"The Sordid Business of Dividing Us Up"

The Cato Institute's fall "Cato's Letter" newsletter publishes a speech I gave at Cato on America's racial classification system. It begins:

Racial classifications by law have been as American as apple pie, since at least the 19th century. Modern Americans tend to shake their heads with revulsion when they think about or read about the lengths that government authorities went to back in the day to determine who was black for purposes of Jim Crow laws, or who was Asian for purposes of racist immigration and naturalization laws. But the irony is that while we don't really think about it very often, racial classification dictated by government rules is more common today than probably ever before in American history. So many common activities—when you register your kid for school, when you apply for a job, when you apply for a mortgage and many other everyday occurrences—involve checking a box saying first whether you're Hispanic or not and then which racial group you consider yourself to be a member of.

These modern racial classification norms did not arise spontaneously but are a product of maybe one of the most consequential government rules you've never heard of, a rule called Statistical Directive No. 15, which was promulgated by the Office of Management and Budget (OMB) in 1977. At the time, this was considered a rather modest rule change, because federal agencies had already been gathering data about various groups in the United States, but the data were inconsistent. For example, there were at least eight ways of identifying the groups that we now call Hispanic back in the '70s, so you had apples and oranges. You couldn't compare data from one agency to another because there were no consistent classifications and definitions of the classifications. So the OMB said, "Okay. We just have to regularize this." They formed a committee to do so, to which very little attention was paid, and eventually they came up with our modern classifications.

In other news related to my book "Classified," quite a few people at last week's Fed Soc's conference told me they enjoyed this SCOTUS 101 podcast.

I joined Ted Shaw of UNC Law School and Jeffrey Rosen of the National Constitution Center for a recap of the Supreme Court's recent affirmative action oral arguments.

National Review's Charles Cooke interviewed me here.

And Powerline turns my speech on racial classification at Berkeley Law into a podcast. And yes, I started the speech by lambasting the student groups who have implemented a "no one who thinks Israel should exist is allowed to speak here" policy.

Comments

[Dr. Ed 2]

I must object.

In the Northeast there was no official racial classification. A lot more people were of mixed race than is commonly known, including, arguably, Alexander Hamilton.

The Federal Government wasn't segregated until Woodrow Wilson segregated it. And the Indians were those allied with the French -- those allied with the Americans got absorbed into the White culture.

[Dr. Ed 2]

Remember too that a lot of Maine & Vermont was settled by refugee loyalists under death sentences, and the west by Confederate veterans. Lots of people not saying who they were.

[Rev. Arthur L. Kirkland]

"The Sordid Business of Dividing Us Up"

At first I thought this was about the Occupied Territories.

[Frank Drackman]

Which Occupied Territories Jerry? Alta California? Mexican Texas? Nueva May-he-co? East Prussia? Silesia? Guantanamo?(Technically we're leasing it) If you're talking bout Judea and Samaria that "Culture Wars" been fought already, only disputed by a collection of "Bitter Klingers"

Frank

[Rev. Arthur L. Kirkland]

Prof. Bernstein deserves a better defender.

[Frank Drackman]

I always like to write in "Human" although many would dispute that, or "Native Amurican", and of course "Yes, Please" for "Sex?"

[Yogis_dad]

I had a boss once who, when his employer implemented racial declarations for each employee, claimed to be Aleut. Personally, I am an American of African descent. But as we are all children of God, it is just wrong for any government action to be based on a racial classification. It is all but impossible to construct a practical definition of membership in any subspecies of homo sapiens. (Though, I confess, it seems a great many denizens of the District of Corruption are subhuman.)

[Randal]

And yes, I started the speech by lambasting the student groups...

Why, why would you do that? You seem proud. Gross.

[David Bernstein]

Because they are antisemites and deserve to be called out.

[David Bernstein]

And it seems especially appropriate given that they would like to ban me, personally, from speaking.

[Sarcastr0]

Assuming they are antisemites, it's still a weird choice.

There's unfortunately antisemitism lots of places in America.
You can pick a fight against it that doesn't involve being a law prof and attacking law students at another school.

If there were no other antisemites in America, I'd get why that doesn't matter. But as it is you make telling choices on who you pick fights with.

