The Debate Link

One of the sobering experiences of being a judicial clerk is the mountain of cases you see from prisoners alleging prison violence, abuse, and mistreatment. Even worse is the fate of most of these lawsuits, which is typically a swift and decisive dismissal. Earlier this year I alluded to one case that stood out to me out of the Eighth Circuit, Leonard v. St. Charles County Police Department, where a jailhouse nurse simply refused to give a mentally ill inmate his prescribed medication (despite the insistent efforts of the inmate's mother to ensure the medication was delivered). Instead of giving the man his medication, the nurse placed him under suicide observation -- the end result being jail staff "observing" the man claw out his own eyeball. This behavior, the Eighth Circuit held, carried no liability for the prison staff.

The Leonard case isn't an anomaly. If one is a clerk (or a judge, or an attorney who works on such matters), one sees allegations like this as a matter of course -- a terrible, unending drumbeat of abuse and neglect. Admittedly, these allegations are at the stage where we're talking about just allegations -- they aren't proven. But that it some ways makes it worse, because the procedural posture of the cases requires that judges assume the facts are true as the prisoner alleges them, and so it is those sets of facts which judges repeatedly conclude present no constitutional violation. There is no gainsaying that, as far as the dominant doctrine of constitutional law is concerned, the state is allowed to brutalize its prisoners in an unfathomable variety of sickening ways without any legal recourse whatsoever. 

Each time I read one of these cases, I'm horrified anew. They all have their horrible points that stick in your mind for different reasons. The sticker of the Leonard case was the role the plaintiff's mother played in the narrative. I don't know what Leonard did to be in jail; he may be a very bad man. But even if you feel no sympathy for him, the torment his mother must have been put through -- her desperate, impotent, and ultimately futile attempts to ensure her son would not be neglected in his moment of vulnerability -- is nothing short of horrifying. Him being incarcerated meant she was in a position of being completely at the mercy of the state as to whether her child would live or die, would be taken care of or would be cruelly and cavalierly abandoned. The state made the latter choice. There's nothing she could do about it, she ultimately could not protect him. And the law's reply to that choice and that impotence is to shrug its shoulders and say "fine by us".

The thing that gets me isn't (just) the cruelty itself. It's the option of it; the legalized indifference as to whether it happens or not. Another inmate is in an similar position perhaps, but the jailhouse nurse makes the humane choice -- she gives him his medication. Great, but as far as the law is concerned, that was nothing but a choice -- it's basically a matter of fortune she chose as she did. Being perpetually at the mercy of the arbitrary negligence of the state is a punishment, and is a cruel and unusual one at that. I don't make any claims as to whether a program of incarceration demands that sort of systematic indifference to human dignity. I will say that if this is what is necessary to make that program run, then the cost is too high. And that assessment in no way depends on any denial that the prisoners subjected to this system may in many cases legitimately be called bad people.

All of this is warmup to story you might have heard that Derek Chauvin, George Floyd's murderer, was stabbed in prison. This story has led to a lot of replies taking the form of "hope the knife is okay" and other witty posts of endorsement and cheer. Much of this, to be sure, stems from people who are not in any meaningful sense politically aware and active -- they view (correctly) Chauvin as a bad man, and so they cheer a bad thing happening to him. But I've seen plenty of people with more sophisticated political palates who've basically been taking the same line -- they're absolutely fine with Chauvin being subjected to violence and abuse in prison because he's a bad man who has it coming. Indeed, some of them are angry that some "liberals" have the temerity to say it's a bad thing that Chauvin was stabbed in prison. How dare the liberals not permit us to rejoice in Chauvin being subjected to a dose of state-supervised arbitrary violence?

There is, I'll agree, something to be said regarding a "Himpathy"-style critique here -- why, when this sort of violence is pervasive in the prison system, does it seem as if we suddenly find extra stocks of empathy when it's the Derek Chauvins of the world exposed to it? On the other hand, we might suspect that the persons appalled by Chauvin being stabbed are also appalled by other prisoners being stabbed, and the reason we haven't noticed it is because the world doesn't bother paying attention to their identical empathic responses except when it's the likes of Chauvin at issue. 

Leave that aside. I don't think resolving that debate changes the fact that it matters that a non-trivial chunk of the voices who present themselves as "abolitionists" are finding themselves unable to contain their joy at seeing Derek Chauvin stabbed in prison. Why? Because it reveals one of their core political promises to be a lie. A core differentiation between reformists and revolutionaries in this domain is that the latter purport to reject outright the leveraging of systemic, organized collective violence as a tool of social discipline and punishment. The former, by contrast, accept that organized, collective violence (which is what prison ultimately is) is sometimes justified as a tool of social regulation and are trying to constrain, ameliorate, or otherwise redirect it. The revolutionary appeal here is that supposedly it isn't just about reshuffling the deck of organized violence. It's a more fundamental alteration; which is why saying "but what about all the bad people who do bad things" isn't taken to be a knockout response. For the bad people too, we need to find an alternative to the leveraging of systematic, organized collective violence as a tool of social discipline and punishment.

But when the "revolutionaries" are seen cheering Chauvin being subjected to prison violence, it suggests that they, too, ultimately are just pursuing an agenda of redirecting these projects of collective violence towards more suitable targets. At that point, their only basis of appeal boils down to "we are better at identifying the true 'bad people' who are deserving of being subjected to collective violence as a means of social discipline, and better at channeling that violence to those people in appropriate dosages, than are the current powers-that-be." For my part, I don't see much basis for why they've earned that degree of trust (note, for what it's worth, that they're aligned with the current powers-that-be with respect to Chauvin -- both have demarcated him as among the "bads", and both are performatively fine with a system where he is at the arbitrary mercy of being stabbed), and it's certainly a far less ambitious proposition than how it's commonly framed. Ultimately, the most honest players of the game might be the relatively apolitical centrists: they never pretended to have a serious problem with "bad people" being subjected to unconstrained violence in prison, they view Chauvin as falling into the category of "bad people", and so they're perfectly happy to see him subjected to unconstrained violence in prison. Say what you will about it, but there's nothing inconsistent there.

One sees, I think, a similar dynamic manifest frequently in the discourse around a "one-state" solution to the Israel/Palestine conflict. In one moment, proponents declare their agenda to be a neutral, secular, "state-for-all-citizens" that is studiously equal in its orientation to Jews and Arabs alike and most certainly is not about institutionalizing a hierarchy of political dominance for their preferred faction. And who could oppose that? (Answer, we're told, is "only people who support hierarchies of ethnonationalist political domination"). But in the next moment, some of these same people can barely contain their ecstasy at witnessing "settlers fleeing the land", land that they are naught but foreign interlopers on to begin with, and also when they are fleeing to distant shores could anybody really blame the locals for organizing a light lynch mob to greet them, genocidal colonizing settlers that they are? The latter expression falsifies the sincerity of the former; the sort of person who believes that "Israelis are, to the man, thieving genocidal settler war criminals" obviously cannot be taken seriously when they portentously aver "and the political arrangement I hope to set up should welcome them as equals." It is beyond obvious that the people who oscillate between these two instincts are simply weaving a narrative that will support a reshuffling of political domination; that their ultimate pitch for why they should be backed is because they'll do a better job than the current powers-that-be at identifying who actually deserves to be on the top and who deserves to be on the bottom of the new state of affairs. And it's equally obvious that many of their backers lend their support to this political program for that exact reason -- they understand full well that this politics is a means to an end, not an end of harmonious equality, but an end of the bad people being thrown down, punished, made to be lessers, and getting the comeuppance they so richly deserve. Maybe they're right in their assessments -- but if they are, it isn't because they're representing some categorical break from what's come before or the politics they purport to reject. It really is a matter of whose ox gets gored.

