Wednesday, September 2, 2015

Xi Jinping: Are you Listening?

A month ago I discussed Roderick MacFarquar's article in the NYR: he worried about how much it matters that Xi Jinping does not subscribe to the rule of law, is afraid of democratic values, civil society, and universal rights, and is stoking nationalism with a vague "China Dream?"

Brad DeLong worries too.  Do read his article in The World Post.  Here is the gist:
One of the few historical patterns to repeat itself with regularity over the past three centuries has been that, wherever governments are unable to make the allocation of property and contract rights stick, industrialization never reaches North Atlantic levels of productivity. .... China -- in spite of all its societal and cultural advantages -- had failed to make its allocation of property rights stick in any meaningful sense through the rule of law. Businesses could flourish only when they found party protectors, and powerful networks of durable groups of party protectors at that. .... 
China has hitherto kept growing and growing rapidly, even without anything a North Atlantic economic historian would see as the rule of law. It has had its own system of what we might call industrial neofeudalism. Instead of the king's judges enforcing property and contract rights, Chinese entrepreneurs have protection via their fealty to connection groups within the party that others do not wish to cross. ....
But ....
China's success at grasping the future depends not on economic growth but on political reform. It depends on the establishment of the rule of law and an open society rather than the rule of the CCP and a closed party elite. Only after successful political transition might economic growth and convergence resume.
Xi Jinping, are you listening?

Picture hangin in Xi Jinping's office
Croke Park, Dublin 2012

Mongol Conquest on the Edge of Muslim Lands

I am reading Guy Burak's Second Formation of Islamic Law.  He brings us back to the Mamluk Sultanate, Ghengis Khan and his descendants, and the streamlining of Islamic law by the Ottomans after the 14th century. Significantly, he divides his history of Isalm into two eras of pre- and post-Mongol conquest.

The Mongol explosion across Eurasia in the 13th century neatly bisects the history of Islamic empire, from the founding of Islam to the collapse of the Ottoman Empire in World War I.
Mongolian Ger (or Yurt)
Here are some markers for this brush between the Islamic Empires and the Mongol Empire:

The Arab Conquest 632-655 A.D.

Starting in a small pocket around Mecca and Medina, following Mohammad's death in 632 A.D., his successors captured all of the Arabian Peninsula, the Levant, Persia, what are today Eastern Turkey and Iraq, and all of North Africa. And they accomplished this in just twenty years.  [Check out the incredibly cool 40 Maps that Explain the Middle East on Vox]

In the process, the Eastern Roman Empire lost Egypt, Palestine, and Syria and retreated to the Anatolian peninsula.

A word of caution is in order when looking at those snazzy Vox maps. Creating the culture that became the Arab Islamic world did not happen overnight. The transition in and out of empires is gradual, incremental. There's a lot more involved than the brief passing of marauding armies. [For a great read of the transition from the Western Roman Empire into the Holy Roman Empire, for example, see Peter Brown's Through the Eye of a Needle]

They say that in 647 A.D. an Arab force of 40,000 marched through North Africa for 15 months and captured Tripolitania. But at the end of this campaign the Arab forces returned to Egypt. Coloring all of North Africa "Islam" in the wake of this 15 months campaign, therefore, seems misleading and a bit premature.

The Rashidun Caliphate 632-661 A.D.

The Rashidun Caliphate refers to the first four caliphs of Islamic rule. The first three of these nominally conquered the empire: 
  • Abu Bakr (632-634)--The first caliph was Mohammad's father in law. He died of illness after a short reign;
  • Umar (634-644)--The second caliph was a senior companion of Mohammad, a great general, and an early Islamic scholar. He was assassinated by a Persian slave after the conquest of Persia;
  • Uthman (644--The third caliph was one of six men selected by Umar to appoint a successor caliph [it reminds me of G.W. Bush putting Dick Chaney in charge of finding a vice-presidential candidate]; he was also a   companion of Mohammad, albeit from a different tribe (the Quarysh); he completed the compilation of the Koran in Arabic; he was assassinated by rebels dissatisfied with his rule in 656; 
  • Ali (656-661)--Mohammad's cousin and son-in-law, who had been previously passed over as caliph, was finally elected as the fourth Rashidun caliph after Uthman's assassination; however, the empire was beset by civil strife in the wake of Uthman's assassination and Ali was in turn assassinated in 661. 

Sunnis and Shias

The assassination of Ali in 661 A.D. is what resulted in the schism between Sunni and Shia muslims. Shia derives from "Shiat Ali," the party of Ali.

Sunni-Shia split in Middle East
We normally hear that Shias are a small minority (15% of total Muslim population), but this is misleading if we focus only on the Middle East and Iran. Total muslim population in Middle East (excluding North Africa and Egypt) is less than 200 million according to a Pew study. Iran is counted as part of Asia, so if we include Iran, Muslim population for Middle East plus Iran is less than 300 million--and of this in excess of 100 million is Shia. In the Middle East plus Iran, Shia constitute 30-40% of the population. If the conflict today in the Middle East is largely a conflict between the Sunni Gulf States and Iran, the Shia-Sunni split we should keep in mind is closer to 65/35 (not 85/15). 