[David Bernstein]

If I were speaking to a group of MIT scientists, and some of their colleagues were publicly antisemitic, I’d do exactly the same thing, but more so. Your concern for student well-being is charming, but these are adults at one of the leading law schools in the country, not middle schoolers, and if they don't want to be criticized for antisemitic actions, let them not take such actions.

[Randal]

I'm not worried about the students' feelings. I'm worried that you're digging your own grave. The more you go out of your way to berate the students for their speech, which is not antisemitic per your own rubric from yesterday, the more hypocritical and out of touch you look, and the more your attempts at persuasion will fail.

Let me know when they ban you (or really, anyone) from speaking just because you support the continued existence of Israel. Until then, like Sarcastr0 said, you're picking fights with the wrong people and you're going to alienate them further. There are plenty of actual antisemites for you to randomly assail in your speeches if that's your new thing.

[Randal]

In particular, I think one can argue that Jews, like other minorities such as Kurds, should just suck it up and not have their own country. One could hold this opinion because one is an Islamist, opposes nationalism in general, thinks Israel’s presence is too disruptive to the Middle East, or think that Israel is a bastion of Western imperialism–none of which is an inherently antisemitic opinion to hold.

This example of yours is a significantly more extreme position than the students', but you deem it not (necessarily) antisemitic. So why the vitriol against these particular students exactly?

[David Bernstein]

That's a philosophical position about whether "Jews have a right to self-determination." You can argue that they don't, without wanting to boycott anyone who supports the existence of Israel, or indeed without opposing Israel's existence--you can think that Jews have no right to self-determination, but since they already have a thriving liberal state, there is no good reason to seek its destruction.
OTOH, if your position is that no one who supports the existence of Israel, which would include almost all Jews, should be allowed to speak at a university, you are entering early-Nazi level antisemitic boycott.

[Randal]

Again, "should just suck it up and not have their own country."

If you hold that position, which isn't antisemitic by your own admission, and which is more extreme than the students' position, why do boycotts make it antisemitic? I don't get how boycotts are the line.

[David Bernstein]

Since the students' position is that right now, today, that not only should Israel not exist, but that anyone who supports Israel's existence is too beyond the pale (heh!) to even be invited to speak on ANY subject, I don't see how that's "less extreme" than someone who responds to the claim that Jews have a right to self-determination with, "nah, as far as rights go, Jews could suck it up like other minorities," but may still de facto think it's ok or even desirable for Israel to continue to exist.
Recall that the relevant claim in the IHRA is that "denying the Jewish people their right to self-determination" is an example of antisemitism. But denying a "right" to self-determination doesn't tell you much of anything about someone's views on Israel. I especially dislike this example because it's not clear to me that *any* group has a right to self-determination. What is antisemitic is to argue that Jews, unlike other ethnic groups, are racist for seeking self-determination. That's the example that the IHRA gives, and that's fine, but the claim itself is much broader.

[Randal]

I see, so it comes down to some sort of selective enforcement argument.

I don’t buy it. There are lots of reasons other than antisemitism why someone may pick on Israel with their legitimate grievance while failing to actively denounce other countries’ similarly bad behavior. You mentioned several yourself:

One could hold this opinion because…

one is an Islamist
thinks Israel’s presence is too disruptive to the Middle East
thinks that Israel is a bastion of Western imperialism

I would add:

is Palestinian
has personal connections to Palestine
is recruited by a philosophically-aligned movement
joins a philosophically-aligned movement that already has momentum and attention

So no, I don’t think whataboutism is sufficient for a charge of antisemitism.

And this is another way in which you bringing undue attention to the students’ protest is self-defeating… it further raises Israel’s profile as the posterchild for all the world’s inequities, so cementing Israel as the natural scapegoat.

