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.

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.

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?

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).

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.

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.

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.

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.

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.

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.

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.]

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.

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?

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.

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.

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.”

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.

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.”

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.

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.

The review concludes:

Rehabilitating Lochner does what it sets out to do very well. It places Lochner in its historical context, telling us where it came from, what it actually did, who attacked it, and what those people believed. Though published by an academic press, the book is readable and should be accessible for any intelligent lay reader. At the same time, it should be informative and provocative to legal scholars. I highly recommend it to anyone interested in the topic.

The basic thrust of the piece is to argue that the Roberts Court has become “the judicial voice of the idea that nearly everything works best on market logic, that economic models of behavior capture most of what matters, and political, civic, and moral distinctions mostly amount to obscurantism and special pleading.”

It’s a well-written piece, and provides the best concise account of liberal concerns about the Roberts Court’s trajectory as I’ve seen. So go ahead and read it, and then come back here for my comments.

Back already? Okay, a few, non-comprehensive comments. First, Purdy inevitably compares the Robert Court’s jurisprudence to “Lochner“; inevitably because, as I’ve noted before, modern liberals for decades have habitually (and to my mind, tendentiously) analogized any attempt by the courts to in any way limit legislative regulatory authority to Lochner. To his credit, Purdy makes some effort to acknowledge revisionist scholarship about Lochner, but ultimately repeats various myths, including the myth that the Court defended “laissez-faire” and “unfettered industrial capitalism.” For a dissection of this myth, see chapters 1 and 3 of Rehabilitating Lochner. In short, not even the most radical free marketeers on the Court, Brewer and Peckham, defended anything remotely approaching the laissez-faire jurisprudence advocated by the likes of treatise writer Christopher Tiedeman. I could quibble about some other historical inaccuracies, but let’s move on.

Second, Purdy attributes the Court’s controversial Citizens United and Sorrell opinions to a version of economic libertarianism holding that (1) “the distinction between politics and markets, or principles and interests, is spurious”; (2) there is no publicly accepted measure of value except willingness to pay; and (3) therefore, “elections and other institutions should come to resemble markets as much as possible.”

I disagree. The purpose of the Court’s First Amendment jurisprudence is not to prevent the redistribution of economic power form rich to poor, as Purdy would have it. Rather, the point is to ensure that the government can’t restrict the free flow of information because that is how governments abuse their authority in favor of those already in power and their special interest cronies.

It’s one thing to allow the government to regulate the economic activity of IBM, or AFSCME. It’s another for the government that runs a massive special interest state to either decide who gets to speak (e.g., academics, newspaper editors, bloggers, “public interest groups” [update: and other members of the "cognitive elite," whose average views diverge dramatically from public median]) and who does not (for-profit corporations and unions [update: or just ordinary citizens who band together via a PAC]), or to decide what the content of one’s speech will be (see Boy Scouts of America v. Dale). So there is a libertarian rationale for the Court’s jurisprudence, but it’s not a narrowly economic rationale, much less a rationale favoring a particular distribution of wealth.

Finally, and relatedly, Purdy’s objection to the Roberts Courts’ First Amendment jurisprudence seems to be that it inhibits the ability of the democratic populace to redistribute wealth and power more equitably, and the Court may do so even more in the future if the Court limits the scope of Congress’s Commerce power in the Obamacare case. The odds, however, are very much against the Roberts Court putting any significant limitations on government power. Even during the so-called Lochner era, when there was much broader intellectual and popular support for limited government, the Supreme Court’s occasional rulings invalidating legislation were generally a mere sideshow to an ever-growing regulatory state.

Nevertheless, Purdy does illustrate for the reader the traditional Progressive/liberal mindset favoring increased government regulation because such regulation will result in more democratic outcomes, which in turn means more downward redistribution. I didn’t see, however, any defense of the notion that republican democracy inherently, or even typically, works to the advantage of the downtrodden at the expense of the powerful. Todd and Ilya could speak to this better than I, but modern political science and economic literature raise grave doubts about this assumption. Among many other problems, the wealthy, well-educated and well-connected have huge advantages in the political process.

