A trend has recently emerged in Israel and elsewhere to rewrite the history of the founding of the Jewish state.…
A trend has recently emerged in Israel and elsewhere to rewrite the history of the founding of the Jewish state. The trend has several leading protagonists. One is Avi Shlaim, the author of Collusion Across the Jordan,1 who immigrated from Iraq to Israel as a child, then moved to England, where he lectures at Oxford. Another is Benny Morris, an Israeli journalist who has a doctorate from Cambridge but whose academic qualifications are less than complete—his Arabic does not meet research requirements. Yet Morris’s The Birth of the Palestinian Refugee Problem, 1947-19492 is probably the most influential work to have come out of the revisionist trend so far. There is also Simha Flapan, who before his death in 1987 had served as the director of the Arab department of the left-wing Mapam party and editor of the English-language monthly New Outlook; his book, The Birth of Israel: Myths and Realities,3 is, as Morris himself has noted in an essay in Tikkun, not a “history” at all but a polemical work written from a Marxist perspective.4
In that essay Morris hails the “new historiography,” as he calls it, for shattering a number of “myths” about the birth of Israel. Together, these myths make up the “old history”:
The essence of the old history is that Zionism was a beneficent and well-meaning progressive national movement; that Israel was born pure into an uncharitable, predatory world; that Zionist efforts at compromise and conciliation were rejected by the Arabs; and that Palestine’s Arabs, and in their wake the surrounding Arab states, for reasons of innate selfishness, xenophobia, and downright cussedness, refused to accede to the burgeoning Zionist presence and in 1947 to 1949 launched a war to extirpate the foreign plant.
Elsewhere in the same essay Morris (summarizing Flapan) enumerates four cardinal points of the “old history”:
(1) That the Yishuv [the Jewish community in Palestine] in 1947 joyously accepted partition and the truncated Jewish state prescribed by the UN General Assembly, and that the Palestinians and the surrounding Arab states rejected partition and attacked the Yishuv with the aim of throwing the Jews into the sea; (2) that the war was waged between a relatively defenseless and weak (Jewish) David and a relatively strong (Arab) Goliath; (3) that the Palestinians fled their homes and villages either voluntarily or at the behest/order of the Arab leaders; and (4) that, at the war’s end, Israel was interested in making peace, but the recalcitrant Arabs displayed no such interest, opting for a perpetual—if sporadic—war to the finish.
These, then, are the assumptions which Morris and his fellow revisionists have set out, in his words, to “undermine, if not thoroughly demolish.” They have tried to do this, moreover, for a purpose that goes far beyond the academic:
The new history is one of the signs of a maturing Israel. . . . What is now being written about Israel’s past seems to offer us a more balanced and a more “truthful” view of that country’s history than what has been offered hitherto. It may also in some obscure way serve the purposes of peace and reconciliation between the warring tribes of that land.
In other words, it is the commitment to the “purposes of peace” that determines eligibility in this new historical club. And what are the “purposes of peace”? While Morris does not attempt to define them, it would appear that one of their essentials is a sympathy somewhat inclined to the side of the Palestinians. Another, therefore, is the desire to delegitimize Zionism:
How one perceives 1948 bears heavily on how one perceives the whole Zionist/Israeli experience. If Israel . . . was born pure and innocent, then it was worthy of the grace, material assistance, and political support showered upon it by the West over the past forty years—and worthy of more of the same in years to come. If, on the other hand, Israel was born tarnished, besmirched by original sin, then it was no more deserving of that grace and assistance than were its neighbors.
The terms “born pure” and “original sin,” touching as they do on Christian sensibilities, can hardly be accidental in this all-but-explicit appeal for worldwide censure of the Jewish state.
But what, precisely, is the original sin? For both Shlaim and Morris, who are the more important of the “new” historians, and to whose work we shall shortly turn, it is the denial to the Palestinian Arabs of a country and a national identity. Shlaim professes to demonstrate that even prior to the 1947 UN resolution calling for the establishment of two states in Palestine, the leaders of the Yishuv had, through a “collusion” with King Abdullah of Jordan, sealed the fate of the prospective Palestinian Arab state. Morris seeks to prove that Israel, by preventing the return of Palestinian Arabs who fled or were expelled in 1948, is therefore to blame for creating the refugee problem. As it happens, both claims as stated are false.
Before examining the specific theses of Shlaim and Morris, a few general observations are in order.
First, the “new historiography” is not new. The notion of a historical original sin—the dispossession of Palestine’s Arabs—is as old as Zionism itself. In 1930 it formed the backbone of a White Paper offered by the British Colonial Secretary, Lord Passfield. It has also been a staple of intra-Jewish politics since the beginning of the century, when it was raised by the anti-Zionist Bund. Of particular note in this regard is a trenchant attack published in 1915 in the New York Jewish Daily Forward under the headline, “The Jewish Colonies in the Land of Israel Are Built Upon the Misfortunes of the Arabs.” According to the author, the Arabs were merely engaged in a “tenacious, systematic, and prolonged national war against the Jews who want to oust them from their land.”
Secondly, the “new historiography” rests in part on defective evidence, and is characterized by serious professional flaws. Thus, testimony has been drawn from Israeli, British, and American primary sources but in no case from Arab primary sources, since Arab states do not permit access to archival material in the Western manner. Collusion Across the Jordan “became possible,” Avi Shlaim explains, “following the release of the official documents for research in British, American, and Israeli archives”; he does not even mention the absence of source material from across the Jordan. Morris, for his part, acknowledges honestly that the “continued unavailability” of Arab state papers and the virtual nonexistence of Palestinian state papers “leaves the historian burdened by a major problem,” but nevertheless avers that he has done his best “to reduce the ‘area of darkness’ . . . by integrating the Arab ‘side’ through culling heavily from Jewish and Israeli intelligence reports and from British and American diplomatic dispatches . . . which go a long way toward filling out the picture. . . .” Yet how it is possible to determine on the basis of Israeli documents the nature and contents of missing Arab documents remains a mystery.
If their research is incomplete, Morris and Shlaim also ignore essential facts and background material necessary to a proper understanding of the historical scene. It is, for example, impossible to describe Israel’s War of Independence, and the flight and expulsion of Palestine’s Arabs, without taking into account the tripartite struggle among Jews, Arabs, and British that had racked the country for the previous three decades. The important landmarks in this struggle were the Arab riots of 1929 and 1936-39, the Peel Plan of 1937, the White Paper of May 1939 and the Land Ordinance of early 1941, the efforts of the Yishuv to increase immigration and settlement, and, beyond all these, the Holocaust. Yet these matters are invoked by our authors, and then just barely, as if they were a set of technical specifications. What we have here is not only a case of historical foreshortening but an attempt to disconnect the birth of the state of Israel from the experience and tribulations of the Jewish people at large.
Nor does either of the two historians make an effort to understand the deep effect the earlier phases of the struggle produced on Jewish-Arab relations in Palestine, and particularly during the year 1948. They do not look around them; like a hunter adjusting his sights, they close one eye and narrow the other, oblivious of their surroundings, and blind beyond the ends of their noses. The method may work for target shooting, but it is hardly the way of the responsible historian.
If, finally, we may liken a historical study to a large lake, then the successful historian is one who can cross this watery expanse without getting wet. This he does by building a solid bridge whose pylons are constructed of evidence strong enough to support the span of interpretation. At times, indeed, the “new” historians appear to be crossing just such a bridge, but then we find that a quarter or a third of the way across the lake their bridge comes to an abrupt end. The only way to reach the far shore (absent an intention of walking across the waters) is to leap into the air and hope to glide home. The tendency to glide over and beyond the sources is common to both these “new” historians.
In Collusion Across the Jordan, Avi Shlaim maintains that in 1947 a secret agreement was entered into by King Abdullah of Jordan and the Jewish Agency Executive (JAE) in Jerusalem. Meant to become operative at the end of the British Mandate over Palestine, it would deceive the Arabs, cheat them out of their proposed Palestinian state, and divide its prospective area between Jordan and the future Jewish state. Thanks to this agreement, the two parties refrained from fighting each other during the 1948 war, and collaborated immediately thereafter to rob the Palestinians permanently of their intended country.
This, in Shlaim’s view, was an imperialist collusion par excellence—and certainly so on the part of the Jews. During the period of Ottoman rule, he writes, Palestine was inhabited by nearly 500,000 Arabs and some 50,000 Jews, and the Arabs owned 99 percent of the land. “But, in keeping with the spirit of European imperialism, the Jews did not allow these local realities to stand in the way of their national aspirations.” From the very start, the aim of the Zionist leaders was a Jewish state in Palestine, and the methods they employed to achieve it “included bribery, deception, coercion, and physical force.” Of course, being smart politicians, they “tried to project an image of reasonableness and moderation and proposed numerous compromise plans for the dispute with the Palestine Arabs.” Yet during the half-century that elapsed between the First Zionist Congress in Basel in 1897 and the establishment of Israel in 1948, “the emphasis gradually shifted from persuasion to coercion, from the peaceful to the violent end of the spectrum.” With the establishment of Israel, a state resting on “superior armed forces,” the true face of Zionism was exposed.
Shlaim apparently does not know that in Zionist political thinking, a state was consistently perceived as a means rather than an end: a sovereign Jewish state, it was thought, would be better positioned than any alternative arrangement to gather the beleaguered Jewish people into their homeland. Nor does Shlaim take note of the permutations undergone by the state-idea until, with the Holocaust, it became clear that the Zionist end could not be achieved except by means of a state.
This failure of understanding becomes particularly salient when Shlaim relates that in 1934 David Ben-Gurion, the heroic Zionist figure later to be Israel’s first Prime Minister, “concentrated his formidable energies on the acceleration of Jewish immigration to Palestine but, recognizing that his movement faced a strong Arab national movement, he initiated talks with Arab leaders” to see if a common platform for the aspirations of the two national movements could be found. It is true that Ben-Gurion made extensive efforts to meet with Hajj Amin al-Husayni, the Mufti of Jerusalem, despite the latter’s notoriety as the initiator of an Arab boycott of the Jews (itself ignored by Shlaim). Proposing the formation of an Arab federation with which a Jewish state would be affiliated, Ben-Gurion hoped to get, in exchange, Arab acquiescence in Jewish immigration from Hitler’s Europe. Shlaim does not see the obvious point: that the salvation of Europe’s Jews, and not the establishment of a state, was Ben-Gurion’s chief priority, and for its sake he was prepared to forgo an independent, sovereign state even as a vision for the distant future.
In assigning to Zionism an innate lust for power and aggression, Shlaim scants or is ignorant of the fears of total destruction which constantly beset the Yishuv. This anxiety grew to a high pitch during the 1929 Arab riots, then subsided, only to rise again during the 1936-1939 Arab revolt. After the outbreak of World War II, it was exacerbated once again by the Mufti’s alliance with Hitler. At the time, the high command of the Jewish Defense Forces (the Haganah) doubted whether the Yishuv could, in the event of a British withdrawal, survive the conquest of Palestine by Nazi troops and their Arab allies. These fears reemerged when the Yishuv was attacked by Palestine’s Arabs following the UN resolution of November 1947 and again when, on the morrow of its birth, Israel was invaded by the armies of five Arab states.