[David Bernstein]

It's not a "selective enforcement" argument. It's again, the notion "that Jews, unlike other ethnic groups, are racist for seeking self-determination." Nothing to do with specific Israeli policies, past, present or future. Just the very desire of Jews to have their own country in their ancient homeland, as such, is a racist notion. The basic form of the argument is that Jews are really just a religious group with no significant ties to the Land of Israel (perhaps even Khazars) who got swept up in European nationalism and racialismin the late 19th century, suddenly decided they were a people, and decided that as white Europeans they deserve to forcibly take the land away from Palestinian people of color, who had lived there from time immemorial. The Zionists then corrupted and exploited "Arab Jews" who had been living in harmony with their Arab Muslim neighbors to join their conquest.
Almost every clause above is a lie. It's Nazi-level, Gobbels-level lying. I suppose people who really believe it are simply willfully ignorant consumers of antisemitism, while the folks who propagate the lies from chaired professorships in the West are the Gobbels. But we don't normally excuse rank and file antisemites on the grounds that they really believe it.

[Randal]

Now you're just putting words in their mouths.

What is antisemitic is to argue that Jews, unlike other ethnic groups, are racist for seeking self-determination.

That's a selective enforcement argument, enforcing the charge of racism against Jews but not against other, similarly situated ethnic groups.

Above, you gave one reason someone might hold that view which you claim is antisemitic. But I listed a bunch of reasons, including some of your own, why someone could end up there that aren't antisemitic.

I see no reason to presume that the student groups are doing this for the antisemitic reason rather than one of the innocuous reasons.

But it fits your pattern of logic, David, just like with the Harvard diversity case:

1. I know in my heart that these people (Harvard admissions officers, Berkeley students, whoever you have a beef with) have an evil motive

2. It's therefore "obvious" that their otherwise coherent and reasonable public statements are lies to cover said evil motive

3. Their lies are all the proof you need for their bad character and evil motives

It's completely circular because it starts with an assumption of bad faith. Of course when you assume bad faith to begin with, you'll discover whatever evil motives you hope to find.

[Randal]

Let me explain to you why this matters.

It's not about whether or not the Berkeley students are, in fact, individually antisemitic. (But if it were... I think very few if any of them are. They just voted yes on a statement that aligned with their philosophy, and would vote the same way on any such statement, whether or not it involved Israel or Jews.)

The problem for you is that the students are making an argument that's legitimate and logical on its face.

Whereas your argument depends on facts not in evidence, namely that the students' public statements are a smokescreen for their underlying antisemitism.

Even if you were right, you lose. From the outside, the students' argument is sound and yours is not. So the more you argue in public, the more the public will gravitate towards the sensible line of reasoning: the students'.

[The Margrave of Azilia]

Let’s see, this article includes a letter from the actual dean of Berkeley law school (before you freak out about the article being from Fox News, I link just to show the copy of the Dean’s letter)

https://www.foxnews.com/us/california-berkeley-university-law-school-student-orgs-pledge-boycott-zionist-pro-israel-speakers

The Dean denounces the boycott (is he an ankle-nipping clinger?). He also quotes from the boycott policy he criticizes – the involved groups “will not invite speakers that have expressed and continued to hold views or host/sponsor/promote events in support of Zionism, the apartheid state of Israel, and the occupation of Palestine.”

If I may be permitted to explain why this is wrong, suppose student groups adopted a resolution that they “will not invite speakers that have expressed and continue to hold views or host/sponsor/promote events in support of black nationalism, the terrorist group BLM, and its demonization of our brave law enforcement officers.”

And as icing on the cake, suppose these boycotting groups are open to inviting white supremacists and Ku Klux supporters to promote their ideas.

Do you see the problem now?

[Randal]

Hm. You’re sort of pressing the reset button on this interesting dialogue. Yours are tired, superficial arguments. But I guess I can dispatch them one more time.

“will not invite speakers that have expressed and continued to hold views or host/sponsor/promote events in support of Zionism, the apartheid state of Israel, and the occupation of Palestine.”

This, by itself, is not antisemitic, as David himself has recognized, as quoted above.

“will not invite speakers that have expressed and continue to hold views or host/sponsor/promote events in support of black nationalism, the terrorist group BLM, and its demonization of our brave law enforcement officers.”

This seems fine. What do you think is wrong with it? I mean, when you say you want free speech, sometimes you’re going to get speech you don’t like. I’m mystified that both the right and the left seem to constantly forget that.

And as icing on the cake, suppose these boycotting groups are open to inviting white supremacists and Ku Klux supporters to promote their ideas.

