Thursday, December 08, 2016

Free Speech and Discriminatory Motive

One of the more nettlesome problems in anti-discrimination law is how it intersects with free speech rules. Laws against harassment, for example, often target speech -- usually terrible, crass, bigoted speech, but speech all the same. Laws against discrimination likewise interfere with freedom of association -- grotesque, biased preferences regarding who to associate with, but association all the same. As a society, we've at least implicitly decided that anti-discrimination norms can -- at least in some circumstances -- trump free speech norms, and I'm totally okay with that. But our implicit agreement hasn't really cashed out into explicit acknowledgement of the tension, and that means that we don't always have a fully-thought-through sense of how speech and discrimination intersect.

These problems have come to a head with Congress considering the Anti-Semitism Awareness Act, just recently (and swiftly) passed in the Senate and now moving to the House. The Act basically expands the definition of "anti-Semitism" under Title VI of the Civil Rights Act (encompassing educational equality -- for our purposes, laying out the duties educational institutions have with respect to preserving an environment free of anti-Semitic harassment) to codify the definition "set forth by the Special Envoy to Monitor and Combat Anti-Semitism of the Department of State in the Fact Sheet issued on June 8, 2010, as adapted from the Working Definition of Anti-Semitism of the European Monitoring Center on Racism and Xenophobia." The significance of that definition is that it explicitly seeks to consider when and in what circumstances anti-Israel sentiment qualifies as anti-Semitism.

Several commentators, including ones I respect like Jesse Singal and the ACLU, have raised First Amendment alarm bells (the bill contains a savings clause  stating that "[n]othing in this Act, or an amendment made by this Act, shall be construed to diminish or infringe upon any right protected under the First Amendment to the Constitution of the United States", but critics worry those are empty words). After all, statements critical of Israel -- including statements vitriolically so -- are protected by the First Amendment. Even the original drafter of the definition the ASAA incorporates opposes encoding it into US law, arguing that its purposes was to serve as a monitoring device for tracking anti-Semitic incidents, and thus is by design broader than what can be validly proscribed by law.

I don't dismiss the validity of these concerns. But I think they're in many ways oddly situated. They either frame the problem incorrectly, or take a genuine problem that's endemic to anti-discrimination rules and act as if it's uniquely presented by the anti-Semitism case.

To see why, let's divide discrimination cases into two groups: "speech + conduct" and "pure speech." We'll start with the former.

Suppose you declare "I hate Jews!" That's protected speech. Suppose you punch a Jew in the face. That's battery, but it's not a hate crime or an incident of discrimination under Title VI unless its done because they're Jewish (if you punched a Jew in the face because they were a Dodgers fan, it would still be a crime, but it would not be a case of anti-Semitism).  Finally, suppose you punch a Jew in the face while declaring "I hate Jews!" That is very likely to be deemed an incident of anti-Semitism under Title VI, as the speech establishes the requisite motive (that your punch was thrown because the target was Jewish). Presumably, this manner of intersecting "speech" with discrimination law isn't controversial. Obviously, discrimination law looks into one's viewpoint in this respect -- it is entirely about differentiating conduct motivated by particular viewpoints (hating Jews, Blacks, women, Muslims, whomever) from conduct motivated by other concerns (sports fandom, parking disputes, general belligerency, etc.).

The most straightforward way of viewing what the Anti-Semitism Awareness Act does, given its First Amendment language, is to clarify what sorts of statements can establish an anti-Semitic motive when coupled with otherwise actionable conduct. The person who punches a Jew while stating "I hate Jews" is clearly anti-Semitic in a way a person who punches a Jew while stating "that was my parking space" may not be. But what of the person who punches a Jew while stating "Zionists are Nazis!"? Surely still a case of battery, but is it a case of anti-Semitism? The puncher will likely say no -- their actions were motivated by political hostility towards Israel, distinct from anti-Semitism. The victim will usually argue yes -- stating "Zionists are Nazis" is a form of anti-Semitism; if that was the motive for the punch, it was an anti-Semitic punch.

Consider the case of Paul Donnachie,* a student at St. Andrew's University who was convicted of grabbing a dormmate's Israeli flag, rubbing it against his pubic hair, while declaring that the student was a "terrorist", Israel was a "terrorist state", and the flag was a "terrorist symbol." Donnachie of course agreed that his actions were not "dignified", but contended that it was an act of "political expression" rather than anti-Semitism; the Scottish Palestine Solidarity Campaign likewise complained that Donnachie's conviction and expulsion "conflate[d] legitimate political criticism of the State of Israel with racism."

