientation; we end White supremacy at the point where Whites stop acting like Jews." This displacement can awkwardly be described as Jews losing conditional White privilege; but it much more straightforwardly is characterized as White people trying to pin "Whiteness" on the Jews whilst escaping out the back door.

Again, Wachspress is aware of this mentality, speaking of those who see "Jews in Palestine" as "whiteness concentrated." She clearly understands how the way non-Jewish progressive Whites speak of Jews is often takes the form of accentuating rather than problematizing their Whiteness. But again, this entire framing seems to run exactly opposite of her ultimate thesis: here, too, the problem is not that Jews are choosing Whiteness, the problem is that non-Jews are imposing Whiteness on the Jews, are in fact gaining significant benefits from impressing Whiteness upon the Jews, and Jews are not being permitted to escape from it.

My "White Jews" essay doesn't actually talk that much about Israel (by design), but it does have a short portion addressing it. In the conclusion of that section, I write:

I am not suggesting that non-Jews should not critique Israel, whether moderately or sharply. I am suggesting that such critiques are neither critiques of the self nor of an undifferentiated “(Judeo-)Christianity,” “Western-ness,” or “Whiteness,” and ought not be conceptualized that way. When non-Jewish Whites assimilate Jewish entities or practices into Whiteness for purposes of criticizing them, they circumvent the need to put in the hard work of understanding Jewish experience as a distinct entity that they do not simply “know” by virtue of an assumed shared Whiteness. They also substitute out the genuinely necessary work of self-examination in favor of a literal Jewish scapegoat. It is a product of Jewish Whiteness that allows it to occupy this ambivalent role—included so that it can be virtuously excluded.

So too now. There is much in the way of critique -- moderate and sharp -- that might be made about Israel in 2023. But that does not mean it is appropriately used as a vector for young people to "work[] through their own discomfort with whiteness", and predictable problems emerge when it is used as such. It is the conflation of these two roles -- one very legitimate, the other all-too-convenient -- that is responsible for the anxiety that Wachspress identifies and the bad behavior that she acknowledges. But this problem is simply not one of Jews being too attached to Whiteness. It's one of non-Jews refusing to see Jews as anything other than White. And I think it is very fair to say to non-Jewish White people that the terrible circumstances in Israel and Gaza are not, and should not be, your gymnasium for working out your own relationship to Whiteness. Deal with that on your own time.

* I wrote a somewhat influential (if I do say so myself) essay in 2019 titled "White Jews: An Intersectional Approach," that worked through many of the themes I'll be exploring here.

Opposing Antisemitism is Hard When You Just Assume It's a Political Stunt

The Republican Party of Texas just voted down a resolution that would have barred the state GOP from associating with persons "known to espouse or tolerate antisemitism, pro-Nazi sympathies or Holocaust denial."

The internet is having a field day over this, and understandably so. Meanwhile, one of the resolution's proponents is baffled:

“I just don’t understand how people who routinely refer to others as leftists, liberals, communists, socialists and RINOs (‘Republicans in Name Only’) don’t have the discernment to define what a Nazi is,” committee member Morgan Cisneros Graham told the Tribune after the vote.

Far from raising a question, Graham has in fact answered it. The litany listed here -- "leftists, liberals, communists, socialists, RINOs" -- none of these are, in their "routine" use by Republican officials, terms that are actually meant to carry some sort of principled semantic meaning. They're slurs -- bits of rhetorical seasoning, nothing more. And it's no surprise that Republicans treat antisemitism and Nazism, like all other "-isms", in the same fashion -- as a contentless slur one opportunistically hurls at political opponents. They have genuinely drunk their own kool-aid on this. They really don't think that, when people talk about antisemitism or neo-Nazis, they might be referring to something real and objective in the world. Of course it's meaningless theater. 

And if one believes that, then it absolutely makes sense why one would be worried about vagueness and unclear boundaries. The article observes that some committee members "questioned how their colleagues could find words like 'antisemitism' too vague, despite frequently lobbing it and other terms at their political opponents." Again, this bafflement disappears once one realizes that for these Republicans, the vagueness and lack of definition is a service, not a barrier, to the frequent lobbing -- it is because they studiously avoid thinking that antisemitism means anything that they can toss it out to attack everything.

This is why one can never trust Republicans to tackle antisemitism. I mean yes, for the obvious reason that they can't even reliably disavow Nazis. But also for the slightly less obvious but still important reason that their entire orientation towards "antisemitism" is that it is nothing more than a gambit in a political game.* They don't take it seriously as an actual, extant phenomenon, and so they'll never be able to respond to it as one.

* Somewhere -- I can't find it -- I remarked on how Republicans, shortly after Ilhan Omar's "Benjamins" controversy, tried to gin up another controversy over Omar aggressively questioning conservative foreign policy maven Elliott Abrams. There was transparently nothing there on the Abrams thing, but many conservatives seemed baffled that their antisemitism claims weren't getting traction after so much attention was paid to the "Benjamins" tweet. What was the difference? The possibility that the difference could be explained by actual substance -- the "Benjamins" tweet was plausibly antisemitic, the Abrams questioning was not -- truly, genuinely didn't seem to occur to them.

Pot Committed

The Israel/Hamas war in Gaza has resumed. Hamas ended the pause with rocket fire into Israel slightly before the expiration of the ceasefire Friday morning (it also conducted a mass shooting in Jerusalem, though I suppose one could argue that was outside the "theater of operations" covered by the ceasefire).

There's no joy in seeing a period of relative calm -- hostages being returned to Israel, humanitarian aid reaching Gazans -- yield to the resumption of hostilities. But I'll admit I was cynical that this ceasefire would last. Indeed, despite the growing intense international pressure on Israel in particular to wrap up its military operation, I thought it was quite likely that they'd see through their campaign to the end (whatever "end" means in this context). A durable ceasefire, in the present moment, always felt out of reach.

Why? For starters, Israel has been quite public that the ceasefire was temporary and that it would resume operations at its conclusion. There was no hiding the ball on that. There's also the fact that most political observers think that Netanyahu is toast the second the war concludes, which obviously gives him a political incentive to drag the war out for as long as possible in the hopes that some deus ex machina will reverse his fortune. Of course, that's contingent on Bibi's willingness to put his own private political interests over the good of his country while indefinitely imperiling millions in the process. Which is to say, obviously Bibi will try to drag the war out for as long as possible.

But aside from all of that, I think the Israeli government may well think that this is their last, best chance to destroy Hamas. As I've written, I think even some relatively hard-bitten "pro-Israel" (and Israeli) observers were stunned at just how quickly the world's sympathy evaporated towards Israel in the aftermath of the October 7 attack (and these were people whom I suspect, if you talked to them on October 6, would have described themselves as hard to surprise on that front). Even though Hamas has promised it will try to conduct October 7-style attacks again and again in the future, it is unlikely that one of those future attacks would give Israel even the limited window for responsive actions it enjoyed this time around -- the turnabout will if anything occur even faster.

Given all that, Israel might calculate that it's now or never. It could conclude that it's already absorbed the brunt of international opprobrium overs its Gaza campaign -- things have already topped out; they won't get worse if the campaign drags on for another month or two (that's the problem with going to the "genocide" accusation too quickly -- you don't have anything to escalate to). The question of destroying Hamas, from Israel's vantage point, was always something like "is the benefit worth the cost in terms of the international reputational consequences that would inevitably flow from the campaign?" But for better or worse, now Israel's already eaten the costs. It's pot committed. So it might as well gain the benefit of destroying Hamas; take some sweet to go with the bitter. After all, it might argue, the only thing worse than wreaking all this devastation on Gaza in the course of destroying Hamas would be to wreak all this devastation on Gaza and not destroy Hamas.