“In retrospect,” Shlaim writes, “the period from 1936 to 1938 can be seen as one of exemplary opportunity and unmitigated failure for the Zionist movement.” The putative opportunity was the partition plan put forward in 1937 by the Peel Commission, and the man who missed it was David Ben-Gurion.
Shlaim posits that in 1937 it was possible to establish, under British aegis, two states—Jewish and Arab—and that had this been done history would have followed a different, and much happier, course: the Jews would have been spared the Holocaust, and the Palestinian Arabs would not have had to go into exile; above all, there would have been no need for the JAE-Abdullah “collusion.” Yet this benign outcome, in Shlaim’s view, was squandered by Ben-Gurion’s political maneuvering, which by “inadvertently obstructing [British] parliamentary ratification, and hence [British] government action on the Peel Plan, . . . also provided a breathing space during which the full weight of Arab opposition could make itself felt,” thus enabling Britain to retreat from its own initiative.
Here it is not only Arab sources that Shlaim has missed. Had he read the minutes of the Zionist Congress of August 1937, or studied the ancillary documentation in the Central Zionist Archive, he would have learned of the efforts made by Ben-Gurion to persuade his friends and rivals, both before and during the Congress, to endorse the Peel Plan. Stranger still is Shlaim’s apparent failure to consult the relevant documents in the British Public Record Office, where he would have discovered that both the Woodhead Commission (established ostensibly to flesh out but in reality to jettison the partition plan recommended by the Peel Commission) and the St. James Conference (where the Arabs refused to sit at the same table with the Jews) were nothing but stages in a grandiose exercise in deception, designed by the British to impose immigration restrictions on the Yishuv. Had he opened his eyes, moreover, Shlaim might have understood that it was not Ben-Gurion’s “tactics” that generated this policy but rather the British government’s fear and appeasement of the Arabs.
Where does Shlaim derive his authority for his “new” construction? It rests on a single excerpt from the autobiography of the Zionist leader Nahum Goldmann:
If there has been a tragedy in the history of Zionism, it is the fact that largely through our fault, partition was not put into effect the first time it was suggested, in 1937. . . . The Zionist movement’s attitude toward this first partition plan was a major sin of our generation.
Quite apart from the anomaly of a historian seeking to support a far-reaching conclusion with a single reference, Shlaim distorts his own source. For Goldmann does not blame the “tragedy” on Ben-Gurion, or intimate that the partition plan was obstructed by his “tactics.” To the contrary, Goldmann points out that Ben-Gurion, Chaim Weizmann, and the majority in the JAE (including Goldmann himself) supported the Peel Plan. His anger is reserved for those, called at the time “the nay-sayers”—among them Menachem Ussishkin, Berl Katznelson, Louis Brandeis, and Stephen Wise—who fought the Peel Plan from beginning to end.
True, for Goldmann the “small majority expressing willingness to consider the partition plan” came “too late. The aceptance was too vague and the British government itself had begun to waver in the face of Arab categorical rejection.” But Goldmann’s memory is playing tricks on him here. One might think from his account that the Zionists were given only three weeks, four at the most, in which to make up their minds; obviously, no issue of this magnitude could have been decided upon in so short a time. The fact is that the British government—Goldmann has apparently forgotten the Woodhead Commission—had “begun to waver” all on its own, Zionists or no Zionists.
The Peel Plan is invoked by Shlaim not only to pique Zionism for its “unmitigated failure,” but also to establish a link with Abdullah’s design to annex Palestine—the axis upon which Collusion Across the Jordan revolves. Here Shlaim honors the Woodhead Commission with his only reference to it, not, however, as the undoer of the Peel Plan but rather as the recipient of Abdullah’s twelve-point proposal for constituting a United Arab Kingdom in which the Jews would enjoy self-government and representation in proportion to their numbers.
Here, in connection with Abdullah’s proposal, the issues of immigration and land for settlement, which were central to Zionism and to the Arab-Jewish conflict over Palestine, make one of their infrequent appearances in Shlaim’s work. In the designated Jewish districts (he writes), the Jews were to be permitted a “reasonable” level of immigration; outside those districts, they would have no right to buy land or settle immigrants. There is not a word here about the pressing need for physical rescue, the impact on Zionist consciousness of the suffering of the Diaspora, the fear of annihilation, the Holocaust. Shlaim’s eyes and ears are attuned only to the plight of the Arabs and to their complaints against the Jews. Of course, no one blames the Arabs for the death of the six million. Still, it is astounding that Shlaim cannot comprehend the degree to which Jewish attitudes were formed by more than the effects of Arab raids on Jewish settlements and transport. Nor does he appreciate the part played by the Arabs in the British decision to lock the gates of Palestine and thus prevent the rescue of Hitler’s victims. The fact is, however, that were it not for the violence of Arab opposition, it is unlikely that the British would have issued the 1939 White Paper, which by locking those gates sealed the fate of so many Jews, or that Whitehall would have launched its all-out war against illegal immigration.
In addition to misunderstanding the existential motives of the Yishuv and of the founders of the Jewish state, Shlaim has also missed the motives and considerations of Abdullah. On November 17, 1947, a meeting took place between Abdullah and Golda Meir. Neither side made any substantial commitment, and both were left with a large degree of freedom of action. A second meeting was held on May 11, 1948, just prior to Israel’s declaration of statehood, and it reinforced yet further the two parties’ respective freedom of action.
The purpose of Mrs. Meir’s first talk with Abdullah in November was to try to persuade him not to attack the nascent Jewish state. This, for Shlaim, is the main evidence of “collusion.” Yet several facts cut against such a reading. First, at the time of the November meeting, which occurred before the UN partition resolution, it was inconceivable that the future Jewish state would be able freely to dispose of territories destined for the Arab state, or prevent the entry into them of Arab armies. Second, the Arab Legion was deployed throughout Palestine; Abdullah had no need of a green light from the JAE in order to enter territory destined for the Arab state, for he already occupied that territory. Third, as early as January 1948, key leaders of the Palestinian Arabs, including the mayors of Gaza, Hebron, Nablus, Jenin, and Tulkarm, asked to be taken under Abdullah’s wing. Finally, had the Arabs sought then to realize the UN partition resolution in full, and had they directed their efforts toward establishing an Arab state, it would not have been within the capacity of the newly born Israeli state to prevent them, even had it wished to do so.
The implication of Shlaim’s argument is that in order not to be accused of “collusion,” Israel would have had to fight not only for its own existence, but also for that of the proposed Arab state. Was this indeed Israel’s political and moral obligation?
Any conspiracy to divide the territory of the future Arab state would have been conditioned on an agreement of nonaggression—a possibility that never existed for the two parties, Israel and Jordan. Prior to the war, when the balance of forces was uncertain, Abdullah’s Arab Legion aroused the worst of Jewish apprehensions, and the Yishuv wanted to avoid combat in order to save lives. Abdullah too wanted to avoid losses, as the Legion had no reserves. The King preferred to wait on events, hoping that the Jews would expend their strength in battles with the other Arab armies and so allow him to consolidate his gains. Were the Arab archives ever to be opened, we might discover what Abdullah really intended to do with the Jews in the event of an Arab victory: keep his promises to Golda Meir and award them with autonomy and representation in parliament, as Shlaim is convinced, or deal with them far more harshly, as many Jews feared at the time.
These fears themselves are proof that the Yishuv would hardly have put its faith in a deal with the King. Ben-Gurion, for one, never trusted Abdullah. Once his confidence in Israel’s military abilities was bolstered with the improving fortunes of war, and as the Legion seemed to pose less of a threat, he proposed to the Provisional Government (on September 26, 1948) an effort to dislodge Jordan from its holds in Samaria. But a cabinet majority, worried that Britain would then rush to Jordan’s side, rejected Ben-Gurion’s motion, in an action he termed “a setback for generations.” Some evidence of collusion.
Clearly, Israel and Jordan did maintain a dialogue, but at most theirs was an understanding of convenience, in which each side had a fairly good appraisal of the goals and the “red lines” of the other. There was nothing in such an understanding to suggest a collusion designed to deceive a third party, in this case the Palestinian Arabs.
In any case, only if one could show that the Palestinian Arabs had accepted partition from the outset would a charge of collusion against them become credible. But the Palestinian Arabs and their leadership, with the Mufti at the head, flatly rejected partition and a Jewish state. This left Israel with two choices: either take control of all of mandatory Palestine or, alternatively, acquiesce in the control of the Arab sections by the party which came closest to accepting the Jewish state—i.e., Abdullah.
Without doubt, Benny Morris’s The Birth of the Palestinian Refugee Problem is the centerpiece of the “new” historiography. His main concern is the Arab exodus in 1948, the repercussions of which are felt today more than ever. And a fairminded reader cannot but accept his overall conclusion: both Arabs and Jews are to blame for it. But as such a fairminded reader soon discovers, under the guise of even-handedness Morris unfolds a grave indictment of one party alone, namely, Israel. It is this, perhaps, that has won him the approval of apologists for the PLO like Edward Said: in al-Majalla (October 28, 1988), Said wrote that Morris’s book
undermines the existing notion that it was Arab policy which encouraged the Palestinians to leave their country, emphasizing that it was a sequence of Zionist terror and Israeli expulsion that were behind the birth of the Palestinian refugee problem.
Morris’s purpose becomes patently clear in his periodization. It is common to divide the events under discussion into two phases: from late 1947 up to the establishment of Israel on May 14, 1948, and from then until the spring of 1949. This makes sense not only from the political but from the military point of view. Before the invasion of Palestine on May 15 by the five Arab armies, the conflict was essentially a civil war, fought between Jewish and Arab militias; following the invasion, Israel’s conscript army—the Israel Defense Forces (IDF)—confronted the forces of Egypt, Jordan, Iraq, Syria, and Lebanon in battles involving infantry, artillery, armor, as well as air and naval power.
Such a breakdown highlights as well a change in Jewish attitude: before the invasion the Palestinian Arabs were seen, for the most part, as citizens of a future Jewish state; after it, as declared enemies. Accordingly one may properly speak, in the former period, of an Arab flight, and in the latter of expulsion by Israel.
Morris, however, is loath to accept any suggestion that the Palestinian Arabs fled voluntarily or by order of their leaders, or that, when Israel expelled them, it did so because they were enemies whose interests lay in abetting the invading Arab armies. Therefore, he offers his own, idiosyncratic division of the Arab exodus into four “waves”: (1) December 1947-March 1948; (2) April-June 1948; (3) July 9-18 and from then to October 15; (4) October-November 1948. A fifth period—November 1948-July 1949—he does not consider a wave but a movement of “expulsion and population transfer.”
Except in the case of this final phase, Morris offers no explanation for his periodization. Its tendentious nature is borne out, however, by his own admission that he has found neither a “pattern” nor “patterns” in the Arab flight, and by his insistence that the causes of it were “complex” and “varied.” Actually, given Palestine’s puny size, this is hardly tenable. How complex or varied could be the causes of flight from the Galilee, for instance, an area which, despite its grandiose designations—Western and Eastern Galilee, Lower and Upper Galilee, and the “panhandle”—covers less than 700 square miles in all?