In cases like these, there issue isn't whether the challenged action is "speech" or "conduct". Everyone agrees that defacing another person's property is the sort of thing that can be regulated. The question is whether the motive for that conduct falls within the set of malign motives covered by anti-discrimination law. Had Donnachie done what he did while saying "stupid Jew", there'd be no complaints that his free speech rights were violated (despite "stupid Jew" also being a protected viewpoint). In these cases, the ASAA is simply clarifying that statements which meet the State Department definition do establish the necessary motive. One can disagree with that decision, but it's hard to characterize it as a free speech objection without entirely dismantling the whole of anti-discrimination law. After all, if the problem is that our Jew-puncher is being punished in part for his viewpoint, that problem is equally manifest regardless of whether his views were "Zionists are Nazis" or "I hate Jews." Both are protected speech; both are treated differently from the view "Dodgers suck!"

I don't think that most of the free speech critics of the ASAA are worried about this set of cases. Rather, they're worried about a situation where "pure speech" -- simply saying "Zionists are Nazis", without any accompanying conduct -- could be investigated as a form of harassment.

Note again that this problem is not distinct from a policy saying "Jews are scum" can represent a form of harassment. Again, "Zionists are Nazis" and "Jews are scum" both are equally protected under the First Amendment. So as a free speech objection, this argument only works if one is willing to say that speech alone can never create a discrimination violation. That is a theoretically cogent position. It is not the status quo in civil rights law. Even absent any conduct acts -- touches, obstructions, vandalism, etc. -- "pure speech" can result in a harassment finding in the right circumstances, e.g., if it is severe and pervasive enough to materially interfere with a student's ability to access their educational institution's resources. Constant sexual harassment that never leaves the realm of words would be a classic example of such a case.

So to the extent the ASAA would apply in a "pure speech" case, it would presumably apply on the same terms as any other scenario where speech alone is alleged to create a hostile environment. In general, isolated acts of verbal harassment are rarely sufficient to support a Title VI claim; simply being exposed, occasionally, to persons yelling out racist or sexist or anti-Semitic things does not create legal liability. The case would have to be something like a Jewish student who everyday encounters picketers telling him he's "Zionist Nazi scum." Should a student have a remedy in such case? Maybe, maybe not, but the "Zionist" part of the equation doesn't strike me as relevant from a free speech perspective -- the same analysis would apply if it was a Muslim student perpetually being told she's "ISIS terrorist scum" or a female student told she's "a babymaker who should stay in the kitchen," or for that matter, a Jewish student simply being told she's "a greedy JAP." In all the cases, we are taking something that is -- in the broadest sense -- (terrible) political expression, and using it as the basis of a discrimination investigation. In all the cases, our limiting principle is not that these outlooks are "protected speech" (they all are), but rather requirements of severity and pervasiveness which are supposed to guard the line between protected speech and unlawful harassment.

Again, none of this is to say that there aren't valid free speech concerns here. There are! The point of this analysis is to show that those concerns are pervasive in our discrimination law; this bill doesn't raise novel problems so much as it illuminates the difficulties which already exist.

Hence, for those persons who are generally content with the discrimination law doctrine we have, the "free speech" objection to the ASAA is a masquerade for a more straightforward substantive objection: They don't think that calling Zionists Nazis should be deemed anti-Semitic at all. A defensible position, perhaps, but not one that has anything to do with free speech if the proponent is not willing to level a similar objection to the myriad other ways that discrimination law supervenes on one's political outlooks. It's simply an on-the-merits dispute over what counts as anti-Semitic discrimination.

Meanwhile, there is a perfectly valid argument to be made that discrimination law is not sufficiently attuned to the ways in which it can chill valid political speech. Perhaps the ASAA makes those perils especially clear. But if we're going to go down that route we should actually go down it, not deceive ourselves into believing it can be restricted into a Jew-only one-off. The structure of the free speech objection to the ASAA cannot restrict itself solely to that case.**

* I'm pretending for sake of argument that Scottish law and American law are identical in this arena. They're not, of course, but I don't think that alters the usefulness of the example.

** The reverse is true as well: persons who airily dismiss the free speech worries in the anti-Semitism case cannot throw hysterical fits over how harassment law "makes it impossible" to say the things they want to say in the race or gender arenas.