That's the logic on the Israeli side. But it's worth noting (though far fewer do) that Hamas doesn't seem especially interested in an enduring ceasefire either. 

Again, we can start with their own revealed preferences: Hamas broke a ceasefire that existed on October 6, and it was the party that ended the ceasefire that was negotiated at the end of November. It is not acting like a party that feels significant pressure to wind down the conflict.

Beyond that, Hamas' entire mid-term strategy behind October 7, after all, was to bait Israel into an apocalyptic conflict whose inevitable destruction upon the Palestinian population would fixate the world's gaze -- and in that endeavor, October 7 can only be seen as a smashing success for Hamas. A durable ceasefire doesn't help that strategy, it thwarts it -- Hamas needs the scenes of death and devastation in Gaza to rivet international attention and keep the world's eyes on the Palestinian situation. Under normal circumstances, the countervailing pressure on Hamas would be a desire to limit Palestinian casualties, but it's beyond clear that Hamas simply does not care about Palestinian life. The dead are martyrs to the cause, and just as Israel has been clear about its intent to continue the fighting, so too has Hamas been clear about its willingness to sacrifice Palestine's civilian population to its military agenda. And once you take limiting Palestinian misery off the table, what exactly does Hamas gain from a ceasefire?

Moreover, any realistic proposal for getting a durable ceasefire will likely include terms that Hamas will have little interest in accepting. It's not going to return the male, military-age hostages without a lot more than Israel probably is willing to give (it got a 1:3 ratio this time around exchanging the elderly and toddlers for Palestinian security prisoners; it's obviously going to ask for more in the next round and it's equally obvious that Israel will want to give less). Disarmament (as several Arab nations have proposed)? Fat chance it agrees to that. And there's little chance Israel will make its own offerings that will sweeten the deal. I've said from the get-go that Israel cannot, under any circumstances, let "the moral of the story" for 10/7 be that massacring Israeli civilians is a winning Palestinian strategy, which means that Israel couldn't offer a "good deal" to Hamas even if it were hypothetically interested in doing so (which it won't be). Again, given the fact that Hamas doesn't seem especially motivated to pursue a durable ceasefire, these obstacles are likely fatal to the endeavor.

I give the above analysis without any normative endorsement of any party's behavior. There's no joy in a prediction of more weeks or months of violence and death. But I'm not optimistic. The structural dynamics here just aren't good.

Intelligence Incompetence and Probabilistic Terrorism

When news of Hamas' 10/7 attacks broke, one of the first things I wrote was straightforward: "a massive intelligence and operational failure the likes of which Israel's security services have never seen in my lifetime." Now, the New York Times has a blockbuster report detailing exactly the magnitude of these failures, including the fact that Israeli intelligence did have knowledge that such an attack was being planned but nonetheless dismissed it as infeasible and unlikely to actually occur.

As always, I bow to nobody in my utter contempt for the Netanyahu administration. And there's little question that no matter what curve you grade them on, this was a spectacular failure of Israel's intelligence and security apparatus. Nonetheless, even in these cases one can't claim too much benefit from hindsight. And the "lessons" that many are implicitly seeking to draw from these reports are ones that I worry are neither reasonable ones nor, ultimately, salutary ones.

Every potential event, until it actually happens, is a probability cluster. It's something that might happen, but also, might not. Proximity and evidence can make the probability more or less certain; and probability will also inevitably contingent on the presence or absence of certain interventions (whose effects, again, can only be measured probabilistically). Most importantly, a prospective future event that is successfully forestalled by definition never happens, and so we can never know whether its probability cluster would have borne fruit. In these deliberations, we're always weighing the reality that did occur against a hypothesized alternative that never did, and so it's understandable and inevitable that the former is going to carry disproportionate weight.

Consider the oft-fantasized prospect of assassinating Hitler in 1933. Let's stipulate that doing so would have averted the worst horrors of the following decade: no World War II, no gas chambers, no Holocaust. Knowing what we know now, it's essentially indisputable that this would have been a justified and salutary act that could have forestalled incalculable levels of human misery. But the problem is that, if Hitler was assassinated in 1933, they wouldn't -- they could never -- "know what we know now." They would never know the horrors that would have been averted. All they would know is that the new leader of Germany was assassinated, as well as whatever fallout resulted from that act. Without knowledge of what happened in the prime timeline, it'd be virtually impossible to persuade anyone that killing Hitler meant averting the most destructive war and the most brutal genocide of the modern era. All of that would simply be a probability cluster that now wouldn't ever come to fruition. Indeed, imagine, as I think is plausible, that the assassination of Hitler resulted in a series of Kristallnacht style riots against Germany's Jewish population, but that things stopped there -- no World War II, no gas chambers, no Holocaust. The history books in our alternative-universe probably would treat the assassination of Hitler as a disaster for Germany's Jewish community. They'd never know differently.

And the problem is worse than that. I have a relative who periodically sends me emails regarding the latest emerging global leader who's spouted off some antisemitic nonsense. Typically, I do my best to assuage her that this person is fringe, is not actually that influential, and is not in a position to do anything especially dangerous. She then inevitably replies to me by saying "that's what they said about Hitler." And the thing is -- she's right! That is what they said about Hitler! The problem is that that's also what they said about a lot of people who didn't turn out to be Hitler. If we violently removed from power every person who possibly could become Hitler, that's a recipe for geopolitical chaos -- and most of the violence would be directed in cases where it wasn't necessary, where the threat would dissipate on its own. In any event, we'd never know which case was real and which ones were false alarms.

Return to the matter at a hand. Roll back the clock to October 1. Israel has intelligence suggesting Hamas is planning an attack like Al-Aqsa Flood. In our parallel universe, they do take this intelligence seriously. What results? Most likely, some sort of preemptive attack or assault into Gaza meant to degrade Hamas' military capacity so that the attack cannot be launched. Would that have been justified? With the benefit of hindsight, we know that such an operation would have forestalled a much greater evil, both in terms of stopping the Hamas attack but also almost certainly avoiding the blistering Israeli response that's occurred over the past two months. But that's the problem -- if the operation is successful, none of that future would ever come to past, so the only thing people would see would be the preemptive, "unprovoked" Israeli attack into Gaza, justified at most by a hypothetical probability that if they hadn't acted, Hamas would have launched a brutal terrorist attack of its own.

There's no getting around this. Perhaps, you say, Israel could release the intelligence showcasing Hamas' plans. But again, try to rewind your mind to October 1. How likely is it that Israel would be believed? Many would dismiss the intelligence as warmongering propaganda. There's rampant denialism about the atrocities Hamas actually did commit; can you imagine how likely people would be to accept the proposed destruction of a hypothesized Hamas attack that never occurred? And even persons who did not believe that Israel was flatly lying might be quite likely to be dismissive of Hamas' actual capacity to launch the attack -- sure, they might fantasize about it, the argument would go, but it's rank fear-mongering to act as if they could actually pull it off against the Most Powerful Military in the Middle East. I've seen more than a few commentators suggest that it was "racism" on the part of the IDF to assume that Hamas was not operationally capable of successfully conducting Al-Aqsa Flood; but if we had publicly pitched this scenario on October 1, realistically it's Palestine sympathizers who would have been most dismissive of the prospect. The right-wing hawks, whatever their other sins, are not typically known for understating Hamas' threat; it's the left that has long treated Hamas' military capacity as essentially a null entity against the Israeli juggernaut, its rockets as glorified sparklers and its calls for antisemitic annihilation as slightly-overwrought rhetoric from impassioned revolutionaries. The uncertain probability of a future Hamas attack -- one that, in our alternative universe, never would happen (because it was successfully forestalled) -- will have little persuasive power against the reality of the Israeli intervention.