The Umayyad Dynasty 661-750 A.D.

The Umayyad family from Mecca (largely merchants) gained power under the third caliph Uthman. One member of the family was a long time governor of Syria, based in Damascus. After the muslim civil wars that resulted in the assassinations of Uthman and Ali, the Umayyad's managed to consolidate power and continue conquest, expanding the empire into the Caucuses and into Spain. The Umayyad's gradually weakened in the middle of the 8th century, beginning with a defeat by the Byzantine Empire in 717, and ending at the battle of the Great Zab River (Mesopotamia) where they lost to the rival Quarysh tribe from Mecca (the tribe of the third caliph Uthman). 

The Abbasid Dynasty 750-1517 A.D. 

After the battle at the Zab river in 750 A.D. the Abbasid's assumed the caliphate and ruled for 767 years. They established the city of Baghdad, which ushered in a Golden Age of Islam, with a flourishing of mathematics, science, philosophy, and religion, and which saw the translation of much of ancient Greek works into Arabic.  
Extent of Abbasid Empire ca. 850 A.D.
Spain and Morocco were ruled by an off-shoot of the Umayyads
This golden age ended with the sack of Bagdhad by the Mongols in 1258, including the destruction of Bagdad's great libraries. 

The Mongol Empire

The Mongols emerged from the steppes of central Asia under the leadership of Ghengis Khan and his descendants. Ghengis Khan (Temujin) assumed power in 1206 by uniting competing nomadic tribes in the steppes of Northeast Asia into a single political and military force. Together they embarked on a century of conquest and expansion. By 1215, they besieged and captured Bejing. By the time of his death in 1227, the Mongols had captured an empire that stretched from the Caspian sea to the Sea of Japan. Ghengis appointed a successor and divided the empire among his sons and grandsons.

Mongol Empire at the death of Ghengis Khan in 1227
By 1279 the empire reached its greatest extent from China to the Euphrates, to the Baltic Sea. Fifteen years later (1294) its western border had retreated to Ukraine.

As demonstrated by their siege of Bagdhad, the Mongols were not very nice. They demanded unconditional surrender and tribute payments, and they enforced this with utter destruction of anyone who failed to submit. Their success hinged on terror and fear, and they did their best to earn their reputation.
Re-enactment of Mongol warriors

The Mongol empire, and its successor entities, significantly increased the east-west transfer of goods, technologies, commodities, and ideologies across Eurasia.

By 1295 the Ilkhanate, in Persia and modern day Iraq converted to Islam.  By 1370 the ethnic Mongols pretty much retreated to what we still know as Mongolia. In their wake, the Ottoman empire  emerged.

Saturday, August 29, 2015

A Separate Peace with Gaza?

A year ago, at the outset of the latest Gaza war, I mused about a separate peace between Israel and Gaza that splits Gaza from the West Bank. It's a fantasy, of course, like the West Wing episode where President Bartlet solves the Israel/Palestinian crisis by dint of his charm, empathy, and good looks.

Yet, for the past few months news reports have hinted at negotiations between Hamas and Israel for a long term Gaza truce. See, e.g. Amos Harel. Tony Blair has been involved. Other intermediaries from Qatar, Europe, and the UN have been involved. There is talk of an airport and seaport for Gaza. What can it mean?

Not much, thinks Matt Duss. The gulf between Israel and Hamas, he says, is simply too deep. Netanyahu has been comparing Hamas to ISIS, so how likely is it that he would reach an agreement with them that would leave them in charge of Gaza? Concessions to Hamas with respect to Gaza would be perceived as rewarding violence, and Hamas would, of course, continue to work to take over the West Bank. Moreover, a separate peace with Hamas over Gaza would deepen the isolation between Gaza and the West Bank and (without quite explaining why) Duss indicates that any long term solution for peace requires connections between Gaza and the West Bank, and a common leadership. Duss also points to a recent report by the International Crisis Group which also suggests that long term peace prospects are enhanced by maintaining ties between Gaza and the West Bank, not by separating out the West Bank from Gaza.

Nevertheless, at this point in time Gaza and the West Bank are separated both geographically and in their leadership. Hamas and the Palestinian Authority are at odds. They don't see eye to eye. And this didn't just happen. Israel has worked hard to bring it about. Israel initially supported Hamas in order to weaken (and play them off against) the dominant Palestinian leadership, Yassir Arafat's Fatah. In 2005 Israel unilaterally withdrew from Gaza in order to build a fence and isolate Gaza with a blockade. At the same time, Israel constructed a separation barrier around the West Bank and all but eliminated commerce and contact between Palestinians in the West Bank and Gaza. Last summer, after Hamas and the Palestinian Authority announced a reconciliation government and announced elections for the fall—which might once again have brought common leadership to the West Bank and Gaza—Israel did its very best to make sure this would not come about. At the same time, comparisons to ISIS notwithstanding, Israel has been supporting the Hamas leadership in Gaza against its more militant rivals for some time.