UPDATE: On this general topic, it’s well worth reading John O. McGinnis, Reviving Tocqueville’s America: The Rehnquist Court’s Jurisprudence of Social Discovery, 90 Calif. L. Rev. 485 (2002). Although he is talking about the Rehnquist Court, it applied just as well today:

The Rehnquist Court’s jurisprudence reflects a more skeptical view of centralized democracy in an era in which there is more elite skepticism about the prospects of nationally mandated social reform than existed in the eras of the New Deal and the Great Society. Modern political science has suggested that mass national democracy often produces legislation that neither reflects majority will nor is efficient, since special interests dominate legislators while most citizens are rationally ignorant of the salient political issues. Hence, the Rehnquist Court is rediscovering the provisions of the Constitution that create alternative forums for norm creation by empowering institutions such as local governments and civil associations that engage the citizenry and restrain special interests. Such institutions decentralize the development of social norms and subject these norms to more rigorous forms of competition than centralized governance. Sustaining these structures requires a jurisprudence completely different from that of the Warren Court. If many of the Warren Court’s decisions are best understood as perfecting centralized democracy, the Rehnquist Court should be understood as protecting the conditions of spontaneous order so that norms can be discovered through competition, whether that competition occurs among states or private institutions.

McGinnis also anticipated the growing conflict between what he refers to as the old social democracy based vision of the First Amendment, and an emerging property-based vision focusing on the free flow of information. John O. McGinnis, The Once and Future Property–Based Vision of the First Amendment , 63 U. Chi. L. Rev. 49 (1996).

Meanwhile, Israel is becoming a problem for Ron Paul. Yesterday, an NPR report from New Hampshire included the views of a conservative New Hampshireite who loves Ron Paul views on just about everything, but can’t support him because of his lack of support for Israel. ABC News reports on a town meeting in Webster City, Iowa, in which “Paul took a question from a member of the audience who urged him to ‘tell everyone that you love Israel.’” Indeed, it seems that there may be a larger (numerically but not proportionately) base of non-Jewish conservatives that make Israel a litmus test issue than of American Jews.

Interestingly enough, my take on Paul’s campaign is that it appeals to libertarians, but also to a previously quiescent group in American politics, the sort of folks who dominated the American right before the Goldwater campaign. These folks had generally libertarian views on the scope of federal power, but combined it with a populist suspicion of elites, a suspicion of foreigners that led to hostility to immigration, free trade, and foreign policy entanglements (all of which Paul, in practice, opposes), lack of empathy for American minority groups, and a penchant for conspiracy theories. Paul’s record of lack of sympathy for Israel, which goes well beyond his distaste for foreign aid and alliances (e.g.), is fully consistent with his appeal to that base but is apparently becoming a real barrier to his gaining traction among conservatives, so much so that he has lately been trying to portray himself as a true friend of Israel.

I’m not going to open comments on this one, just because I simply can’t stomach reading the type of comments that a post like this typically brings out, especially the wildly ignorant “the evangelicals only support Israel as a prelude to the Second Coming at which time all the Jews will be massacred” meme.

UPDATE: On the latter issue, I commented back in 2006:

If you’re thinking, “they just want to help Israel because they think it will hasten the coming of Battle of Armaggedon,the Rapture, and the conversion/death of all the Jews,” get over it, it just ain’t so. I’ve corresponded with quite a few evangelical supporters of Israel, as well as former evangelicals familiar with the movement, and all agree that the percentage who support Israel for that reason is tiny (equivalent, perhaps, to the Jewish meshuggahs who want to imminently build the Third Temple on the Temple Mount in Jerusalem), though if you read liberal Jewish sources you would come away convinced that it’s 99% of them.

And some links for your convenience:

Adler, ed., Rebuilding the Ark: New Perspectives on Endangered Species Act Reform

Baker, Skating on Stilts: Why We Aren’t Stopping Tomorrow’s Terrorism

Barnett, Restoring the Lost Constitution: The Presumption of Liberty

Bernstein, Rehabilitating Lochner: Defending Individual Rights Against Progressive Reform [In preparing this post I noticed that for no apparent reason Amazon has suddenly and drastically reduced the price of Rehabilitating Lochner from $35+ to $23, by far the lowest price I've seen for it. I don't know how long this will last, but if you've been thinking of buying the book, now is a good time!]