There is a reason for Morris’s failure to discern any “patterns.” It absolves him from dealing with a fundamental question: what caused the first flight of 75,000 Arabs between December 1947 and March 1948, at a time when the Arabs had the upper hand and were assured of good prospects? This first “wave” (in Morris’s periodization) remains buried in mystery—just as it was over forty years ago when David Ben-Gurion, after his first visit to Jewish-occupied Jaffa (May 18, 1948), noted in his diary, “I couldn’t understand: why did the inhabitants of Jaffa leave?” Morris does not attempt to answer Ben-Gurion’s question.
Yet Ben-Gurion, at least, was later to learn the answer; his most succinct formulation of it is to be found in a statement to the Knesset on October 11, 1961:
The Arabs’ exit from Palestine . . . began immediately after the UN [partition] resolution, from the areas earmarked for the Jewish state. And we have explicit documents testifying that they left Palestine following instructions by the Arab leaders, with the Mufti at their head, under the assumption that the invasion of the Arab armies at the expiration of the Mandate would destroy the Jewish state and push all the Jews into the sea, dead or alive.
Now all this, to Morris, as to Simha Flapan in The Birth of Israel, is a “myth.” Morris in particular attests that in his exhaustive research he has “found no evidence to suggest that the AHC [Palestine’s Arab Higher Committee] issued blanket instructions, by radio or otherwise, to Palestine’s Arabs to flee.” Very neat—the only problem being that neither Ben-Gurion nor anyone else ever spoke of “blanket instructions.” What Ben-Gurion spoke of was “explicit documents”—namely, items of Haganah and IDF intelligence brought to the attention of the cabinet. These documents exist in great abundance. From December 1947 to the armed invasion in mid-May 1948, the Arab section of Haganah intelligence—code-named Tene (basket)—provided the general staff and Ben-Gurion with hundreds if not thousands of intelligence reports. Put together they paint a clear picture of an ever-growing migration of Arabs from the designated Jewish state and the bordering areas.
That Morris is familiar with these documents is plain: he uses them extensively in his book, though in a highly biased fashion. Nevertheless, shorn of its bias, Morris’s account produces the same picture which emerges from Ben-Gurion’s statement. And in both, one phenomenon stands out: more often than not, the flight was led by Palestinian Arab notables, national and local, civilian and military, with the wealthy and senior municipal officeholders as well as members of the AHC and local National Committees (NC’s) pointing the way. Furthermore, in every locality where the Arab Liberation Army (ALA) took charge, the evacuation of non-combatants—women, children, and elderly—repeated itself.
The flight of members of the upper and middle classes from the better part of Palestine’s Arab towns, which had begun already in December 1947 (as we can gather from Morris), acquired momentum in January-May 1948. The disintegration accelerated in April. Even policemen ran off with their weapons; increasing numbers of officials failed to arrive for work. In Jerusalem, only one out of the seven members of the AHC still remained by January 10. In Haifa, 11 of the 15 members of the local NC had deserted by March 23, nearly a month before the battle for the town reached its peak. The remaining four followed suit shortly thereafter. Acre, Haifa’s neighbor, underwent a similar fate.
“It is pathetic to see how the [Jaffa] Arabs have been deserted by their leaders,” recorded Palestine’s Chief Secretary, Sir Henry Gurney. The High Commissioner, Sir Alan Cunningham, pointing directly to the leaders’ flight as a precipitant of the mass exodus, reported on April 26 that the mayor of Jaffa had twelve days earlier gone on “four days’ leave” and had not yet returned, and that half the members of the city’s NC had also left. By May 5 Cunningham reported that “Nearly all [Jaffa’s city] councilors and members of National Committee have fled.” Even Morris admits that the steady exodus of the middle and upper classes considerably demoralized the remaining inhabitants and provided a model for their own departure.
Instructions to abandon whole villages or for the evacuation of noncombatants were issued mainly by the AHC, the NC’s, officers of Jordan’s Arab Legion, and commanders of the ALA and the “irregulars.” In several cases such instructions were given by the Mufti of Jerusalem, the acknowledged leader of Palestine’s Arabs. Thus, on January 22, he told a delegation of Haifa Arabs “to remove the women and children from the danger areas in order to reduce the number of casualties.” In April, the Mufti continued to permit and even to encourage the evacuation of noncombatants from potential combat zones. Characteristic of the atmosphere in which these instructions were given and received was the warning by the Jerusalem NC that resistance to the evacuation order would be seen as “an obstacle to the Holy War [jihad] and in the way of the fighters, and would hamper their actions in these neighborhoods.”
Among the Tene reports from the period prior to the invasion there is one in particular which lends credence to the idea that the Arabs were fleeing Palestine on the orders of their leaders. On April 24 Tene quoted a “reliable” source:
Rumors have it that the AHC in Jerusalem ordered the evacuation of Arabs from several localities in Palestine, seeing that Arab governments intend to dispatch tanks and aircraft in great numbers, to bombard all of Palestine’s towns, while wishing that their Arab residents remain unhurt. Arab residents are advised to flee Palestine as soon as possible, and after its fall into the hands of the Arab governments, they will be returned as victors. [Emphasis added]
The question is not whether the “rumors” were correct, or whether the AHC had actually issued orders to this effect—although the fact is that by May 14, the day Israel was established, the major towns of Jaffa, Haifa, Acre, Tiberias, and Safed had indeed been abandoned by their Arab residents. The question, rather, is how Morris, who bases a good deal of his own account on the Tene reports, comes to grips with this evidence. The answer is that he does not. Is the April 24 report unreliable? He does not cite it, not even to shoot it down. In any case, he would not be in a position to check its veracity without conducting a comparative examination in Arab archives—an impossibility, as we have seen.
The “documents,” then, present an unmistakable picture: the Arab exodus from Palestine—the flight of the first 75,000, the flight of the leadership, civil and military, the evacuation of non-combatants, and the desertion of the ALA and the “irregulars” by officers and troops alike—was all the work of instruction, whether by personal example, by word of mouth or in writing, or even better, by the quickest telegraph of all, rumor. Having been set so authoritative an example by their leaders, the simple folk did not think twice. In much of the populated areas of Palestine, many an Arab village fell into Haganah hands entirely empty. The Tene reports—the ones we see in Morris’s book, as well as the ones we do not—show that in speaking of “explicit documents” testifying to orders by Arab leaders to flee Palestine with the hope of a triumphant return, Ben-Gurion stood on firm ground. Morris’s “myth” is to a large degree based on fact.
It is important to bear in mind here that virtually up until the invasion of the five Arab armies on May 15, 1948, the Yishuv leadership was prepared to accept an Arab state in Palestine so long as it did not endanger the Jewish state—in other words, if it accepted the UN partition resolution of November 29, 1947. Indeed, the leadership even accepted an Arab minority of 40 percent within the Jewish state as specified in the resolution’s border demarcation. Any other approach, it feared, would cause the family of nations to judge the Jews unworthy of a state of their own.
Shlaim and Morris completely ignore all this, no doubt assuming that the Zionists, in their aspiration to conquest and violence, never intended to honor the UN resolution. Yet the sincerity of the Zionists is substantiated in remarks made by the Yishuv leaders before and after the General Assembly vote on partition. At a meeting of the Mapai Secretariat in September 1947, Itzhak Ben-Zvi, chairman of the National Council and later Israel’s second President, stated that “upon the establishment of the state we will have to care for 500,000 Arabs within the Jewish state.” Eliezer Kaplan, who was to become Israel’s first Minister of Finance, argued that “we must . . . [establish] a veritable government. And in it not only the Jews will play a role, but also the Arabs who remain in our part of Palestine, for it is our duty to serve all residents of our area.” Levi Eshkol, later Israel’s second Minister of Finance and third Prime Minister, readily accepted a proposal to grant the Arabs the right to vote for the Elected Assembly (the former Knesset): “I was glad to hear it said here that the Arabs should take their place in the Assembly. Of this we must remind ourselves day and night, repeat it to our youth and our labor movement, lest we be too quick to start shooting.”
As for Ben-Gurion, he noted that “if they [the British] go . . . we will confront the problem of services for the Arabs. It will be of great value if we succeed in arranging services for the Arabs.” And he added, as if in anticipation of Shlaim: “If there is a positive UN resolution, a Jewish government will be formed. It will not conquer that part of Palestine in which an Arab state arises . . . nor will it try to take control of Jerusalem and Kfar Etzion.” Ben-Gurion believed, indeed, that peace could prevail between the two future states; a mass exodus of Arabs from the Jewish state never occurred to him.
True, Ben-Gurion also realized that without a defensive capability the Jewish state would never come into being. Although for a while he hoped that war could be prevented, by December 1947 he noted regretfully that “the Arab world is beginning to fight the Jewish state, this war has already begun.” From intelligence reports he learned that the Mufti had gained control over the Arabs of Palestine, and that there was Arab talk of a “total war.” Still he sought to avoid a bloody conflict, preferring a defensive strategy. His key word was “self-restraint.” This resulted in limited mobilization, which in mid-December 1947 amounted to only 6,700 new Haganah recruits. It was only with the siege of Jewish Jerusalem in April 1948 and the danger of the city’s falling to the Arab Legion that the Haganah, at Ben-Gurion’s instigation, moved from the defensive to the offensive.
This background, which is so necessary for understanding the Abdullah-Golda Meir meeting of November 17 and the Yishuv leadership’s attitude toward the Arab exodus, is completely missing from the books of Shlaim and Morris. Thus they cannot explain why it took until May 6 for Ben-Gurion to issue the following order: “The Arab Affairs Department is authorized to decide on the removal of any Arab village that obstructs the [defense] plans of the Jewish Yishuv or acts provocatively.” For contrary to these historians’ claims, even at this late date the Yishuv leaders were still assuring the Arab minority of equal rights in the future state, and, no matter how many Arabs had fled, were still far from conceiving of a mass exodus.
Here is Ben-Gurion’s diary entry of May 1, 1948, describing a visit to Haifa:
At dusk I again passed through . . . the Arab quarters. A frightening and fantastic spectacle. A dead city, a corpse of a city. Only at one spot did we see two old men sitting in a half-empty shop, and in another alley we met an Arab woman leading her child. . . . How did tens of thousands of people leave in such a panic—without sufficient reason—their city, their homes, and their wealth?
One thing the Yishuv leadership did suspect was that the Arab flight which was already taking place in late 1947 and early 1948 had been engineered in order to portray the prospective Jewish state as inimical to its Arab minority. This explains the efforts Jews made in various places, including Haifa, to persuade the Arabs to stay. It was this same desire to present an image of a civilized and law-respecting entity that moved the Yishuv leadership to pledge to the UN a constitution guaranteeing the rights of all citizens of the state, regardless of religion, race, or nationality. On December 3, 1947, Ben-Gurion told his party, Mapai, that “a constitution that would debar an Arab from becoming President is unthinkable . . . every citizen is eligible to be elected President,” and if a majority did elect an Arab as President, “so be it, there shall be no discrimination in the Jewish state.”