Wednesday, December 07, 2016

Breitbart-Approved Experts Continue to Agree: Breitbart is Full of Shit

Breitbart, the conspiratorial far-right website that starting in 2017 will more-or-less become the official media outlet of the Donald Trump administration, ran a story the other day crowing about supposedly plunging temperatures disproving global warming -- citing a video clip from the Weather Channel as proof. The Weather Channel itself was less than thrilled, and just posted this epic-quality smackdown titled "Note to Breitbart: Earth Is Not Cooling, Climate Change Is Real and Please Stop Using Our Video to Mislead Americans."

As someone who also was once approvingly cited as an expert by Breitbart in an article which ludicrously butchered said area of expertise (critical race theory), I relate to this. Keep up the good work,

Things People Blame the Jews For, Volume XXXII: Star Wars

"Star Wars: Rogue One" is coming out this month. Are you excited? I am (though if a certain Rebel X-Wing pilot isn't in it, I am going to be pissed)! The alt-right? Not so much.
White supremacists are calling for a boycott of the latest “Star Wars” movie as evidence of a Jewish plot to foist racial diversity on whites, even as some on the “alt-right” say they watch the film and root for the evil Empire.
“(((Star Wars))) Is Anti-White Social Engineering,” a Reddit user named GenFrancoPepe posted in a forum for the “alt-right,” a hard-line white nationalist movement. The triple parenthesis, known as an “echo,” is a way anti-Semites online call attention to Jewish names or perceived Jewish influence. 
The evidence: “Alt-right” writers point out the multiracial makeup of the stars in the new film, the female starring role, and that Jewish producers and writers were involved. Criticism of the film evokes one of the central tropes of modern anti-Semitism, envisioning a Jewish cabal promoting multiculturalism to suit its own nefarious goals — at the expense of an embattled “white civilization.”
Say what you will about the massive Jewish conspiracy to undermine White civilization, but it makes for some damn fine escapist cinema.

Tuesday, December 06, 2016

Equality as Normalcy: The Case of Leah Donnella

Next year, I have an article coming out in the Indiana Law Journal titled "Post-Racialism and the End of Strict Scrutiny." I won't go into the details of the article, but it does sketch out some of my thoughts on the end-goal of equality -- what one might term "equality as normalcy." We often think of the fight for equality as a fight for various heightened protections for marginalized outgroups -- things like anti-discrimination laws or affirmative action programs. But these are not the end-point of equality; they are palliatives we use to stanch the bleeding from persistent inequality. What marginalized group members want is to be able to practice the identities that matter to them without those identities being the sites of social conflict or threat -- in other words, for their identities to be normalized.

Under this view, we will have attained racial equality not when we've secured the highest possible barriers against racial discrimination, nor when people cease to think of race as a meaningful axis of social identification. Racial equality will occur when it becomes a "normal" identity, like being a Dodgers fan or a Methodist or a farmer -- something that matters to some people, and sometimes serves as a site of cultural or even political organization, but is not (under normal circumstances) taken to be something illicit or dangerous.

I was thinking about this while reading an interview with Leah Donnella, an NPR journalist and biracial Jew. Her comments on the difficulty of finding a synagogue that mirrors her youthful experience -- when she simply "was" Jewish and her Blackness didn't mark her off as exceptional -- struck me. Here are a few excerpts:
In terms of my day-to-day Jewish life, what I’d like is to go to a synagogue, walk in, and feel anonymous, not be noticed or given special attention. It’s tricky though. I get that folks sometimes walk up to people of color in an effort to make us feel included. But when it’s assumed that I need someone to explain the service to me, it reinforces my feeling of otherness. At the same time, I recognize that there’s a fine line between bringing someone in and making them feel welcome, and bringing them in and making them feel set apart and different....
All I want is to be able to go into a synagogue, sit down, and let a sense of quiet and calm wash over me so that I can pray in peace with other Jews. 
I think this explains her situation with charity and nuance  Donnella isn't a colorblindness advocate -- she writes on race for NPR. It is not (it seems to me) that Donnella wants people in her synagogue to "forget" she's Black, she wants her Blackness to not be thought of as strange or exceptional in the synagogue. It's a subtle distinction, but it matters.

Anyway, I found this interview to be quite thoughtful (though all too short). Well worth a read.

Sunday, December 04, 2016

Sunday Fun Day Roundup

Getting donuts this afternoon with an old college friend (and her new baby!). A lot of the below links really deserve their own posts, but I just don't have the time or energy to give them the commentary they deserve.

* * *

Rabbi Jeremy Wieder of Yeshiva University confronts racism among Orthodox Jewish students at his university. Really worth a read.

South Dakota gets a Chabad Rabbi -- the last state to not have one. Congratulations, Sioux Falls!