So, although compelling reasons exist to think that Hamas and Israel are not serious in these reported negotiations, both Hamas and Israel could profit from such a deal, and it is possible they are in fact serious about forging a separate peace between Gaza and Israel.

Padraig O’Malley in The Two State Delusion makes a strong case that the “Two State Solution” is dead. Peter Beinart, in a review in the New York Times lauds the book for its scholarship and detail, but he is frustrated that O’Malley offers no alternative. “Why should I be so presumptuous as to dare to provide a vision for people who refuse to provide one for themselves?” says O’Malley.

Michael Barnett, professor of international affairs and political science at George Washington University, is not so reticent. “As the two-state solution fades into history,” he says, “its alternatives become increasingly likely: civil war, ethnic cleansing or a non-democratic state.” Barnett is putting his money on a non-democratic state. In fact, after 50 years of occupation, he notes “it is probably worth thinking about the ‘occupation’ not as temporary but rather as permanent.” Israel has not been “Jewish and Democratic” for some time. But we shouldn’t give up on democracy just yet.

Ideological goals aside, the prospect of a long term peace and an ability to build up Gaza economically (with international help), must be attractive to everyone living in Gaza. The prospect of a Gaza focused on economic development instead of fighting Israel must be attractive to Israel. It’s better than endlessly repeating the Gaza war, for both sides. It leaves the prospects for genuine democracy in Gaza in play.

And a separate peace with Gaza would allow Israel to pivot towards finding a way to end the occupation. It’s better than civil war or ethnic cleansing. It leaves the possibility of a democracy with Jewish characteristics in play. 
Aftermath of Gaza war 2008/09

It's Time to do More for Middle East Refugees

This lorry left Budapest for Austria early Wednesday morning, August 26, 2015, with a cargo of 59 men, eight women, three children, and one baby girl. They were from places yet unknown. They reached the border at 9:00 a.m., where the lorry held up. The truck slipped into Austria at nightfall.

Who were these refugees, what was their suffering? What were their stories?  Who was this driver? What is his story?  Who were the hard hearted men who collected the money and provided the truck? How much money did they collect to smuggle these 71 people into Europe?

The cargo bed lacked adequate ventilation. Sometime during the night the driver parked the truck on the side of the A4 motorway near picturesque Neusiedel am See.... and escaped, back to Hungary.

The 71 migrants were dead by then. Did they pound on the cab? Did they plead for light and air? How could they be refused?

Thirty years ago I read Russel Banks's Continental Drift, about the tragic intersection in the life arc of Haitian refugees and a working man-come-human-smuggler down on his luck.  It sent me into a depressive funk for a month.  Is it the story of this driver? He's in custody of the Hungarian police. Perhaps we'll learn more. Almost certainly there is a criminal syndicate with blood on its hands.

On Thursday morning, an employee mowing the grass noticed a putrid liquid dripping from the back of the truck. The stench of death was thick in the air. He called the police.  The bodies were so badly decomposed the body-count was grossly underestimated at first. Syrian travel papers were discovered in the heap of rotting flesh, guts, and intestines of men, women and children.

They say half of the Syrian population is displaced, trying to stay out of the way of the war between ISIS, various Al-Qaeda offshoots, militias, and the the regime of Bashar al-Assad. It was a vibrant country of 17 million with infrastructure in 2003. But today the country is destroyed by the civil war that broke out following the United States war on Iraq (2003-2010), the United States war on Afghanistan (2003-present), revolution in Egypt, and Europe's armed intervention in Libya and the toppling of Gaddafi. More than 250,000 are dead as a result of this war. More than 3.5 million refugees have fled the country. Where can they go? What do they find? What sufferings and uncertainties do they experience?

What is the alternate history where Al Gore is elected President in 2000? What is the alternate history where the United States does not launch two destructive 10 year wars in the Middle East in 2003? How much of the current refugee problem in the Middle East and North Africa is traceable to our actions in these wars?

Hundreds of thousands of refugees are on the road in a continuous stream heading for Europe. Through the Balkans they head for Austria and Germany; across the Mediterranean they head for Italy and Germany.  Approximately 300,000 refugees have made their way across the Mediterranean this year. Nearly 3,000 have drowned or were murdered along the way.

What is our collective responsibility towards these people?

Germany has agreed to resettle 30,000 Syrian refugees in this crisis so far, and this week Germany suspended the European conventions designed to limit refugee immigration with respect to Syrian refugees.  With its move, Germany (for now) will no longer send Syrian refugees back to their first point of contact, and will instead permit them to apply for asylum in Germany. That is good news. In the meantime, Britain has closed its doors and accepted just 90 refugees; Denmark just 140; and Spain just 130.  See RT News. The U.S. has not done its part.  We have accepted 350 Syrian refugees this year, although this will be increased to nearly 10,000/year. France has accepted 5,000 (as of June 2014).

It's time to do more.

Wednesday, August 26, 2015

How Does Judaism Renew Itself in a Secular World?