I don't want to suggest, however, that this is merely a PR problem. Again, the troubles run deeper than that. I have to assume that Israeli intelligence gets reports on the daily of incipient Palestinian militant activity, including desires for large-scale, major operations. Most, it's almost certainly the case, fizzle out without ever reaching fruition; just as most potential-Hitlers never actually become Hitler. For that reason, it is both good and necessary that Israel not respond to every one of these incipient threats as if it is the next October 7, for the same reason why it's good and necessary that we not preemptively assassinate every global politician who "could be Hitler". An Israel which is single-mindedly determined to stop the next 10/7 would be beyond aggressive, it would be lashing into the Palestinian territories with overwhelming force every week -- way beyond even the baseline levels of military activity and suppression that occur as part of the occupation, and in most cases it'd be in response to intelligence about activity that would have never led to a 10/7 anyway. Such behavior, in addition to its catastrophic impact on the Palestinian population, would have unpredictable (or perhaps all too predictable) knock on effects on Israeli security -- it's not sustainable, which is a good thing, because if it was sustainable it'd be horrifyingly dystopian.

Again, I'm not trying to downplay the magnitude of the intelligence failure in this case. The inevitable uncertainties and probabilistic reasoning I identify above is an inherent feature of life; one has to make better or worse choices within that uncertainty, and the Israeli security apparatus made a terrible choice. That assessment is not, I think, merely a product of hindsight. But recognizing that Israeli intelligence could have made a better choice knowing what they did at the time doesn't mean the problem of hindsight isn't real. A "good" choice by Israel likely would have been met with harsh condemnation, because (thankfully) people would never know what hell had been averted. And even that stipulation is too generous, since in the real world where we don't know and never will know what events we've averted, we can't actually know if we're killing the metaphorical Hitler or just unnecessarily engaging in superfluous preemptive violence.

Roundup for Reading Days

We've just concluded our semester here at Lewis & Clark -- it's now "reading days" as students prepare for exams. I've already written my exam, so I'm going to use this time to clear some tabs off my browser. It's a roundup!

* * *

My latest article, "Liberal Jews and Religious Liberty," has been published in the N.Y.U. Law Review. It's good -- you should read it!

Standing Together is a joint Jewish-Arab Israeli group with a simple idea: under any future for Israel and Palestine, Jews and Arabs are going to have to live together. So no matter what your plan is for the future of Israel and Palestine, we have to start laying the foundations for mutual co-existence now. In that vein, organizational co-head Sally Abed, a Palestinian feminist socialist, had a message for the way international leftists are talking about current goings-on in Israel and Palestine: "If it's not helping, then shut the fuck up." I already posted a link to this on BlueSky and it basically went viral, but it's worth being memorialized here (and the entire piece is worth reading).

It's not surprising that Arab-Americans are reacting negatively to the Biden administration's policies regarding the Israel/Hamas war, but it may be surprising that more Arab-Americans now identify as Republicans than Democrats. That said, maybe not that surprising -- up through the 1990s, Arab-Americans were a swingy but lean-GOP voting bloc. And that makes sense when you think about it: it's a relatively socially conservative and comparatively affluent community; there's plenty of room for GOP appeal. 9/11 changed things dramatically, and one might think that continued rampant anti-Arab racism and Islamophobia would make the GOP brand toxic today. But between frustration with Democrats' continued pro-Israel stances and a backlash against socially liberal policies, there does seem to be an at least momentary shift back towards the Republican camp. We'll see if it holds through 2024.

I don't speak German so I can't backcheck the cited study, but this post claims that antisemitism is on the rise in Austria's Turkish- and Arabic-speaking communities ... but that rates are actually higher amongst persons who were born in Austria or lived there for some time compared to new immigrant arrivals. So far from validating the "imported antisemitism" narrative, the problem perhaps is that immigrants are assimilating a bit too well into traditional Austrian culture.

A sometimes-overlooked variable in the Israel/Hamas conflict is that most neighboring Arab states are not fans of Hamas either, viewing it as a destabilizing influence. Though Hamas' threat isn't as immediate to them as it is to Israel, it definitely still poses a threat. So there is quiet pressure emerging from Arab nations on Hamas to "disarm before it is destroyed."

Mark Harris is much, much more empathetic towards folks tearing down posters of Israeli hostages than I am, but in some ways that makes this essay -- documenting the sense of abandonment such an act generates amongst the Jews who see it -- even more powerful.

Tom Friedman has a great column from a few weeks ago on the "rescuers" in the Israeli Arab community who helped save their compatriots in the midst of Hamas' 10/7 attack.

I first heard about today's shooting attack in Jerusalem (which killed three civilians) via a social media post which used it to further emphasize the need for a "ceasefire". My first thought was "we're already in a ceasefire"; my second thought was "this demonstrates a problem with a 'ceasefire' -- even if Hamas agrees to it, other armed Palestinian factions won't feel bound." But apparently Hamas actually has claimed responsibility for this attack, so, take from that what you will vis-a-vis the vitality of the ceasefire.

I try not to be an alarmist about campus antisemitism, while simultaneously not being a denialist about its presence. Jews are not perpetually on the verge of mass expulsion, but nor is the entire concept of campus antisemitism a concocted astroturf campaign by bad faith right-wingers. All that said, this account in Rolling Stone (from a current student at Columbia) feels fairly reported and is harrowing.

"Jews Don't Count" vs. "All Lives Mattering"

A few days ago, three Palestinian-American students were shot in Vermont.

One of the wounded students attended Brown University, and so Brown University president Christina Paxson led a vigil on Monday. In her prepared remarks, Paxton planned to say the following:

At a faculty meeting last month, I said that "Every student, faculty and staff member should be able to proudly wear a Star of David or don a keffiyeh on the Brown campus, or to cover their head with a hijab or yarmulke."

But in the actual presentation, the "Star of David" and "yarmulke" references were dropped (the story states this occurred after anti-Israel heckling, but it's not clear what the exact causal relationship was).

I learned of all this via the National Review, which of course wants you to be aghast. "Jews Don't Count" and all that. But I'm so old, I remember when many Jewish actors, particularly on the center-right, were furious at what they termed "all lives mattering" antisemitism -- responding to an incident of antisemitism by condemning an array of other prejudices alongside antisemitism, rather than letting a condemnation of antisemitism stand alone. And the thing is, under that metric, we could say that Paxson's sin was -- in a vigil about an incident of anti-Palestinian racism -- including a reference to antisemitism. By doing so, she would have "all lives mattered" anti-Palestinian racism. She should have condemned anti-Palestinian violence "alone".

Now for my part, I don't believe that. I don't generally think that tying different forms of discrimination together is objectionable "all lives mattering", and so I don't think that condemning Islamophobia or racism weakens a condemnation of antisemitism (or vice versa). I also don't think that every condemnation of antisemitism has to include a condemnation of other forms of oppression (or again, vice versa). It's fine when they're linked together, and it's fine when they stand alone (and for what it's worth, it's just wrong to assert that antisemitism is never condemned "alone"). Either way Paxson could have done it would have been okay.

More broadly, I've argued that the concept of "all lives mattering" is not properly applied to any case where "where someone tries to link different forms of oppression or marginalization together." Rather, "all lives mattering" only obtains where one

respond[s] to a complaint of an injustice experienced by a particular community by suggesting the complaint is illegitimate or exclusionary unless it is reframed away from focusing on the particular community and instead presented in more universal language.