The invasion by the five Arab armies on May 15 of course put an end to all this. Henceforward the Arabs, both inside and outside Israel, were seen as sworn enemies. The 1948 war and the fears of a second “round” banished all thought of the promised constitution. In this way the war that the Arabs started in 1948 not only sealed the fate of the Palestinian Arabs themselves; it also formed a different Israel from the one intended by its founders. The latter had never imagined in their wildest thoughts that Israel would one day be obliged to impose military government in Arab districts or invoke other such restrictive measures. Nor did they imagine another, equally remarkable consequence of Arab enmity: the harsh persecution of Jews in all Arab-speaking countries, sparking a mass emigration to Israel that would radically change the ethnic make-up of the Jewish state.
Morris turns a blind eye to this chain of events, as if aware that in order to unveil the “true,” impure face of Israel he must show that the Arab flight conformed with Zionism’s most evil designs. Thus, while on the Arab side he finds no “patterns,” on the Jewish side he manages to find quite a few. The most important has to do with “transfer.” Very early on in his book he is already hard at work to implant the mistaken notion that a transfer of Arabs from Palestine to neighboring countries “had a basis in mainstream Jewish [sic] thinking, if not actual planning, from the late 1930’s and 1940’s.”
Yet the issue of such a transfer, like the issue of a population exchange (Arabs from Palestine in exchange for Jews from Arab lands), was not even placed on the agenda of the Zionist Organization until the Zionist Congress of 1937, which deliberated the partition and exchange programs proposed by the British government following the Peel Commission report of July 7. Those in the Congress who supported partition favored transfer—but only because it was suggested by Britain, which intended to implement this arrangement under the auspices of the League of Nations. When Britain retracted, as it soon did, partition scheme and transfer clause alike came to naught.
Where then does Morris derive his fallacious idea? He rests his case entirely and solely on one source, Joseph Weitz (1890-1972), for many years director of the Land Development Division of the Jewish National Fund.
All his life Joseph Weitz was given to self-aggrandizement, desperately filling thousands of pages, in manuscript and in print, in diaries and letters, with his ideas and opinions, only to meet frustration at every turn. The broad recognition he coveted always eluded him. Now comes Benny Morris to rescue from oblivion every line Weitz ever wrote, published, or bequeathed to the Zionist Central Archives; in them, he has found more support for the idea of an Arab transfer than in the memoirs of all other Zionists combined. In the index to Morris’s book only David Ben-Gurion is honored with more space than the frustrated Joseph Weitz.
To cover the discrepancy between Weitz’s true status in the Zionist and Israeli hierarchy and the major role he plays in The Birth of the Palestinian Refugee Problem, Morris presents him as “an initiator of thinking and policy.” (In an essay published in Middle Eastern Studies, Morris goes even further, introducing Weitz as a major leader who in 1948 “sat astride the crossroads of power in the new state.”) Yet he does not make the slightest attempt to show any connection between what Weitz claimed for himself—mostly, an assumed intimacy with IDF officers and cabinet ministers—and what actually transpired either in the field or in cabinet meetings. Furthermore, he admits explicitly that Ben-Gurion and his defense deputy, Israel Galili, “either rejected, or were unwilling to commit themselves to, a general policy or strategy of [Arab] expulsion.” But Morris is not one to be deterred by simple contradiction.
Weitz owes his prominence in Morris’s thinking to his membership in what Morris calls the “Transfer Committee” of 1937. This merits an explanation: early in November 1937 the JAE appointed a “Population Exchange Committee,” whose main role was to prepare proposals the JAE might wish to submit to the Woodhead Commission (dispatched to Palestine, as noted above, to provide cover for the British government’s decision to renege on its partition policy). Morris fails to point out that this was merely a study committee, not a policy committee, and also does not tell the reader that in June 1938 it held its last meeting, then disbanded quietly and unofficially. Among the thirty papers and memoranda the JAE submitted to the Woodhead Commission there was not one regarding population exchange or transfer.
We next come upon Weitz, still following his ambition, in 1948, when he is bringing heavy pressure to bear on Ben-Gurion and others to reappoint a “transfer committee.” Morris now expects us to believe, without a shred of evidence, that “Weitz regarded the Arab exodus, which he helped to promote, . . . as an implementation, albeit unplanned and largely spontaneous, of the transfer schemes of the late 1930’s.” He plants the erroneous impression that an executive committee was set up by the JAE to furnish the “nudge” necessary to turn the Arab exodus into an organized, one-way transfer. Although he concedes at one point that “official authorization and appointment of the committee by either Ben-Gurion or the cabinet continued to elude” Weitz, he persists in referring to this nonexistent body as “the first transfer committee,” and in suggesting that it energetically exercised its executive powers by sending Arabs away from Palestine by the truckload.
Finally we are told of a “consultative” meeting with Ben-Gurion and others, held on August 18, in which Weitz proposed “once again” the appointment of “a non-governmental authority” to formulate a “plan for the transfer of the Arabs and their settlement.” Morris takes this from Volume III of Weitz’s published diary, but his English rendition casts fresh doubt on his academic honesty. For even Weitz did not propose any such “authority,” nor did he suggest the policy it should formulate. Here is the relevant passage:
I proposed the appointment of a special committee, to deal with the material and to prepare a few alternative schemes. This ought to be a non-governmental committee, yet one with governmental powers.
No formal decision was taken at this meeting, which does not, however, prevent Morris from reporting that “a committee—the second and official Transfer Committee . . . was at last appointed by Ben-Gurion at the end of August.” Suffice it to say that Weitz neither proposed nor claimed that the committee ultimately appointed was such an executive transfer committee. His diary entry for September 1—which Morris withholds—establishes beyond doubt the nature of the body:
The Transfer Committee today laid down its work order: a) facts and procedures in migrations of peoples resulting from war in the last century; b) census of Arabs who left Palestine—the villages, the areas, the inhabitants, evaluations, etc.; c) the neighboring countries and their absorption capacities; d) conclusions and proposals. We agreed on the staff to assist the Committee in data gathering, etc.
So a study committee it was, which concluded its work in two months, whereupon it handed Ben-Gurion an eight-point conclusion regarding “the refugee problem” which suggested, inter alia, a population exchange (Jewish immigrants from Iraq and Syria against resettlement of Palestinian refugees in these two countries and in Jordan) as Israel’s proposed position at the forthcoming peace talks.
As it came to pass, this, indeed, would be Israel’s position; it is reflected in a passage contained in Ben-Gurion’s aforementioned Knesset statement:
Immediately after the establishment of the state, while the invasion of the Arab armies was still under way, there commenced a large Jewish immigration, especially from Arab countries. . . . The number of the Arabs within the area earmarked by the UN resolution for a Jewish state, and who left it . . . is not greater than the number of the Jewish refugees from the Arab countries, to the extent that an unplanned yet de facto exchange of population did in fact take place, and there is no practical possibility, nor a moral necessity, to turn the wheel back.
So bent is Morris on showing that the transfer idea had been, all along, the chief motor behind the actions of Ben-Gurion and Weitz that he translates the Hebrew designation for the transfer committee as the committee for “Retroactive Transfer.” The correct translation, as Ben-Gurion’s statement implies, is “de facto transfer”—i.e., a committee to relate to what had already happened, a transfer the Arabs had brought on themselves.
None of this is to suggest that the Jews were sorry to see the Arabs’ backs. Morris, however, discounting Ben-Gurion’s amazement at the Arab flight, portrays him as a leader who made sure that his will would be carried out by others while he himself retained clean hands. Chief among these others was Major General Yigal Allon; wherever he “was in command, almost no Arab civilians remained anywhere.” Allon simply “tended to expel and let his subordinates know what he wanted.” And this was in no way peculiar: “At each level of command and execution, Haganah officers in those April-June days . . . simply ‘understood’ what the military and political exigencies of survival required.” Thus Ben-Gurion was able to enjoy the best of both worlds: “he was happy that the work was being done but could not . . . bring himself to openly support the policy and Weitz’s activities in the field.”
The evidence Morris can, and does, offer in support of this contention is nil. Faithful to his manner, when in difficulty he falls back on a highly personal reading of Hebrew texts, at one point attributing to Ben-Gurion himself the thoughts and words of a general briefing him on an ongoing campaign, at another completely distorting, or even reversing, Ben-Gurion’s recorded reaction at a cabinet meeting to news of atrocities committed by Israeli soldiers in the Galilee. The list of such misrepresentations could be extended indefinitely.
In Morris’s picture of the 1948 war, Israel is already a military “superpower,” a juggernaut crushing the Palestinians and the Arab armies alike. Nowhere in his book does Morris present a coherent account of the creation of the IDF or of the Arab forces that fought it on all sides. Morris takes no notice of the initial Arab advantage in war materiel and manpower, and does not compare the artillery, armor, or naval and air forces at the disposal of the combatants. Yet he writes that already in January-March “the Yishuv was militarily . . . vastly superior to the Palestinian Arabs,” and that during April and May it was “bringing its military superiority . . . to bear.” In May, we are told, the “Haganah demonstrated almost unchallenged superiority.” No wonder, in this reading, that the early “waves” of Palestinian Arabs ran away.
As it happens, however, the first shipment of artillery to Israel’s forces—5 out of 51 pieces—did not arrive in Tel Aviv until May 7. These were 65mm light portable mountain guns made in France in 1906, and were immediately dubbed “Napoleonchiks” to denote both origin and age. A primitive gun it was, with a range of 3.5 miles, two separated sights for elevation and traversing (instead of the modern integrated one) and no shield. Its only safe ammunition was the 5.5 pound HE shell, the equivalent in destructive effect of two infantry hand grenades. During the second half of 1948 it saw service as the IDF’s main standard field gun.
As Morris does not name or enumerate the Arab forces engaged against the “vastly superior” IDF, it is not from him that a reader will learn that in July the Arabs had the upper hand in artillery and armor in the northern front. In the western sector the ALA had 13 pieces of 75mm French guns and 27 armored vehicles. In the southern sector the Iraqis deployed at Jenin 6 artillery batteries (24 to 36 pieces of 25-pounders of British make), and at the eastern sector at Tel Saqi the Syrians deployed 3 batteries (12 to 18 75mm pieces of French make). Against them, Israel could come up then with three operative “Napoleonchiks” and one in repair; one 20mm anti-aircraft gun mounted on a half-track in an anti-tank role; two 75mm anti-aircraft guns, captured in May from the Arabs and used as multi-purpose guns; and three 20mm anti-aircraft guns committed to Haifa’s air defense.
On the southern front, Egypt’s army had the upper hand in equipment both in the air and on the ground. The Napoleonchik was no match for Egypt’s British 25-pounder, with twice the range and five times the shell. Here, however, Morris lays the emphasis on Israel’s air power. Operation Yoav, we are told, began on October 15, “with bombing and strafing attacks on Beersheba, Gaza,” and 11 more towns and villages listed by name. In explaining the ensuing flight of the Arab populace, Morris goes on to say that while by World War II standards
these attacks were minor and not particularly accurate, most of the affected communities had never experienced air attack and were not “built for it,” either psychologically or in terms of shelters and ground defenses. Artillery was also used far more extensively than in any previous IDF offensive, though mostly directed at Egyptian and Arab militia positions.