Over at Balkanization they have published an interesting symposium on Roberta Kwall's The Myth of the Cultural Jew: Culture and Law in Jewish Tradition. Seven legal scholars with interest in Jewish identity issues have written their reactions to the book. Some of these are intensely personal, all of them are well worth reading. [They are linked below]

In her book, Kwall, a professor at DePaul University School of Law, wrestles with the interrelationship of Jewish culture and Jewish law (halakhah). Specifically, she asks can there be Jewish culture without reference to Jewish law? Kwall argues "No." And, more significantly, is it possible to pass on Jewish culture without a continued active involvement with halakhah? And what is the nature of that (necessary) interaction?

Jewish Culture/Jewish Law

Kwall explains her thesis in an exchange with Shmuel Rosner in the Jewish Journal (I have edited to streamline):
[M]any Jews in the United States would identify as “cultural Jews” (meaning) not religious but who identif(y) as Jewish and (are) even proud of this designation. [F]or those who care about Jewish continuity, it is vital to unbundle what it means to “be Jewish” and to nurture this quality. Toward this end, it is helpful to understand that Jewish law (known as halakhah) and what we think of as Jewish culture are completely intertwined. 
... [All] legal systems and the cultures from which they emanate are the products of human enterprise, shaped in response to specific historical circumstances and environmental influences. Any legal system not only reflects the influences of its surrounding culture but also takes these cultural influences into account in its formation and development. The recent Supreme Court decision supporting same-sex marriage is a current illustration of this very phenomenon. Specifically, the Court’s decision can be seen as a response to current social sensibilities concerning this issue. 
... [H]alakhah (Jewish law) both reflects and is shaped by social and cultural practices. Jewish law, which is binding upon Jews according to the tradition, produces Jewish culture and Jewish culture produces Jewish law. .... Even Orthodox authorities ... have recognized that Jewish law has developed in human society rather than in Heaven. As a result, the development and formation of Jewish law is the product of human production, despite the tradition’s position that its origin is Divine. As for its content, Jewish law covers far more than ritual matters but extends to virtually all aspects of human behavior including money, sex, and even the order in which one puts on and ties shoes! 
[T]he content of halakhah ... has been shaped by the cultural practices of the Jewish people and by the circumstances in which they have lived.... Over space and time, Jewish law and culture have borrowed from, and even subverted, cultural elements from the host societies of the Jews. ....

[Because] the laws and the cultural aspects of the Jewish tradition are completely intertwined[,...] those who claim to be “cultural Jews” cannot help but embrace a degree of Jewish law and tradition regardless of whether they are aware of, or acknowledge, this reality. ... [M]any self-denominated cultural Jews celebrate Chanukah, Passover and fast on Yom Kippur, although they do not necessarily associate halakhah as the source of these behaviors. Many cultural Jews still want to celebrate the birth of a male child with a ritual circumcision known as a brit (or a naming ceremony for a girl) and want to have their children celebrate a Bar or Bat Mitzvah. ....Similarly, when cultural Jews marry, the ceremony often contains significant Jewish trappings such as a chuppah and the breaking of a glass, even if the spouse is not Jewish. We also see the importance of Jewish tradition at life’s end given the enduring popularity of the shiva, despite its frequent truncation to a shorter period than the traditional week. All of these examples illustrate the reality that so much of what American Jews do and how they behave has very much been shaped by the norms of the Jewish tradition, norms that embody not only the culture but also halakhah.
In Part 2 she elaborates:
.... If individuals are inclined to identify as “culturally Jewish,” they clearly appreciate something about the culture. So my two questions for such Jews are: 1) What are the elements of Jewish culture that make you want to identify with it? 2) Is your identification as a cultural Jew sufficiently positive to foster a desire for the culture’s transmission to future generations? 
I suspect that most secular, cultural Jews would have a hard time giving a precise answer to the first question .... [M]ost self-defined cultural Jews would not list religious engagement among these elements (that make them want to identify with the tradition). .... [H]owever, viewing the ritual and the culture as distinct entities of the tradition completely misses the mark. One reason I wrote The Myth of the Cultural Jew was to call attention to the fundamental interconnection between Jewish law and culture. Although recognition of this interconnection may not automatically instill a love of Jewish observance, it does lead to a better understanding of the Jewish culture that cultural Jews value. Cultural Jews need to understand the importance that halakhah has played in the creation of their beloved Jewish culture. 
I suspect that what drives the Jewish identity of many cultural Jews is a pride of peoplehood. In other words, many cultural Jews value Jewish culture and want to identify with it because it is a part of who they are, and how they see themselves. But it is vital for cultural Jews to understand that the religious aspects of the tradition that they eschew both create and reflect the same history and culture that cultural Jews embrace. ...

As for the second question (many Jews) ... feel strongly about the importance of Jewish continuity and transmission of the tradition.... [but] ... [t]he “Jewish” content of American-Jewish culture is becoming less apparent and important to those American Jews who do not recognize or appreciate the halakhic roots of Jewish culture. Those cultural Jews who embrace Jewish continuity but avoid religious practice need to be educated to understand, and care about, the fact that halakhah provides the basis for the particularity of the cultural tradition about which they do care. The continuity of Jewish peoplehood depends upon a discourse grounded in halakhah, given the law’s pivotal role in shaping our people over the millennia. Halakhah allows Jews to connect the past with the present through a concrete tradition, and helps mold a path to the future by providing the essential ingredients for modern interpretations of this tradition.