So it is not "all lives mattering" for Paxson to loop in an issue of antisemitism to her vigil responding to a claim of anti-Palestinian racism, but it would be "all lives mattering" if it was suggested that her vigil would be inappropriate or illegitimate if it didn't also talk about oppression in more universal terms. The National Review piece, though written in neutral tones, certainly carries the subtext of such an assertion.

But more to the point, my definition of "all lives mattering" is not the one I've been seeing in the quarters of the Jewish community who've been leveling the charge. Based on their more expansive account, Paxson would absolutely have been "all lives mattering" had she included the line about the Star of David, and so she was wise to omit it. But I don't think that the critics in question believe that -- they're more likely to be offended that the line was taken out (proving that "Jews don't count") than they were at the prospect it would be kept in. That suggests that their position on "all lives mattering" is not a consistent one (and I'd argue, that inconsistency at root derives from their position being fundamentally untenable). Worth keeping in mind.

Swapping Strategies

Different minority groups often swap strategies for protection in the context of trying to overcome societal oppression, and an advance for one group often can lead to advances for others. In a recent interview I did with Lewis & Clark's alumni magazine, for instance, I talked about how the pathway used to ensure Jews receive Title VI protections (notwithstanding the fact that Title VI doesn't cover religion, only race, ethnicity, and nationality) was quickly adopted to also secure similar protections for Muslims. Security tips meant to keep synagogues safe are often used to help secure mosques as well. And so on.

Another example of this that's less remarked upon, though which is (depending on your vantage) more interesting, more amusing, or more grim, is how the legal arguments pro-Israel advocates have used to try to extend anti-discrimination protections to cover backlash against Jews-as-Zionists have increasingly been adapted by pro-Palestine advocates to try and create discrimination claims around backlash directed at Palestinians-as-anti-Zionists.

I think we're all familiar with the contours of these arguments, and the controversy surrounding them, in the context of the "anti-Zionism as antisemitism" play. A Jewish student says something "Zionist" and is targeted by adverse action as a result. The student's supporters say "this is antisemitism -- Zionism is an integral part of my Jewish identity, and so attacking me on the basis of 'Zionism' is tantamount to attacking me as a Jew." Opponents reply that Zionism is a political ideology and criticisms of that ideology -- whether ultimately well- or ill-taken -- cannot be deemed to be targeting persons on the basis of an ascriptive identity. Not all Jews are Zionists, and in any event there is a difference between an identity and an ideology many members of a given identity happen to believe in.

Yet increasingly, we're seeing similar arguments being raised to bolster claims of anti-Palestinian discrimination. Consider the civil rights complaint Palestine Legal filed on behalf of Ahmad Daraldik, who was removed from his position as head of the Florida State University in part due to speech characterized as anti-Israel, anti-Zionist, or antisemitic. This complaint followed shortly after a high-profile complaint filed against USC on behalf of a Rose Ritch, a Jewish student ousted from student government for being a "Zionist". There are more than a few similarities between how the cases are framed that may not be coincidental. While Ritch's case is not mentioned in Daraldik's complaint, there does seem to be something to the notion that Palestine Legal (which undoubtedly was aware of the Ritch case), thought something along the lines of "if the Zionists can make claims like this, than so can we."

To be sure, some of Daraldik's allegations are quite "traditional" cases of discrimination (e.g., social media messages directed at him containing racial slurs). But others very much seek to present Daraldik's anti-Zionist speech as integral to his identity as a Palestinian, such that backlash against the speech ought to be viewed as tantamount to attacking him as a Palestinian. For example, he characterizes the hostility he endured as resulting from his "speaking about my life as a Palestinian growing up under Israel’s violent system of apartheid". And his lawyers likewise argued that statements by the university president characterizing some of Daraldik's own speech as antisemitic (a social media post which referred to an IDF soldier as a "stupid Jew" was probably the most prominent) was said to "reinforc[e] the anti-Palestinian stereotype that Palestinians reacting to experiences of violence and oppression by the Israeli government/military are inspired by anti-Jewish animus, not their own oppression" -- what many wearing other shoes might characterize (favorably or derisively) a "trope-based" argument.

These arguments, too, try to present a political orientation vis-a-vis Israel and Zionism as an integral part of an ascriptive identity. In that respect, they parallel Ritch's efforts to make the same argument at USC, and they're vulnerable to the same objections: anti-Zionism, like Zionism, is a political ideology, and so we might also say that criticisms of that ideology -- whether ultimately well- or ill-taken -- cannot be deemed to be targeting persons on the basis of their Palestinian identity. But -- without taking a position on the substance of his complaint -- I have more sympathy for Daraldik's conceptual argument here than one might suspect (precisely because I have some sympathy for Ritch's iteration too). While it's true that "not all Palestinians" likely agree with what Daraldik said or believes (what is Bassem Eid doing these days?), that does not mean there is no connection between what Daraldik said (and the backlash to it) and his Palestinian identity. I can absolutely see how not being able to level criticisms of the Israeli government or its policies would be experienced as an oppressive blanket that functionally obstructs the ability of Palestinian students to participate as equals in educational spaces. And the belief that there is "pure" animus against outgroups that does not drape itself in the garb of reasons seems unrealistic to me; the problem of disentangling "political" speech from bigotry is assuredly difficult, but it's also unavoidable. These responses don't tell us, of course, how the law should handle cases like Daraldik's or Ritch's -- at most, they show why they present genuinely nettlesome problems. But the point is they present the same problems, and the strategies for trying to make Daraldik's claims legally legible are similar to those used to do the same for Ritch's -- an overlap which simply does not seem coincidental.

A few days ago, we saw another example of this overlap in Tannous v. Cabrini University, involving a Palestinian professor terminated from his position due to social media posts that were alleged to be antisemitic but which he insisted were actually anti-Zionist (among the offending messages was one reading: "zio controlled USGOV politicians promise to cancel 2T$ of student loan debt ... yet they sent that 2T$ to Ukraine, Nato, and Israel to arm NAZIs.... Israel and Ukraine are societal cancers and must be eradicated."). 

The professor sued under a variety of theories, including claiming racial discrimination (he was at one point represented by Palestine Legal, though I don't know if they remained his attorneys throughout the litigation). In general, the district court concluded that a belief that a plaintiff is racist -- even if "wrong" -- does not equate to showing that adverse action occurred due to unlawful prejudice. In other words, it's not discriminatory to (even wrongly) accuse people of antisemitism. The exception might be if there was evidence that the only reason why a person holding X views was deemed to be racist was because they were also a member of a given identity group (another person of a different identity, but holding otherwise similar views, wouldn't be targeted). And indeed, the professor did argue that "[d]ue to his status as a Palestinian American, [the university] presumed that his tweets critical of Israel were actually criticism of Jews." The court rejected this argument as conclusory (there was no evidence presented that the university wouldn't have been equally offended no matter who wrote these tweets) -- but again, the core claim being raised here is one relying on the existence of a "trope" that seeks to convert backlash against "tweets critical of Israel" into an ascriptive attack on his Palestinian identity.