To be honest, it really doesn't surprise me that, even in political movements that purport to represent rejection of arbitrary infliction of collective violence as a tool of social reform, or rejection of programs of ethnonationalist political domination, much of the practical "foot soldier" energy behind the causes really boils down to a desire to redirect the complained-of atrocities to new and better enemies. There's nothing especially new here (Angela Davis was infamously impassive regarding the mass imprisonment of political dissidents in Soviet bloc nations, for example). And the most cynical but not wholly-incorrect way of describing politics in general is that it is a series of debates regarding when, where, why, how, and to whom we should direct collective projects of violence as means of social regulation and punishment. In that sense, nobody is doing anything out of the ordinary. But that very ordinariness is what reveals the lie; the lie that there is something revolutionary at work here, and that those who don't trust this revolutionary impulse are suspicious only because they're addicted to the violence that their betters are trying to abjure. No -- it turns out, they're absolutely right to be suspicious and their suspicions are absolutely right. 

I'm not saying that nobody is principled here; in fact, I suspect there are plenty of people who are absolutely genuine in their commitments. But the number of persons for whom the high-minded rhetoric of abolition or secular equality or what have you is really just a thin veil for crafting a new narrative that can justify redirecting violence towards the "right" targets is, I think, far larger than anyone would care to admit. Cheer Chauvin's stabbing if you want. But don't expect anyone to then believe that the politics you propose is even in utopian concept about rejecting in principle the deployment of collective violence as a tool of social control.

Two people are dead after a reported shooting at a SW Portland strip mall approximately five minutes from my house.

I've been to this strip mall. I've eaten at the cafe where the bodies were reportedly found. The UPS store across the street is where we go when we need to send a package. This part of Portland is in my normal orbit.

Contrary to what you've heard, Portland is actually a relatively safe city. Our crime rates are remarkably unremarkable -- a recent survey ranked us 21st out of 40 major cities when it came to violent crime. And my neighborhood is almost certainly safe than the city as a whole. This shooting is not, I think, reflective of any trends. If anything, it is in defiance of a national downward trend in violent crime.

Nonetheless, it's sickening that this is even a tertiary part of my -- or anyone else's -- life. And it's infuriating that the Supreme Court has essentially decided that people like me must, as a matter of inviolable constitutional law, live under the scourge of infinitely proliferating guns forever. It's terrible to know that if my elected representatives ever tried to do anything substantial to stem the tide of gun proliferation, the Supreme Court would be on the case to wag a finger and say no.

By the same token, the Republican Party's response to gun violence is, of course, to promote more guns (and to teach eight-year olds battlefield trauma techniques). "The only way to stop a bad guy with a gun is a good guy with a gun". When you strip away all the window dressing, what this boils down to is saying the solution is getting into a shootout. But I don't want to get into a shootout! I don't want to shoot anyone, and I should be able to get a cheese omelet at a local diner without committing to reliving the OK Corral. That's not a solution, that's a capitulation -- gun violence accepted as a forever-scourge, and you're either dishing it out or you're the victim.

It doesn't have to be that way. In most developed countries, it isn't that way. That it is that way here is not an inevitability. It is a policy choice, imposed by a radical judiciary whose contempt for the people it rules is becoming increasingly more brazen.

Professor McGonagall's face was pinched and angry. "You are not to use the Time-Turner in that fashion, Mr. Potter! Is the concept of secrecy not something that you understand?"

"They don't know how I did it! They just think I can do really weird things by snapping my fingers! I've done other weird stuff that can't be done with Time-Turners even, and I'll do more stuff like that, and this case won't even stand out! I had to do it, Professor!"

"You did not have to do it!" snapped Professor McGonagall. "All you needed to do was get this anonymous Slytherin back on the ground and the wands put away! You could have challenged him to a game of Exploding Snap but no, you had to use the Time-Turner in a flagrant and unnecessary manner!"

"It was all I could think of! I don't even know what Exploding Snap is, they wouldn't have accepted a game of chess and if I'd picked arm-wresting I would have lost!"

"Then you should have picked wrestling! "

Harry blinked. "But then I'd have lost -"

Harry stopped.

Professor McGonagall was looking very angry.

"I'm sorry, Professor McGonagall," Harry said in a small voice. "I honestly didn't think of that, and you're right, I should have, it would have been brilliant if I had, but I just didn't think of that at all..."

-- Harry Potter and the Methods of Rationality, Chapter 17

"Mr. Potter, you have taken to using the Time-Turner as your solution to everything, often very foolishly so. You used it to get back a Remembrall. You vanished from a closet in a fashion apparent to other students, instead of going back after you were out and getting me or someone else to come and open the door."

From the look on Harry's face he hadn't thought of that.

"And more importantly," she said, "you should have simply sat in Professor Snape's class. And watched. And left at the end of class. As you would have done if you had not possessed a Time-Turner. There are some students who cannot be entrusted with Time-Turners, Mr. Potter. You are one of them. I am sorry."

"But I need it!" Harry blurted. "What if there are Slytherins threatening me and I have to escape? It keeps me safe -"

"Every other student in this castle runs the same risk, and I assure you that they survive. No student has died in this castle for fifty years. Mr. Potter, you will hand over your Time-Turner and do so now."

-- HPMOR, Chapter 18

"Harry Potter," Professor Quirrell said.

"Yes," Harry said, his voice hoarse.

"What precisely did you do wrong today, Mr. Potter?"

Harry felt like he was going to throw up. "I lost my temper."

"That is not precise," said Professor Quirrell. "I will describe it more exactly. There are many animals which have what are called dominance contests. They rush at each other with horns - trying to knock each other down, not gore each other. They fight with their paws - with claws sheathed. But why with their claws sheathed? Surely, if they used their claws, they would stand a better chance of winning? But then their enemy might unsheathe their claws as well, and instead of resolving the dominance contest with a winner and a loser, both of them might be severely hurt."

Professor Quirrell gaze seemed to come straight out at Harry from the repeater screen. "What you demonstrated today, Mr. Potter, is that - unlike those animals who keep their claws sheathed and accept the results - you do not know how to lose a dominance contest. When a Hogwarts professor challenged you, you did not back down. When it looked like you might lose, you unsheathed your claws, heedless of the danger. You escalated, and then you escalated again. It started with a slap at you from Professor Snape, who was obviously dominant over you. Instead of losing, you slapped back and lost ten points from Ravenclaw. Soon you were talking about leaving Hogwarts. The fact that you escalated even further in some unknown direction, and somehow won at the end, does not change the fact that you are an idiot."

[...]

"The next time, Mr. Potter, that you choose to escalate a contest rather than lose, you may lose all the stakes you place on the table. I cannot guess what they were today. I can guess that they were far, far too high for the loss of ten House points." 

-- HPMOR, Chapter 19

Yesterday, the New York Post ran a story about an incident in Florida where two drivers got into a rolling gunfight with one another, exchanging fire that injured both drivers' daughters (a 14-year old and 5-year old girl). While both drivers were initially charged with attempted murder, one driver -- the one who opened fire first -- had the charges dropped after prosecutors decided he had a valid self-defense claim since the other driver was the initial aggressor (allegedly trying to "run him off the road" and hurling a water bottle at his truck).

Hale tried to run Allison [the driver who had the charges dropped] — who was driving a Nissan Murano with two passengers — off Highway 1 near Calahan with his Dodge Ram pickup truck, which had four passengers, police said.

At one point, Hale drove alongside the Murano, rolled down his window and began shouting at Allison to pull over as Hale’s wife made an obscene gesture.

Allison rolled down his window to shout back when a plastic water bottle was thrown from the truck into the SUV, according to the Nassau County Sheriff’s Office in Florida.

[...] 

[Then, Allison] fired a semiautomatic handgun at [Hale], hitting Hale’s daughter, who was sitting in the back seat, and then sped off, police said.

When Hale realized the girl was hit, he sped closer to the SUV and began firing several rounds from his semiautomatic — one of which struck the 14-year-old girl. 

I was thinking about this incident, and to a lesser extent the recent case in Texas where a man was convicted of killing a protester who allegedly brandished an assault rifle at his car after the shooter reportedly drove his car into the crowd (this is the case where the Governor has promised to pardon the killer), and thinking "what would happen if none of the parties had guns?"