For this preposterous allegation—that the IDF used its air power specifically against defenseless, unprepared Arab “communities” in the south—Morris offers no reference or authority. Nor does he mention that the Egyptians were the ones to bombard, from the ground and from the air, civilian Jewish communities in Tel Aviv, Rehovot, and their vicinity, and especially the handful of Jewish agricultural settlements in the south and the Negev, which were isolated by the invading Egyptian army. For months on end these settlements sustained successive air and artillery bombardments as well as repeated infantry and armored assaults. Yad Mordechai and Negba, which were practically razed to the ground, do not merit a mention in Morris’s book. This is perhaps just as well, for he would be hard put to explain how it was that Jewish settlers, unlike their Arab neighbors, stood their ground even under the fiercest shelling and bombardment, or in what way the Jews were “built for it” better than the Arabs. Finally, the Arab villages that Morris lists as the innocent victims of Israeli aerial bombardments all served the Egyptian army and the Arab “irregulars” as operational and logistical bases.
What, in the end, is one to make of the farrago of distortions, omissions, tendentious readings, and outright falsifications offered by the “new” revisionist historians? That they fail in their intention to “undermine, if not thoroughly demolish” the “old history” is patently the case; history, thank goodness, is made of sterner and more intractable stuff than even their wholesale efforts of free interpretation can dissimulate. But whether they will yet succeed in their larger aim of serving, in Benny Morris’s Orwellian words, the “purposes of peace”—i.e., by providing fresh sources of political sympathy for the Arabs, and fresh sources of antipathy to the Jews—is unfortunately another and more troubling question, to which the answer is much less clear.
4 Still another revisionist historian is Ilan Pappe, the only one of the group to have studied Middle Eastern history (at Jerusalem), and to teach it (at Haifa). His book is titled Britain and the Arab-Israel Conflict (Macmillan/St. Anthony, England).
Charging Israel With Original Sin
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Can it be reversed?
Writing in these pages last year (“Illiberalism: The Worldwide Crisis,” July/August 2016), I described this surge of intemperate politics as a global phenomenon, a crisis of illiberalism stretching from France to the Philippines and from South Africa to Greece. Donald Trump and Bernie Sanders, I argued, were articulating American versions of this growing challenge to liberalism. By “liberalism,” I was referring not to the left or center-left but to the philosophy of individual rights, free enterprise, checks and balances, and cultural pluralism that forms the common ground of politics across the West.
Less a systematic ideology than a posture or sensibility, the new illiberalism nevertheless has certain core planks. Chief among these are a conspiratorial account of world events; hostility to free trade and finance capital; opposition to immigration that goes beyond reasonable restrictions and bleeds into virulent nativism; impatience with norms and procedural niceties; a tendency toward populist leader-worship; and skepticism toward international treaties and institutions, such as NATO, that provide the scaffolding for the U.S.-led postwar order.
The new illiberals, I pointed out, all tend to admire established authoritarians to varying degrees. Trump, along with France’s Marine Le Pen and many others, looks to Vladimir Putin. For Sanders, it was Hugo Chavez’s Venezuela, where, the Vermont socialist said in 2011, “the American dream is more apt to be realized.” Even so, I argued, the crisis of illiberalism traces mainly to discontents internal to liberal democracies.
Trump’s election and his first eight months in office have confirmed the thrust of my predictions, if not all of the policy details. On the policy front, the new president has proved too undisciplined, his efforts too wild and haphazard, to reorient the U.S. government away from postwar liberal order.
The courts blunted the “Muslim ban.” The Trump administration has reaffirmed Washington’s commitment to defend treaty partners in Europe and East Asia. Trumpian grumbling about allies not paying their fair share—a fair point in Europe’s case, by the way—has amounted to just that. The president did pull the U.S. out of the Trans-Pacific Partnership, but even the ultra-establishmentarian Hillary Clinton went from supporting to opposing the pact once she figured out which way the Democratic winds were blowing. The North American Free Trade Agreement, which came into being nearly a quarter-century ago, does look shaky at the moment, but there is no reason to think that it won’t survive in some modified form.
Yet on the cultural front, the crisis of illiberalism continues to rage. If anything, it has intensified, as attested by the events surrounding the protest over a Robert E. Lee statue in Charlottesville, Virginia. The president refused to condemn unequivocally white nationalists who marched with swastikas and chanted “Jews will not replace us.” Trump even suggested there were “very fine people” among them, thus winking at the so-called alt-right as he had during the campaign. In the days that followed, much of the left rallied behind so-called antifa (“anti-fascist”) militants who make no secret of their allegiance to violent totalitarian ideologies at the other end of the political spectrum.
Disorder is the new American normal, then. Questions that appeared to have been settled—about the connection between economic and political liberty, the perils of conspiracism and romantic politics, America’s unique role on the world stage, and so on—are unsettled once more. Serious people wonder out loud whether liberal democracy is worth maintaining at all, with many of them concluding that it is not. The return of ideas that for good reason were buried in the last century threatens the decent political order that has made the U.S. an exceptionally free and prosperous civilization.F or many leftists, America’s commitment to liberty and equality before the law has always masked despotism and exploitation. This view long predated Trump’s rise, and if they didn’t subscribe to it themselves, too often mainstream Democrats and progressives treated its proponents—the likes of Noam Chomsky and Howard Zinn—as beloved and respectable, if slightly eccentric, relatives.
This cynical vision of the free society (as a conspiracy against the dispossessed) was a mainstay of Cold War–era debates about the relative merits of Western democracy and Communism. Soviet apologists insisted that Communist states couldn’t be expected to uphold “merely” formal rights when they had set out to shape a whole new kind of man. That required “breaking a few eggs,” in the words of the Stalinist interrogators in Arthur Koestler’s Darkness at Noon. Anyway, what good were free speech and due process to the coal miner, when under capitalism the whole social structure was rigged against him?
That line worked for a time, until the scale of Soviet tyranny became impossible to justify by anyone but its most abject apologists. It became obvious that “bourgeois justice,” however imperfect, was infinitely preferable to the Marxist alternative. With the Communist experiment discredited, and Western workers uninterested in staging world revolution, the illiberal left began shifting instead to questions of identity. In race-gender-sexuality theory and the identitarian “subaltern,” it found potent substitutes for dialectical materialism and the proletariat. We are still living with the consequences of this shift.
Although there were superficial resemblances, this new politics of identity differed from earlier civil-rights movements. Those earlier movements had sought a place at the American table for hitherto entirely or somewhat excluded groups: blacks, women, gays, the disabled, and so on. In doing so, they didn’t seek to overturn or radically reorganize the table. Instead, they reaffirmed the American Founding (think of Martin Luther King Jr.’s constant references to the Declaration of Independence). And these movements succeeded, owing to America’s tremendous capacity for absorbing social change.
Yet for the new identitarians, as for the Marxists before them, liberal-democratic order was systematically rigged against the downtrodden—now redefined along lines of race, gender, and sexuality, with social class quietly swept under the rug. America’s strides toward racial progress, not least the election and re-election of an African-American president, were dismissed. The U.S. still deserved condemnation because it fell short of perfect inclusion, limitless autonomy, and complete equality—conditions that no free society can achieve given the root fact of human nature. The accidentals had changed from the Marxist days, in other words, but the essentials remained the same.
In one sense, though, the identitarians went further. The old Marxists still claimed to stand on objectively accessible truth. Not so their successors. Following intellectual lodestars such as the gender theorist Judith Butler, the identity left came to reject objective truth—and with it, biological sex differences, aesthetic standards in art, the possibility of universal moral precepts, and much else of the kind. All of these things, the left identitarians said, were products of repressive institutions, hierarchies, and power.
Today’s “social-justice warriors” are heirs to this sordid intellectual legacy. They claim to seek justice. But, unmoored from any moral foundations, SJW justice operates like mob justice and revolutionary terror, usually carried out online. SJWs claim to protect individual autonomy, but the obsession with group identity and power dynamics means that SJW autonomy claims must destroy the autonomy of others. Self-righteousness married to total relativism is a terrifying thing.
It isn’t enough to have legalized same-sex marriage in the U.S. via judicial fiat; the evangelical baker must be forced to bake cakes for gay weddings. It isn’t enough to have won legal protection and social acceptance for the transgendered; the Orthodox rabbi must use preferred trans pronouns on pain of criminal prosecution. Likewise, since there is no objective truth to be gained from the open exchange of ideas, any speech that causes subjective discomfort among members of marginalized groups must be suppressed, if necessary through physical violence. Campus censorship that began with speech codes and mobs that prevented conservative and pro-Israel figures from speaking has now evolved into a general right to beat anyone designated as a “fascist,” on- or off-campus.
For the illiberal left, the election of Donald Trump was indisputable proof that behind America’s liberal pieties lurks, forever, the beast of bigotry. Trump, in this view, wasn’t just an unqualified vulgarian who nevertheless won the decisive backing of voters dissatisfied with the alternative or alienated from mainstream politics. Rather, a vote for Trump constituted a declaration of war against women, immigrants, and other victims of American “structures of oppression.” There would be no attempt to persuade Trump supporters; war would be answered by war.
This isn’t liberalism. Since it can sometimes appear as an extension of traditional civil-rights activism, however, identity leftism has glommed itself onto liberalism. It is frequently impossible to tell where traditional autonomy- and equality-seeking liberalism ends and repressive identity leftism begins. Whether based on faulty thinking or out of a sense of weakness before an angry and energetic movement, liberals have too often embraced the identity left as their own. They haven’t noticed how the identitarians seek to undermine, not rectify, liberal order.
Some on the left, notably Columbia University’s Mark Lilla, are sounding the alarm and calling on Democrats to stress the common good over tribalism. Yet these are a few voices in the wilderness. Identitarians of various stripes still lord over the broad left, where it is fashionable to believe that the U.S. project is predatory and oppressive by design. If there is a viable left alternative to identity on the horizon, it is the one offered by Sanders and his “Bernie Bros”—which is to say, a reversion to the socialism and class struggle of the previous century.
Americans, it seems, will have to wait a while for reason and responsibility to return to the left.T
hen there is the illiberal fever gripping American conservatives. Liberal democracy has always had its critics on the right, particularly in Continental Europe, where statist, authoritarian, and blood-and-soil accounts of conservatism predominate. Mainstream Anglo-American conservatism took a different course. It has championed individual rights, free enterprise, and pluralism while insisting that liberty depends on public virtue and moral order, and that sometimes the claims of liberty and autonomy must give way to those of tradition, state authority, and the common good.
The whole beauty of American order lies in keeping in tension these rival forces that are nevertheless fundamentally at peace. The Founders didn’t adopt wholesale Enlightenment liberalism; rather, they tempered its precepts about universal rights with the teachings of biblical religion as well as Roman political theory. The Constitution drew from all three wellsprings. The product was a whole, and it is a pointless and ahistorical exercise to elevate any one source above the others.
American conservatism and liberalism, then, are in fact branches of each other, the one (conservatism) invoking tradition and virtue to defend and, when necessary, discipline the regime of liberty; the other (liberalism) guaranteeing the open space in which churches, volunteer organizations, philanthropic activity, and other sources of tradition and civic virtue flourish, in freedom, rather than through state establishment or patronage.