Indeed, there's a part of me that read the Tannous case and wondered if there might be a bit of 10-dimensional chess going on. The main basis for the court's decision in Tannous was that even unfairly accusing someone of "racism" or "antisemitism" is not tantamount to discrimination on basis of a protected class. Tough luck for Professor Tannous. But also, maybe, tough luck for Rose Ritch, whose detractors also could say that they acted against her not because she was Jewish, but based on their belief that her ideology was racist. That belief might be wrongheaded, but under the logic of Tannous it is not antisemitism. Tannous might have lost the battle, but Palestine Legal may have won the war -- and in any event, one can see the logic of them pursuing the case as a win-win: if arguments like the one they made on behalf of Tannous are rejected, then these arguments aren't going to be available for Zionist Jews making similar claims of discrimination where the underlying facts suggest the antisemitism is cloaked in antisemitic garb; and by contrast if those arguments are in fact legal winners, then there's no reason why they shouldn't leverage them for their own clientele.

To be clear: there's nothing unsavory about what's going on here. Legal arguments and precedents travel, and it's entirely normal and ordinary that various groups will decry the outrageous, abusive advocacy tactics of their opponents in one moment and furiously crib off them in the next. Jewish groups do it too (witness the blinding oscillation between "DEI is the devil" and "let's use contemporary DEI language to explain antisemitism"). But it's still interesting/amusing/grim (take your pick) to witness the unacknowledged but almost certainly significant influence contemporary Zionist legal advocacy is having on developing the strategies of their anti-Zionist adversaries (and, probably, vice versa).

Who Loves Prison Stabbings?

One of the sobering experiences of being a judicial clerk is the mountain of cases you see from prisoners alleging prison violence, abuse, and mistreatment. Even worse is the fate of most of these lawsuits, which is typically a swift and decisive dismissal. Earlier this year I alluded to one case that stood out to me out of the Eighth Circuit, Leonard v. St. Charles County Police Department, where a jailhouse nurse simply refused to give a mentally ill inmate his prescribed medication (despite the insistent efforts of the inmate's mother to ensure the medication was delivered). Instead of giving the man his medication, the nurse placed him under suicide observation -- the end result being jail staff "observing" the man claw out his own eyeball. This behavior, the Eighth Circuit held, carried no liability for the prison staff.

The Leonard case isn't an anomaly. If one is a clerk (or a judge, or an attorney who works on such matters), one sees allegations like this as a matter of course -- a terrible, unending drumbeat of abuse and neglect. Admittedly, these allegations are at the stage where we're talking about just allegations -- they aren't proven. But that it some ways makes it worse, because the procedural posture of the cases requires that judges assume the facts are true as the prisoner alleges them, and so it is those sets of facts which judges repeatedly conclude present no constitutional violation. There is no gainsaying that, as far as the dominant doctrine of constitutional law is concerned, the state is allowed to brutalize its prisoners in an unfathomable variety of sickening ways without any legal recourse whatsoever. 

Each time I read one of these cases, I'm horrified anew. They all have their horrible points that stick in your mind for different reasons. The sticker of the Leonard case was the role the plaintiff's mother played in the narrative. I don't know what Leonard did to be in jail; he may be a very bad man. But even if you feel no sympathy for him, the torment his mother must have been put through -- her desperate, impotent, and ultimately futile attempts to ensure her son would not be neglected in his moment of vulnerability -- is nothing short of horrifying. Him being incarcerated meant she was in a position of being completely at the mercy of the state as to whether her child would live or die, would be taken care of or would be cruelly and cavalierly abandoned. The state made the latter choice. There's nothing she could do about it, she ultimately could not protect him. And the law's reply to that choice and that impotence is to shrug its shoulders and say "fine by us".

The thing that gets me isn't (just) the cruelty itself. It's the option of it; the legalized indifference as to whether it happens or not. Another inmate is in an similar position perhaps, but the jailhouse nurse makes the humane choice -- she gives him his medication. Great, but as far as the law is concerned, that was nothing but a choice -- it's basically a matter of fortune she chose as she did. Being perpetually at the mercy of the arbitrary negligence of the state is a punishment, and is a cruel and unusual one at that. I don't make any claims as to whether a program of incarceration demands that sort of systematic indifference to human dignity. I will say that if this is what is necessary to make that program run, then the cost is too high. And that assessment in no way depends on any denial that the prisoners subjected to this system may in many cases legitimately be called bad people.

All of this is warmup to story you might have heard that Derek Chauvin, George Floyd's murderer, was stabbed in prison. This story has led to a lot of replies taking the form of "hope the knife is okay" and other witty posts of endorsement and cheer. Much of this, to be sure, stems from people who are not in any meaningful sense politically aware and active -- they view (correctly) Chauvin as a bad man, and so they cheer a bad thing happening to him. But I've seen plenty of people with more sophisticated political palates who've basically been taking the same line -- they're absolutely fine with Chauvin being subjected to violence and abuse in prison because he's a bad man who has it coming. Indeed, some of them are angry that some "liberals" have the temerity to say it's a bad thing that Chauvin was stabbed in prison. How dare the liberals not permit us to rejoice in Chauvin being subjected to a dose of state-supervised arbitrary violence?

There is, I'll agree, something to be said regarding a "Himpathy"-style critique here -- why, when this sort of violence is pervasive in the prison system, does it seem as if we suddenly find extra stocks of empathy when it's the Derek Chauvins of the world exposed to it? On the other hand, we might suspect that the persons appalled by Chauvin being stabbed are also appalled by other prisoners being stabbed, and the reason we haven't noticed it is because the world doesn't bother paying attention to their identical empathic responses except when it's the likes of Chauvin at issue. 

Leave that aside. I don't think resolving that debate changes the fact that it matters that a non-trivial chunk of the voices who present themselves as "abolitionists" are finding themselves unable to contain their joy at seeing Derek Chauvin stabbed in prison. Why? Because it reveals one of their core political promises to be a lie. A core differentiation between reformists and revolutionaries in this domain is that the latter purport to reject outright the leveraging of systemic, organized collective violence as a tool of social discipline and punishment. The former, by contrast, accept that organized, collective violence (which is what prison ultimately is) is sometimes justified as a tool of social regulation and are trying to constrain, ameliorate, or otherwise redirect it. The revolutionary appeal here is that supposedly it isn't just about reshuffling the deck of organized violence. It's a more fundamental alteration; which is why saying "but what about all the bad people who do bad things" isn't taken to be a knockout response. For the bad people too, we need to find an alternative to the leveraging of systematic, organized collective violence as a tool of social discipline and punishment.

But when the "revolutionaries" are seen cheering Chauvin being subjected to prison violence, it suggests that they, too, ultimately are just pursuing an agenda of redirecting these projects of collective violence towards more suitable targets. At that point, their only basis of appeal boils down to "we are better at identifying the true 'bad people' who are deserving of being subjected to collective violence as a means of social discipline, and better at channeling that violence to those people in appropriate dosages, than are the current powers-that-be." For my part, I don't see much basis for why they've earned that degree of trust (note, for what it's worth, that they're aligned with the current powers-that-be with respect to Chauvin -- both have demarcated him as among the "bads", and both are performatively fine with a system where he is at the arbitrary mercy of being stabbed), and it's certainly a far less ambitious proposition than how it's commonly framed. Ultimately, the most honest players of the game might be the relatively apolitical centrists: they never pretended to have a serious problem with "bad people" being subjected to unconstrained violence in prison, they view Chauvin as falling into the category of "bad people", and so they're perfectly happy to see him subjected to unconstrained violence in prison. Say what you will about it, but there's nothing inconsistent there.