In the Florida incident, I do not think -- even accepting that Allison was "acting in self-defense" -- "thank goodness Allison had a gun -- who knows what would have happened if he wasn't armed!" My strong intuition -- albeit not one that can be proven -- is that if Allison was not armed, this incident would have resolved as a "normal" case of road rage, and in particular, we would not have seen two young girls be shot in their parents' cars. To be clear: Allison seems to have been the victim of terrible, threatening behavior by Hale. But the presence of guns (and it was Allison who fired the first shot) escalated the situation. It did not keep anybody involved safe; it made a bad situation far, far worse.

If Allison had no gun, the most likely result is that he would have just had to endure Hale's predatory road rage (at least until a filing a police report later). There is something disconcerting, I imagine, to saying, in effect, that this would have been the right choice. It entails, to be very colloquial about it, agreeing to "lose" to a predator. Allison firing at Hale represents an (escalatory) effort to fight back; to continue to resist; to win. Should Allison have "picked wrestling", even though it allowed Hale's predations to prevail (at least in the immediate moment)?

I think the answer is yes. At the very least, it's the choice that doesn't result in two children being shot. More to the point, it's the choice that millions of Americans who don't have guns would have had to have made in that same situation. Millions of Americans go through life without guns. When we encounter a road rage scenario like the one in Florida, we can't use a gun "in self-defense" because we don't have one. But as much as it might be humiliating or scary or infuriating to feel impotent in that scenario, it seems clearly better than what happened here when guns did enter the picture.

Proponents of gun rights as a means of self-defense imagine a template case as a scenario where a person is threatened and, had they not had the gun, they would be subjected to severe bodily injury or death. The availability of the gun "deescalates" (that's not quite the right word, but I don't have a better one) the situation insofar as, instead of the innocent victim being severely injured and/or killed, it is the wrongful perpetrator that suffers that fate.

But there are no doubt some number of circumstances -- and I don't know how one could measure it, but I suspect it's a greater number -- where the availability of a gun, even under the "self-defense" rubric, does not deescalate but escalates a situation. A scenario that would have resolved as a lower-level indignity or violation becomes one where someone is shot or killed.

Sometimes, we might say that for some sorts of criminal activity, a violent response is justified and socially beneficial even if it is in some sense escalatory (e.g., many argue this for a homeowner shooting a burglar, notwithstanding the fact that robbery is a "lesser" violation than shooting someone). Nonetheless, when I think back to the occasions where I've been a victim of violent crime, I do not think "if only I had a gun." To the contrary, whether or not on those occasions I would have been legally permitted to "stand my ground", I think it is absolutely for the best that I did not blow away either the homeless man or the drunk college students who assaulted me. It is clear to me that in those circumstances, I should have done what I actually did do, which is pick myself up and walk away. I should have "lost".

Not everyone agrees with me -- a law school classmate told me that if he was shoved to the ground as I would, he would "legitimately fear for his life" and would be justified in responding with lethal force. Perhaps if he had been in my shoes and armed, four people who we know did not need to die would be dead. I lacked the means (or desire) to respond with lethal force, and the result was the people who we know did not need to die, didn't die. Where the presence of guns converts more scenarios like that -- ones where we could just walk away -- into ones where someone or multiple someones are shot or killed, that is I think a clear net loss for society.

Again, I don't know how to measure this. But it seems clear that, just as there are some circumstances where having and using a gun averts the more tragic outcome; there are other circumstances where having and using a gun causes the more tragic outcome -- and (this is important) even under cases which fall under the rubric of self-defense.

The opening excerpts from Harry Potter and the Methods of Rationality (which I highly recommend) are about instances where Harry is, in a brute moral sense, right to resist. Professor Snape and other Slytherins are wronging him, abusing him, in a manner that in a just world he should not have to tolerate. And yet, the moral of these passages is that reckless escalation even in response to injustice or wrongdoing has immense risks; it puts even more stakes on the table that aren't always justified or commiserate to the underlying, initial abuse. Hale seems to have badly abused Allison. But Allison could not just let it lie; he escalated dramatically by firing a gun from a moving vehicle into another car. The danger that posed -- to Allison's own family, to Hale's, to other travelers or passers-by -- is almost incalculable, and hardly seems proportionate to the (very real) wrong and abuse Allison endured. If Allison lacked a gun, he would not have been able to initiate that escalation. And at least two children would not have been shot.

This weekend, Lewis & Clark Law School hosted the 2nd Annual Conference on Law vs. Antisemitism, a conference which (I don't think it's immodest of me to say) I did the lion's share of organizing.

Part of that organization was making sure, at the outset, to contact Lewis & Clark campus security to inform them of the event and have a security plan in place. This included having a security officer on site, requiring registration and check-in, alerting the Portland Police Bureau of the event and having them monitor the chatter of "certain" sites to ensure we weren't going to be a target, and other sundry efforts to address what I called our "elevated risk profile" compared to a standard law school event.

All this, to me, felt very normal and unremarkable. I'm hosting a conference on antisemitism -- of course I need to take extra steps to ensure that it is secured.

The day-of grunt work for the conference was provided by a set of Lewis & Clark law school student volunteers, most if not all of whom were not Jewish. They all did, to be clear, a fantastic job. But I think it is fair to say that for them, this sort of extra security was very much not normal. Which I recognized, and at various points during the run-up, I'd update them on the various security measures we were emplacing, trying to balance between "we're a conference on antisemitism, there's inherently heightened risk" and "but there's no reason to fear, most likely nothing bad will happen, this is all just precautionary." I was aware that my normal is not their normal.

The conference went very well, and without any problems or disruptions of any sort. As is the case, 99% of the time. The vast majority of cases where a synagogue brings in extra guards to watch over high holiday services, nothing bad happens. We just had a great event. So I felt kind of bad, forcing all these student volunteers to deal with the anxiety of all those extra security precautions. My normal shouldn't have to be their normal.

After Uvalde, I wrote a deliberately provocative post titled "Schoolchildren Shouldn't Have to Live Like Jews." The basic thrust of the post was to argue that all the various ways Jews have enhanced local security, "hardened the target", etc. etc., are not good models for how to protect schoolchildren from mass shootings. That they're normal for us -- a beleaguered, regularly threatened minority group -- should not make them normal for everyone. 

Less than a year later, in the wake of yet another school shooting, this time in Nashville, I couldn't help but return to the same thought. I mourn for the families, not just for their immediate loss, but for the extra wave of grief they will endure upon realizing just how little the American people care about them. But the fact is that when the only response to a shooting is "more guns" -- taking the firefight as inevitable and just hoping it occurs earlier in the process -- we're tacitly (or not so tacitly) conceding that "we're not going to fix it". It is taken for granted that to have your children in public schools is to run the risk of having them gunned down -- a price that too many politicians treat as one families are agreeing to pay, as opposed to being coerced into accepting (witness Tennessee Republican Rep. Tim Burchett's blithe response when asked how to "protect people like your little girl": "Well, we home school her.").

It doesn't have to be like this. Our normal shouldn't have to be their normal.

Israeli settlers went on a rampage earlier today in the Palestinian town of Huwara, setting fires to homes and cars and killing at least one civilian. The vicious mayhem followed a shooting attack by Palestinian militants which killed two Israelis, and settler rhetoric quickly took on a terrifying tone calling for ethnic cleansing.

The deputy head of the Samaria Regional Council, Davidi Ben Zion, called for Huwara to be “wiped out” in response to the attack.

“Here in Huwara the blood of our children was spilled on the road… Huwara needs to be wiped out today. Enough talk about building and strengthening the settlements. The deterrence that was lost must return now, there’s no room for mercy,” he said in a post on Twitter.

That "wiped out" tweet, incidentally, was "liked" by far-right Israeli minister Bezalel Smotrich, who recently announced a deal with the Defense Ministry that would render him effective Governor of the West Bank and formalize an apartheid policy in the West Bank territories.

The scale of the violence, which occurred directly under the nose of area IDF forces who were reportedly less-than-interested in intervening or responding, appears to be qualitatively different in scale than previous incidents of settler violence, underscoring the complete breakdown of order ushered in by the new Israeli government as the settler thugs who comprise its base are allowed to run wild.

