The Volokh Conspiracy

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Rachel Maddow's Racist Smear of Second Circuit Nominee Steve Menashi


Rachel Maddow launched a disgusting smear of my Scalia Law School colleague (on leave) and Second Circuit nominee Steve Menashi. Ed Whelan has the details:

In a 2010 law-review article titled "Ethnonationalism and Liberal Democracy," Second Circuit nominee Steven Menashi argues that "ethnonationalism remains a common and accepted feature of liberal democracy that is consistent with current state practice and international law."

Menashi's specific purpose in the article is to refute claims that "Israel's particularistic identity—its desire to serve as a homeland for the Jewish people—contradicts principles of universalism and equality upon which liberal democracy supposedly rests." In fact, argues Menashi, "[p]articularistic nationalism and liberal democracy … emerged together at the same historical moment and persisted in symbiosis." Further, the "idea that a sovereign democratic government represents a particular ethnonational community has its root in the principle of 'self-determination of peoples' espoused at the foundation of the League of Nations and the United Nations." Surveying the laws of European nations, he further explains that Israel's Law of Return, which guarantees citizenship to Jews worldwide, is similar to kin-repatriation policies that are widespread throughout Europe. In sum, "[f]ar from being unique, the experience of Israel exemplifies the character of liberal democracy by highlighting its dependence on particularistic nation-states."

In a lengthy segment on MSNBC last night, Rachel Maddow grossly distorts Menashi's argument and tries to twist it into "a high-brow argument for racial purity." (Video at 9:00-9:36.) She falsely claims that Menashi argues "how definitely democracy can't work unless the country is defined by a unifying race." (Video at 6:57-7:10.)

But Menashi's argument about national identity is clearly not about "racial purity" or a "unifying race." Indeed, the fact that Israelis from Ethiopia are black makes it impossible to take seriously the claim that Menashi is making a case for "racial purity." Menashi further states that it "is not even clear … that Israel's national identity can even be described as 'ethnic'" (in a narrow sense ofthat concept), as Israeli Jews come from "Argentina, Ethiopia, Germany, Morocco, Russia, and Yemen."

OK, it's a smear. But why racist? Well, Maddow and her fellow-travelers are inclined to call any criticism of Rashdia Tlaib they deem unfair "racist" because Tlaib is a "woman of color" based on her parents' Middle Eastern origin. Steve's parents were victims of state antisemitism, his paternal grandparents like my wife's family refugees from Iraq, where his family had likely lived for 2,500 years (and how dare he think that there might be good reason for a nation-state for Jews to ensure they don't suffer the fate of his family in the future?) So by the logic that Maddow herself has adopted, Steve is a "person of color" and her smear "racist." But it's a despicable smear regardless.

UPDATE: An earlier version of this post suggested that both of Steve's parents were of Iraqi origin. His mom's family were rather refugees from the USSR. Regrets for the error.

FURTHER UPDATE: I have a busy schedule today, but found a few free moments to add this: Menashi's argument is a counter to those who argue that nationalism is inherently illiberal. He argues that multi-ethnic societies without a sense of shared national identity are prone to inter-ethnic conflict and a lack of social trust. The way to overcome this, he argues, is with liberal nationalism. This form of government will not just ensure everyone legal rights, but will provide a sense of national identity that will allow people to recognize that while their fellow citizens may be "different", they are part of the same national project/polity and thus can overcome those differences for the broader national good.

Is this right? It's highly debatable whether liberal nationalism "works" in this way. But there is nothing the least bit racist about arguing that nationalism, rather than being seen as inherently illiberal, can further liberal goals by creating a sense of national solidarity that would overcome particularist (racist, ethnocentric, chauvinistic) instincts.

I should also reiterate that this was published in 2010, well before the current Trump  related controversies over nationalism, and given the date, was not an related to the recent rise of Bannon-style conservatism, but was rather an explanation why Israeli nationalism doesn't render it illiberal.