One sees, I think, a similar dynamic manifest frequently in the discourse around a "one-state" solution to the Israel/Palestine conflict. In one moment, proponents declare their agenda to be a neutral, secular, "state-for-all-citizens" that is studiously equal in its orientation to Jews and Arabs alike and most certainly is not about institutionalizing a hierarchy of political dominance for their preferred faction. And who could oppose that? (Answer, we're told, is "only people who support hierarchies of ethnonationalist political domination"). But in the next moment, some of these same people can barely contain their ecstasy at witnessing "settlers fleeing the land", land that they are naught but foreign interlopers on to begin with, and also when they are fleeing to distant shores could anybody really blame the locals for organizing a light lynch mob to greet them, genocidal colonizing settlers that they are? The latter expression falsifies the sincerity of the former; the sort of person who believes that "Israelis are, to the man, thieving genocidal settler war criminals" obviously cannot be taken seriously when they portentously aver "and the political arrangement I hope to set up should welcome them as equals." It is beyond obvious that the people who oscillate between these two instincts are simply weaving a narrative that will support a reshuffling of political domination; that their ultimate pitch for why they should be backed is because they'll do a better job than the current powers-that-be at identifying who actually deserves to be on the top and who deserves to be on the bottom of the new state of affairs. And it's equally obvious that many of their backers lend their support to this political program for that exact reason -- they understand full well that this politics is a means to an end, not an end of harmonious equality, but an end of the bad people being thrown down, punished, made to be lessers, and getting the comeuppance they so richly deserve. Maybe they're right in their assessments -- but if they are, it isn't because they're representing some categorical break from what's come before or the politics they purport to reject. It really is a matter of whose ox gets gored.

To be honest, it really doesn't surprise me that, even in political movements that purport to represent rejection of arbitrary infliction of collective violence as a tool of social reform, or rejection of programs of ethnonationalist political domination, much of the practical "foot soldier" energy behind the causes really boils down to a desire to redirect the complained-of atrocities to new and better enemies. There's nothing especially new here (Angela Davis was infamously impassive regarding the mass imprisonment of political dissidents in Soviet bloc nations, for example). And the most cynical but not wholly-incorrect way of describing politics in general is that it is a series of debates regarding when, where, why, how, and to whom we should direct collective projects of violence as means of social regulation and punishment. In that sense, nobody is doing anything out of the ordinary. But that very ordinariness is what reveals the lie; the lie that there is something revolutionary at work here, and that those who don't trust this revolutionary impulse are suspicious only because they're addicted to the violence that their betters are trying to abjure. No -- it turns out, they're absolutely right to be suspicious and their suspicions are absolutely right. 

I'm not saying that nobody is principled here; in fact, I suspect there are plenty of people who are absolutely genuine in their commitments. But the number of persons for whom the high-minded rhetoric of abolition or secular equality or what have you is really just a thin veil for crafting a new narrative that can justify redirecting violence towards the "right" targets is, I think, far larger than anyone would care to admit. Cheer Chauvin's stabbing if you want. But don't expect anyone to then believe that the politics you propose is even in utopian concept about rejecting in principle the deployment of collective violence as a tool of social control.

Bruen Does Not Care About Your Due Process Rights

The landmark Bruen decision inaugurated a lot of chaos in the field of Second Amendment jurisprudence, but perhaps no follow-up case caught the public's eye quite like the 5th Circuit's ruling striking down prohibitions on persons under domestic violence restraining orders from possessing guns. I characterized that ruling (United States v. Rahimi) as "(a) insane and (b) absolutely defensible under the Supreme Court's Bruen decision," but I also flagged it as a potential candidate for Supreme Court reversal. The Supreme Court did grant cert in Rahimi, and the consensus amongst legal observers following oral argument is that the Fifth Circuit's opinion is toast.

One last ditch argument we're seeing by pro-gun zealots to try and avert this outcome is to frame Rahimi as a defendant's rights issue. Fifth Circuit Judge James Ho, in an opinion Chris Geidner characterized as a "judicial version of a post-argument supplemental filing," appealed to this principle -- citing a bevy of criminal law due process cases which protected the rights of even violent offenders and concluding that "if government must turn 'square corners' when it comes to the removal of illegal aliens, surely it must do the same when it comes to the basic rights of our own citizens." Josh Blackman made a similar argument, contending that it will be difficult to write an opinion in Rahimi that upholds the law in question that doesn't similarly pare back other rights of those accused of violent crimes.

Let's start by making one thing clear. Blackman states that "the reason why the Court may 'clarify' Bruen [in Rahimi] is because certain members of the Court don't like the results that it yields." I agree. As I wrote shortly after the Fifth Circuit's decision came down:

[I]f the Supreme Court reverses [Rahimi] -- and they might -- their reasoning will almost certainly purport to be based on some alternate assessment and reading of the historical sources. But this will be a naked smokescreen, and everyone will know it. If the Court reverses the Fifth Circuit here, it will be entirely and solely because the Court finds it too unreasonable and intolerable to permit domestic abusers free reign to carry arms -- a contemporary policy judgment anyway you look at it, no matter how much effort is or isn't expended to cloak it in some faux-historical garb. None of these judges abide by the rules they purport to lay out.

But while I agree that the results-tail will be wagging the doctrinal-dog, the "defendant's rights" argument is not a bulwark against the sort of reasoning. Rather, it is itself a form of results-oriented reasoning that Bruen -- if applied "faithfully" (and again, quotation marks because nobody is even trying to apply it "faithfully") -- expressly disclaims the legitimacy of. Put differently, to the extent Rahimi tries to present itself as faithful to Bruen, the "defendant's rights" argument is incredibly easy to dispense with. Blackman and Ho's position, by contrast, only works if one assumes Bruen does not mean what it says -- or, as I've put it, that Bruen is a one-way ratchet where social policy arguments in fact are permissible ... but only if they stand in support of a pro-gun position.

Let's review what the Bruen rule is. It's quite straightforward: where the "plain" language of the Second Amendment covers given conduct, government regulation of said conduct will only be upheld if it is consistent with the framing-era history of gun regulation. That's the alpha and the omega. No weighing of social policy consequences is permitted, period.

This approach generally has been conceptualized as a means of striking down even laws about guns that seem eminently sensible -- if they lack the relevant historical analogue, they're unconstitutional no matter how salutary they might seem. But in concept, what's good for the goose is good for the gander: a law about guns that seems arbitrary and unfair, but which does have relevant historical analogues, must be upheld no matter how ridiculous it might seem.

Suppose it turned out that there were in many states at the founding era laws that permitted anyone with a last name starting with "M" to be disarmed at the discretion of the state governor. For purposes of this hypothetical it doesn't matter why these laws were passed, and we can all agree that would be a tremendously silly and unfair law. Nonetheless, if a state today passed an identical law, under Bruen it should be upheld: the only question we're allowed to consider is "is there a historical analogue," and by stipulation there is one here. Engaging in the abstract moral theorizing about whether this law is "fair" -- no matter how obvious the answer might seem in this case -- is exactly what Bruen says courts are not allowed to do.

Similarly, suppose we had in Rahimi something that Justice Thomas in Bruen expressly denied was necessary: a "clone" law -- at the founding, there were regularly laws exactly like the federal law at issue in Rahimi throughout the states. In such a circumstance, even Ho and Blackman would have to concede (I think?) that Bruen would compel the federal law in Rahimi to be upheld, and that the "defendant's rights" argument would not enter into it. The law has a historical analogue, and so the discussion ends. That's what Bruen demands.

Of course, there was not a "clone" law at the framing to the federal prohibition on gun possession by persons under domestic violence restraining orders. So the nominal question in Rahimi is whether the laws that did exist are sufficiently analogically comparable to the federal law at issue so as to validate the latter. But that analysis, too, is completely unconcerned with any alleged unfairness to prospective criminal defendants. Either the historical analogues are sufficiently comparable, or they're not. If they are, then it doesn't matter that the results might seem unfair to potential criminal defendants any more than it matters if the results (pointing the other way) might seem unfair to domestic violence victims, or for that matter if the results seem unfair to persons whose last names start with "M". In all cases, Bruen demand we be studiously indifferent to this unfairness.