Jonathan Chait nails the "intellectual collapse of the center." Regarding David Brooks: "[O]ne of the most common genres of David Brooks column was a sad lament that neither party would endorse policies that in fact Obama had explicitly and publicly called for."

Yehuda Mirsky on the "The New Jewish Question" is perhaps the most thoughtful meditation on the place of Jews in the new, populist-right America (and world) that I've read so far. Another one that deserves your full attention.

I've never seen Last Tango in Paris, but it looks like an infamous rape scene in the movie actually involved raping the actress (she neither was informed in advance nor consented). That's really, truly sick.

Thursday, December 01, 2016

Panic! At the ADL

Pictured: The ADL, piloting the right TIE fighter.

Rep. Keith Ellison (D-MN) is running for DNC chair. The ADL has thoughts on this.

On November 22, Jonathan Greenblatt issued a very thoughtful, balanced statement:

There are concerns, but there's also much that's positive in Congressman Ellison's record. The concerns should be addressed, the positives should be acknowledged, and at all points the conversation should be open, fair, and free of race- or faith-based innuendos.

Not everyone likes thoughtful, balanced, statement. ZOA had come out swinging against "Congressman Keith Ellison a/k/a Keith X. Ellison a/k/a Keith Hakim a/k/a Keith Ellison Muhammed."  They were not happy that the ADL refused to jump on the bandwagon, and weren't shy about claiming "double-standard" since the ADL had condemned Steve Bannon (my post on the matter explains why I think that's a bogus comparison). Three days later, feeling the pressure, Greenblatt backtracked a little.

Today, the Investigative Project on Terrorism released a short audio clip where Rep. Ellison says the following:
“The United States foreign policy in the Middle East is governed by what is good or bad through a country of 7 million people,” Ellison is heard saying. “A region of 350 million all turns on a country of 7 million. Does that make sense? Is that logic? Right? When the Americans who trace their roots back to those 350 million get involved, everything changes. Can I say that again?”
Now, we could say that the IPT -- last seen bringing us that ridiculous "Muslim no-go zones" bit on Fox -- might not be a source worth taking at face value. We could express skepticism of whether that bit provides the full context. Nonetheless, I think it is fair from that clip to express worries. These are, indeed, worrisome remarks. They are a reasonable addition to the inquiry that Jewish and pro-Israel groups might wish to make into Congressman Ellison's candidacy. He should be asked to address them, and address them seriously. And an unsatisfactory answer would be a cause for deep concern.

So the ADL issued another statement. It starts off fine. It recaps its previous analysis. It quotes the newly released material, which it says "raises serious concerns about whether Rep. Ellison faithfully could represent the Democratic Party’s traditional support for a strong and secure Israel." And then it says that
Rep. Ellison’s remarks are both deeply disturbing
and disqualifying.
Oh for the love of....

See, this is what happens when mainline Jewish groups have become conditioned to flinch each time right-wing groups go "boo!" They trip over themselves to show they're not "soft", and end up getting trapped in ill-thought out, ill-advised, and uncompromising positions.

It would have been absolutely appropriate to raise these concerns, note that they raise serious questions, and then say "these comments demand a serious and thorough explanation from Congressman Ellison, which we will review very carefully" -- without flying straight into the "disqualifying" wall. Maybe Congressman Ellison would have a response that would assuage our justified concerns. Or maybe his response would be terrible, fully vindicating a conclusion that he cannot be supported in good conscience! Either way, notice how not locking oneself into a permanent position based on a brief audio-clip from six years ago leaked by a hatchet operation gives you a much nicer array of options.  Putting aside whether it was fair to Ellison or not, taking away your own leeway to respond to any further developments is the definition of amateur hour. To quote de Talleyrand: "It's worse than a crime, it's a blunder."

But no. The ADL panicked, and decided it was done without any consultation whatsoever. And now they're stuck. Fabulous work, guys -- this is why you're the professionals.

The really amazing thing is that Congressman Ellison's reply is far, far kinder than the ADL had any right to expect.

This would have been a great letter had the ADL not elected to do the bull-in-a-china-shop thing. That it was issued after the ADL did so is the sort of gift from God that I hope the ADL is privately thanking each and every lucky star for. If they're supremely lucky, they can restart this conversation the way it should have happened all along.

And yes, one element of that conversation should be to interrogate Congressman Ellison's statements. That's part of the tragedy here: the ADL's panic has deeply tainted the discussion we should have had. Ellison's comments were problematic. Perhaps context would mitigate their apparent meaning, perhaps not. Regardless, it would be worthwhile to explain, clearly and explicitly, why they were so troublesome, and see how he took that critique. I am not someone who will ever say that we should fail to call out anti-Semitism or troublesome tropes when we see them, and Keith Ellison is no exception to that rule.