One result has been long-term political stability, a blessing that Americans take for granted. Another has been the transformation of liberalism into the lingua franca of all politics, not just at home but across a world that, since 1945, has increasingly reflected U.S. preferences. The great French classical liberal Raymond Aron noted in 1955 that the “essentials of liberalism—the respect for individual liberty and moderate government—are no longer the property of a single party: they have become the property of all.” As Aron archly pointed out, even liberalism’s enemies tend to frame their objections using the rights-based talk associated with liberalism.
Under Trump, however, some in the party of the right have abdicated their responsibility to liberal democracy as a whole. They have reduced themselves to the lowest sophistry in defense of the New Yorker’s inanities and daily assaults on presidential norms. Beginning when Trump clinched the GOP nomination last year, a great deal of conservative “thinking” has amounted to: You did X to us, now enjoy it as we dish it back to you and then some. Entire websites and some of the biggest stars in right-wing punditry are singularly devoted to making this rather base point. If Trump is undermining this or that aspect of liberal order that was once cherished by conservatives, so be it; that 63 million Americans supported him and that the president “drives the left crazy”—these are good enough reasons to go along.
Some of this is partisan jousting that occurs with every administration. But when it comes to Trump’s most egregious statements and conduct—such as his repeated assertions that the U.S. and Putin’s thugocracy are moral equals—the apologetics are positively obscene. Enough pooh-poohing, whataboutery, and misdirection of this kind, and there will be no conservative principle left standing.
More perniciously, as once-defeated illiberal philosophies have returned with a vengeance to the left, so have their reactionary analogues to the right. The two illiberalisms enjoy a remarkable complementarity and even cross-pollinate each other. This has developed to the point where it is sometimes hard to distinguish Tucker Carlson from Chomsky, Laura Ingraham from Julian Assange, the Claremont Review from New Left Review, and so on.
Two slanders against liberalism in particular seem to be gathering strength on the thinking right. The first is the tendency to frame elements of liberal democracy, especially free trade, as a conspiracy hatched by capitalists, the managerial class, and others with soft hands against American workers. One needn’t renounce liberal democracy as a whole to believe this, though believers often go the whole hog. The second idea is that liberalism itself was another form of totalitarianism all along and, therefore, that no amount of conservative course correction can set right what is wrong with the system.
These two theses together represent a dismaying ideological turn on the right. The first—the account of global capitalism as an imposition of power over the powerless—has gained currency in the pages of American Affairs, the new journal of Trumpian thought, where class struggle is a constant theme. Other conservatives, who were always skeptical of free enterprise and U.S.-led world order, such as the Weekly Standard’s Christopher Caldwell, are also publishing similar ideas to a wider reception than perhaps greeted them in the past.
In a March 2017 essay in the Claremont Review of Books, for example, Caldwell flatly described globalization as a “con game.” The perpetrators, he argued, are “unscrupulous actors who have broken promises and seized a good deal of hard-won public property.” These included administrations of both parties that pursued trade liberalization over decades, people who live in cities and therefore benefit from the knowledge-based economy, American firms, and really anyone who has ever thought to capitalize on global supply chains to boost competitiveness—globalists, in a word.
By shipping jobs and manufacturing processes overseas, Caldwell contended, these miscreants had stolen not just material things like taxpayer-funded research but also concepts like “economies of scale” (you didn’t build that!). Thus, globalization in the West differed “in degree but not in kind from the contemporaneous Eastern Bloc looting of state assets.”
That comparison with predatory post-Communist privatization is a sure sign of ideological overheating. It is somewhat like saying that a consumer bank’s lending to home buyers differs in degree but not in kind from a loan shark’s racket in a housing project. Well, yes, in the sense that the underlying activity—moneylending, the purchase of assets—is the same in both cases. But the context makes all the difference: The globalization that began after World War II and accelerated in the ’90s took place within a rules-based system, which duly elected or appointed policymakers in Western democracies designed in good faith and for a whole host of legitimate strategic and economic reasons.
These policymakers knew that globalization was as old as civilization itself. It would take place anyway, and the only question was whether it would be rules-based and efficient or the kind of globalization that would be driven by great-power rivalry and therefore prone to protectionist trade wars. And they were right. What today’s anti-trade types won’t admit is that defeating the Trans-Pacific Partnership and a proposed U.S.-European trade pact known as TTIP won’t end globalization as such; instead, it will cede the game to other powers that are less concerned about rules and fair play.
The postwar globalizers may have gone too far (or not far enough!). They certainly didn’t give sufficient thought to the losers in the system, or how to deal with the de-industrialization that would follow when information became supremely mobile and wages in the West remained too high relative to skills and productivity gains in the developing world. They muddled and compromised their way through these questions, as all policymakers in the real world do.
The point is that these leaders—the likes of FDR, Churchill, JFK, Ronald Reagan, Margaret Thatcher, and, yes, Bill Clinton—acted neither with malice aforethought nor anti-democratically. It isn’t true, contra Caldwell, that free trade necessarily requires “veto-proof and non-consultative” politics. The U.S., Britain, and other members of what used to be called the Free World have respected popular sovereignty (as understood at the time) for as long as they have been trading nations. Put another way, you were far more likely to enjoy political freedom if you were a citizen of one of these states than of countries that opposed economic liberalism in the 20th century. That remains true today. These distinctions matter.
Caldwell and like-minded writers of the right, who tend to dwell on liberal democracies’ crimes, are prepared to tolerate far worse if it is committed in the name of defeating “globalism.” Hence the speech on Putin that Caldwell delivered this spring at a Hillsdale College gathering in Phoenix. Promising not to “talk about what to think about Putin,” he proceeded to praise the Russian strongman as the “preeminent statesman of our time” (alongside Turkish strongman Recep Tayyip Erdogan). Putin, Caldwell said, “has become a symbol of national self-determination.”
Then Caldwell made a remark that illuminates the link between the illiberalisms of yesterday and today. Putin is to “populist conservatives,” he declared, what Castro once was to progressives. “You didn’t have to be a Communist to appreciate the way Castro, whatever his excesses, was carving out a space of autonomy for his country.”
Whatever his excesses, indeed.T
he other big idea is that today’s liberal crises aren’t a bug but a core feature of liberalism. This line of thinking is particularly prevalent among some Catholic traditionalists and other orthodox Christians (both small- and capital-“o”). The common denominator, it seems to me, is having grown up as a serious believer at a time when many liberals—to their shame—have declared war on faith generally and social conservatism in particular.
The argument essentially is this:
We (social conservatives, traditionalists) saw the threat from liberalism coming. With its claims about abstract rights and universal reason, classical liberalism had always posed a danger to the Church and to people of God. We remembered what those fired up by the new ideas did to our nuns and altars in France. Still we made peace with American liberal order, because we were told that the Founders had “built on low but solid ground,” to borrow Leo Strauss’s famous formulation, or that they had “built better than they knew,” as American Catholic hierarchs in the 19th century put it.
Maybe these promises held good for a couple of centuries, the argument continues, but they no longer do. Witness the second sexual revolution under way today. The revolutionaries are plainly telling us that we must either conform our beliefs to Herod’s ways or be driven from the democratic public square. Can it still be said that the Founding rested on solid ground? Did the Founders really build better than they knew? Or is what is passing now precisely what they intended, the rotten fruit of the Enlightenment universalism that they planted in the Constitution? We don’t love Trump (or Putin, Hungary’s Viktor Orbán, etc.), but perhaps he can counter the pincer movement of sexual and economic liberalism, and restore a measure of solidarity and commitment to the Western project.
The most pessimistic of these illiberal critics go so far as to argue that liberalism isn’t all that different from Communism, that both are totalitarian children of the Enlightenment. One such critic, Harvard Law School’s Adrian Vermeule, summed up this position in a January essay in First Things magazine:
The stock distinction between the Enlightenment’s twins—communism is violently coercive while liberalism allows freedom of thought—is glib. Illiberal citizens, trapped [under liberalism] without exit papers, suffer a narrowing sphere of permitted action and speech, shrinking prospects, and increasing pressure from regulators, employers, and acquaintances, and even from friends and family. Liberal society celebrates toleration, diversity, and free inquiry, but in practice it features a spreading social, cultural, and ideological conformism.1
I share Vermeule’s despair and that of many other conservative-Christian friends, because there have been genuinely alarming encroachments against conscience, religious freedom, and the dignity of life in Western liberal democracies in recent years. Even so, despair is an unhelpful companion to sober political thought, and the case for plunging into political illiberalism is weak, even on social-conservative grounds.
Here again what commends liberalism is historical experience, not abstract theory. Simply put, in the real-world experience of the 20th century, the Church, tradition, and religious minorities fared far better under liberal-democratic regimes than they did under illiberal alternatives. Are coercion and conformity targeting people of faith under liberalism? To be sure. But these don’t take the form of the gulag or the concentration camp or the soccer stadium–cum-killing field. Catholic political practice knows well how to draw such moral distinctions between regimes: Pope John Paul II befriended Reagan. If liberal democracy and Communism were indeed “twins” whose distinctions are “glib,” why did he do so?
And as Pascal Bruckner wrote in his essay “The Tyranny of Guilt,” if liberal democracy does trap or jail you (politically speaking), it also invariably slips the key under your cell door. The Swedish midwives driven out of the profession over their pro-life views can take their story to the media. The Down syndrome advocacy outfit whose anti-eugenic advertising was censored in France can sue in national and then international courts. The Little Sisters of the Poor can appeal to the Supreme Court for a conscience exemption to Obamacare’s contraceptives mandate. And so on.
Conversely, once you go illiberal, you don’t just rid yourself of the NGOs and doctrinaire bureaucrats bent on forcing priests to perform gay marriages; you also lose the legal guarantees that protect the Church, however imperfectly, against capricious rulers and popular majorities. And if public opinion in the West is turning increasingly secular, indeed anti-Christian, as social conservatives complain and surveys seem to confirm, is it really a good idea to militate in favor of a more illiberal order rather than defend tooth and nail liberal principles of freedom of conscience? For tomorrow, the state might fall into Elizabeth Warren’s hands.
Nor, finally, is political liberalism alone to blame for the Church’s retreating on various fronts. There have been plenty of wounds inflicted by churchmen and laypeople, who believed that they could best serve the faith by conforming its liturgy, moral teaching, and public presence to liberal order. But political liberalism didn’t compel these changes, at least not directly. In the space opened up by liberalism, and amid the kaleidoscopic lifestyles that left millions of people feeling empty and confused, it was perfectly possible to propose tradition as an alternative. It is still possible to do so.N one of this is to excuse the failures of liberals. Liberals and mainstream conservatives must go back to the drawing board, to figure out why it is that thoughtful people have come to conclude that their system is incompatible with democracy, nationalism, and religious faith. Traditionalists and others who see Russia’s mafia state as a defender of Christian civilization and national sovereignty have been duped, but liberals bear some blame for driving large numbers of people in the West to that conclusion.
This is a generational challenge for the liberal project. So be it. Liberal societies like America’s by nature invite such questioning. But before we abandon the 200-and-some-year-old liberal adventure, it is worth examining the ways in which today’s left-wing and right-wing critiques of it mirror bad ideas that were overcome in the previous century. The ideological ferment of the moment, after all, doesn’t relieve the illiberals of the responsibility to reckon with the lessons of the past.
