September 12, 2019


The controversy over "ethnonationalism" and a Trump judicial nominee, explained (Ian Millhiser  Sep 12, 2019, Vox)

The most debated aspect of Menashi's record, just in terms of the amount of heat its generated among opinion journalists and pundits, is a 2010 academic article he wrote titled "Ethnonationalism and Liberal Democracy."

That article was flagged by MSNBC's Rachel Maddow last month, when she broadcast a lengthy segment claiming that Menashi argued that "democracy can't work unless the country is defined by a unifying race."

That characterization inflamed Menashi's defenders. The Volokh Conspiracy's David Bernstein argued that, by attacking Menashi, Maddow revealed herself as the real racist. Meanwhile, the Wall Street Journal's editorial board offered a more substantive reply to Maddow, claiming that the article is a relatively benign defense of "Israel as a liberal democracy and Jewish state" -- and claiming that any senator who accepts her argument drifts too far towards the "anti-Israel fringe."

The Wall Street Journal is correct that the lion's share of Menashi's article is an academic defense of Israel against scholars who "argue that liberal democracy precludes the state from adopting a particularistic ethnonational identity." Arraying himself against scholars who argue, in the words of one of Menashi's antagonists, that Israel "remains distinctive among democratic states in its resort to ethnoreligious criteria with which to denominate and rank its citizens," Menashi spends most of his article listing examples of other nations that also give favorable treatment to persons with a particular ethnonational identity.

To the extent that Menashi seeks to prove that many nations have a thread of ethnonationalism woven into their legal tapestry, his article is persuasive. He lists a wide array of laws -- a Greek law that "grants automatic citizenship to 'persons of Greek origin' who volunteer for military service," an Irish law creating a special process allowing persons "of Irish descent or Irish associations" to gain citizenship, and so forth -- that give some degree of favorable treatment to people who can trace their family's origins back to that nation.

Near the end of his article, however, Menashi diverges from his largely descriptive effort to normalize Israel, and suggests that ethnic diversity is itself harmful. "Social scientists have found that greater ethnic heterogeneity is associated with lower social trust," he writes. "Ethnically heterogeneous societies exhibit less political and civic engagement, less effective governing institutions, and fewer public goods."

"Surely," he concludes with a flourish, "it does not serve the cause of liberal democracy to ignore this reality."

Menashi's article does not lay out a policy agenda to deal with this "reality." Should the government teach citizens about diverse cultures so that they are more accepting? Does Menashi agree with University of Pennsylvania law professor Amy Wax that "our country will be better off with more whites and fewer nonwhites?"

The full answers to these questions cannot be found in Menashi's ethnonationalism article. Certainly the article, at the very least, suggests that Menashi is much more likely than the typical judge to be sympathetic to policies that seek to make the United States more homogeneous. That said, at his confirmation hearing, he did deny that the views expressed in the article shape his understanding of American law. The United States, he claimed at the hearing, is "not one of those countries" that is based on ethnic or linguistic "tradition. can we ignore the fact that these putative allies are racist?

Posted by at September 12, 2019 8:25 AM