The Volokh Conspiracy

On the one hand, I agree with Ilya that bans on same-sex marriage could be described as sex discrimination.  On the other hand, from opponents’ perspective, the point is that “marriage” has been defined for several thousand years in Judeo-Christian culture as between a man and a woman, and retaining that definition is not sex discrimination.

Imagine, for example, that having a bar mitzvah in Israel provided boys with various and important rights and obligations.   [Let me tighten the hypothetical a bit.] Imagine that in Israel, any thirteen year old Jewish boy could go to city hall and get a certificate of bar mitzvah, regardless of whether he had a religious bar mitzvah ceremony, and imagine further that this certificate provides the boys who get it with various important rights and privileges. Israel, recognizing that girls should be entitled to analogous rights, offers girls a [certificate of] bat mitzvah instead.  The bat mitzvah gives girls the same legal rights and obligations as boys, but because it’s not called a bar mitzvah, it’s less culturally significant and, according to critics bespeaks inequality (and in fact, while bar and bat mitzvahs don’t confer legal rights and obligations in Israel, it’s an important religious and cultural tradition. Girls don’t always get a bat mitzvah, and when they do, it’s rarely celebrated with the same vigor or considered as significant as a bar mitzvah in the same family).

A girl sues, demanding that she be entitled to a legally recognized “bar mitzvah.”  On the one hand, Ilya could rightly claim that by definition, denying her access to the status of “bar mitzvah” is sex discrimination.  On the other hand, defenders of limiting legally recognized bar mitzvahs to boys would rejoin that bar mitzvahs by definition, backed by hundreds of years of tradition and culture, are solely for males.

It strikes me that both sides have a point, and most likely the best thing for courts to do under such circumstances, where they’d basically just have to take sides in a culture war pitting feminists against religious and cultural traditionalists, is to stay out of it–so long as analogous rights and obligations are available to the plaintiff through an analogous ceremony certificate, in this hypo the bat mitzvah.

Disclaimer: While I don’t think that courts should recognize a right to same sex marriage by finding that the absence of such a right is sex discrimination, nor do I think courts should even take the position that is must be analyzed as sex discrimination, I support legislation providing for same-sex marriage. I’ll also add the disclaimer that I’m not addressing any other constitutional arguments that states must expand their definition of marriage to include same-sex couples.

UPDATE: Let’s add an interesting hypo to the mix: what if California, instead of having a domestic partnership law, instead created a new legal category called “same sex marriage” that had exactly the same rights and privileges as “marriage”, but every relevant statute that applied to marriage now applies to “marriage and ‘same-sex’ marriage”, or perhaps “‘traditional marriage’” and “‘same sex marriage’”.  Still sex discrimination if same sex couples aren’t eligible for “traditional marriage”? Again, I think that by definition the answer is yes, and by definition the answer is no.

FURTHER UPDATE: New hypo: A small European nation has a constitution that bans any form of sex discrimination.  The King  (who has only ceremonial duties) dies.  His daughter is next in line for the throne.  Even though she’d have the same legal rights, duties, and privileges either way, she demands to be crowned King, not Queen.  She points out that it’s sex discrimination that only men can be called “King”, argues that she will likely get less respect from her subjects if she is called Queen instead of King, and that the distinctions between “King” and “Queen” are rooted ancient patriarchy.  Valid sex discrimination claim?  Once again, my instincts are that (a) this, by definition is sex discrimination [or, more precisely, a classification based on sex and therefore subject to intermediate scrutiny under American law]; and (b) this, by definition, is also NOT sex discrimination, and if I were a judge I’d stay out of it.

RESPONSE TO ILYA: Ilya starts his response by misapprehending my point. It’s not that marriage is “traditionally” between a man and a woman, and therefore limiting marriage to such is not sex discrimination.  It’s that the very definition of the word “marriage” has, for hundreds or even thousands of year, been limited to relationships between men and women.  Therefore, the argument would be that it’s not sex discrimination to limit the scope of state-recognized marriage to what comes within that definition, just like, e.g., it’s not sex discrimination to limit the title of King to men. [And I want to reiterate that I agree that limiting marriage to opposite sex couples can accurately be described as sex discrimination; the question is whether it can also be accurately described in a different way, and if so, whether courts should stick their collective noses in the controversy by choosing which description they prefer.]

And if I’m following Ilya’s logic correctly, it would have been sex discrimination to limit the title of King to men, say, fifty years ago, when the title of Queen may have been considered relatively less important, but it’s not sex discrimination today. I don’t buy it.  It was, by the logic of Ilya’s original post, sex discrimination then and it is discrimination now to limit the title King to men, but it also was just what the word “King”  meant then and now, and therefore not sex discrimination.

If indeed the problem, as Ilya suggests, is that “civil union” doesn’t have the same cultural heft as “marriage,” then I think the argument is that everyone has the fundamental right to get “married,” which is a different argument for constitutionalizing for same sex marriage, and one that I don’t address.

FINAL UPDATE: When I say that marriage “by definition” has been a relationship between a man and a woman, I don’t mean that the government defined it that way.  Rather, the institution evolved, largely outside formal government, to bind a man and woman together into a long-term procreative relationship.  The fact that marriage is often NOT procreative these days (older couples and so on), and the core societal idea of marriage has shifted from pragmatic concerns to “life partner” are good policy arguments in favor of allowing gay marriage.  I don’t think it’s a good argument for denying the fact that the history of marriage and its relationship to the definition makes the equal protection constitutional argument somewhat dubious, as the definition was a result of the core purpose of the institution.  This is quite distinct from the example Ilya gives: “if the definition of marriage had, for many years, been that it is a relationship between members of the same race, a law embodying that definition would still be an example of racial discrimination.”  The underlying purpose and therefore definition of marriage from thousands of years had nothing to do with race. So I agree that if, say, in the 17th century, instead of simply banning interracial marriage, a statute had simply defined marriage as not including interracial pairings that would be clear racial discrimination, even if “traditional”.  By contrast, marriage was an existing form of male-female relationship that the state came to recognize (concubinage was another that has since died out) so it wasn’t the state creating a sex distinction, it was the state recognizing a preexisting institution.