1 Vermeule was reviewing The Demon in Democracy, a 2015 book by the Polish political theorist and parliamentarian Ryszard Legutko that makes the same case. Fred Siegel’s review of the English edition appeared in our June 2016 issue.
How the courts are intervening to block some of the most unjust punishments of our time
Barrett’s decision marked the 59th judicial setback for a college or university since 2013 in a due-process lawsuit brought by a student accused of sexual assault. (In four additional cases, the school settled a lawsuit before any judicial decision occurred.) This body of law serves as a towering rebuke to the Obama administration’s reinterpretation of Title IX, the 1972 law barring sex discrimination in schools that receive federal funding.
Beginning in 2011, the Education Department’s Office for Civil Rights (OCR) issued a series of “guidance” documents pressuring colleges and universities to change how they adjudicated sexual-assault cases in ways that increased the likelihood of guilty findings. Amid pressure from student and faculty activists, virtually all elite colleges and universities have gone far beyond federal mandates and have even further weakened the rights of students accused of sexual assault.
Like all extreme victims’-rights approaches, the new policies had the greatest impact on the wrongly accused. A 2016 study from UCLA public-policy professor John Villasenor used just one of the changes—schools employing the lowest standard of proof, a preponderance of the evidence—to predict that as often as 33 percent of the time, campus Title IX tribunals would return guilty findings in cases involving innocent students. Villasenor’s study could not measure the impact of other Obama-era policy demands—such as allowing accusers to appeal not-guilty findings, discouraging cross-examination of accusers, and urging schools to adjudicate claims even when a criminal inquiry found no wrongdoing.
In a September 7 address at George Mason University, Education Secretary Betsy DeVos stated that “no student should be forced to sue their way to due process.” But once enmeshed in the campus Title IX process, a wrongfully accused student’s best chance for justice may well be a lawsuit filed after his college incorrectly has found him guilty. (According to data from United Educators, a higher-education insurance firm, 99 percent of students accused of campus sexual assault are male.) The Foundation for Individual Rights has identified more than 180 such lawsuits filed since the 2011 policy changes. That figure, obviously, excludes students with equally strong claims whose families cannot afford to go to court. These students face life-altering consequences. As Judge T.S. Ellis III noted in a 2016 decision, it is “so clear as to be almost a truism” that a student will lose future educational and employment opportunities if his college wrongly brands him a rapist.
“It is not the role of the federal courts to set aside decisions of school administrators which the court may view as lacking in wisdom or compassion.” So wrote the Supreme Court in a 1975 case, Wood v. Strickland. While the Supreme Court has made clear that colleges must provide accused students with some rights, especially when dealing with nonacademic disciplinary questions, courts generally have not been eager to intervene in such matters.
This is what makes the developments of the last four years all the more remarkable. The process began in May 2013, in a ruling against St. Joseph’s University, and has lately accelerated (15 rulings in 2016 and 21 thus far in 2017). Of the 40 setbacks for colleges in federal court, 14 came from judges nominated by Barack Obama, 11 from Clinton nominees, and nine from selections of George W. Bush. Brown University has been on the losing side of three decisions; Duke, Cornell, and Penn State, two each.
Court decisions since the expansion of Title IX activism have not all gone in one direction. In 36 of the due-process lawsuits, courts have permitted the university to maintain its guilty finding. (In four other cases, the university settled despite prevailing at a preliminary stage.) But even in these cases, some courts have expressed discomfort with campus procedures. One federal judge was “greatly troubled” that Georgia Tech veered “very far from an ideal representation of due process” when its investigator “did not pursue any line of investigation that may have cast doubt on [the accuser’s] account of the incident.” Another went out of his way to say that he considered it plausible that a former Case Western Reserve University student was actually “innocent of the charges levied against him.” And one state appellate judge opened oral argument by bluntly informing the University of California’s lawyer, “When I . . . finished reading all the briefs in this case, my comment was, ‘Where’s the kangaroo?’”
Judges have, obviously, raised more questions in cases where the college has found itself on the losing side. Those lawsuits have featured three common areas of concern: bias in the investigation, resulting in a college decision based on incomplete evidence; procedures that prevented the accused student from challenging his accuser’s credibility, chiefly through cross-examination; and schools utilizing a process that seemed designed to produce a predetermined result, in response to real or perceived pressure from the federal government.C olleges and universities have proven remarkably willing to act on incomplete information when adjudicating sexual-assault cases. In December 2013, for example, Amherst College expelled a student for sexual assault despite text messages (which the college investigator failed to discover) indicating that the accuser had consented to sexual contact. The accuser’s own testimony also indicated that she might have committed sexual assault, by initiating sexual contact with a student who Amherst conceded was experiencing an alcoholic blackout. When the accused student sued Amherst, the college said its failure to uncover the text messages had been irrelevant because its investigator had only sought texts that portrayed the incident as nonconsensual. In February, Judge Mark Mastroianni allowed the accused student’s lawsuit to proceed, commenting that the texts could raise “additional questions about the credibility of the version of events [the accuser] gave during the disciplinary proceeding.” The two sides settled in late July.
Amherst was hardly alone in its eagerness to avoid evidence that might undermine the accuser’s version of events; the same happened at Penn State, St. Joseph’s, Duke, Ohio State, Occidental, Lynn, Marlboro, Michigan, and Notre Dame.
Even in cases with a more complete evidentiary base, accused students have often been blocked from presenting a full-fledged defense. As part of its reinterpretation of Title IX, the Obama administration sought to shield campus accusers from cross-examination. OCR’s 2011 guidance “strongly” discouraged direct cross-examination of accusers by the accused student—a critical restriction, since most university procedures require the accused student, rather than his lawyer, to defend himself in the hearing. OCR’s 2014 guidance suggested that this type of cross-examination in and of itself could create a hostile environment. The Obama administration even spoke favorably about the growing trend among schools to abolish hearings altogether and allow a single official to serve as investigator, prosecutor, judge, and jury in sexual-assault cases.
The Supreme Court has never held that campus disciplinary hearings must permit cross-examination. Nonetheless, the recent attack on the practice has left schools struggling to explain why they would not want to utilize what the Court has described as the “greatest legal engine ever invented for the discovery of truth.” In June 2016, the University of Cincinnati found a student guilty of sexual assault after a hearing at which neither his accuser nor the university’s Title IX investigator appeared. In an unintentionally comical line, the hearing chair noted the absent witnesses before asking the accused student if he had “any questions of the Title IX report.” The student, befuddled, replied, “Well, since she’s not here, I can’t really ask anything of the report.” (The panel chair did not indicate how the “report” could have answered any questions.) Cincinnati found the student guilty anyway.1
Limitations on full cross-examination also played a role in judicial setbacks for Middlebury, George Mason, James Madison, Ohio State, Occidental, Penn State, Brandeis, Amherst, Notre Dame, and Skidmore.
Finally, since 2011, more than 300 students have filed Title IX complaints with the Office for Civil Rights, alleging mishandling of their sexual-assault allegation by their college. OCR’s leadership seemed to welcome the complaints, which allowed Obama officials not only to inspect the individual case but all sexual-assault claims at the school in question over a three-year period. Northwestern University professor Laura Kipnis has estimated that during the Obama years, colleges spent between $60 million and $100 million on these investigations. If OCR finds a Title IX violation, that might lead to a loss of federal funding. This has led Harvard Law professors Jeannie Suk Gersen, Janet Halley, Elizabeth Bartholet, and Nancy Gertner to observe in a white paper submitted to OCR that universities have “strong incentives to ensure the school stays in OCR’s good graces.”
One of the earliest lawsuits after the Obama administration’s policy shift, involving former Xavier University basketball player Dez Wells, demonstrated how an OCR investigation can affect the fairness of a university inquiry. The accuser’s complaint had been referred both to Xavier’s Title IX office and the Cincinnati police. The police concluded that the allegation was meritless; Hamilton County Prosecuting Attorney Joseph Deters later said he considered charging the accuser with filing a false police report.
Deters asked Xavier to delay its proceedings until his office completed its investigation. School officials refused. Instead, three weeks after the initial allegation, the university expelled Wells. He sued and speculated that Xavier’s haste came not from a quest for justice but instead from a desire to avoid difficulties in finalizing an agreement with OCR to resolve an unrelated complaint filed by two female Xavier students. (In recent years, OCR has entered into dozens of similar resolution agreements, which bind universities to policy changes in exchange for removing the threat of losing federal funds.) In a July 2014 ruling, Judge Arthur Spiegel observed that Xavier’s disciplinary tribunal, however “well-equipped to adjudicate questions of cheating, may have been in over its head with relation to an alleged false accusation of sexual assault.” Soon thereafter, the two sides settled; Wells transferred to the University of Maryland.
Ohio State, Occidental, Cornell, Middlebury, Appalachian State, USC, and Columbia have all found themselves on the losing side of court decisions arising from cases that originated during a time in which OCR was investigating or threatening to investigate the school. (In the Ohio State case, one university staffer testified that she didn’t know whether she had an obligation to correct a false statement by an accuser to a disciplinary panel.) Pressure from OCR can be indirect, as well. The Obama administration interpreted federal law as requiring all universities to have at least one Title IX coordinator; larger universities now employ dozens of Title IX personnel who, as the Harvard Law professors explained, “have reason to fear for their jobs if they hold a student not responsible or if they assign a rehabilitative or restorative rather than a harshly punitive sanction.”A mid the wave of judicial setbacks for universities, two decisions in particular stand out. Easily the most powerful opinion in a campus due-process case came in March 2016 from Judge F. Dennis Saylor. While the stereotypical campus sexual-assault allegation results from an alcohol-filled, one-night encounter between a male and a female student, a case at Brandeis University involved a long-term monogamous relationship between two male students. A bad breakup led to the accusing student’s filing the following complaint, against which his former boyfriend was expected to provide a defense: “Starting in the month of September, 2011, the Alleged violator of Policy had numerous inappropriate, nonconsensual sexual interactions with me. These interactions continued to occur until around May 2013.”
To adjudicate, Brandeis hired a former OCR staffer, who interviewed the two students and a few of their friends. Since the university did not hold a hearing, the investigator decided guilt or innocence on her own. She treated each incident as if the two men were strangers to each other, which allowed her to determine that sexual “violence” had occurred in the relationship. The accused student, she found, sometimes looked at his boyfriend in the nude without permission and sometimes awakened his boyfriend with kisses when the boyfriend wanted to stay asleep. The university’s procedures prevented the student from seeing the investigator’s report, with its absurdly broad definition of sexual misconduct, in preparing his appeal. “In the context of American legal culture,” Boston Globe columnist Dante Ramos later argued, denying this type of information “is crazy.” “Standard rules of evidence and other protections for the accused keep things like false accusations or mistakes by authorities from hurting innocent people.” When the university appeal was denied, the student sued.