In Israel, where the majority of Jews claim to be secular, it is far easier to create and maintain Jewish identity. Even Israeli Jews who are not highly educated from a Jewish standpoint have a greater familiarity with Jewish texts, customs and traditions than most Diaspora Jews. Jewish culture is the majority culture in Israel and the country operates according to “Jewish time.” The situation is completely different in the Diaspora where the majority culture is not based on Hebrew or Jewish roots, and the land on which the Jews live is not their historic homeland. These realities present tremendous challenges for Jewish educators and for lay leaders in the United States who are concerned with Jewish continuity. 
In short, Kwall contends that cultural Judaism in a secular U.S. environment (e.g. celebrating Passover, Hannukah, Yom Kippur, the odd Shabbat, sitting Shiva when a parent dies, sometimes avoiding pork) must be understood in light of the legal tradition from which the cultural traditions arose, otherwise the traditions will die out.

Legal Tradition and Change

Several of the commenters in the symposium note the book's strength in tracing the connections between Jewish culture and its legal antecedents, and in demonstrating the effect of culture on Jewish law over time. Kwall embraces an egalitarian and modern feminist interpretation of halakhah.  Her book makes an effort to explain how halakhah, which traditionally has prohibited homo-sexual relationships, denied women the right to read from Torah, and precluded women from becoming rabbis, can (in our 21st century post-enlightenment culture) accommodate homosexual marriage, women reading from the Torah, and women becoming rabbis.

Jack Balkin in his contribution focuses on the process by which the law might be updated in this manner. It entails a slight of hand he says (my word), wherein the legal guardians deny that they are being influenced by the culture around them (even as they are), and assert that they are merely "applying the law" (even as they are importing new cultural norms). Read More.

Woody Allen or What's Up with Halakhah Without God?

All of the commenters bristle to varying degrees at the normative notion in Kwall's book: that because Jewish culture such as it is today has its roots in halakhah, cultural Jews must therefore (in order to be good Jews?) embrace halakhah as a reference point, accept halakhah as somehow binding, or look to halakhah to derive meaning for an ongoing cultural relationship with Judaism. 

Hillel Levin asks why? Why is it necessary for a cultural Jew to engage with halakhah if they reject the underlying claim to divinity or obligation? As Alan Brownstein notes, the problem for secular Jews is not simply that they doubt that the commandments of halakhah are an accurate description of God's laws, secular Jews do not believe in God. Sandy Levinson adds that without a belief in God, halakhah lacks legitimacy and cannot be "binding" on anyone in any sense. If halakhah is not binding and lacks political legitimacy, how can halakhah be instrumental in perpetuating Jewish culture moving forward? Brownstein laments that the book does not wrestle with that question more.

By making halakhah central to perpetuating Jewish culture, Kwall implicitly argues that there is something unique about Jewish culture in the U.S.  But Mark Graber observes that there is, in fact, nothing unique about cultural Judaism in the United States. Cultural Jews are simply Jewish-Americans the same way that there are Italian-Americans, and Irish-Americans, and African-Americans.  Jewish-Americans celebrate Passover, eat bagels, go Israeli folk dancing, socialize with other Jews, and cherish what they regard as Jewish values. In partaking of this culture, they are not guided by Jewish law. If they celebrate Passover but don't fast on Yom Kippur it is not because they have concluded that Passover is more central to Jewish legal culture--Passover simply feels more satisfying than the more somber Yom Kippur. "What appears random practice from the perspective of the Jewish legal culture," says Graber, "makes far more sense from the perspective of American cultural pluralism." 

Halakhah does not seem necessary for cultural self-identification. Cultural identities can in fact last a long time without reference to separate laws. Cultural Judaism in the United States may not be as robust as Kwall would like, says Sherry Colb, but this does not make a purely cultural Jew an impossibility. Moreover, says Colb, a hyphenated ethnic identity may be more robust than Kwall imagines.  As Shari Motro notes: "The aspects of Phillip Roth and Woody Allen and Jon Stewart that make them recognizably Jewish are not a myth."

Ethnic Identity: Is it Enough; is it Desirable?