But there's no rule that vigorous opposition to anti-Semitism requires that one be an idiot about it. Part of the job of combating anti-Semitism is getting people who have made problematic remarks to disavow them and return to the fold. Groups like ZOA make that harder, because they rather the Jewish state have enemies they hate than for it to have allies they detest, so their strongest efforts are to ensure that Israel and the Jewish community stays in a constant state of implacable warfare against anyone to the left of Naftali Bennett. It's bad for Israel, and it's bad for the Jews. Yet the institutional Jewish community has a reflexive instinct to coddle a tiny right flank whose volume is grotesquely out of proportion to its numbers. Until the ADL weans itself from this habit, it's going to keep making very basic mistakes that undermine its effectiveness as an organization and its credibility as a Jewish communal leader.

Wednesday, November 30, 2016

Fear and Trembling in American Jewish Institutions

Some Jewish organizations have been deafening in their silence on Steve Bannon and the clear links between the Trump administration and the alt-right. I have been ... rather public in my denunciations of their decision. I am in broad agreement that there is a building revolution in the American Jewish community, and those groups which purport to be communal representatives while refusing to actually represent our community will rapidly lose the authority to speak as Jewish voices.

But if a passable defense of at least the silent organizations (certainly not the ones, like ZOA, which have outright endorsed Bannon et al*) could be made, it is of the form taken by Shai Franklin in the Jerusalem Post.

Franklin's basic argument is that there is and should be a "distribution of labor" within the institutional Jewish community. Groups like the ADL, which take on the role as anti-bigotry watchdogs, can and should condemn Bannon. But groups like the JFNA, which are primarily policy lobbying organizations, need to play a more cautious hand. Responsible for securing millions of dollars in funding for critical aid programs -- those which feed the hungry, clothe the naked, and take care of the sick -- the JFNA cannot decide to simply cut ties with any administration, even one as repulsive as Trump's. It has to grit its teeth and work with him as best it can.
The bar for JFNA to condemn an action by the president – before he’s ever taken office, before he’s had the chance to issue a single executive order – must be very high. Condemning the president-elect’s choice for top policy official runs the risk of alienating him and his staff for the duration, squandering decades of cultivation and branding overnight.
One might think that appointing a man who has provided a massive platform for the most dangerous and influential American White nationalist movement of our generation would clear that bar. But put that aside, and note the more subtle assumption. Franklin's column takes the view that condemning Bannon is tantamount to "boycotting" the Trump administration outright, that it would entirely throw away any ability to have any influence over government policy whatsoever. Maybe that's true, maybe it isn't. But note how it diverges from how Jewish institutions treat Democratic administrations. We don't fear that by criticizing this appointment or that policy from the Obama administration, we are permanently cutting ourselves out of the political loop. We trust that Democrats can tolerate dissent and disagreement, and so we can articulate our views openly and honestly, secure in an ongoing positive relationship.

With Republicans, that assumption flies out the window: if we even verbally object to the appointment of prominent alt-righter, we assume they'll be done with us forever. This was the core of the argument I made in my column:
Last year (writing on “pro-Israel” disputes, not anti-Semitism specifically), I noted the sharp disjuncture in how the Jewish community reacts to problematic left versus right behavior. The left is met “with the full sound and fury for every toe out of line,” while the right “must engage in the most flamboyant provocation to elicit even a murmur of discontent.” The left is “policed to the letter,” while the right is “treated with kid gloves.” The reason—I implied then and will state explicitly now—is fear of right-wing anti-Semitism. “[I]t stems from a belief that conservatives, but not liberals, will turn on [us] entirely if they are not constantly treated with obsequious fawning.”
Unlike the mainstream Democratic Party, where Jews are deeply enmeshed and so can have difficult conversations without blowing up the entire relationship, the connection between Jews and the American right has been—at best—tenuous, contingent, and precarious. And so we’ve become accustomed to letting mainstream right-wing anti-Semitism slide, satisfied with the rote recitation “I am a great supporter of Israel” (surely, the right-wing variant on the leftist’s “I have always opposed all forms of bigotry…”). We’ve allowed ourselves to pretend that our fear of antagonizing these “allies” is a sign of the strength of our relationship, rather than its weakness.
So, whatever the tactical merits of Franklin's position, it should at least make clear the monster we're dealing with. Groups which respect Jews, respect Jewish criticism. If the assumption is that Donald Trump cannot tolerate Jews telling him we're not okay with him hiring a hate-peddler, then the assumption is that Donald Trump is no friend of Jews.