In many ways, though, this spurt of street violence is the dark parallel of the street protests that have gripped Israel for the past few days -- hundreds of thousands gathering to decry the new government's efforts to undermine an independent judiciary and the country's basic status as a liberal democracy. Those protesters are living out their values on the street. And, in their own perverse way, so are the settlers -- it's just that their "values" are apartheid and violent ethnic suppression of the Palestinian people. Both segments of the population are putting their values into practice in the most visceral way possible.

The difference is that the latter segment is the support base for the current Israeli government, and the latter values are the ones held by the current Israeli government coalition. Settler violence to enforce apartheid is little more than a (very) slightly-too-enthusiastic application of what figures like Smotrich, Ben-Gvir, and yes, Netanyahu too, have long promoted as their explicit West Bank policy. The base is merely carrying out to the wishes of the government.

A Dearborn, Michigan man was indicted on gun charges stemming from an alleged plot to attack a Michigan synagogue. The suspect, Hassan Chokr, was blocked from purchasing a shotgun, rifle, and semiautomatic pistol following the conclusion of a background check, and federal prosecutors said that in his attempt to purchase a gun Chokr made "three false statements, any one of which would prohibit him from possessing a firearm." Those statements were denials that Chokr

I'm teaching a seminar on Anti-Discrimination Law this semester -- the first time I've taught the class in 10 years. One of assigned materials is Gerry Rosenberg's classic book The Hollow Hope, a famous critique of the judiciary's ability to bring about social change.

I was especially curious to hear my students' reaction to the book, as I think a lot has change even over the past ten years regarding some of the underlying presumptions that made Rosenberg's book so explosive when it was released, or even when I first assigned it in 2012.

Back then ("then" being the early 1990s, when the book originally came out, and 2006, when I first read it, and 2012, when I first taught it), liberal law students still were I think largely operating in the nostalgic shadow of the Warren Court as the model of what courts should be doing on behalf of vulnerable minority groups. Courts were presumed to be an important vector of social change; to the extent the Supreme Court had become conservative it was frustrating that judicial conservatives wouldn't let the judiciary do its job like it did in the mid-20th century. The Hollow Hope was such a shock to the system because it suggested, not that the Warren-era precedents were illegitimate or products of bad judicial reasoning, but that they didn't matter -- they (allegedly) did virtually nothing to bring about the lauded progressive changes like desegregation in the 1950s and 60s.

But kids these days, I figured, may not hold the judiciary even conceptually in such high regard. I could very much imagine the progressives in my classroom coming in with a lot of preexisting cynicism towards the courts -- the baseline assumption being courts as obstacles to social progress rather than (currently malfunctioning) enablers of it. For that sort of student, how would Rosenberg be received?

The conversation we had in class was interesting and dynamic (as they typically are -- I have great students). But it ended on a topic that has virtually never come up in my law school classrooms until now: the earnest questioning of when political violence is justified.

I want to be clear: this question, like any other, is a valid subject for classroom discussion. America was founded by violent revolution, after all; in my Constitutional Law class we just finished reading about the importance of protecting under First Amendment principles discussion about, or even "abstract advocacy" of, violence as a tool for seeking political change.

Nonetheless, it was a sobering discussion, and one that felt very much borne out of despair. Rosenberg, it seemed, put the nail in the coffin of any hopes of using courts as a vector for social change, at least as against entrenched and powerful social interests. And they were already deeply cynical about the vitality of democratic institutions as a meaningful avenue for securing progress -- not because they opposed democracy in concept, but because they thought our democratic institutions had been so malformed by corruptions like gerrymandering, voter suppression, and boundless money in politics that there was no longer reliable correspondence between the nominally democratic levers of power and the popular will. Given that, they wanted to ask, to what extent are we in an arena where at the very least we need to take seriously the prospect of widespread political violence, and act accordingly? (One student, in particular, was absolutely emphatic that liberals needed to arm themselves -- the fascists were coming, he said, and we absolutely cannot rely on the state to protect us anymore).

Again, the discussion was thoughtful, bracing, and serious -- in particular, there wasn't a lot of gleeful discussion of violence that one occasionally hears from the more radical set, which falls over itself in the eagerness to "punch Nazis". But also again, it was sobering just that this was where my students' minds were at -- a cynicism and depression pushed nearly to the breaking point, and serious lack of confidence in the vitality of the basic institutions of liberal democracy. As a pretty normcore liberal, that worried me. And even more worrisome to me is that I did not feel like I had a lot of compelling arguments to assuage their fears.

There was a shooting tonight outside Nationals Park, in the Navy Yard neighborhood of Washington, DC.

When I first starting hearing about this, I quickly googled "Navy Yard shooting" in hopes of getting more information. 

Most of the hits were about a mass shooting event in 2013, where twelve people plus the gunman were killed.

So I got more specific: "Navy Yard shooting 2021".

The search returned results about a shooting that occurred this past February.

I tried one more time: "Navy Yard shooting 2021 Nationals stadium". And that finally gave me results about the events of this evening.

It took me three tries to successfully narrow down to tonight's Navy Yard shooting. Because there were so many other Navy Yard shootings to choose from.

We cannot go on like this.

UPDATE: 

An eight year old girl who was at the game answers a reporter who asks how she was feeling: "It was my 2nd shooting, so I was kind of prepared. I’m always expecting something to happen." 

International Law Professor Yuval Shany has an outstanding post working through the legal use-of-force issues surrounding the Gaza protests at the Israel/Palestine border. The reason that it's outstanding is that it takes seriously the fact that some of the protesters may be violent and may be trying to breach the border -- it isn't just people randomly waving flags. Many pro-Israel commentators have made this observation and acted as if that were that -- a dismissal made easier when pro-Palestinian voices have acted as if there was no component of armed violence in the equation at all.

Yet my instinct was that, even if there were actual attempts to cross the border or even some use of violent force (e.g., stone throwing), this wouldn't necessarily suffice to justify the use of lethal force by IDF. Shany's post explains why in detail, fully attentive to the actual security concerns faced by Israel, and that makes it far more powerful as a critique of the IDF's conduct -- conduct that seems very likely to have violated international law -- than the median post which treats those concerns as non-existent.

Of course, it may seem silly to go into a fine-grained, nuanced explanation of why IDF use-of-force practices on the Gaza border have been unlawful when Avigdor Liberman is explicitly saying that every single human being in Gaza is a valid target for lethal force.

"It has to be understood that there are no innocent [naive] people in Gaza," Liberman added. "Everyone is affiliated with Hamas, they are all paid by Hamas, and all the activists trying to challenge us and breach the border are operatives of its military wing."

The strike-out is there because Liberman claims he's been mistranslated in the use of the word tamim. But I don't think it materially alters the point he was making, which more-or-less explicitly labels the entire Gaza population as members of a hostile military force who are therefore valid targets for lethal force.

More and more, it seems that the IDF prefers calling itself "the most moral army in the world" to actually acting like "the most moral army in the world." The way you become and then stay a "moral" army is via discipline, and discipline means actually investigating and punishing potential violations of the rules of armed conflict. But Liberman refuses to even countenance an investigation -- well, unless it's of human rights groups asking that soldiers not shoot unarmed civilians across the border. A culture of impunity will yield a culture of violation -- there is nothing in the Israeli or Jewish soul that renders us immune from the general rules of human behavior.

Last year, I wrote a post about my clerkship on the United States Court of Appeals for the Eighth Circuit. Being a clerk on a federal court of appeals is one of the great honors a young lawyer can have, and one of the great honors of my life. It was a fantastic experience. I was privileged to be mentored by a fantastic judge, to gain a first-hand experience of the legal system across a wide range of cases, and to work with some outstanding colleagues whom I'm still friends with to this day.

I also said then, and will reiterate now, that if you tallied up all the cases I had a hand in during the course of my tenure of my clerkship, and judged them based on whether they effectuated justice or injustice, I'm convinced that on net they made the world a worse place.

And the reason really boils down to immigration. Our immigration docket was a relentless, sustained, unending exercise is ruining lives. That's all we were doing. And because our review was so perfunctory (it was perfunctory because the legal standards are aggressively anti-immigrant), we got  through a lot of them. I suspect that, in terms of raw numbers (though certainly not in time spent reviewing), we handled more immigration cases than any other type of case save criminal appeals (which, incidentally, also generally involved one-page affirmances of viciously overlong prison sentences).