Eric Alterman has a bizarre column  in The Nation on billionaire Gingrich-backer Sheldon Adelson.  The column purports to be a celebration of the fact that “no one” is using a combination of Adelson’s Jewishness, money, somewhat shady reputation, and hawkishly pro-Israel views for anti-Semitic purposes. The column, however, really seems to be starts off with what reads like a passive-aggressive attempt by Alterman to goad his readers into loathing Adelson precisely for being a rich, somewhat shady, Jewish businessman with hawkishly pro-Israel views [while concluding that the absence of anti-Semitic attacks on Adelson shows is evidence of the "near-complete disappearance" of anti-Semitism.   I think it would help if I quoted the very first line of the column: "If a Jew-hater somewhere, inspired perhaps by The Protocols of the Elders of Zion, sought to invent an individual who symbolizes almost all the anti-Semitic clichés that have dogged the Jewish people throughout history, he could hardly come up with a character more perfect than Sheldon Adelson."].

The disingenuousness of the column became obvious when I reached this line: “Nobody has noted—at least not in public—that [Adelson's] agenda happens to be the one to which Jews accused of ‘dual loyalty’ or of being ‘Israel-firsters’ are alleged to have dedicated themselves.”

Even though I (unlike, I think it’s safe too assume, Alterman) don’t regularly frequent websites that traffic in attacking people for being hawkishly pro-Israel (much less for being rich or Jewish), I’ve seen plenty of attacks on Adelson on precisely the grounds that Alterman claims “nobody” is mentioning.  As confirmation, a Google search for Adelson Gingrich Israel-firster brings up 527 pages [and checking the first dozen-plus, it's all attacks on Adelson of the sort "nobody" is making, including one in Time magazine]; assumedly there are a lot more of a similar ilk that don’t use the relatively obscure “Israel-firster” language.

UPDATE: Alterman is not, of course, making the blatantly anti-Semitic suggestion that Nation readers should loathe Adelson because he’s a Jew.  Rather, he’s suggesting that Adelson is the kind of Jew Nation readers should loathe.  It’s perhaps akin to when Clarence Thomas’s critics accuse him of being an “Uncle Tom” or use similar race-tinged insults; they’re not arguing that one should loathe Thomas because he’s Black, but because of the kind of Black he is.  It’s certainly not KKK-style racism, and indeed those who engage in such slurs typically think of themselves as champions of anti-racism (as I’m sure Alterman, as an observant Jew, does with regard to anti-Semitism) but it’s ugly nevertheless.

FURTHER UPDATE: I’m not completely content with the “Uncle Tom” analogy, which is more like a Jew calling a fellow Jew “self-hating” (which is also ugly rhetoric).

A more precise analogy to Alterman’s column is suggested by a commentor: A conservative black columnist writes a column about a shady, black hip-hop artist/producer  giving tons of money to a liberal presidential candidate, purportedly to promote an agenda of affirmative action. The columnist suggests that that the producer’s flaws are of exactly the type that racists traditionally associate with black people, which he then enumerates. The columnist adds that he is “thrilled” that criticism of the rapper never invokes racist themes–even though, in fact, such criticism sometimes invoked the very themes the columnist suggested would be signs of racism, generally among the columnist’s own ideological bedfellows–and suggests that racism has nearly disappeared, and groups like the NAACP should stop raising it in debates on the subject.

Of course, racism is more prevalent and more virulent in the U.S. than is anti-Semitism, but the point is that sheer disingenuousness of a column criticizing a controversial black person in racial (albeit not racist) terms, as the embodiment of the worst stereotypes racists have about Blacks, and then editorializing that thank god my ideological allies and others aren’t criticizing this person in those terms–even though sometimes they are!–and that this shows that racism is just a left-wing bogeyman that groups like the NAACP should stop invoking, would be obvious.

This month’s Cato Unbound is devoted to the propriety of judicial enforcement of substantive rights through the Due Process Clause.  Tim Sandefur of the Pacific Legal Foundation gets things rolling with a rousing defense of SDP. Responses have been posted or are due from Professor Larry Rosenthal of Chapman Law School, attorney Ryan Williams (the author of an important recent article on the origins of substantive due process that I blogged about here), and B.U. Law School’s Gary Lawson.  It should be a very enlightening and engaging debate.

For what it’s worth, I’d like to see Sandefur address the following issue as the debat goes on: if we were to agree arguendo that the Due Process Clause protects unenumerated substantive rights, how aggressive should the judiciary be in identifying and enforcing those rights?  Are there, for example, instances in a which a judge could rightfully conclude that if he were a state legislature he would find a particular piece of legislation an undue interference with individual rights, and therefore vote against it as contrary to substantive due process, but as a judge he should defer to the contrary views of the legislature?

Young, a libertarian herself, explains why she is very uncomfortable with Ron Paul’s views on foreign policy. I suspect the column reflects the views of many other libertarians who appreciate Ron Paul’s long record of defending individual freedom, but wouldn’t want him anywhere near the Oval Office because of his foreign policy positions, among other things.

What I think many libertarians of my acquaintance, including Young, would like is for the U.S. to adopt a less interventionist foreign policy more cognizant of the limits of government competence and the dangers of unintended consequences, without coming anywhere near adopting the sort of Chomskyite critique of U.S. foreign policy that sometimes emanates from Paul, and even more so some of his “left”-libertarian supporters.  Unfortunately, save poor Gary Johnson, who couldn’t even get into the debates, the GOP field this year has offered a choice between an even more bellicose and interventionist foreign policy, and Ron Paul. (George W. Bush’s opposition to “nation-building” sounded pretty good to many libertarian ears in 2000, but the follow-through, shall we say, left something to be desired).