Hyphenated Jewish-American cultural identity is cemented strongly by a history of persecution of the Jews, culminating in the Holocaust, together with an ethnic identity, and a strong Zionist nationalism. As Colb puts it:
Tribalism is a powerful force, and the mix of blood (in the form of racial identification), land (in the form of nationalism associated with having a state where Jews, broadly defined, are welcome), and the persecution itself from which Jews might be fleeing to that state (paradigmatically exemplified by the Holocaust) could conceivably keep the Jews “going” for a long time as an identifiable group with cultural norms bereft of what I would concede are the richness and beauty contained in the halakhah.
But the tribalism reflected in the nationalist Zionist project makes Sandy Levinson nervous. The only kind of state worth having, he implies, is a secular state with equal rights for all:
I find it easy to agree with Walzer that perhaps the greatest tragedy of post-Independence Israel is that the Labor Zionists who founded the state and put into place what in many ways has been a vibrant democracy totally “fail[ed] to produce a strong and coherent secular culture to go with that democracy.” That failure, repeated in India, which Walzer also analyzes at length (along with Algeria), is precisely what gave space for the non-secular to use democratic procedures to come to power. But Kwall presumably believes that it is basically impossible “to produce a strong and coherent secular culture” that would still deserve to be called distinctly “Jewish.” That simply states the fundamental dilemma rather than necessarily provides a solution.
As it is playing out, the end point of ethnic nationalist Zionism is the settler terrorist movement we see reflected in the front pages of our newspapers today, says Levinson. Sherry Colb hints at agreement when she says that an enduring tie to some sort of halakhah is preferable as a vehicle to perpetuate Jewish culture and identity than tribalism.

Halakhah and the Lamentations of Job

Which leaves us with Shari Motro's contribution, which is the most vehement in its reaction to Kwall, but which also leaves us with some hope for continuing the search.  It reminds me of the lamentations of Job.

Here is Motro wrestling with her own doubts:
The part of me that sympathizes despite myself... is that assimilated Jews reflect something in me that I’m not at peace with, an anxiety I have felt about my own Jewishness fading.

The Myth of the Cultural Jew—which ... offers a window into the incredibly rich tapestry that is my tradition—helps me connect some of these dots. It helps me realize that notwithstanding the gifts that have come my way through meditation, notwithstanding the lessons I’ve learned from Buddhists and Quakers and Christians, when I lose touch with Jewish practice there is a voice within me that says: חבל, it’s a shame.

The second way in which I resonate with Roberta’s project has to do with celebrating Judaism’s commitment to pluralism. Israel does, after all, mean “God wrestler.” Pluralism, the multiplicity of narratives, the rejection of “textual fundamentalism”—these are at the heart of what Judaism means, as Roberta so beautifully illustrates.

The Myth of the Cultural Jew—these words are not so inviting. But other words throughout parts of the book are. The ones I resonate with most dovetail with the tikkun, the healing reversal, I’ve experienced from other observant Jews who accepted me as I was, at every point along my path from secularism to my evolving idiosyncratic observance.

Some of these angels are Orthodox or Modern Orthodox, some are practitioners of Jewish Renewal, and some refuse to be categorized (when asked, they simply say: I am a Jew). Not only did they reverse the cold shoulder I’d experienced from less tolerant religious Jews, they genuinely embraced the possibility that davka the secular world I come from is essential not as fodder for conversion, but as its own expression of Israel. They assured me that my midrash on the Exodus is every bit as legitimate as theirs, that I have a place at the table not only as a polite guest, but as a co-creator. By curbing the impulse to dismiss my kind of Judaism as a myth, these fellow travelers helped me drop my resistance to theirs, and to open to the possibility that Jewish law might be part of my path too. They helped me understand that law can be a vehicle for transcendence, an incredibly powerful spiritual technology.

...[W]hat I read beyond the p’shat (the surface meaning) of Roberta’s argument was an invitation, an invitation to all Jews—cultural, religious, and all shades in between. The actions, the words, the nigunim (tunes), the history, the Yiddishe Kopf (discursive habits), the neshama (spirit), the kavana (intention) that Jews bring to our lives—they are all important, in different degrees to different Jews.

Let’s not judge one other. Let’s get together. Let’s open a conversation. Not because we want to save something from extinction. Because we’re family, we share a history, and connecting through this history is incomparably meaningful. We share a history that includes some pretty violent breaks, breaks that led some of us to lose track of relatives, so it’s quite possible that any two Jews are literally kin. Our great-grandparents might have been cousins in Warsaw or Baghdad or Shanghai. They might have said kaddish together in Alexandria or Kobe or Brisk. Saying it together today, or breaking bread, or doing tashlich can connect us to them, and through them to something in ourselves.

Observing these rituals is participating in law and culture. Law broadly conceived, with its infinite, kaleidoscopic interpretive possibilities is not the only vessel of our tradition. But for me, nor is it expendable.
Where this leaves me, a non-Jew engaging with the tradition because I'm married into the tribe, I have no idea. But it's enough to keep the conversation going.

Sunday, August 23, 2015

Right Wing Affinity Fraudsters

The U.S. 14th Amendment famously confers citizenship to anyone born in the United States, be they direct descendants of Asians who crossed the land bridge 13,000 years ago, the Pilgrims on the Mayflower, Chinese coming to the Gold Mountain in the 19th century, undocumented immigrants in the 21st century, or a tourist passing through American airspace on a flight from Vancouver to Mexico City.

Donald Trump wants to put an end to it. He wants to end birthright citizenship. This would require a constitutional amendment, of course, so it's not like this is something he or a Republican Congress could actually just do.  So he's talking to exploit sentiments, he's not talking real policy.