Anyway, I bring it up again in reference to this story about Henry, a former teenage member of MS-13 who fled to America to escape the gang, ended up forcibly conscripted back into it, and so voluntarily turned himself into the police and freely gave them information essential to arresting other members of the gang. He thought in doing so he could get a fresh start, that the FBI would protect him.

Instead, he was betrayed. Once his usefulness was over, his handlers handed him over to ICE for deportation -- making no effort to hide the fact that he had informed on MS-13 (even as he was kept in a detention center with other MS-13 members), almost assuredly marking him for death at the hands of the gang either back in El Salvador or (if by some chance he is released) back home in Long Island. Sometimes I write on such stories that they're "worse than a crime, they're a blunder" (how does one expect to get people to inform on criminal gangs if the police so nakedly stab them in the back afterwards?). But here, the blunder -- real as it is -- is outweighed by the crime. Irrespective of any tactical assessment, we shouldn't lose sight of the more fundamental reality that our immigration system took a man who was by all accounts trying to do the right thing and sold him out in a way that quite foreseeably may lead to his murder. That's something we need to forthrightly acknowledge about ourselves.

Henry does not have a spotless record -- even less so than Juan Coronilla-Guerrero (whom I wrote about in my last post). But he does not deserve to die. It is not just our immigration system that may kill him. But it is by no means innocent. It is a machinery of death, and all those who touch it -- myself very much included -- have blood on our hands.

Non-combatants attempting to cross a border may be a crime, but it isn't a crime that can justify the use of lethal force. Lethal force can only be justified in cases where the target poses an imminent threat to life. Yet even under the Israeli narrative, threats of that scale were only sporadic (two of the dead Palestinians are alleged to have opened fire at IDF soldiers -- that probably warrants a lethal response -- but that leaves up to 14 who didn't). In a simplicitor case of attempted unlawful border crossing, the only lawful remedy is arrest and trial -- not bullets.

The main apologia we're seeing on that score is the claim that some (not all) of the shot Palestinians were members of terrorist groups. Even if that turns out to be the case (and that hasn't been independently corroborated yet), it'd be less of an absolution of the IDF than apologists might believe. Put aside the general thorniness of whether someone who's a member of a terrorist organization can be treated as a "combatant" even when partaking in civilian (in this case, protest) activities. I'm skeptical, but we can even stipulate that they could be. The bigger issue is that the lawfulness of the use of deadly force has to be justified based on what was actually known, or reasonably should have been known, by the shooter at the time -- and there's no evidence that the IDF soldiers were aware of the identities (let alone affiliations) of the Palestinians they were firing at in the moment. For example: If I fired into a crowd in a city street, and it just so happened that the person struck by my bullets was a member of a terrorist group, my action would still be unlawful because I had no way of knowing that fact when I opened fire. Likewise, the affiliations of those killed by IDF bullets could not in themselves legalize the decision to open fire -- that can only be justified based on specific threats to life that were reasonably perceived at the time (of which simply approaching the border is not one).

The other argument I can imagine being made is that -- in the context of a mass march on the border -- "arrest and trial" isn't a feasible response. It'd be impossible to arrest them all; the only viable means of deterrence may well be the use of lethal force. But this is a rather dangerous and hypocritical position -- the same in form as the argument that suicide bombings are justifiable because the power imbalance between Israel and Palestine means the latter can't win a traditional military conflict. The laws of war and humanitarian international law in that case say that if you can't win a conflict without suicide bombings, then you don't win the conflict (as much as it might seem unjust). They likewise say that if you can't stop non-violent attempts to cross a border without resorting to lethal force, then you don't stop the attempts (as much as that might seem unjust). In either case, the rule of law quite properly does not contain an "unless you'd lose" exception.

And this really gets to the rub of the problem. Were these protests a perfect exemplar of non-violence? Almost certainly not. But it seems equally clear that the Israeli government (and many of its defenders) wouldn't accept the legitimacy of protests of this nature even if they were. They view it as a form of cheating, precisely because it likely would succeed but-for the use of violent force that can't actually be justified. But that's an untenable position. A protest or resistance strategy doesn't become illicit on the grounds that it does work, nor because it forces Israelis to do things they'd otherwise not want to do or puts them in a position they'd otherwise not like to be in. That's not, and cannot be, the standard for what conduct by Palestinians is acceptable (it obviously isn't the standard for what Israeli actions are justifiable vis-a-vis Palestinian actors). Palestinians are allowed to come up with ways to put pressure on Israelis, and massed civil disobedience falls into that category.

Indeed, this is in many ways the power of resistance strategies of this sort -- they are difficult to counter without resorting to violence that both appears to be and juridically is excessive and unjustified under the circumstances. This is why civil rights leaders placed young activists in the path of Bull Connor's firehoses, this is the efficacy of Gandhi's satyagraha. What violence there was on the Palestinian side was a sterling example of "worse than a crime, it was a blunder," because it allows dust to fly up around this basic point. But while I don't want to as far as to say this violence was a "distraction", I do think it must not occupy the entirety or even the majority of our attention, because the Israeli response -- almost by its own admission -- wasn't keyed into the sort of violence that could warrant resort to lethal force, and because the Israeli government has no answer to what it would do if the protests really did meet the platonic ideal of satyagraha.

Some of you have no doubt seen Rep. Don Young (R-AK)'s suggestion that the Holocaust wouldn't have happened had the Jews been armed.

A man beat his wife, allegedly after she had an affair. He was not sentenced to any prison time. Now, a Portuguese court has upheld that decision because the woman's affair "dishonored" her husband. The court cited the Bible as justification for its lenient sentence, noting that under biblical law adultery was punishable by death (so what's a little beating?).

"Now, the adultery of the woman is a very serious attack on the honor and dignity of the man," the ruling, signed by Judge Joaquim Neto de Moura, said. "It was the disloyalty and the sexual immorality of the plaintiff that made (the defendant) fall into a profound depression, and it was in this depressive state and clouded by the revolt that carried out the act of aggression, as was well considered in the judgment under appeal."

[...]

"This case is far from having the seriousness that, generally, is presented in cases of mistreatment in the context of domestic violence," the ruling says. "On the other hand, the conduct of the defendant took place in a context of adultery practiced by the plaintiff."

In addition to that, the court also cited a 19th century Portuguese law which recommended only symbolic penalties if a man kills his adulterous wife.

In conclusion, because the nation is European and predominantly Christian and the religious text cited is the Bible, we'll never hear about this case again.

Last week, a post by Mahroh Jahangiri on the popular feminist blog Feministing lumped in "Zionism" with "racism, colonialism, [and] militarism" as part of the "systems of violence ... built to uphold white supremacy" which create "gender-based violence."

Unsurprisingly, many in the Jewish community were sharply critical. Feministing stood by its author, tweeting at its followers to "read this on #MeToo, racism, & Zionism."

If you read the post in question, this is a strange tweet. It's strange because the post is not actually "on" Zionism in any meaningful respect. By that, I don't mean that it presents a false, or caricatured, or strawman version of Zionism. I mean that the only mention of Zionism at all in the post comes as follows:

Though this should be obvious, in this moment it bears repeating: gender-based violence does not exist without other systems of violence, especially those built to uphold white supremacy (such as racism, colonialism, zionism, militarism). 

Zionism appears as a parenthetical aside, and other than that goes unmentioned (there's a similar, parenthetical inclusion of Israel later on). So what is going on here? (Warning: This post is lengthy).

I.

Framed as it was, Jahangiri's parenthetical operates less as an argument "on" Zionism than it does a presupposition. It seeks to smuggle in as a presumption several assertions about Zionism that are -- to say the least -- seriously contested and problematic, such as that it is "built to uphold white supremacy", that it is of familial resemblance to racism and colonialism, and that it is implicated in creating gender-based violence.