Daniel Holt of the Federal Judicial Center reviews Rehabilitating Lochner for the H-South discussion list. (“An important contribution to the history of constitutional law and the Progressive era. The book is a valuable corrective to the work of historians who might reflexively sympathize with the Progressives and the criticisms of the Lochner decision.”)  At H-South’s request, I wrote a short response, and Holt responds to my response here.

The book is also the subject of a more critical book review in Texas Law Review’s “Dicta” on-line journal.  Author Jamie Fletcher concedes that the book is “beautifully written,” but concludes that I ultimately failed in what he asserts are my normative goals.  Given that I actually disagree with many of the positions that Fletcher  attributes to me (such as believing that “libertarianism is the only legitimate theory of constitutionalism”–I doubt it’s even a legitimate interpretive theory for the American Constitution) and certainly didn’t advocate these positions in the book, I happily plead guilty to failing to persuade readers on those points.

Last week, Eugene blogged about the Ninth Circuit’s opinion in Fair Housing Council v. Roommate.com.  As Eugene noted, the court, in an opinion by Judge Alex Kozinski,

holds that federal and state housing discrimination law do not extend to discrimination in choice of roommates (or in advertising for roommates). Part of the court’s rationale is its judgment that reading the law as applying to roommate selection would raise serious constitutional concerns, given the right to “intimate association” that the Supreme Court has recognized in cases such as Bd. of Dirs. of Rotary Int’l v. Rotary Club of Duarte (1987); the Ninth Circuit therefore interprets the federal and state laws, which it sees as not definitive on the subject, to avoid the constitutional problem.

I agree that (a) the Fair Housing Act was not meant to impinge on roommate decisions and (b) if a is wrong, the right to intimate association nevertheless prohibits the government from interfering with one’s choice of roommate.

However, I was surprised that the opinion didn’t address a more subtle argument, to wit: if the Fair Housing Act does apply to roommate situations, even if it would be unconstitutional for the government to punish someone for his choice of roommate it is not unconstitutional for the government to prohibit someone from advertising discriminatory preferences.

The reasoning would be that while who one chooses to live with involves intimate association rights, publicly advertising one’s discriminatory preferences in an advertisement for a roommate is not only not an “intimate” activity, it’s a very public one.

Indeed, it’s my understanding that during the Clinton Administration, HUD’s position was that it could (and would) prohibit advertising that expressed discriminatory preferences even when acting on those preferences would be constitutionally protected.  (The relevant regulations allowing punishment for such behavior were eventually withdrawn because of a related controversy over what was seen as HUD’s overly vigorous interpretation of what constituted discriminatory advertising.)

It’s not clear that HUD’s position has changed.  Judge Kozinski points out that HUD recently dismissed a claim against a woman who advertised for a Christian roommate on a church bulletin board based in part on the unique context of the ad, but it’s not clear that HUD would take the same position about an ad seeking a white roommate published in the Washington Post classifieds.

As I discuss in You Can’t Say That!, I think that as a policy matter people should be able to advertise discriminatory roommate preferences.  Beyond standard libertarian concerns, banning such advertisements doesn’t actually decrease discrimination, it just imposes costs all around, not least on, e.g., a black individual seeking housing who winds up traveling to meet various potential roommates who will inevitably turn him down.  Meanwhile, the people who will be most affected by an advertising ban will be members of small minority groups who will have difficulty satisfying their roommate preferences if they can’t advertise them.  It’s easy enough to find a white or black roommate in Washington, DC, but what if you are a Gay Hispanic Republican, seeking the same (discrimination based on political affiliation is banned in DC)?  The counter-argument, of course, is that allowing discriminatory advertising creates dignitary harms to members of disfavored groups and “normalizes” the public expression of discriminatory housing preferences.

Given my Gay Hispanic Republican example, if I were a judge I’d likely be sympathetic to the argument that bans on advertising discriminatory preferences puts too great a burden on the exercise of intimate association rights to be constitutionally permitted. Whether precedent supports such an argument, however, is not clear.  I expect that the next major case against an entity like Roommate.com will need to take up this issue.

That would be Richard Falk, whose talk on the Israeli-Palestinian conflict is hosted by “Students for Palestinian Equal Rights, Stanford International Human Rights & Conflict Resolution Clinic, the Advanced Degree Students Association, & the Stanford Association for Law in the Middle East.”

One can’t hold Stanford responsible for the activities of its student groups, but  the International  Human Rights & Conflict Resolution Clinic is an academic unit of the law school, run by faculty members.

How embarrassing for Stanford, and yet further evidence that in some circles any degree of idiocy can be forgiven so long as one is “Progressive on Palestine.”

H/T Rabbi Simon via email.

The Carolina Journal has published a new review, by George Leef.  He concludes his favorable review by opining that “Rehabilitating Lochner is a sharp and iconoclastic work of scholarship.”

To read the review, go to this link, click on the February 2012 issue, and go to page 20.  Links to other reviews available online can be found here.

Greenwald has another post on the “Israel Firster” controversy.  It’s easy to miss this in Greenwald’s typical avalanche of verbiage, but he (finally) acknowledges that the term was originally coined by anti-Semites, and is “gratuitously inflammatory.” He analogizes it to using the word “fascist”  to describe contemporary politics or making comparisons to Nazis.

This, however, is just a side point in a screed that among other things takes to task Jeffrey Goldberg and others for “smears.” The accusation that Goldberg is accusing Greenwald and others of being anti-Semitic and anti-Israel as a way of attempting to silence them.  Goldberg can speak for himself, as he has previously in response to Greenwald. [UPDATE: VC Commentor Eyeysay notes that Greenwald was far from precise in characterizing Goldberg's comments.]