Carpenter, Flagrant Conduct: The Story of Lawrence v. Texas (pre-order)

Kopel, Aiming for Liberty: The Past, Present, And Future of Freedom and Self-Defense

Post, In Search of Jefferson’s Moose: Notes on the State of Cyberspace

Volokh, Academic Legal Writing: Law Review Articles, Student Notes, Seminar Papers, and Getting on Law Review

UPDATE: Note that I didn’t include casebooks, treatises, and hornbooks in this list, because, e.g., who really wants to get Bernstein et al., The New Wigmore: Expert and Scientific Evidence for Christmas?

But the main topic of this post is President Obama’s acceptance and elaboration of Progressive mythology about pre-Progressive America, the America of the late nineteenth and early twentieth century, before a wave of Progressive and World War I inspired regulation significantly increased the role of government in American economic life.

Here’s Obama:

You see, this isn’t the first time America has faced this choice. At the turn of the last century, when a nation of farmers was transitioning to become the world’s industrial giant, we had to decide: would we settle for a country where most of the new railroads and factories were controlled by a few giant monopolies that kept prices high and wages low? Would we allow our citizens and even our children to work ungodly hours in conditions that were unsafe and unsanitary?

This line of thought goes back to the Progressive era itself. As I point out in Rehabilitating Lochner: “Progressives were convinced workers’ living standards were falling, and were in constant danger thanks to unregulated immigration, unregulated labor markets, and a paucity of strong labor unions. Supporters of liberty of contract, by contrast, believed that workers’ lot, though often unpleasant, was gradually improving thanks to the American system of contractual freedom.”

Contrary to the implications of Obama’s speech, the latter group seems to have had the better of the argument. Despite massive immigration during this period and despite (or maybe because of) the lack of labor regulation and low unionization, best estimates are that real wages in manufacturing in the U.S. increased almost 40% between 1890 and 1914. Lawrence H. Officer, Two Centuries of Compensation for U.S. Production Workers in Manufacturing (2009); Albert Rees, Real Wages in Manufacturing 1890-1914 (1961). [Update: I don't have statistics handy, but working hours were going down without government intervention--for example, few bakers, the subject of the 1895 ten-hour a day law invalidated in Lochner, worked more than ten hours by 1910--and child labor was declining rapidly outside the impoverished Deep South.]

Oddly enough, Obama also praises Roosevelt for supporting a minimum wage for women. Chapter 4 of Rehabilitating Lochner describes the impetus for such laws, and much of the relevant the information in that chapter can be found in this paper published in Law and Contemporary Problems. The history is too rich to give an adequate summary here. Let’s just say that the history of such laws is not pretty. The laws’ primary supporters included male-only labor unions that wanted to keep women out of the workplace–women-only minimum wage laws almost never passed without strong from unions that typically opposed minimum wage laws for men; eugenicists who wanted women to stay home and take care of their children; bigots who thought that only the lower order of men (including Eastern European immigrants) would allow their women to work for wages; moralists who believed that low-wage women were susceptible to vice and should therefore stay out of the workforce; and economists who believed that, as Felix Frankfurter summarized in his brief in Adkins v. Children’s Hospital, women who wanted to work but could not command a government-imposed minimum wage were “semi-employable” or “unemployable” workers who should “accept the status of a defective to be segregated for special treatment as a dependent.”

And please note that while Progressivism is today associated with the “left,” historical Progressivism encompassed many important figures who would not have been considered such (and wouldn’t have considered themselves such) at the time, most prominently Theodore Roosevelt. What they had in common with their left-leaning compatriots was opposition to laissez-faire, faith in government’s ability to solve and manage social problems, and, with regard to the politicians among them, confidence in their own ability to lead and direct the masses for the latter’s own good.

Go Huntsman?

UPDATE: Note that the types of reforms that Gingrich advocated in the ’90s–term limits, balanced budget amendment, rotating committee chairs, and so forth–are the types of reforms that the Progressive movement successfully embraced one hundred years ago (think of recalls, referenda, Senatorial elections, judicial selection committees, and so forth).