In an excellent new essay on "blocking" (a concept I'll return to in a moment), feminist philosopher Rae Langton discusses the sometimes insidious role of presuppositions as a discursive move. Consider the statement "That pitcher throws like a girl!" Most directly, it is saying "that pitcher throws poorly," and we might agree or disagree with the statement. But it also presupposes a few things -- that there is a way to throw "like a girl", and that throwing "like a girl" is a bad thing. Notice that even if you disagree with the statement -- "no, the pitcher doesn't 'throw like a girl'" -- one does not automatically or naturally contest the presuppositions.

One thing presuppositions can do, then, is they can smuggle in content as shared presumptions without directly justifying it or opening to critique, in contexts where the content might otherwise be far more vulnerable to challenge. The person who, if asked directly, would sharply deny that girls are necessarily bad athletes or throw pitches in a distinctively bad way, may well casually nod if his friend says "that pitcher throws like a girl."

"Blocking" disrupts such presuppositions. If someone says "even George could win the race," that "even" presupposes that George is an unlikely candidate to win (and again, note how nodding or shaking one's head wouldn't naturally be read as contesting the "even" part). If one responds instead by saying "whaddya mean, 'even'?", then one has blocked the presupposition. Of course, it still can be argued for as an assertion -- one may well have perfectly good reasons why George is a long-shot -- but that places the discussion on a very different terrain from when it was presupposed.

To be presupposed is a nice place to reside, if you can get there. It takes your position out of the rough-and-tumble of contestation, and into the nice, comfortable space of shared background assumptions. If someone challenges a presupposition, they automatically come off as a sort of spoil-sport or nitpicker -- the type of person who insists that you justify every god-damned thing (what kind of fanatic invests this much effort over a parenthetical?). Presupposition, hence, isn't just a description, it's also a move -- a tactical effort to place a particular position on the status-quo high ground and implicitly disadvantage efforts to dislodge it from its perch.

Reading Jahangiri's relevant passage clearly is written to present substantive views about Zionism as presuppositions that need not be argued. The structure -- a parenthetical aside, basically a throw-away, casually given to add a bit of illustrative flair -- is not one you use when you know (or want to admit) that you are making a contestable point. To demonstrate, imagine her parenthetical read as follows:

especially those built to uphold white supremacy (such as racism, colonialism, zionism, militarism, cubism).

The reader there would probably pull up short: "Hold it -- why 'cubism'?" And anyone familiar with Jewish humor knows the ensuing retort: "Why 'zionism'?"

The critical response to Jahangiri, then, is an attempt to block a back-door attempt to smuggle in presuppositions about Zionism. Feministing's after-the-fact attempt to say that the post was "on" Zionism is disingenuous, it seeks to recharacterize as an argument what was actually an attempt at rhetorical fiat. That the fiat could even plausibly work for Zionism (in a way it couldn't for "cubism") itself shows that the dimensions of power in this context are not necessarily what they're always perceived to be.

Of course, there is still much to be said about the argument as an argument. And here I might surprise some of my readers when I say that there is a valid and important connection to be made between Zionism and gender violence. However, that connection isn't what Jahangiri presents it as, and once again her discursive framing seeks to presuppose an array of incorrect (and often quite damaging) assertions about Zionism vis-a-vis other social practices that do more to obscure than they do illuminate the issue.

II.

"Wherever there is a position of power," Olympic gymnast McKayla Maroney wrote, "there seems to be potential for abuse." And since Zionism is, in some places, a position of power, then there is the potential for Zionism to construct and buttress gender violence.

Framed that way, this may sound unremarkable precisely because it applies so universally. Hollywood is, in some places, a position of power, and therefore in some places constructs and buttresses gender violence. Socialism is, in some places, a position of power, and therefore in some places constructs and buttresses gender violence. Evangelicalism is, in some places, a position of power, and therefore in some places constructs and buttresses gender violence.

Gender violence follows power, and power, as Foucault reminds is, is ubiquitous. Hence, gender violence is also ubiquitous. There is no space where one is free from power, and so there is no place where power can't be corrupted and turned towards gender-based violence and oppression.

And to be crystal-clear on the matter: there is nothing that exempts "left" or "progressive" spaces from these risks. From Black Panthers to Bernie Bros, progressive organizations and movements have never been remotely exempt from dynamics of gender violence. Franz Fanon speaks of women who "ask to be raped," in the same way that there are "faces that ask to be slapped." The "Comrade Delta" affair in the Socialist Workers Party is another example. Melanie Kaye/Kantrowitz's writings on gender violence in lesbian communities provide another. Power, of a particular kind, circulates in these communities too, and that power can and is leveraged to enact sexual violence.

We might think that this universalism, this ubiquity, itself makes it wrong to speak of the link between Zionism and gender violence because its not saying anything unique. "Yes," it might be conceded, "Zionism is linked to gender violence because all social practices are. But that makes the decision to particularly focus on Zionism more suspect, not less, since it implies that there is something distinctive about Zionism that actually is common to virtually any social phenomenon."

Yet this argument is wrong. Power is not an undifferentiated thing; that power is everywhere doesn't mean it operates the same everywhere. Gender violence operates through power, which means it will predictably adopt the idioms, pathways, and mechanics opened up by power. And because these will differ from position to position, there need to be particular discourses about sexual violence that are particular to specific arenas or dimensions of power.

How, for example, does gender violence act upon power in "repressive," Victorian communities? Well, it sharply delineates who are good (pure, chaste, virginal) girls and who are bad (classless, promiscuous, available) girls; or it tells women that sexuality is a duty owed to their husband (whose identity they've merged into, so no such thing as marital rape). In another community -- the "liberated" community of the sexual revolution -- power interacts with gender violence differently. Now it's about showing that you're not a prude or a square, that you're hip and with it, that you don't have hang-ups -- all of these, too, are easily leveraged for the purposes of sexual abuse, but clearly they're different and need a different narrative from the discourse we'd apply to Victorian sexual predation. To speak of power and gender violence as an undifferentiated whole would almost certainly obscure how it specifically plays out in one context or the other, and most likely both.

For that reason, we should expect that -- in places where Zionism is powerful, gender violence will play out in distinctively "Zionist" ways. It will "speak the language", if you will; it will have a character distinctive to the arena(s) of power it operates within. The activities of Lehava -- the far-right "anti-assimilationist" group which threatens Jewish/Arab interrelations -- is an obvious example of gender oppression shock troops acting through an explicitly Zionist lens (that 15 of their members -- including their head -- were just arrested likewise demonstrates that "Zionism" contains more than just this chord).

So I do think that it is important to work through the interrelation of Zionism and gender violence in a distinctive way. However, I think this is important for the same reason why it's important to work through the interrelation of anti-Zionism and gender violence in a distinctive way. Just as Zionism is, in some places, a position of power and thereby constructs a distinctive forms of gender violence, in other places anti-Zionism occupies a position of power and it, too, buttresses its own versions of sexual oppression.

It's worth noticing how Jahangiri's parenthetical -- placing "zionism" alongside things like "colonialism" or "racism" -- presupposes this potentiality away. Just as adding "cubism" to the parenthetical would obscure the meaning Jahangiri wishes to evoke, so too would altering it to read "racism, colonialism, zionism, antizionism, militarism" would no doubt be met with puzzlement. She seeks to link gender violence to various malign political movements; not to power as a general social feature. The implication is that gender violence comes attached to bad politics, and this itself opens the door to particular forms of victim-blaming and gaslighting that rely upon the rhetorical and political moves Jahangiri is making. If sexual violence is treated as a function of things like "racism" or "colonialism", what does one do when one's particular domain doesn't clearly lend itself to that narrative? What happens if the person who assaults you is a fellow in your anti-war group, or a leader in your anti-colonial resistance cell? In fact, we know exactly how the narrative plays out in those context: keep quiet, it didn't really happen, it's for the cause, you don't want to play into the enemy's hands, only a traitor or a turncoat would slander us so, if it happened here it can't be rape.