But what I find remarkable is that in a post devoted to “smears,” “silencing,” “trite attacks,” and the misuse of language for political purposes, Greenwald refers to Goldberg as a “neocon,”  even though, to my knowledge, Goldberg’s political views are centrist leaning a bit to the left, and Goldberg has no obvious associations with the Commentary crowd or other centers of neocon thought.

More within my direct sphere of knowledge, Greenwald links to one of my posts while putting me in the category of “neocons like Goldberg.”  I’ve written about neoconservatism a fair amount, and when I’ve provided a normative opinion, I am always very critical (for example, here and here; there are other examples, but the VC’s move to a new host seems to have ruined the links, at least for now.)

Really, the only relevant things Jeffrey Goldberg and I–a moderate and a libertarian, respectively–have in common, and therefore the only reason to refer to us as “neocons,” is that we are both Jews who are far more favorably inclined toward Israel than is Greenwald.

Most of Greenwald’s readers undoubtedly have no real clue as to what neoconservatism is, beyond that it is associated somehow with conservatism, with Israel, the war in Iraq, and with Jews, and, from their left-wing Salonish perspective, is somewhat sinister. Assumedly, however, Greenwald knows better, and is simply using “neocon” as a slur, a way of relying on his readers’ prejudices against anything associated with the word “neocon” to discredit his intellectual adversaries, in exactly the same way he claims that the “neocons” are using slurs to discredit him and his allies. In fact, the only reason to associate “neocons” exclusively with Jews and Israel is to try to silence the other side with a slur.

So, if Greenwald wants to have an honest, intelligent debate on Israel and related matters, he can start by acknowledging that neither Goldberg nor I are “neocons,” apologize for suggesting otherwise, and promise to blog more responsibly in the future.

Last week, I posted a short piece on an article by Neil Lewis in the Columbia Journalism Review, discussing whether the New York Times reporting is hostile to Israel. As I noted, Lewis gets the basic story right–the Times’ isn’t anti-Israel, as such, but its reporting on Israel tends toward the adversarial, for two reasons. First, for several decades the Times’s Israel correspondents have typically had views on appropriate Israeli policy well to the “Left” of the governments in power in Israel. And, second, reporters find it naturally appealing to take the “David” (Palestinian) side in a David vs. Goliath (Israel) story. I should have added a third factor, noted by Lewis: the growth of leftist domestic NGOs in Israel strongly opposed to government policy (and often to Zionism), which–though Lewis doesn’t mention this–are typically staffed by English-speakers, often Americans, and that, because they are so far out of the mainstream of Israeli opinion, tend to focus on feeding stories to a more sympathetic international media.

The problem with the article is that Lewis seems to think that this is more or less the end of the matter. If the Times isn’t affirmatively anti-Israel, it doesn’t matter whether the Times’s reporters are nevertheless implicitly opposing Israeli government policy and/or supporting Palestinian claims by virtue of the stories they choose to pursue, how they frame those stories, what photographs they choose to run with the stories, and so forth–none of which he analyzes in any detail. Other critics, some much more vociferous than I, have noticed the same thing.

Indeed, even though Lewis acknowledges the points noted in the first paragraph, and he cites critics of the Times (including critics who think the Times is too favorably inclined to Israel), he manages to avoid acknowledging any instance where he agrees that pro-Israel critics of the Times’s coverage have had a valid objection. Instead, the piece comes off as suggesting that the only folks who could reasonably object to the Times’s coverage are right-wing Orthodox Jews who support the settlements. [FWIW, I'm neither Orthodox nor support the settlement enterprise, yet I've found the Times's coverage wanting on many occasions.] And he spends an awful lot of time on other matters that are peripheral to the issue he was supposed to be writing about, including the Times’s failure to adequately report the Holocaust as it was happening, and gossipy matters perhaps of interest to media insiders, such as confusion within the Times’s hierarchy over whether former Israel correspondent David Shipler is Jewish (he’s not, but who cares?)

Meanwhile, it turns out that I gave a poor, indeed, incorrect example of something that I said Lewis didn’t mention, but should have: that the far leftist Chris Hedges, who we now know as a vociferous critic of Israel, was the Times’s Middle East Bureau Chief from 1998-2001, when the Times’s coverage of Israel by Deborah Sontag was subject to particular criticism. It turns out that I was relying on misinformation from several websites that identified him as bureau chief at that time. In fact, Hedges was Middle East Bureau chief earlier in the decade (a fact that, oddly enough, Lewis didn’t know, as he acknowledged to me). So mea culpa on that.

It was Lewis himself who alerted me to my error via a response he asked be posted here. Here it is, with a bit of additional commentary from me following it.

here is my comment as i would like it published/posted:

i am the author of the cjr piece abt the times and israel.i try not to respond to the range of comments it has produced — people are entitled to ….etc. if someone thinks i failed to analyze specific articles enough, i think they did not read my article thoroughly, but that’s their view and i have no need to try and rebut.

but i found the comment [by prof. bernstein] so exquisitely typical of the ignorance of many i have read, i thought i would respond.

the facts: chris hedges, heartily disliked by fervent supporters of israel, was not debbie sontag’s superior or supervisor. ever. he was, for a time, the correspondent based in cairo (and i am not sure their times much overlapped if at all).

but mr bernstein says he was “middle east bureau chief” and thus he extrapolates he was sontag’s supervisor. this is a “salient” fact to explain her coverage, he writes that i omitted.

this has all the elements of the conspiracy-spinning mind that snatches at odd facts (and untrue notions) and puts them together in a way to confirm some previous notion.

as i suggested above, it has been heartily dismaying to read so many nonsensical comments — from people who come at the issue from both sides– as it demonstrates the obstacles such obduracy presents to honest, or even minimally intelligent discussion

From this comment, one can perhaps see the origins of the problems with Lewis’s piece. First, Lewis implies that Hedges is apparently not reasonably considered hostile to Israel by anyone except “fervent supporters of Israel.” Recall that Hedges has expressed a strong preference for Hezbollah and Hamas in their conflict with Israel. I should think that any person who values liberal democracy over Islamic theocracy and terrorism would find Hedges’s views objectionable; Lewis apparently disagrees. Moreover, it’s hardly just supporters of Israel, much less just “fervent” ones, who have objected to his radical foreign policy views. But Lewis’s attitude is consistent with the notion implied in his article that only the fringe is likely to see anything worth criticizing in the Times’s Israel coverage.