But what about Bobby Jindal, the governor of Louisiana, who was born to Indian parents in the U.S. on a student visa?  Last week he tweeted "we need to end birthright citizenship for illegal immigrants." What about Ted Cruz, the supercilious Senator from Texas. He "absolutely" supports ending birthright citizenship (according to a Bloomberg Politics reporter). Cruz was born in Canada to a Cuban national father and a U.S. mother.  Marco Rubio, the Senator from Florida--born to Cuban national economic refugees who came to the U.S. before Castro's rise to power, and who were NOT citizens when Rubio was born--is on board with Trump: he says "he's open to doing something" about people who "deliberately come to the U.S. to take advantage of the 14th Am." If this does not mean people like himself, what does this mean?

Funny thing about those Republican candidates for President who want to do away with birthright citizenship even though they are the direct beneficiaries of it!

Brad DeLong calls it "Right Wing affinity fraud"--  "pretending to believe, or convincing even oneself that one does believe, patently unbelievable things in order to demonstrate group allegiance."

The United States Securities and Exchange Commission defines "affinity fraud" as follows:
Affinity fraud refers to investment scams that prey upon members of identifiable groups, such as religious or ethnic communities, the elderly, or professional groups. The fraudsters who promote affinity scams frequently are - or pretend to be - members of the group. They often enlist respected community or religious leaders from within the group to spread the word about the scheme by convincing those people that a fraudulent investment is legitimate and worthwhile. Many times, those leaders become unwitting victims of the fraudster's ruse.
Affinity fraud is a common sin of politicians of course, but this crop of Republican candidates is over the top. As my grandmother would have said, "PFUI!"

In the meantime, there is strong scholarly consensus that immigration is a net positive (NYT, 2012) to the fabric and economy of the United States:
[W]e commissioned some of the most meticulous research done to date about the effects of immigration on a cross section of American communities — urban, suburban and rural. The scholars who participated were in remarkable agreement: while new immigrants are poorer than the general population and face considerable hardship, there is no evidence that they have reshaped the social fabric in harmful ways. America is neither less safe because of immigration nor is it worse off economically. In fact, in the regions where immigrants have settled in the past two decades, crime has gone down, cities have grown, poor urban neighborhoods have been rebuilt, and small towns that were once on life support are springing back. Scholars can’t say for sure that immigration caused these positive developments, but we know enough to debunk the notion that immigrants worsen social ills.
Republican's need 40% of the Latino vote to win the presidency, says a study by Latino Decisions.  So what are these affinity fraudsters thinking?

David Gergen, in a recent talk at the Commonwealth Club in San Francisco, says that Trump has no expectation of becoming president. He just wants to rabble rouse and build the Trump brand. But what about Rubio, and Jindal and Cruz? They must realize that they are not ready for the presidency in 2016--so the game is to make a splash with the base in order to build up support for a future run?

The electorate has short memories.

Jeb Bush, meanwhile, has come out against the affinity fraudsters. He supports (Politico) birthright citizenship as a constitutional right.

Ex New Jersey governor Chris Christie--he with staff who vindictively caused traffic jams, he who vetoed legislation to prohibit the cruel and inhumane confinement of pigs in pens (overwhelmingly passed by his state) because he wanted to pander to Iowa hog farmers--is hedging. He has said that he has reconsidered his 2010 stance in support of a pathway to citizenship for undocumented workers who have long contributed to our economy. On birthright citizenship, he has called Trump's position "an applause line."  

Thursday, August 20, 2015

The Power of the Executive vs. the Reason of the Courts

Justice Jackson (Oyez Project)
In response to my post on Justice Jackson's dissent in Korematsu, John Barrett, professor of constitutional law at St. John's University, forwarded me his excellent law review article A Commander's Power, a Civilian's Reasons: Justice Jackson's Korematsu Dissent, published in Law and Contemporary Problems, Vol. 68 (2005).  

Professor Barrett is currently writing a biography of Justice Jackson, seemingly a truly remarkable man. Barrett is a clear and engaging writer. I look forward to his book. 

In the meantime, professor Barrett has helped further clarify my thinking on Justice Jackson and Korematsu.  Specifically the framing of the issue as a struggle between Power and Reason. 

We live in a state with a lot of power: the most powerful army the world has ever seen, powerful and sophisticated police forces, and powerful and developed intelligence services. As a constitutional democracy we subordinate a lot of this power to the rule of law--to reason. 

Presidents, the military, and the police wield power. Although their power is usually moderated and restrained by laws, regulations, and tradition, in the final analysis Power can trump Reason. It can trump the rule of law. If push comes to shove, Presidents and military commanders can ignore the courts...and there is nothing the courts can do about it.

Sometimes Presidents explain the reasons behind their actions, but their explanations tend to be more political than reasoned.  Military and police forces are not accustomed to provide either reasons or explanations for their actions. 

Judges provide extensive reasons for their decisions. Judicial decisions have force only to the extent they are accepted, and they are accepted only by dint of their persuasiveness in developing reasons why we should follow them. This force of Reason is backed up by tradition, by statutes, and by a constitution... but above all by our acceptance, and by the state's willing subordination of its power to Reason. 