The ability to latch onto those narratives is, itself, a form of power that enables and insulates sexual violence, and it is an ability that one doesn't see unless one crafts a broader narrative of gender violence inside "good" politics. One can elide the problem by seeking to trace it all the way back to some corruption instilled by white supremacy, and maybe sometimes that's plausible. But for many women, this is a cloud of dust kicked up to obscure a more straight-forward truth: "this man assaulted me, and he was able to do so and get away with it because of the progressive modalities of power we were a part of." And while I don't think Jahangiri would endorse the claim that gender violence doesn't manifest inside "good" political spaces, this demonstrates the pernicious aspect of presupposition -- just like with the man who agrees the pitcher "throws like a girl," it gets us to affirm things indirectly that we'd never say directly.

In any event, what would a narrative of a specifically anti-Zionist form of gendered violence look like? It could start with the widespread expulsion of Middle Eastern Jews from Arab nations, an expulsion carried out under an anti-Zionist banner and one in which sexual threat and violence was very much a tool in the oppressive toolbox. It is a marker of the "success" of this violence that there are now very few Jews left to be subjected to anti-Zionist gendered violence in many of the spaces where anti-Zionism as a form of power is at its apex -- a fact that can easily be confused with denying anti-Zionism as existing at all as a meaningful form of gendered power (upon arriving in Israel, Middle Eastern Jews then faced separate victimization -- also often very much gendered -- by an Ashkenazi elite. Recent Mizrahi history overflows with such oppression, and unfortunately precisely because there is such a cornucopia of examples to choose from contemporary writings on the gendered oppression of Mizrahim are easily able to cherry-pick their favorites to advance either a Zionist or anti-Zionist historiography. The problem of using genuine oppression as a stalking horse for other political commitments is an issue I will return to below).

Moving forward, we could turn to a putative feminist activist in Egypt who specifically urged rape and sexual harassment be deployed against "Zionist" women as a means of anti-Zionist "resistance" -- culminating in the chilling warning "leave the land so we won't rape you." In Egypt, anti-Zionism occupies a position of power, and here we see how it can easily accommodate gender violence constructed through a sort of anti-colonialist resistance. Zionists are, after all, "raping" the land -- so why isn't turnabout fair play?

These are severe examples. But the mechanics can play out more subtly. In certain feminist spaces, anti-Zionism carries power, and it uses that power to expel, eliminate, or otherwise exclude certain women -- generally Jewish women who either are Zionist or don't perform non- or anti-Zionism in a sufficiently flagrant manner. We saw this, or attempts at this, at the Chicago Dyke March, at Creating Change in Chicago (Jahangari, writing for Feministing, endorsed that one too), at Columbia University, at the "targeting" by JVP of Jewish Queer Youth for infiltration and disruption. If these places are designed to be spaces of resistance to gender violence (and they certainly hold themselves out that way), then these acts of exclusion are instances of power -- acting through anti-Zionism -- functioning to make women and sexual minorities more vulnerable and more prone to such violence. And this form of violence, in turn, gets laundered and insulated through the particular frame of anti-Zionist power which acts to legitimize or even valorize it.

I don't actually want to pursue this further; my point isn't to provide a comprehensive gendered account of either anti-Zionist or Zionist violence (I'm not sure I'd be qualified to do so in any event). And if you're reading this as "Zionism isn't the problem, anti-Zionism is!" you're missing the point, in more ways than one. Zionism and anti-Zionism are distinctive, but not distinct, in that they can and do create and buttress their own forms of gender violence just as any other site of power can.  Any effective counter to these distinctive forms of gender violence needs to explore the phenomenon of gender violence in these arenas as distinctive -- that is, they need know what makes gender violence work here rather than some abstract and general theory of what makes it work everywhere.

III.

So why, then, does this all feel so damn hard? We need a narrative of gender violence enabled by Zionism, just as we need one for anti-Zionism, just as for Hollywood just as for Evangelicalism just as for policing.

It feels hard in part because the people most excited to craft these narratives tend to have ulterior motives. They do it because they don't like Zionism or anti-Zionism, and they want to make their target look bad. This tends to lead to quite partial (in all senses) analyses and casts a pall over the whole endeavor -- but it also demonstrates some of the dialogical prerequisites necessary to do the analysis right. To illustrate, consider another case of a social practice which very much needs a distinctive analysis of its linkage to gender violence: Islam.

Islam (like -- to be clear -- Judaism, Christianity, Buddhism, Atheism ....) is in some places a position of power, and therefore in some places constructs and buttresses gendered violence in a distinctive way. Yet to speak of a distinctively "Muslim" form of gender violence makes many of us blanche, and for understandable reasons. All too often, the people who are purporting to draw out this distinctive connection are doing so as a stalking horse for other -- Islamophobic -- politics. Their goal isn't really to provide an accurate or cohesive picture of how Islam-as-power and gender violence intersect. It's to present Islam is a distinctively bad, corrupt, oppressive, or backwards.

Endeavors of this sort aren't really hard to spot. Sometimes, the bad faith lies right there on the surface: Islamofascism Awareness Week is "that magical time of year when Republicans briefly pretend to care about gay rights." But the more comprehensive tell is in the tone the analysis takes. There's a palpable sense of excitement, of glee, in uncovering how Islam really, truly, fundamentally, inalterably is misogynistic. And as a result, their constructions of Islam are sharply essentialist and unyielding in declaring that the only authentic, legitimate, viable Islam is the sort that oppresses women. The last thing these interpreters want is for resources to emerge within Islam, getting their power from Islam, which can serve as points of resistance against gendered violence. The entire point is for Islam to be irredeemably corrupt; any actual pathways opened up for Muslim women are accidental and immediately sacrificed if they risk admitting that Muslim women qua Muslim women might have agency, that Islam is something that can give to them and not just take from them (for all the talk about liberals not backing "Muslim feminists", it's the conservatives who truly hate them insofar as they're Muslim feminists and therefore must be hypocrites, delusional, and/or liars. Ex-Muslim feminists, now they're a different story....).

Thin as her parenthetical is, there's no real question that something quite like this is Jahangari's project. Grouping Zionism in with entities like racism and colonialism presents it -- presupposes it -- as ontologically irredeemable, flawed to its essence (again, this is why "anti-Zionist" can't fit -- even if she conceded that it could manifest through gendered violence, she'd want to insist it was and could be more than that). And because it's the anti-Zionism, not the anti-sexism, that motivates the inquiry, Jahangari wants this to be true. The last thing she wants is resources emerging within Zionism that could counter or resist gender violence, even though that'd seemingly be a net gain for the fight against misogyny. Such a prospect is inconceivable, indeed contradictory, to her; it is like the prospect of a "feminist racism" -- impossible in concept and undesirable in practice. Zionism is a diseased tree, all of its fruit must likewise be poisonous. The predictable result is that she will ignore, overlook, or dismiss the myriad ways in which one could find gender- (and otherwise-)egalitarianism within and through Zionism.

This is the reason why speaking about distinctively Zionist or anti-Zionist "forms" of gender violence is hard. It's because they're very often stalking horses for other, less savory political commitments; or are easily co-opted into their service. There's good reason for suspicion as to motives, and good reason for suspicion as to accuracy. Without a deep and comprehensive understanding of Palestinian and Arab history, experience, and oppression, and (probably) without significant sympathy for and affinity towards Palestinians and a desire to see them fully vindicated in their quest for national liberation and equality, the author of an "anti-Zionist form of gender violence" is likely to get it wrong, often in very serious ways. Likewise, without a deep and comprehensive understanding of Jewish history, experience, and oppression, and (probably) without significant sympathy for and affinity towards Jews and a desire to see us fully vindicated in our quest for national liberation and equality, the author of a "Zionist form of gender violence" is equally likely to badly misstep. Put simply, it is not unreasonable to demand that persons undertaking the politically and ethically delicate task of tying Zionism (or anti-Zionism)  to gender violence be persons who have shown themselves aware of the full complexity of the issue and who are not inclined to engage in a political hit job.

All of this is a way of saying that, just as discourses that are anti-colonial or anti-racist or anti-Zionist (or Zionist) don't stand outside of patterns of gender violence, neither do discourses about gender violence stand outside of racist, colonialist, or antisemitic or Islamophobic patterns. And that brings us to the final point I want to make, which is about the website which published this essay.