* The other question raised by Franklin's piece is what to do with the groups that have failed in the labor that is assigned to them? He includes, for example, the AJC as among the "watchdogs" that should be calling out Bannon. But the AJC has been almost defiant in its refusal to issue a statement, issuing bland platitudes about the importance of letting the President "organize his own team". What flows from this abdication of duty? What punishment is Franklin willing to endorse? If we're serious about the "distribution of labor", then these questions cannot go unaddressed.

This, of course, goes double for groups (like ZOA) which have outright praised Steve Bannon. It's one thing to tolerate strategic silence of a few institutionally-oriented actors. It's another to accept the open endorsement of the sort of vicious hatred Steve Bannon represents. If Franklin is to be taken seriously, then he needs to have a plan for either roping groups like ZOA back into line, or initiating their very clear and very public disaffiliation from the communal Jewish tent.

And Now Your Troubles Begin

I feel bad for Trump-critical congressional Republicans. Really, I do. They thought that their efforts would be over after election day. In a Hillary Clinton administration, never Trump Republicans could go back to being regular Republicans. They could be a normal opposition party. To be sure, had they done this I think they'd have missed the lesson of their own experience -- Donald Trump was the fruit of "regular" Republican activity over the past eight years -- but it would have been understandable. Their labors would have been done.

Instead, they have four years of Donald Trump. Four years where "opposition" no longer is just tongue-clucking in the New York Times, but actually will involve taking concrete action on the House and Senate floor. That's a very different animal.

I'm not asking that Republicans suddenly become NARAL backers just because Trump is in office. But basic good governance regulations (such as reigning in Trump's conflicts of interest)? Those can't be allowed to slide. And, with Democrats in a state of rout, it is up to the Republicans in Congress. They can't fob it off on others..

Unfortunately, many congressional Republicans are indicating they have no interest in rising to the occasion. Rep. Jason Chaffetz (R-UT) has miraculously lost all interest in investigating the President after promising two straight years of investigation into Hillary Clinton had she won the Oval Office. Other Republicans literally run for the elevators when asked to discuss Trump's unprecedented ethical conflicts. It is an unacceptable abdication of duty. And it unfortunately betrays, yet again, the fundamental unwillingness of the modern conservative movement to take responsibility for itself.
[M]any other Republicans downplayed the ethical concerns, noting Trump was still some two months from Inauguration Day. Many said they had faith in Trump and his family to make the right moves, and they insisted any problems that emerge would come out in the normal course of Washington’s checks-and-balances.
“The republic’s been around 240 years. We didn’t say George Washington couldn’t have any interest in the affairs of Mount Vernon,” said Oklahoma GOP Rep. Tom Cole said. “These are real problems but there are lots of ethics rules and regulation. And there’s lots of scrutiny, more scrutiny with the presidency of the United States than any other position in the world, from the media to your friends to your enemies.”
“Let’s give the guy a chance to work through this and set up some sort of system,” he added. “We’ll see if it works or not. I hope it does. I trust it will. But if it didn’t, he’ll pay a horrific political price.”
"Hope" and "trust" are not part of the checks-and-balances schema. Our system of government is not based on "trusting" people in power to do right. It's based on the different branches of government taking it upon themselves to actively check one another, exercising their oversight powers fairly but aggressively. Seriously, read Federalist #51.

In any event, while Democrats can do little things to hold Donald Trump accountable, it's ultimately up to the Republican Party to keep him in check -- or not. It won't be easy for them. It will involve constantly and aggressively tackling the leader of their own Party -- never a fun endeavor. Those GOP members who recognize how dangerous Donald Trump is may have thought they'd have earned a reprieve on Election Day. But in reality, their troubles -- like ours -- have only just begun.

The Train Has No Brakes: Ryerson University Edition

One of the main bases for my objections to the BDS movement is that the "train has no brakes." It might start with something facially defensible -- a targeted divestment from a firm that directly supplies occupation-supporting infrastructure, a narrow sanction directly attached to the settlements -- but almost never stays there. It keeps rolling, until it reaches flat bans on collaborating with Jews (Sydney, Australia), or open calls for the expulsion of all Jews (Durban University of Technology).