Second, while I can understand why Lewis was annoyed by my misstatement of fact, it’s a long way from such a misstatement to being “ignoran[t]” and having a “conspiracy spinning mind” incapable of “intelligent discussion.” (Mr. Lewis, did the Times never have to issue a correction for any of your articles? If so, does that make you ignorant etc.?) This, however, is apparently what Lewis thinks the Times’s more vocal critics, an attitude that occasionally reveals itself in his article. Indeed, Lewis is so caught up in what he sees as the unreasonableness of his critics that he failed to note that I started my post by agreeing that the basic thrust of his piece was correct, i.e., that its general take on the Times’s coverage reflects what every “fair-minded observer already knows.” But hey, I’m just a simple-minded ignoramus.

Finally, what does Lewis’s piece say about the attitude of the MSM toward its critics on the right? Lewis seems to acknowledge that the Times’s coverage of Israel has a point of view (i.e., a “bias”), but seems perplexed that anyone cares or objects when that bias manifests itself in the Times’s reporting.

Glenn Greenwald has a very Glenn Greenwaldesque post on the controversy over alleged use of anti-Semitic language by bloggers at the Center for American Progress, which I discussed last week.

One would never know from reading Greenwald’s piece that the controversy primarily revolved around the use of the term “Israel-firster” to describe supporters of Israel, much less that one can say two things about that term without much fear of contradiction: (1) it originated on the neo-Nazi fringe, and has only been adopted by left-wingers in the last few years; (2) it’s a term that not only substitutes insults for argument, but it implies loyalty to a foreign power, a longstanding theme in anti-Semitic literature.

As I said before, that doesn’t make the phrase somehow “objectively” anti-Semitic if used by individuals who had no anti-Jewish intent. However, as I also noted, most people of good will try to avoid using phrases related to Jews once they recognize that they have the odor of neo-Naziism about them (and indeed the CAP bloggers deleted the posts in question after the controversy broke). Others, however, like Greenwald, continue to think the phrase perfectly appropriate.

Moreover, left-wing writers tend to be especially sensitive about using language that has potentially racist implications, and also tend to be quick to accuse others of using “dog whistle” phrases–phrases that sound neutral, but are meant to stir racial animosity or invoke racial stereotypes.

In Greenwald’s defense, unlike many other left-wing anti-Israel writers who are quick to reject colorable charges of anti-Semitism, he has been a fearless opponent of political correctness, and has defended Republicans and conservatives from questionable charges of racism.

Actually, that’s not true. Actually, the opposite is true. Here, for example, is Glenn Greenwald in 2008, accusing John McCain of delivering “one of the ugliest, nastiest, most invective-filled” attacks “a major candidate has ever delivered, blatantly designed to stoke raw racial resentments.” The offending language? (Italics are Greenwald’s): It’s as if somehow the usual rules don’t apply, and where other candidates have to explain themselves and their records, Senator Obama seems to think he is above all that . . . His campaign had to return $33,000 in illegal foreign funds from Palestinian donors, and this weekend, we found out about another $28,000 in illegal donations. Why has Senator Obama refused to disclose the people who are funding his campaign? Again, the American people deserve answers.

Let’s get this straight. Suggesting that the usual rules don’t apply to Obama, stating that he returned illegal campaign contributions from Palestinian donors, and claiming that Obama refuses to disclose his funders isn’t just overheated (or silly) campaign rhetoric, isn’t even just ugly and nasty, but “is blatantly designed to stoke raw racial resentments.”

So, mentioning illegal Palestinian donations = blatant racism; adopting language appropriated from neo-Nazis within the decade about Israel’s supporters = clearly not anti-Semitic. Suggesting that a Obama has avoided “the usual rules” = blatant racism; suggesting that pro-Israel Americans care more about Israel than about the U.S. = clearly not anti-Semitic. Accusing someone of using anti-Semitism for using the Israel-firster slur makes you part of a “smear campaign”; accusing John McCain of blatant racism for claiming that Obama has not disclosed his campaign donors makes you a courageous left-wing blogger speaking truth to power.

I’m not going to argue that Greenwald’s racism argument is completely absurd–he’s a good lawyer, and he makes at least a marginally colorable argument in the rest of his post. But his argument is MUCH more of a stretch, or, if you will, much less well-founded, than the argument that “Israel-firster” is anti-Semitic language.

Obviously, Greenwald’s sensitivity to offensive language depends on whether he likes/agrees with the target. When his favored candidate, Barack Obama, was being attacked by John McCain, he was extremely quick to accuse McCain of using language designed to appeal to racist sentiment. When pro-Israel activists and politicians, a Greenwald-disfavored group, are being attacked by his anti-Israel compatriots, suddenly they are inherently immune from any hint of using anti-Semitic (a form, of course, of racism) language unless, perhaps, they are wearing swastikas and celebrating Hitler’s birthday. And the fact that Greenwald can and has come up with examples of where some of Israel’s supporters have used charges of anti-Semitism in inappropriate or exaggerated contexts is quite irrelevant to the point, just as it would be irrelevant to Greenwald’s post about McCain if someone pointed out that charges of racism against Obama’s opponents are at times inappropriate or exaggerated.