Bruen, in short, does not care about due process rights. Or put slightly differently, Bruen says that the only process anyone disarmed by the government is "due" is a determination about whether the disarmament is sufficiently analogous to practices that existed at the founding. If it is, then you can be disarmed. If it isn't, then you can't. No other consideration of "fairness" comes into play. 

It is in fact a misapprehension to say that the reason Rahimi could be disarmed consistent with Bruen is because "we're willing to reduce constitutional protections for prospective criminal defendants." If Rahimi can be disarmed, it isn't because he's a prospective criminal defendant, it's because he falls into a category of persons sufficiently analogous to persons who were deemed to be disarmable at the time of the framing. For this reason, a reversal in Rahimi poses no threat to other criminal defendant rights precedents, because in no other domain are constitutional rights treated in this absurdly reductive fashion (here we really see the lie that Bruen was about treating the Second Amendment "the same as" other constitutional rights; no other constitutional domain has a doctrine that's anything close to what Bruen proposes).

In short, all an opinion reversing the Fifth Circuit in Rahimi has to do to "contain" its ruling is state its conclusions in the terms Bruen prescribes: that the historical analogues to the challenged federal law are sufficiently comparable so as to render the latter constitutional. Once it does that, it need not and under Bruen should and cannot say a word about whether this outcome is "fair" or not to people who could prospectively be charged with a crime.

To be clear one more time: even if this is the approach the Supreme Court takes in reversing the Fifth Circuit, it will be a lie. We'll all know that the actual reason behind the Court's decision will be policy squeamishness towards the outcome. But we also know -- already knew, but Ho and Blackman helpfully confirmed it -- that a contrary ruling (or a dissent) will also be driven in part by social policy considerations and abstract arguments about fairness. Even Bruen's putative defenders don't actually take its strictures seriously, which is one more reason why the decision deserves nothing but scorn.

The Fluid Dynamics of Pill Popping

This is a very silly question that I've been obsessing about for weeks. It's possible I've even written about it before, though I can't find any trace of that. It's a question that simultaneously feels so basic that science has to have an idea about it, but also I can't think of a single practical application that would prompt anyone to study it.

Let me lay out the scene.

I have a bottle of pills, from which I take one pill each day. To do this, I tilt the pill bottle and "pour" one pill out onto my hand, then return the bottle upright and place it back on the shelf. Other than this, I don't shake or mix the pill bottle in any way.

When the pill bottle is close to -- but not quite -- empty, I get a new bottle. At this point, I pour the remaining pills from the old bottle into the new bottle (again, without otherwise mixing or shaking). So if I had 10 pills left from the old bottle, and 90 pills in the new bottle, the new bottle now has 100 pills (including the 10 "old" pills poured over the top). Then I start the cycle again of taking one pill a day.

Here's my question: on average, how long do we predict it would take me to consume all of the "old" pills (assuming I don't vary my routine)?

One answer is that the order of the pills being poured out is essentially random (I have an equal chance of "selecting" any given pill), and so the answer of how long it will take me to pour out the ten old pills is the same as the answer for any randomly selected ten pills. But it seems wrong to suggest that the order is in fact random -- the fact that these pills were specifically placed on the top of the pile of pills should mean that they have a higher likelihood of being poured out first (right?).

So another answer at the opposite end of the spectrum would be that since the old pills are at the top of the pill bottle, they should be the first ten pills that I consume (or close to it). Something like that is the intention of pouring them onto the top of the pile. But this also strikes me as unlikely -- intuitively, I feel like the act of pouring does not necessarily result in the "top" pills necessarily being poured out first. It does some mixing on its own. More broadly, when I imagine the physical act of the pile of pills cascading down the side of the pill bottle into my hand, it's very easy for me to imagine pills that were not on top skipping ahead and getting into my hand first.

In short, I suspect that I should pour the "old" pills more quickly than the new ones by some indeterminate factor -- more quickly than random selection, less quickly than "they'll be the first ten". It's a question, in essence, about the "fluid dynamics" of pills, which is a concept that tickles me for some reason.

This actually would be pretty easy to measure in concept: give each pill a number, instruct research subjects on my routine, and then have them mark down the number of the pill they pour out each day. But has anyone actually investigated this? On the one hand, it feels like utterly pointless knowledge. On the other hand, scientists love finding out about the properties of random subjects!

Anyway, for anyone working in a germane field, this is a free research proposal for you. Have at it.

The Settler's War and the Biden Response

While the world's eyes are primarily on the war between Israel and Hamas in the Gaza Strip, another spate of violence has erupted in the West Bank, where Israeli settler violence has surged to unprecedented levels. A few weeks ago, I observed that while what's "going on in Gaza is more eye-catching ... the [West Bank] situation is in some ways even worse because there isn't even a colorable claim of self-defense -- it's pure unconstrained terror inflicted by settler extremists on the Palestinian population for the express purpose of subjugation." (Matt Yglesias made a similar point). The Gaza operation can at least in the abstract be defended as a necessary response to Hamas' violence. The violence inflicted upon Palestinians in the West Bank defies even theoretical justification. In terms of familial resemblance, West Bank "price tag" settler terrorists differ from the perpetrators of October 7 only in degree, not kind.

Today, the Biden administration announced it would begin pursuing sanctions (such as visa bans) on settlers who engage in or promote violence against Palestinians. It's an overdue step, and I've urged considerably harsher measures than that (last week I suggested identifying violent settler organizations and placing them on the State Department's list of Designated Terrorist Organizations). Nonetheless, it is a welcome one. Extremist violence emanating from West Bank settlers is one of the primary drivers of the current conflict and an existential (and very much intentional) threat to the viability of a two-state (or one-state, for that matter) solution. The fact that these malign actors carry significant support in the highest echelons of the Israeli government is not a reason for the United States to stay its hand. Indeed, their substantial influence and clout makes it more imperative that America decisively intervene to isolate them.

This step by the Biden administration will not neuter the criticism it is getting from the left for how it has handled the past month's events (indeed, I first heard about the anti-settler sanctions from at least three social media accounts who flagged it in the course of derisively dismissing the notion that it meant anything at all). But that's the way it goes -- our policy towards Israel and Palestine should be humane and intelligent regardless of whether that earns brownie points with the online activist crowd. This proposal is a good proposal. I hope it is followed up on, and I hope it prompts other pro-Israel Democrats to think more proactively and creatively about what steps America can take to sap the strength of the settler-terror movement.

The other big almost-news of the day is the prospect of a ceasefire negotiated by the Biden administration. Initially this was reported as a "tentative deal" having been struck, now the reporting has backed off a little to saying the deal is "close". The details, as they're being reported, would see both sides cease hostilities for five days, the release by Hamas of approximately 50 hostages (approximately 20% of the total number they're estimated to be holding), and the transport into Gaza of significant quantities of humanitarian aid. All I'll say on this is that I'm familiar with the arguments for why Israel's military operation is necessary, and I'm aware that a ceasefire is still part of the middle, not the end. But I'll never be dismayed at the prospect that people suffering tremendously in a warzone will, for some time at least, suffer less. And I'll likewise only feel joy at the prospect that some kidnapped captives will be redeemed to their families.

How Many Genocides Are Occurring in the World Right Now?

A few weeks ago, I asked on BlueSky an admittedly morbid question: "approximately how many genocides does a given person think are currently in progress around the world right now?" I didn't get much in the way of responses, so now I'll ask again here and elaborate a bit on why I think it's a question worth asking.