Professor Barrett in his article directs us to a speech Justice Jackson delivered late in life at the University of Buffalo (he died prematurely at 62 years of age). There he framed the issue he was dealing with in Korematsu as follows: 

"The issue as we get it (in cases like Korematsu) is more nearly this: Measures violative of constitutional rights are claimed to be necessary to security, in the judgment of officials who are best in a position to know, but the necessity is not provable by ordinary evidence and the court is in no position to determine the necessity for itself. What does it do then?"  

In his Buffalo speech Justice Jackson distinguishes the three approaches taken in Korematsu as follows: 1) bending the constitution to accommodate the military action in light of the emergency (Black’s opinion); 2) refusing to yield to military necessity and calling the action a clear constitutional violation, letting the chips fall where they may (Roberts and Murphy); and 3) setting Korematsu free “under judicial commitment" (because the order was unconstitutional) but the court should not interfere if the military “attempted to enforce the measure” (Jackson's dissent).   

I’m not sure what Jackson meant by “judicial commitment” in his Buffalo speech. In the opinion he said “set free.”  Is he hedging in Buffalo?  As professor Barrett explains in his article, Jackson was concerned about (cognizant of) the fact that the judiciary is ultimately at the mercy of the executive and military for following the order. I understood Justice Jackson to mean the court should not grant an injunction in the opinion.  In Buffalo he explained that what he had in mind was akin to suspending the writ of habeas corpus.  That suggests he is saying “call it as you see it” like Roberts and Murphy, but know that the military may not go along, and be ready to accept the military’s power over the court’s Reason when that happens.  

Justice Jackson's important insight, that the military will (and must) do unconstitutional things in time of war to protect the country, was lost on the majority.  It seems to me this insight by Jackson is (a) correct, and (b) really valuable for thinking about the issues.  I think Jackson is also correct that the need to call a reasonable military action “constitutional” (by definition) is really dangerous. 

Professor Barrett states in his article that Jackson "all but urged courts to treat as non-justiciable any citizen’s claim that a war-time military action was unconstitutional” (at p. 61). He cites to prof. Gudridge as sharing that view.  I disagree with them. As professor Barrett points out elsewhere in the article, Jackson was deeply empathetic with Korematsu as an individual.  He would have set him free, even recognizing that the executive and military might not obey. I don’t think he would want to bar the courthouse door to him. 

In case of Korematsu, decided in ’45, the practical situation (Japanese fully on defensive, war nearing its end) was such that it was unlikely the military would not honor a ruling by the court that the exclusion order of Japanese from the West Coast was unconstitutional. There was no reason, therefore, to declare this case non-justiciable in 1944. Cf the companion case, Endo, wherein the court essentially put a halt to internment, but on non-constitutional grounds.  

The imbalance between Power (the will of the military) and Reason (the constitutional judgment of the court) would have been more pronounced in 1942, in the immediate wake of the Pearl Harbor attack.  What should a trial court have done faced with a challenge to the military exclusion order in the summer of ’42?  That’s a tough case, and at the heart of the issue because the military power might trump constitutional reason at that point--i.e. there is risk the military would have ignored the order.   

What should a trial court have done if confronted with extra-judicial actions by the military or intelligence services in the “war on terror” in late 2001  2011?  In 2015?  In the conflict between Reason and Power, Reason is stronger in 2015 whereas Power may have been ascendant in 2011.  Jackson’s opinion, in essence, says this fluctuation in the power-struggle between Reason and Power should not affect the constitutional analysis—which must always be based on reason.

I think Jackson was right that Korematsu raises issues that go to the heart of the ultimate power centers in a constitutional democracy and that this presents a struggle between Reason and Power. Jackson did not have a neat answer to resolve this conflict in Korematsu because there is no neat answer.  It’s just a condition of constitutional democracy.  

One place where this Jacksonian Power vs. Reason formulation might be helpful is in thinking about John Yoo's and Jay Bybee's roles in creating the torture memo’s.  Professor Barrett indicates how Jackson, as attorney  general in the late 1930's, was helping to spy on civilians that might be a threat in the future, and how he helped devise ways to subvert the will of Congress on going off the gold standard. He obviously did not do this because he was a "bad man." In these examples, Jackson was acting in the service of the Power of the executive—and perhaps contrary to the Reason of law. Similarly, Yoo and Bybee, in crafting the torture memos that gave cover to the CIA to proceed with enhanced interrogation, acted reasonably (if unconstitutionally) in the service of Power: they were helping the military “do the dirty work that needs to be done to protect the country” in a time of crisis.  Applying Justice Jackson’s pragmatism in distinguishing the Reason of the law from the Power of the executive in war, courts might clearly declare that, e.g., “enhanced interrogation” is unconstitutional—as the cases present themselves—but refuse to hear a criminal action from ambitious prosecutors, or civil litigants,  against the likes of Yoo or Bybee for their (reasonable?) actions undertaken in the service of military power in a time of war/national emergency.  As Justice Jackson knew well from his experience as prosecutor at Nuremberg, however, there is a point where Power so oversteps its bounds that the correct response is a war crimes trial.  Locating that line in a given case is why judges get paid the big bucks (20% in cash and 80% in prestige).