UPDATE: Here, in its entirety, is Greenwald’s response:

On a different note: both Jeffrey Goldberg and David Bernstein have posts about my arguments on the smearing of CAP that rest on the same premise: namely, that to point out that someone has “dual loyalties” is an accusation of disloyalty to their own country or even worse. As I explain here, that premise is false. There’s nothing inherently wrong with dual loyalties: those are common among many groups, especially in a country of immigrants, and are typically benign. What’s menacing is to smear those who discuss its existence and the way in which it influences our politics.

This would obviously be a more persuasive argument if the “Israel-firster” meme had not migrated to the left directly and very recently from the blatantly anti-Semitic right, a point Greenwald does not address. Indeed, the offensive aspect “Israel-firster” is not whether it’s inherently libelous to accuse someone of “dual loyalties,” any more than it’s inherently libelous to accuse someone of taking donations from foreign Palestinian sources. Rather, as Greenwald suggested with regard to McCain, the question is whether the use of the language is “designed to stoke raw racial [anti-Semitic] resentments.” Clearly this is the case when the language is used by the likes of David Duke, and the question then is whether the language magically is purged of such connotations when used by M.J. Rosenberg and others on the “mainstream” left.

[Additionally, a commenter points out that "Israel-firster" is not an accusation of "dual loyalties," but of primary loyalty to a foreign country.]

I’ll be speaking at Temple Law School about Rehabilitating Lochner tomorrow at noon, with commentary from Professor Robert Reinstein. The announcement is here. The event is free and open to the public, and according to the announcement, there will be “Free Jimmy Johns.”

I’ve blogged before about the New York Times’ coverage of Israel, so I thought I’d point out a piece in the Columbia Journalism Review by former Times reporter Neil Lewis on that precise topic.

Unfortunately, it’s trite, largely repeating what any fair-minded observer already knows: first, that the Times is not hostile to Israel, per se, but its reporters’ and editors’ views of “proper” Israeli policy have for decades leaned far to the “left” of actual Israeli policy, which in turn makes much of its coverage implicitly adversarial (and which also explains why folks that are truly hostile to Israel think that the Times is a Zionist rag); and, second, that in a David vs. Goliath story, reporters tend to strongly favor David. As the narrative of the Arab-Israeli conflict has shifted from little Israel defending itself against tens of millions of Arabs to stateless Palestinians demanding rights from Israel the advanced military power, reporters, including reporters at the Times, have a natural inclination to skew their stories to favor the Palestinian Davids, with much of the context of the conflict–including those tens of millions of neighboring Arabs still largely unremittingly hostile to Israel–often lost in the shuffle.

Meanwhile the piece misses some opportunities to point out various occasions where the Times’s has deviated from anything resembling fairness to Israel. For example, while Lewis notes that Deborah Sontag, the Times’s Israel correspondent from August 1998-2001, was considered even by her bosses at the Times unduly unfriendly to Israel, he then adds that the Times considered replacing her with Jeffrey Goldberg, a clearly pro-Israel (albeit, as one would expect, left-leaning) writer.

But he somehow neglects to note a much more salient point than the Times’s flirtation with Goldberg: that the head of the Times’s Middle East Bureau during Sontag’s time (and assumedly therefore Sontag’s direct supervisor) was a leftist ideologue named Chris Hedges. As I noted in 2006, we’ve since learned that Hedges thinks that Israel is far worse than either Hamas or Hezbollah. One wonders, in fact, how much of the bias many saw in Sontag’s writing was attributable in one way or another to Hedges. But my main wonder is how someone could write a lengthy essay on this particular topic, and discuss specifically the period when Hodges was in charge of the Times’s overall Middle East coverage, and never even acknowledge Hedges’ existence.

Correction: Hedges was the Times’s Middle East Bureau Chief, but earlier in the decade.
I’m not going to be available to moderate comments tomorrow, so comments will be open, but not indefinitely. But I stand by my general point, which is that even though Lewis acknowledges in the abstract that the Times’ coverage of Israel is often adversarial, he fails to point out ANY instances where agrees that the Times’s coverage was actually unfair.

Timothy Geithner, December 2006, Federal Reserve Meeting: “Our recent financial-market data don’t, in my view, provide a convincing case for a substantial increase in the probability of a much weaker path for growth going forward.”

David Bernstein, February 2007, Volokh Conspiracy, “America, Meet Mr. Recession?”:

Meanwhile, up to 25% of last year’s loans would not be viable under stricter underwriting standards this year! Wow! Assumedly, that percentage figure is higher in bubble markets. Given the huge role easy home financing and refinancing has played in the 2000s economic boom (some huge percentage of jobs created over the last several years were in construction and real estate, and consumer spending was boosted significantly by “using the house as an ATM”), what’s going to keep the economy afloat?

There has been a controversy brewing over allegations that several bloggers at the liberal Center for American Progress have used anti-Semitic rhetoric when criticizing Israel and its American Supporters. Critics have particularly focused on these bloggers’ use of the term “Israel-firster.”

I haven’t paid all that much attention to the controversy, but today I came across a piece by Jamie Kirchik in which he alleges that the term “Israel-firster” was first popularized by Willis Carto’s anti-Semitic The Spotlight, and that the term gradually migrated from the anti-Semitic far right to the “Progressive” left.

So I decided to do some research. I couldn’t find any online archives of The Spotlight, but here is what I did find.

The “Israel-firster” slur was not used in “mainstream” discourse until the last few years.

Before that, you can find it occasionally in the early 1980s and 1990s in sources such as Wilmot Robertson’s anti-Semitic Instauration journal, a 1988 anti-Semitic book called “The F.O.J. [Fear of Jews] Syndrome, and a 1998 anti-Semitic book “Rise of AntiChrist.” I also found a couple of references to “Israel-firsters” in the extremist anti-Israel publication, The Washington Report on Middle East Affairs, and from writers associated with this journal.