But is this actually happening? Might as well say suppose these groups are lynching black students in the quad. There’s a lot of pearl-clutching in this conversation but no necklace thieves have been identified.

[David Bernstein]

To the contrary, my position is that of course anyone who tries to enforce that anyone who merely supports the existence of Israel should be banned from speaking publicly on any topic is behaving in an antisemitic manner, especially after they have been alerted that this means that over 90% of Jews would be banned.

[Randal]

I see. We're back to the boycotts.

You can believe that if you want to, but it's weak. Even if your interpretation of their boycott were correct (it's not), holding a legitimate (not antisemitic) belief which 90% of Jews disagree with and even more non-Jews also disagree with does not make the belief antisemitic. Nor does turning that belief into a boycott.

If that were how it worked, a flat-earth student group who boycotted round-earthers would be antisemitic. Dumb.

[The Margrave of Azilia]

It’s like the 1975 UN resolution all over again.

There’s an uncomfortable overlap, in many circumstances, between nationalism and racism. Although I don’t see a *full* overlap, I can see how someone, say, a one-worlder idealist, could equate the two.

But to single out one form of nationalism – the Jewish kind – as uniquely racist, as the UN used to do and as these student groups are now doing, should at least call for “interrogating” (to use the modern phrase) the assumptions behind such singling out.

They should also reflect on why they have adopted a position which even the UN has repudiated.

https://www.nytimes.com/1991/12/17/world/un-repeals-its-75-resolution-equating-zionism-with-racism.html

[Commenter_XY]

With respect Sarcastr0, I disagree. Professor Bernstein is right to 'get in the face' of antisemites and call them out for what they are. Particularly in a law school.

[Sarcastr0]

He has the right.

But it’s not a good idea – it’s weirdly selective towards punching down within his own arena.

Which diminishes both Prof. Bernstein and his argument.

As to the antisemitism, look at the hair splitting he's required to do above. Also not a good look when there's vastly more clear cases elsewhere he's ignoring.

[Rev. Arthur L. Kirkland]

Israel's recent conduct -- electing wingnuts, engaging in right-wing belligerence, cuddling with Trump, making its right-wing belligerence a left-right divider in American politics, aligning with the losing side of the American culture war -- may make Prof. Bernstein's efforts to support Israel (and preserve American provision of the military, political, and economic skirts behind which Israel currently operates) futile in the foreseeable term. So why not go out with a bang? Going down with the ship, middle fingers flashing, has become a conservative favorite.

[David Bernstein]

How is one professor criticizing 11 of the largest student groups at a top 10 law school “punching down?” That’s absurd. And one can argue with the question of whether their underlying views of the conflict are antisemitic. Effectlively boycotting 90+% of Jews, including those with far left views on Israel such as Dean Chemerinsky, is what's clearly antisemitic, and what I criticized them for.

[Randal]

I said it above but it's worth reiterating. That's a brave new definition of antisemitic you've got there! As long as at least 90% of Jews believe something, then disagreement is de facto antisemitism.

Believe in ghosts? Antisemitic.

Believe that Trump actually won in 2020? Antisemitic.

Believe that Jews have a God-given right to slaughter Palestinians? Antisemitic.

The Jews have spoken. Any dissent from their edicts makes you an antisemite.

[David Bernstein]

“Believe that merely not thinking the only existing Jewish state should not be destroyed with likely catastrophic consequences for its citizens makes you so terrible that you should not be allowed to speak in public on any topic?” Obviously antisemitic, both because it would lead to excluding over 90 pc of Jews and because it suggests a crazed hostility that is not apparent with regard to people in any other issue other than allowing the one Jewish country in the world to exist. These folks love to make South Africa analogies. but no one to my knowledge ever boycotted individuals who merely argued that South Africa should reach a negotiated agreement with the ANC and other representatives of the black population. If you think this existential hostility had nothing to do with Jews being the target, you don’t know much about the history of “anti Zionism.”

[Randal]

Eh, you're back to your "obviously" fallback argument. Your position doesn't hold up to examination as this thread has demonstrated, but you can always rely on "obviously" when you run out of arguments.