In a sense, Gingrich’s lack of ideological pro-limited government compass could make him a dangerous enemy. But exactly why Tea Party Republicans should embrace him, beyond understandable dissatisfaction with Romney, is unclear. One thing in Romney’s favor: he took moderate, often anti-libertarian positions while governing a very liberal state, suggesting that he may in fact have more conservative and pro-free market views. Gingrich’s statist inclinations, by contrast, seem entirely sincere.

Related, TPM via a commenter: “The Libertarian Intelligentsia is Freaking Out over Newt.”

After 20 months of attacks and a quarter million shekels in damage, a religious bookstore in the ultra-Orthodox Mea She’arim neighborhood of Jerusalem decided on Monday to accede to the demands of extremists responsible for the violence.

Under the terms of the compromise, Ohr Hachaim/Manny’s put up a large sign requesting that all customers dress modestly. A mashgiach, who checks the store’s inventory to make sure there are no controversial books, will go over the books in the coming week and require that some books be removed from the shelves, though they will not be permitted to remove any English books, said Marlene Samuels, one of the store’s managers.

A haredi group called Sikrikim deemed the store as “promoting immodesty,” and since Manny’s opened in March 2010, the group has smashed its windows more than a dozen times, glued its locks shut, thrown tar and fish oil at the store and dumped bags of human excrement inside. The owners were also personally threatened multiple times.

One of the group’s leaders has been arrested, which apparently allowed the bookstore owners to reach a “compromise” than fell short of acceding to all of the extremists’ demands. Nevertheless, this strikes me as a result an abdication of responsibility by Israeli authorities. The owners had to pay for their own security guards. How about a police patrol protecting the store? The leader was arrested, great. But what about all the lower-level thugs who perpetrated the vandalism and threats? The Israeli government has long permitted Haredi extremists to be above the law, permitting them enforce “modesty” rules on public streets via violence and threats, illegally segregating the sexes on public buses, tolerating violent demonstrations against construction projects allegedly taking place on ancient cemeteries, and so on. Not to mention the greatest malfeasance of all, allowing Haredi extremists to take control of domestic relations law. With the Haredi population increasing exponentially, the government needs to stand up for liberalism while it still can.

(1) First, social reform was not in nearly as much danger from Lochner as the standard story suggests….

(2) The supposed simple-minded formalism of late nineteenth and early twentieth century judges has been called into serious question by recent scholarship….

(3) Brandeis’s Muller brief was not as original as his admirers have suggested….

(4) Brandeis’s brief was not as bold as often portrayed, because Oregon’s attorney general filed a traditional brief focusing on the relevant legal precedents….

(5) Brandeis’s brief, rather than being a social science masterpiece, consisted largely of a “hodgepodge” of reports of factory or health inspectors, testimony before legislative investigating committees, statutes, quotes from medical texts, among other miscellany. Some of the “scientific” arguments presented in the brief are nonsensical, even given the state of medical knowledge at the time….

(6) Brandeis’s brief likely did not influence a single vote on the Supreme Court….

(7) While Brandeis Briefs quickly became commonplace in constitutional litigation over social reform, such briefs did not have any clear significant effect on the outcome of Progressive-era cases….

Bonus myth: Despite many assertions to the contrary, Brandeis evinced little interest in women’s legal equality, and was at best a very tepid supporter of women’s rights.

I feel strongly that the court made a serious mistake in finding that money is the equivalent of protected speech. If followed out to its logical conclusion, that would have provided First Amendment protection to the Watergate burglars. They were financed with campaign expenditures.

Huh?

I kid you not. Schulman, it should be said, is making something of a hobby of being a leading member of what has to be the rather small club of “Jewish lesbians for Palestine.” Here’s a short (and dishonest) video of her attacking Israel as “unprogressive.”

Professor Schulman, if you happen to read this, I have an offer for you: I will pay for your ticket to Israel and accommodations, if you will agree to live among your “progressive” allies as an openly gay Jewish woman in Gaza for one month. But my offer is a bit disingenuous, because it’s very unlikely that I would need to pay out for more than a one-way ticket, and a few days of accommodations.

Professor Jacobson has more.