By the early 2000s, one can find “Israel-firster” being used by a variety of anti-Semitic “right-wing” sources like DavidDuke.com and the Vanguard News Network. As the decade wore on, the phrase occasionally pops up in far left anti-Israel sites that have ties to the anti-Semitic far-right or are known for playing footsie with anti-Semitism, like Antiwar.com, Norman Finkelstein’s website, and Indymedia.

Finally, over the last few years the term has become increasingly used on the anti-Israel far left, especially by blogger M. J. Rosenberg of Media Matters, who Kirchik calls the “worst offender.”

Obviously, the phrase “Israel-firster” should be expunged from reasoned discourse, regardless of its origins–it amounts, as Kirchik points out, to name calling as opposed to argument. And it certainly questions the patriotism of Jewish Americans to whom the moniker is applied, which at best potentially plays to anti-Semitic sentiment.

But is the phrase clearly anti-Semitic, even if used by those who have no anti-Semitic intent? I don’t think we need to reach that issue. Some of the “Progressive” bloggers who have used the phrase may not have been aware of its origins in the depths of unhinged neo-Nazi land.

So the question is, does your average Progressive recoil at the use of terminology that migrated recent from the far-right racist kook fringe to refer to members of minority groups? They sure do. Should they recoil less if the terminology is aimed at Jews, as opposed to other minority groups? They sure shouldn’t–unless they are themselves prejudiced against Jews.

Therefore, regardless of what cockamamie post hoc excuses they come up with (Rosenberg, for example, claims that when he talks about “Israel-firsters”, he only means “Netanyahu firsters” [in the sense they always think Netanyahu is right--if Rosenberg meant the latter, then he was being intentionally provocative, and not in a good way), if bloggers want to claim status as Progressives who are not anti-Semitic, they should treat the phrase "Israel firster" the same disdain as any other phrase that recently emerged from the sewers of racism.

UPDATE: The following passage from Kirchik's piece is relevant: "While CAP publicly denied that its employees were trafficking in anti-Semitism, an e-mail from the organization's vice president, obtained by The Jerusalem Post, deemed 'Israel-firster,' to be 'terrible, anti-Semitic language.'" That's further then I'd go, in the absence of proof of intent. But the point, once again, is that self-styled "Progressives," as a rule, bend over backwards to be politically correct and hypersensitive on linguistic usage as pertains to members of minority groups. They wouldn't deign to use the equivalent of Israel-firsters to refer to other minority groups (indeed, they'd likely be attacking "conservatives" for using such language), and if they did, they would surely take some care to examine the origins and implications of the phrase. But when it comes to using borderline anti-Semitic language, not only does sensitivity go by the wayside for certain Progressives, but they delude themselves into thinking that by ignoring Jewish sensitivities, they are "speaking truth to power."

So I'm neither claiming that the bloggers in question are anti-Semitic, or had anti-Semitic intent, or that, in general, writers should engage in self-censorship on matters related to Israel. What I am arguing is that there is a double standard, in which standards that are applied to other groups are not applied to Jews. (I made a related point here.) [Here, for example, is Glenn Greenwald, who has prominently defended his use of "Israel Firster," attacking John McCain for racism for engaging in rhetoric "blatantly designed to stoke raw racial resentments," for such statements as "the usual rules do not apply" to Obama,
and questioning why Obama "refused to disclose the people who are funding his campaign."]

Indeed, I’ve occasionally seen this justified explicitly by “anti-Zionist” leftists on the grounds that Jews, unlike other minority groups, are “powerful.” Just sixty-six years after the end of World War II, and with calls for the annihilation of Jews still emanating from a variety of rather significant sources (Hamas, Hezbollah, various radical Islamist groups, etc.), and still rather high levels of anti-Jewish prejudice even in the most enlightened countries, I think it’s rather early to proclaim that anti-Semitism is no longer a matter of significant concern for “Progressives.”

FURTHER UPDATE: “Fanatically pro-Israel” or “pro-Israel fanatic” would (and often does) serve the same rhetorical function, without either the imputation of foreign loyalties or the neo-Nazi origins.

Yeye, Kai-Lan’s grandfather, and the late Milton Friedman.

Congratulations to my former GMUSL student and George Mason alum Josh Blackman, who will be a tenure-track lawprof at South Texas Law School starting this Fall. Congratulations also to Brian Frye, who was my research assistant when I visited at Georgetown Law Center in 2003. Brian will be starting a tenure-track gig at University of Kentucky this Fall. Brian joins former Bernstein RAs Jeffrey Jackson of Washburn Law School (from the same Georgetown semester) and Nate Oman of William and Mary (who helped me with You Can’t Say That! as a college student) in the legal academy.

Finally, congratulations to GMUSL alum and current George Mason visiting assistant professor Jeremy Kidd, who has accepted a tenure-track appointment at Mercer Law School. I think this is the first time George Mason has placed two alums in tenure-track academic posts in the same year.

I was out of the country and computer-less when my former colleague Larry Ribstein died in late December, so I didn’t have the chance to add to the many fine tributes to Larry that various bloggers contributed.

But I did want to add one thought. When I think of Larry, I think of how everyone respected his judgment. This primarily manifested itself in law school appointments matters but went well beyond that.

To take an extreme example, I remember that in 1998 or so, well before the Virginia Square area where George Mason is located experienced its current development boom, I expressed an interest in a Latin American restaurant across the street from the law school. I pointed out to some senior colleagues that it was the closest restaurant to the law school, but no one on the faculty ever seemed to go there. “Oh, that place?”, a colleague replied. “Larry went there about ten years ago, and said it wasn’t good, so no one has gone there since.”

Two issues ago, the Claremont Review of Books published Richard Epstein’s review of my book, Rehabilitating Lochner. In the next issue, two conservative readers criticized Epstein’s review for endorsing Lochner. Claremont asked Epstein and me to respond. Claremont has now posted the letters to the editor and the responses here.