I was inspired to return to this question based in part on an online conversation I had with a Palestinian friend a few days ago, after she characterized Israel's current campaign in the Gaza Strip as "genocide". Knowing she was a fierce opponent of Hamas, I was curious if she also thought that Hamas' 10/7 attacks were acts of "genocide" as well. She responded that in her view, they clearly were -- indeed, given what Hamas did combined with how Hamas leaders characterized their ambitions, she thought the case for calling it genocidal was almost beyond argument.

For my part, my instinct is that Hamas' attacks -- abhorrent as they were -- are not properly called "genocide" (nor is the Israeli response). I couldn't help but observe the resulting incongruity vis-a-vis Hamas, though -- the Palestinian anti-Zionist thought that Hamas had clearly committed acts of genocide; the Jewish Zionist thought that this allegation was a mischaracterization and misapplication of the term. Or, as I put it, "today, you're the Hasbarist shill and I'm the Hamas terrorist apologist." How the world turns.

But what accounts for our incongruous divergence?

Consider what I think is a reasonably popular, though not necessarily universally held, "folk" understanding of genocide where it refers solely to generational calamities. The Holocaust, for instance, saw the extermination of two-thirds of Europe's Jewish population. The Cambodian genocide witnessed the murder of one-third of Cambodia's entire population. The Rwandan genocide killed off somewhere around three-quarters of the Tutsi population. The Armenian genocide was responsible for the death of between 50 and 80% of the Armenian population. That's a hefty weight class to be in. And while I don't want to say percentage death toll is the absolute be-all-end-all of what qualifies as a "genocide", it seems fair to say that most human rights abuses, even most incidents of mass atrocity, will not come near that threshold. These are, again, once-in-a-generation sorts of events. 

Given that understanding, my sense that neither Israel nor Hamas' recent conduct qualifies as "genocide" is not based on any illusions that either party hasn't committed grave (and violent) injustices against the other. But amongst currently active conflicts, the cumulative death toll of the Israel/Palestine wars doesn't even break into the top 20, and that's including all deaths (military and civilian) by all parties across all incidents from 1948 to present. It is, again, just not in the same weight class as the paradigm cases above. The differences between what's happening in Israel and in Gaza, compared to what happened in, say, Rwanda, is a difference in kind and not just degree.

But the above "folk" understanding isn't the only way to understand genocide. I was at an academic conference this weekend, and at dinner I shared a table with a colleague that worked in the field of peace studies. She mentioned the genocide of native peoples in Canada relating to the "residential schools" program, and then added off-hand that the genocide was "ongoing" to this day. This is, I think it's clear, a broader understanding of genocide than the folk understanding. And based on analogous principles, it seems that the number of analogous state behaviors towards minorities that are "at least as bad" as Canada's current treatment of indigenous persons would be quite substantial. Of course, one sometimes hears similar claims made regarding ongoing genocides of indigenous persons in the United States, or for that matter ongoing genocide of African-Americans in the United States. But there are many other candidates around the world, from the Dominican Republic's treatment of Haitians, to Morocco's treatment of Sahrawi, to Brazil's treatment of its own indigenous population, to India's treatment of Muslims, to Iran's treatment of the Ba'hai (and that is a very non-exhaustive list).

Indeed, based on that threshold -- where "genocide" includes treatment of a national minority either as badly as or worse than Canada currently treats indigenous peoples -- I wondered how many active incidents of genocide currently occurred around the world. Dozens? Hundreds? I don't expect anyone to have a precise figure. But I'm curious as to answers even within an order of magnitude, because I think it can help illuminate what people actually mean by a word that unfortunately is starting to develop blurry and divergent meanings. When people speak of "genocide", are they talking about a concept that they imagine as generally occurring in zero or one place around the world -- maybe two if things are dire? Or are they talking about something occurring in dozens or hundreds of different places simultaneously? If one person says "genocide" and envisions the latter, to a hearer who imagines the former, it's small wonder they'll often feel as if they're talking past one another. More broadly, the person whose position is "there is one genocide currently going on anywhere in the world, and it is in Gaza" can, I think, fairly be accused of making an unreasonable and biased assessment (again, check that top-20 list). But the person who says "there are dozens of genocides currently going on across the world, from Canada to Brazil to India to Iran to Morocco to China to the Dominican Republic -- and Gaza is one of them" can't be criticized in quite the same way (though potentially they can be queried as to why, with so many genocides occurring simultaneously, this one has so decisively grabbed their attention).

And for what it's worth, I want to be clear that the possibility that a given understanding of "genocide" would yield a far higher number of incidents than the folk understanding does not mean that understanding is wrong or implausible. As I tell my students, a sad fact is not the same thing as a false fact, and the world might be a sad or horrible enough place that there are innumerable incidents of "genocide" occurring all at once at any given moment. Nonetheless, I think there are implications of defining genocide in this more expansive fashion that are worth thinking through. Among them:

1. The more expansive definition necessarily changes how the international community can relate to ongoing "genocide". Where genocide is generational, it is at least plausible to demand that a case of "genocide" be a sort of drop-everything, all-eyes-on-this emergency demanding otherwise impermissible forms of intervention (e.g., "Responsibility to Protect" doctrine). This orientation is neither feasible nor tractable in circumstances where there may be hundreds of "genocides" occurring simultaneously.
2. The broader definition significantly raises the likelihood of there being cases of "cross-genocides"; two populations simultaneously enacting (or attempting to enact) genocidal policies upon the other. While in concept it isn't impossible for there to be a "cross-genocide" case under the folk definition, practically speaking it's hard to imagine. By contrast, a "dueling genocides" situation is the consequence of, for example, my friend's conclusion that both Israel and Hamas were engaging in acts of genocide -- both the government of Israel, and the (de facto) Palestinian government in Gaza, are simultaneously "genocidal states". This possibility, in turn, rests quite uneasily with a host of intuitions many of us hold about what genocide is, how to respond to it,  and what ought to be the geopolitical position of the "genocidal" state, nearly all of which imagine clear delineations between perpetrator and victim groups. What does it mean to intervene on behalf of a group to protect it from genocide under circumstances where, by stipulation, that group is also attempting to instantiate its own genocide?

And these reasons don't get into the possibility of linguistic exploitation: relying on popular understandings of genocide predicated on the folk view (of generational rarity) to direct attention and resources to an incident whose viability as a "genocide" is only plausible under a more expansive, revisionist account.

For my part, one reason I tend to prefer the "folk" understanding is that I think it preserves a more fine-grained taxonomy for speaking about human rights abuses and atrocities. We don't lack for language to describe incidents of mass atrocity, war crimes, indiscriminate bombings, occupation, wars of aggression, and so on. Hence, it makes sense to me to reserve "genocide" for the class of cases that are incidents of full-scale, widespread, intentional targeted extermination qua extermination, which are a tiny subset of even incidents of substantial civilian suffering and death. The Holocaust, the Rwandan genocide, the Armenian genocide, the Cambodian genocide -- events such as these strike me as sufficiently different in kind from other incidents of even mass atrocity and widespread death and destruction that it's better to retain a unique term to describe them. This is particularly so given that we don't lack for a rich vocabulary to describe other forms of mass violence and atrocity such that we need to press genocide into more expansive service. 

But that assessment aside, I do think we can learn a lot by demystifying what people mean when they say "genocide", and in particular the degree to which they are intending to signify some sort of singular, once-in-a-generation evil versus something that is (sadly, horrifyingly) a more general feature of political repression and ethnic subjugation that is common around the world.