Ryerson University, Toronto, has been a center of BDS activity in Canada. Earlier this week, their student council was scheduled to vote on a resolution commemorating Holocaust Education Week. The resolution did not mention Israel. It was also never voted on. A walkout led Students for Justice in Palestine and the Muslim Students Association deprived the meeting of a quorum, preventing the voted from occurring.
“What starts with BDS does not end with BDS,” said Amanda Hohmann, national director of B’nai Brith’s League for Human Rights. “More often than not, BDS is simply a gateway drug to more blatant forms of anti-Semitism.”
And let's be clear: The reaction against commemorating the Holocaust is not isolated to Ryerson. It is part of a larger pattern whereby some see "the Holocaust not as a source of trauma but as a source of privilege, and an unjust privilege at that." When it comes to Jewish access to progressive discourses around equality and non-discrimination, the Holocaust "is the last firewall left standing; the last citadel the forces of Gentile Supremacy have not yet been able to overrun."

The train has no brakes. It doesn't stop at BDS, and it won't stop at a "mere" walkout protesting Holocaust commemoration either. Board at your -- or more accurately, my -- peril.

Sunday, November 27, 2016

Personal Responsibility and the Infantilization of the American Right

If there was a single day that characterized the conservative movement's relationship to the Obama administration, it was September 28, 2016. That day, Congress overrode President Obama's veto of the Justice Against Sponsors of Terrorism Act. Congress had passed the law earlier that month, ignoring the President's warnings that it opened up a massive foreign relations can of worms and placed American servicemembers and diplomats at risk of being haled hostile foreign courts. President Obama followed through on his promised veto on September 23rd, and Congress promptly overrode the veto.

Both the initial vote and the override were bipartisan affairs (the Senate and the House votes on both were overwhelming). But in the aftermath, once the issues President Obama identified now were encoded in law and presented a real and immediate threat, congressional Republicans took a very distinctive stance. They recognized the law had grave problems. But it wasn't their fault for voting for it. It wasn't their responsibility in drafting it. If anyone was to blame, it was none other than President Obama, who, they told us, was not sufficiently emphatic in communicating the bill's problems.

It would have been astonishing if it wasn't so sad. A Republican Congress passes a bill over the President's warnings, then overrides his public veto of the same bill, and then has the chutzpah to blame the President for not doing enough to stop them.

In reality, it was part of a pattern. The American right is fundamentally incapable of taking personal responsibility for its own decisions. Everything is someone else's fault. Everything can be blamed on someone else, usually Democrats or Democrat-leaning constituencies. It's never on them.

Consider the ever-popular parlor game of "who's responsible for Trump's victory?" The left is indulging in its own form of this game, with the predictable factions deciding between "it's the fault of Bernie Bros and Jill Stein for undermining Hillary Clinton", "it's the fault of the neoliberal hacks at the DNC for rigging the game for Hillary Clinton," and "it's the fault of everyone who cares what non-White, non-male, and non-straight people think." To that debate, my contribution has been simple: the people responsible for the election of Donald Trump are the people who voted for him. Full stop.

On the right side of the spectrum, though, this debate has taken a different hue. Much of the conservative movement has spent the last two years slowly transitioning from "it's an outrageous slander to say that a racist cartoon character like Donald Trump represents the conservative movement" to "it's an outrageous slander to say that the American conservative movement is 'racist' or 'cartoonish' just because it adopted Donald Trump as its representative." In between, the conservative movement treated Donald Trump as if he was some sort of inexplicable act of God, a deus ex machina whose surge to dominance in the conservative political movement defied all logic or rationality. He's a cipher, he's a reaction to Obama's own extremism, he's ... [hiss] really a Democrat. Whatever Donald Trump was, he wasn't their fault.

And so when conservatives talk about why Trump won, they play the game quite differently. Why did Trump win? It's because of safe spaces and trigger warnings, Katherine Timpf declares in the National Review; Trump was "a long-awaiting contrast to the infantilization and absurd demands for 'safe spaces' sweeping our society." Nay, says George Will, it was academia as a whole -- their books are full of "pretentious jargon" like "interrogated" and "problematized" and their courses have silly titles like "Jews in American Entertainment." Jonah Goldberg attributes Trump's rise to the media "crying wolf" -- how could anyone have known that Trump really was that terrible, given how untrustworthy our newspapers have been? None of these persons, from what I can tell, is a Donald Trump fan, which makes their commentary all the more striking. They recognize what a terrible choice Donald Trump is, but whirl about seeking to blame everyone but those who chose him.