My response focuses not on whether Lochner was right or wrong (I take no position on the issue), but on taking issue with some of the statements and assumptions made in the letters–statements and assumptions that reflect longstanding conservative propaganda points in debates over the Fourteenth Amendment, but that rely on myths inherited from Progressive jurists.

I conclude that

there are quite reasonable arguments that liberty of contract, per se, is not protected by the Due Process Clause. Even if it is so protected, one can reasonably argue that the Lochner Court should have followed Justice Harlan’s dissent and exhibited greater deference to the judgment of the New York legislature. For conservative constitutionalists to make such determinations, however, requires a careful study of the relevant historical and legal materials free from the baggage of the tendentious, politically motivated accounts of Progressives, New Dealers, and their successors on the Left and, surprisingly, the Right.

Claremont’s website doesn’t have a comment feature, but you can contribute to the debate in the comments below.

Berkeley Law School professor Malcolm M. Feeley has a brief review of Rehabilitating Lochner in the January issue of Choice, which publishes reviews for its primary audience of academic librarians. The review is behind a paywall, but it concludes, “This is a delightful and informative book that deserves a broad audience of scholars and laypeople alike.”

An old but very relevant commentary by Jonathan Rauch:

In his book he comments, seemingly with a shrug, “Some will reject what I have to say as a kind of ‘Big Government’ conservatism.” They sure will. A list of the government interventions that Santorum endorses includes national service, promotion of prison ministries, “individual development accounts,” publicly financed trust funds for children, community-investment incentives, strengthened obscenity enforcement, covenant marriage, assorted tax breaks, economic literacy programs in “every school in America” (his italics), and more. Lots more.

Via David Boaz, who points out Santorum’s explicit rejection of “the whole idea of personal autonomy” and the “idea that people should be left alone.”

As long-time readers know, I’m not a fan of Glenn Greenwald, but his broad attack (below) on placing partisanship above all other concerns during campaign season–motivated by his desire to praise Ron Paul on various issues on which he thinks Obama has been terrible, including some issues on which Greenwald and I agree, such as the War on Drugs and certain abuses of Executive authority–deserves repeating:

Then there’s the full-scale sacrifice of intellectual honesty and political independence at the altar of tongue-wagging partisan loyalty. The very same people who in 2004 wildly cheered John Kerry — husband of the billionaire heiress-widow Teresa Heinz Kerry — spent all of 2008 mocking John McCain’s wealthy life courtesy of his millionaire heiress wife and will spend 2012 depicting Mitt Romney’s wealth as proof of his insularity; conversely, the same people who relentlessly mocked Kerry in 2004 as a kept girly-man and gigolo for living off his wife’s wealth spent 2008 venerating McCain as the Paragon of Manly Honor.

That combat experience is an important presidential trait was insisted upon in 2004 by the very same people who vehemently denied it in 2008, and vice-versa. Long-time associations with controversial figures and inflammatory statements from decades ago either matter or they don’t depending on whom it hurts, etc. etc. During election season, even the pretense of consistency is proudly dispensed with; listening to these empty electioneering screeching matches for any period of time can generate the desire to jump off the nearest bridge to escape it.

Then there’s the inability and/or refusal to recognize that a political discussion might exist independent of the Red v. Blue Cage Match. Thus, any critique of the President’s exercise of vast power (an adversarial check on which our political system depends) immediately prompts bafflement (I don’t understand the point: would Rick Perry be any better?) or grievance (you’re helping Mitt Romney by talking about this!!). The premise takes hold for a full 18 months — increasing each day in intensity until Election Day — that every discussion of the President’s actions must be driven solely by one’s preference for election outcomes (if you support the President’s re-election, then why criticize him?).

Worse still is the embrace of George W. Bush’s with-us-or-against-us mentality as the prism through which all political discussions are filtered. It’s literally impossible to discuss any of the candidates’ positions without having the simple-minded — who see all political issues exclusively as a Manichean struggle between the Big Bad Democrats and Good Kind Republicans or vice-versa — misapprehend “I agree with Candidate X’s position on Y” as “I support Candidate X for President” or “I disagree with Candidate X’s position on Y” as “I oppose Candidate X for President.” Even worse are the lying partisan enforcers who, like the Inquisitor Generals searching for any inkling of heresy, purposely distort any discrete praise for the Enemy as a general endorsement.

Here’s an interesting blog post by Dondero, that takes Paul to task over his “simply outrageously horrendous views on foreign policy, Israel, and national security for the United States.”

I thought the most interesting revelation was Paul’s argument that the U.S. shouldn’t have gotten involved in World War II because “saving the Jews” was none of our business. The issue of whether and to what extent the U.S. should use its military resources for humanitarian causes is certainly a legitimate one. But the idea that the U.S. got involved in World War II to “save the Jews” bespeaks such a gross misunderstanding of history that one is left to conclude that Paul is either an ignoramus who has formed very strong views on foreign policy with very little knowledge to back them up, or that he is unusually susceptible to conspiracy theories, especially ones that involve Jews. The evidence suggests that the answer is “both.”

UPDATE: A commenter points out, correctly, that it’s not clear from Dondero’s statement whether Paul actually believed that the the U.S. got involved in WWII to “save the Jews,” or whether, instead, Paul expressed opposition to U.S. involvement in WWII, and then when challenged rejected the notion that such involvement was justified to save the Jews. Such involvement certainly wouldn’t have been justified on the latter basis, given that saving the Jews was, to say the least, not exactly a priority of the Allies’ leadership during the War, regardless of whether it was in fact “our business” or not.

So, I think I was too hasty to criticize Paul on the basis of Dondero’s statement. But Dondero’s statement is still very interesting.

Jed Purdy has posted an interesting (and extremely polite) response to my critique of his article on the Roberts Court and Lochner here.