Again, quoting myself from above since I predicted this:

1. I know in my heart that these people (Harvard admissions officers, Berkeley students, whoever you have a beef with) have an evil motive

2. It’s therefore “obvious” that their otherwise coherent and reasonable public statements are lies to cover said evil motive

3. Their lies are all the proof you need for their bad character and evil motives

[David Bernstein]

No, "evil motive" has nothing to do with it. All sorts of people with evil ideas that were implemented had good motives. One could start with eugenicists, who wanted to improve the human condition.

I gave you objective evidence that whatever their "motives," the policy they promote is antisemitic. They have a singular obsession with the real and imagined crimes of the only Jewish state in the world that they apply in no other context, such that they are unwilling to hear a speaker, no matter how critical of that state, speak on ANY topic, a standard again applied to no other issue. They are aware that this standard means that they would be excluding over 90% of Jews from public discourse, but this moves them not at all. And all this in the context of historical antisemitism, including Soviet state antisemitism from which their views directly descend, but which they decline to acknowledge on the grounds that if you point out that their views come from antisemitic Soviet propoganda they, ironically, will accuse you of trying to "silence" them.

Obviously is the right word here, *especially* given that the same folks will claim to be the most vigorous advocates of "anti-racism" in a whole variety of ways that if they applied that advocacy to anti-Jewish racism, they would be their own worst enemies.

[Randal]

Yeah, this is just a reiteration of your selective enforcement argument, your Jewish edict argument, your you-should-know-better argument, and your hypocrisy argument. None of which establish antisemitism. And I don't think you can add up a bunch of failed arguments to get to a winning one just by saying "obviously."

[Randal]

One more point just because it's so weird.

No, “evil motive” has nothing to do with it.

I'm of course referring to antisemitism itself as the evil motive. I'm not sure how else to think about antisemitism other than as an evil motive. Are you thinking of it as a sort of disparate impact analysis, or what's going on here?

[Randal]

These folks love to make South Africa analogies. but no one to my knowledge ever boycotted individuals who merely argued that South Africa should reach a negotiated agreement with the ANC and other representatives of the black population.

Substantively, there’s a lot wrong with what you just said, but most of it we’ve already covered and I have no interest in beating you a second time on the same course.

But the above quote is new, and laughable. Absolutely, practically everyone in the 80s was boycotting South Africa and its supporters, including advocates of any potential negotiated settlement that perpetuated apartheid.

[Randal]

The takeaway here, I think, David, is this.

Being offended and Jewish doesn’t automatically make the offenders antisemites, even — or perhaps especially! — when the topic is Israel.

You can be offended by the Berkeley students’ hypocrisy. You can be offended by their historical ignorance. You can be offended by their selective enforcement. You can be offended by their being at odds with the vast majority of Jewish opinion. You can even be bonus offended that they’re offending you in all these ways at the same time.

It’s like my vegetarian friend who eats eggs and fish, but had a crisis of conscience when confronted with salmon roe. He couldn’t figure out how to draw an ethical line that justified his rejection of it. I had to remind him that he was allowed to find salmon roe to be vile for reasons other than his vegetarianism. Lots of non-vegetarians think salmon roe is vile, and that’s ok.

You, David, are allowed to find speech to be vile for reasons other than antisemitism.

I even find the students’ speech to be vile for some of the above reasons.

It’s just not antisemitic.

[David Bernstein]

"More than three-quarters of Jews also agree it’s anti-Semitic to say 'Israel has no right to exist.'" https://www.timesofisrael.com/69-of-us-jews-52-of-all-americans-republican-party-holds-anti-semitic-views/

So I'm taking a more moderate position that most American Jews, though you want to make it seem like I'm some sort of bizarre extremist. SInce you seem to be a left-winger, you likely typically hold the opinion that views of an oppressed group are virtually definitive regarding whether something is racist against them or whatnot. The exception y'all make for Jews is... interesting.

[Randal]

No, I agree with you about that. I find it to be an extremely annoying tendency of the left.

views of an oppressed group are virtually definitive regarding whether something is racist against them

[Homple]

Sadly, people like to be divided up, as a casual glance through a few history books will confirm. The dividers get and maintain control by exploiting this basic human tendency. The technique works right down to the level of the local women's book club.