This is pathological. Even if every critique the right had about, for example, liberal academia was entirely on target, is it really the case that a middle-income suburbanite in Dubuque decided to vote Trump because of how Wesleyan students want their classroom syllabi structured? It's implausible that it is true, and it'd be deeply pathetic if it was true. And to the extent that -- abstracted out to a broader commentary on "kids these days" and coastal elitism -- it is even part of the explanation, it's more pathetic still. "Just because the media says Donald Trump represents an unprecedented threat to American civic values doesn't mean he is one; and I don't feel the need to figure that out myself when I could be sending a message to those snot-nosed Ivy League teenagers who think they're so much better than me!" Who is patronizing who here?

This is the politics of a temper tantrum. There's certainly no notion of personal responsibility, that conservatives have duties to cause and country that exist independently of what media figures say or liberal youths do. Instead, conservatives are treated as creatures of instincts; minor children who are scarcely capable of independent reason. They lashed out, and now blame liberals for being inadequate babysitters. Republican voters, we're told, are helpless in the face of the grave insults they face from ... 19-year old bloggers living across the country. Minorities in cities they never visit. Professors at schools they don't attend. Nobody who has any real power over the conditions of their lives, mind you. No matter: they just had to respond. The backlash was inevitable. Certainly, they can't be expected to have independently come to the conclusion that Donald Trump is a menace. In these circumstances, nobody can reasonably hold them accountable for the decision they made in the ballot box.

The ur-form of this must be the very favorite explanation for why Trump won: That White Americans were sick of being criticized for racism, for sexism, for xenophobia, for not being perfect little egalitarians. Liberals insisted on holding Americans to account for these sins, and Americans deeply resented them for it. Eric Holder called us a "nation of cowards" around the subject of race, and White people railed against him even in the course of proving him absolutely right. And so, under this story, Trump won because he offered an alternative where Americans didn't have to feel guilty about any of these things: They could mock minorities, swap stories about assaulting women, demand an American free of non-Christians, and they'd be okay, even justified, in doing so.

There is a very literal form of emotional regression at work here. I was a pretty well-behaved kid growing up, but like anyone else I sometimes misbehaved. Sometimes I was inconsiderate or hurtful, or mocked or insulted people. And when I did do those things, my parents made me own up to it and apologize. I didn't get a ton of "this is what it means to be a man" type parenting, but if ever I got it, this was the context. Part of being a man means manning up and taking responsibility when what you're doing hurts other people.

Of course, as anyone who's gone through this knows, it's not fun. It made me feel bad, and the actual act of apologizing felt even worse. As a kid, just learning these lessons, you're very susceptible to being in denial about the whole thing. It wasn't really your fault, the other guy had it coming, they deserved it, I was right, they were wrong, my friends got away with it -- anything to avoid owning up to the mistake. How easy it would be to fall in with a pied piper who endorsed that entire line? The reason we have to teach children to take responsibility for their actions is because the alternative is very, very tempting.

We expect adults to know better. To the extent our nation has and continues to commit wrongs along the axis of race, of gender, of religion, of disability -- and we have, and we continue to -- we should have the maturity to look it in the eye and take responsibility for it. That doesn't mean always accepting blame. It does mean fairly taking one's share of it and -- more importantly, in the case of complex political issues -- being open to the difficult conversation such issues provoke.

Donald Trump's appeal was precisely in offering the opportunity to circumvent all of that. He held out a choice that would be understandably appealing to spoiled children, but should have been beneath the dignity of a mature democracy. Turns out, it wasn't (or turns out, we weren't one). And it's hard not to think that part of the reason why is the legion of commentators who have been eager to explain why those persons who did choose to align themselves with Trump -- a notorious racist, a flagrant misogynist, a man whose only qualification to lead our nation was that he was openly in contempt of half it -- could be excused for it. It's not their fault. It's not their responsibility.

You want to talk about infantilization in American culture, this is the place to start. American conservatives have gleefully regressed to a state of childhood. They spent years acting out and then wonder why someone else didn't protect them from the consequences of their own actions. At some point, America cannot move forward unless we collectively grow up. Part of that will involve conservatives -- especially conservatives who have recognized the perils of the Trump movement -- accepting responsibility for the choices their faction has made, and holding their colleagues to account.

Is that day coming? Now, of course, conservatives control both houses of Congress and the President-elect. They hold the levers of American government. And -- just as we saw over the last two years -- there are right-wing voices who do recognize serious fissures in our democratic fabric. Noah Rothman in Commentary frets about "the normalization of intemperance or even fanaticism" we have recently begun to witness. So, now that their fruit has fully bloomed, will conservatives finally take responsibility for it? What does Rothman say?

Alas: "[D]on’t blame Donald Trump or his voters for this condition. Blame the left."

Old habits die hard.