The Feministing tag for "Racism" has dozens upon dozens of entries. So does "Transphobia" Likewise "Islamophobia". That's good. That shows they are invested in those issues, recognizes their importance, and has some familiarity with their complexity and nuances. It doesn't make them beyond reproach -- that's not my place to say -- but it does suggest that these are matters they take seriously and can speak on with some authority.

The tag for "Anti-Semitism" has two posts. And one of them never actually mentions anti-Semitism at all (the other is from three years ago).

One need not demand perfectly equal time to think that maybe, just maybe, for a globally-oriented anti-oppression site antisemitism is more than a two (rounding up) post problem. But evidently Jewish oppression is not something Feministing writes a lot about, and there is no evidence that it is something it knows a lot about. That's not condemnable in of itself -- lots of people don't know lots of things -- but it might suggest that arenas involving Jews are arenas they shouldn't write on. There's little evidence that Feministing is the sort of place where one would find "a deep and comprehensive understanding of Jewish history, experience, and oppression", let alone "significant sympathy for and affinity towards Jews and a desire to see us fully vindicated in our quest for national liberation and equality." Lacking those qualifications, it is exceptionally unlikely that Feministing is a good candidate for exploring this issue in a non-oppressive way, and it shouldn't make the attempt. There are plenty of Zionist-identified websites who like nothing more than regaling everyone with how hopeless backwards, regressive, illiberal, and repressive Palestinian society is (towards women and everyone else), and they should desist as well -- they're not helping anyone, I sincerely doubt they're trying to help anyone, and they're not good at their jobs.

But Feministing certainly aspires to greater heights than that, so I don't feel bad about subjecting it to more comprehensive critique. This controversy was, in no small part, Jews telling Feministing that its presuppositions about Jewish political practices were wrong, stilted, and offensive. Thus far, Feministing hasn't shown itself receptive to the critique; it clearly thinks what was said was wholly inbounds and offered no basis for objection. We can be a bit perplexed about what undergirds its confidence on the matter, given Feministing's general lack of attention to the issue. But that never seems to stop anyone. The heart of antisemitism in its epistemic dimension is the perceived entitlement to talk about Jews without knowing about Jews.

One suspects that, even if they read this post, the editors of Feministing won't make any adjustments in response to it. There's almost no pressure on left-wing websites to talk about antisemitism, and there's even less pressure on them to not talk about other matters of concern to Jews if they don't talk about antisemitism. There are other discourses of power operating on and around Jews which rationalize this behavior; most notably the trope of Jewish hyperpower which takes "ignoring Jews" and reconstructs it into "resisting overbearing Jews Zionists" (and how easy would that be to deploy here: "Zionists -- so touchy and fragile that a single parenthetical aside can spawn a 4,000 word essay!" If it's not already clear, I tip my cap to the cleverness of the move if nothing else).

The next most likely (which is not to say likely) move is to start writing on antisemitism more -- but from a perspective that just happens to be perfectly harmonious with the political positions they wanted to hold about Jews prior to starting. Such a move would be very easy to pull off -- I'm sure a dozen JVP activists are already primed to volunteer -- but that wouldn't make it any less of a bad faith maneuver. It lets the tail wag the dog; instead of accepting the potential that positions might need adjustment in response to a Jewish narrative, it seeks to adjust which Jew they listen to for the sake of preserving a set of political commitments arrived at prior to any serious reckoning with Jewish voices. (Incidentally, the appeal of this particular tactic explains why groups like JVP are so often gatekeepers seeking to exclude other, more mainline Jewish voices, from inclusion in the feminist tent. If one needs a Jewish voice, and they've made it so they're the only Jewish voice in the room, then a lot more people will be relying on them and their power gets magnified tremendously. And the real kicker is that they can insulate their privileged position by recharacterizing the absence of other Jews -- which they facilitated through exclusion -- as proof that Jews-not-them don't deserve to be in the room and can justly be ignored).

If they did want to ethically broach these topics, they'll have to challenge themselves more than that. But to be honest, I'm not sure the groundwork is ripe for Feministing, specifically, to do this work at this time (which isn't to say that nobody can do it). There's no rule that says every site has to be qualified to tackle every form of injustice. Feministing has a serious blindspot on Jewish issues, and if they set about resolving it based on commitments they formed by and through the exclusionary practices they're supposedly seeking to rectify, the "reform" will almost certainly be a corrupted and partial one.

There's a lot to be said on Zionism, Anti-Zionism, Gender Violence, and Power. Someone -- probably not Feministing -- should get on that.

Being a clerk on a United States Court of Appeals was one of the truly great honors of my life. It was a fantastic experience, which included the chance to have a direct hand in the development of American law, to occupy a front-row seat to observe how the legal sausage is mad, and to work side-by-side with some exceptional attorneys and for a federal judge who was a fantastic friend and mentor.

But I've also remarked that, during the tenure of my clerkship, I often felt as if I was "ruining far more lives than I was validating." One arena of law which provoked that feeling was criminal law, where truly obscene oversentencing was a daily occurrence. Another area was immigration.

By the time an immigration case reaches the United States Court of Appeals for the Eighth Circuit, the median adjective describing the appealing immigrant is probably "doomed". This is due to a confluence of factors -- the laws on the books are immigrant-unfriendly, the immigration judges are often immigrant-unfriendly, and the standard of review for immigration claims at this stage is exceptionally immigrant-unfriendly. What that meant in practice was that, over and over again, I found myself reading files of people who insisted that they'd be hacked to death if they were deported back to Central America, then assisting in perfunctory one paragraph orders denying their appeal.

The risk (of being hacked to death) wasn't made up. I was generally quite persuaded that they were at serious risk of violent attack if they were returned to their home countries. But, as I said, the law is quite unfriendly, and since the persecution was rarely the result of direct governmental animosity or membership in a cohesive social group, there was usually nothing to be done. On the rare occasions where there seemed to be a glimmer of hope, I tried my best -- and most of those cases I was unsuccessful. But even the cases where there was even a implausible shot were few and far between. For the most part, the legal rulings were straight-forward -- hence why they could be expressed in perfunctory, single paragraph orders.

The law is straight-forward and it is clear. That does not change the reality of the situation. It is fair to say that the true villains here are the politicians who write and the people who demand laws which regularly enable such horrible outcomes. Fine. But the fact is I was a gear in a machinery of death, one that destroyed families and ruined lives. In terms of how much culpability you want to assign to me, personally, or other agents of the federal judiciary, legal formalism is a fine consideration to take account of. But appealing to it to deny the nature of the machine -- not to say "it's not my fault" but to say "that's not what was happening" -- is a psychological numbing agent. We run to it because it's terrible to have to face up to the reality of the situation.

The Austin American-Statesman reports on a recently deported immigrant -- snatched outside of a courthouse where he was facing a few minor misdemeanors -- who was just found murdered back in his native Mexico. Murdered, just as he told a federal court he would be in a futile effort to stave off his deportation.

Juan Coronilla-Guerrero had a criminal background. Not a serious one, but not a spotless one either. In this, he is little different from many Americans who have a spot or two in their past. Which itself raises the DACA question posited by, among others, my friend Joel Sati. DACA is for perfect immigrants -- those with not a single blemish on their record, those who perfectly fit a respectability narrative. Of course, it's understandable that, in unfavorable conditions, you latch onto the best stories you can. It's no mystery why DACA or the Dream Acts are framed the way they are.

But Juan Coronilla-Guerrero was not a murderer, or a rapist, or a child abuser. More to the point, he did not deserve to die. If or when DACA is passed, or a Dream Act, or some other comparable piece of immigration reform make it through Congress, it will undoubtedly exclude many, many Juan Coronilla-Guerreros. Not perfect people, but not bad people either. And despite the fact that they aren't hardened criminals, or "bad hombres", or incurable monsters, they'll continue to be deported, in circumstances where the results are entirely predictable -- ruined lives as best, death and maiming at worst.

We should still pass a DACA bill. We should do what we can, in the imperfect world we live in, bounded by the terrible political constraints that bind us.

It will remain a machinery of death. I'm not about casting blame; feel guilty or innocent at your own discretion. But don't deny the nature of the machine.