At an October 2015 hearing to consider the university’s motion to dismiss, Saylor seemed flabbergasted at the unfairness of the school’s approach. “I don’t understand,” he observed, “how a university, much less one named after Louis Brandeis, could possibly think that that was a fair procedure to not allow the accused to see the accusation.” Brandeis’s lawyer cited pressure to conform to OCR guidance, but the judge deemed the university’s procedures “closer to Salem 1692 than Boston, 2015.”
The following March, Saylor issued an 89-page opinion that has been cited in virtually every lawsuit subsequently filed by an accused student. “Whether someone is a ‘victim’ is a conclusion to be reached at the end of a fair process, not an assumption to be made at the beginning,” Saylor wrote. “If a college student is to be marked for life as a sexual predator, it is reasonable to require that he be provided a fair opportunity to defend himself and an impartial arbiter to make that decision.” Saylor concluded that Brandeis forced the accused student “to defend himself in what was essentially an inquisitorial proceeding that plausibly failed to provide him with a fair and reasonable opportunity to be informed of the charges and to present an adequate defense.”
The student, vindicated by the ruling’s sweeping nature, then withdrew his lawsuit. He currently is pursuing a Title IX complaint against Brandeis with OCR.
Four months later, a three-judge panel of the Second Circuit Court of Appeals produced an opinion that lacked Saylor’s rhetorical flourish or his understanding of the basic unfairness of the campus Title IX process. But by creating a more relaxed standard for accused students to make federal Title IX claims, the Second Circuit’s decision in Doe v. Columbia carried considerable weight.
Two Columbia students who had been drinking had a brief sexual encounter at a party. More than four months later, the accuser claimed she was too intoxicated to have consented. Her allegation came in an atmosphere of campus outrage about the university’s allegedly insufficient toughness on sexual assault. In this setting, the accused student found Columbia’s Title IX investigator uninterested in hearing his side of the story. He cited witnesses who would corroborate his belief that the accuser wasn’t intoxicated; the investigator declined to speak with them. The student was found guilty, although for reasons differing from the initial claim; the Columbia panel ruled that he had “directed unreasonable pressure for sexual activity toward the [accuser] over a period of weeks,” leaving her unable to consent on the night in question. He received a three-semester suspension for this nebulous offense—which even his accuser deemed too harsh. He sued, and the case was assigned to Judge Jesse Furman.
Furman’s opinion provided a ringing victory for Columbia and the Obama-backed policies it used. As Title IX litigator Patricia Hamill later observed, Furman’s “almost impossible standard” required accused students to have inside information about the institution’s handling of other sexual-assault claims—information they could plausibly obtain only through the legal process known as discovery, which happens at a later stage of litigation—in order to survive a university’s initial motion to dismiss. Furman suggested that, to prevail, an accused student would need to show that his school treated a female student accused of sexual assault more favorably, or at least provide details about how cases against other accused students showed a pattern of bias. But federal privacy law keeps campus disciplinary hearings private, leaving most accused students with little opportunity to uncover the information before their case is dismissed.
At the same time, the opinion excused virtually any degree of unfairness by the institution. Furman reasoned that taking “allegations of rape on campus seriously and . . . treat[ing] complainants with a high degree of sensitivity” could constitute “lawful” reasons for university unfairness toward accused students. Samantha Harris of the Foundation for Individual Rights in Education detected the decision’s “immediate and nationwide impact” in several rulings against accused students. It also played the same role in university briefs that Saylor’s Brandeis opinion did in filings by accused students.
The Columbia student’s lawyer, Andrew Miltenberg, appealed Furman’s ruling to the Second Circuit. The stakes were high, since a ruling affirming the lower court’s reasoning would have all but foreclosed Title IX lawsuits by accused students in New York, Connecticut, and Vermont. But a panel of three judges, all nominated by Democratic presidents, overturned Furman’s decision. In the opinion’s crucial passage, Judge Pierre Leval held that a university “is not excused from liability for discrimination because the discriminatory motivation does not result from a discriminatory heart, but rather from a desire to avoid practical disadvantages that might result from unbiased action. A covered university that adopts, even temporarily, a policy of bias favoring one sex over the other in a disciplinary dispute, doing so in order to avoid liability or bad publicity, has practiced sex discrimination, notwithstanding that the motive for the discrimination did not come from ingrained or permanent bias against that particular sex.” Before the Columbia decision, courts almost always had rebuffed Title IX pleadings from accused students. More recently, judges have allowed Title IX claims to proceed against Amherst, Cornell, California–Santa Barbara, Drake, and Rollins.
After the Second Circuit’s decision, Columbia settled with the accused student, sparing its Title IX decision-makers from having to testify at a trial. James Madison was one of the few universities to take a different course, with disastrous results. A lawsuit from an accused student survived a motion to dismiss, but the university refused to settle, allowing the student’s lawyer to depose the three school employees who had decided his client’s fate. One unintentionally revealed that he had misapplied the university’s own definition of consent. Another cited the importance of the accuser’s slurring words on a voicemail, thus proving her extreme intoxication on the night of the alleged assault. It was left to the accused student’s lawyer, at a deposition months after the decision had been made, to note that the voicemail in question actually was received on a different night. In December 2016, Judge Elizabeth Dillon, an Obama nominee, granted summary judgment to the accused student, concluding that “significant anomalies in the appeal process” violated his due-process rights under the Constitution.niversities were on the losing side of 36 due-process rulings when Obama appointee Catherine Lhamon was presiding over the Office for Civil Rights between 2013 and 2016; no record exists of her publicly acknowledging any of them. In June 2017, however, Lhamon suddenly rejoiced that “yet another federal court” had found that students disciplined for sexual misconduct “were not denied due process.” That Fifth Circuit decision, involving two former students at the University of Houston, was an odd case for her to celebrate. The majority cabined its findings to the “unique facts” of the case—that the accused students likely would have been found guilty even under the fairest possible process. And the dissent, from Judge Edith Jones, denounced the procedures championed by Lhamon and other Obama officials as “heavily weighted in favor of finding guilt,” predicting “worse to come if appellate courts do not step in to protect students’ procedural due process right where allegations of quasi-criminal sexual misconduct arise.”
At this stage, Lhamon, who now chairs the U.S. Commission on Civil Rights, cannot be taken seriously when it comes to questions of campus due process. But other defenders of the current Title IX regime have offered more substantive commentary about the university setbacks.
Legal scholar Michelle Anderson was one of the few to even discuss the due-process decisions. “Colleges and universities do not always adjudicate allegations of sexual assault well,” she noted in a 2016 law review article defending the Obama-era policies. Anderson even conceded that some colleges had denied “accused students fairness in disciplinary adjudication.” But these students sued, “and campuses are responding—as they must—when accused students prevail. So campuses face powerful legal incentives on both sides to address campus sexual assault, and to do so fairly and impartially.”
This may be true, but Anderson does not explain why wrongly accused students should bear the financial and emotional burden of inducing their colleges to implement fair procedures. More important, scant evidence exists that colleges have responded to the court victories of wrongly accused students by creating fairer procedures. Some have even made it more difficult for wrongly accused students to sue. After losing a lawsuit in December 2014, Brown eliminated the right of students accused of sexual assault to have “every opportunity” to present evidence. That same year, an accused student showed how Swarthmore had deviated from its own procedures in his case. The college quickly settled the lawsuit—and then added a clause to its procedures immunizing it from similar claims in the future. Swarthmore currently informs accused students that “rules of evidence ordinarily found in legal proceedings shall not be applied, nor shall any deviations from any of these prescribed procedures alone invalidate a decision.”
Many lawsuits are still working their way through the judicial system; three cases are pending at federal appellate courts. Of the two that address substantive matters, oral arguments seemed to reveal skepticism of the university’s position. On July 26, a three-judge panel of the First Circuit considered a case at Boston College, where the accused student plausibly argued that someone else had committed the sexual assault (which occurred on a poorly lit dance floor). Judges Bruce Selya and William Kayatta seemed troubled that a Boston College dean had improperly intruded on the hearing board’s deliberations. At the Sixth Circuit a few days later, Judges Richard Griffin and Amul Thapar both expressed concerns about the University of Cincinnati’s downplaying the importance of cross-examination in campus-sex adjudications. Judge Eric Clay was quieter, but he wondered about the tension between the university’s Title IX and truth-seeking obligations.
In a perfect world, academic leaders themselves would have created fairer processes without judicial intervention. But in the current campus environment, such an approach is impossible. So, at least for the short term, the courts remain the best, albeit imperfect, option for students wrongly accused of sexual assault. Meanwhile, every year, young men entrust themselves and their family’s money to institutions of higher learning that are indifferent to their rights and unconcerned with the injustices to which these students might be subjected.
1 After a district court placed that finding on hold, the university appealed to the Sixth Circuit.
Review of 'Terror in France' By Gilles Kepel
Kepel is particularly knowledgeable about the history and process of radicalization that takes place in his nation’s heavily Muslim banlieues (the depressed housing projects ringing Paris and other major cities), and Terror in France is informed by decades of fieldwork in these volatile locales. What we have been witnessing for more than a decade, Kepel argues, is the “third wave” of global jihadism, which is not so much a top-down doctrinally inspired campaign (as were the 9/11 attacks, directed from afar by the oracular figure of Osama bin Laden) but a bottom-up insurgency with an “enclave-based ethnic-racial logic of violence” to it. Kepel traces the phenomenon back to 2005, a convulsive year that saw the second-generation descendants of France’s postcolonial Muslim immigrants confront a changing socio-political landscape.
That was the year of the greatest riots in modern French history, involving mostly young Muslim men. It was also the year that Abu Musab al-Suri, the Syrian-born Islamist then serving as al-Qaeda’s operations chief in Europe, published The Global Islamic Resistance Call. This 1,600-page manifesto combined pious imprecations against the West with do-it-yourself ingenuity, an Anarchist’s Cookbook for the Islamist set. In Kepel’s words, the manifesto preached a “jihadism of proximity,” the brand of civil war later adopted by the Islamic State. It called for ceaseless, mass-casualty attacks in Western cities—attacks which increase suspicion and regulation of Muslims and, in turn, drive those Muslims into the arms of violent extremists.
The third-generation jihad has been assisted by two phenomena: social-networking sites that easily and widely disseminate Islamist propaganda (thus increasing the rate of self-radicalization) and the so-called Arab Spring, which led to state collapse in Syria and Libya, providing “an exceptional site for military training and propaganda only a few hours’ flight from Europe, and at a very low cost.”
Kepel’s book is not just a study of the ideology and tactics of Islamists but a sociopolitical overview of how this disturbing phenomenon fits within a country on the brink. For example, Kepel finds that jihadism is emerging in conjunction with developments such as the “end of industrial society.” A downturn in work has led to an ominous situation in which a “right-wing ethnic nationalism” preying on the economically anxious has risen alongside Islamism as “parallel conduits for expressing grievances.” Filling a space left by the French Communist Party (which once brought the ethnic French working class and Arab immigrants together), these two extremes leer at each other from opposite sides of a societal chasm, signaling the potentially cataclysmic future that awaits France if both mass unemployment and Islamist terror continue undiminished.
The French economy has also had a more direct inciting effect on jihadism. Overregulated labor markets make it difficult for young Muslims to get jobs, thus exacerbating the conditions of social deprivation and exclusion that make individuals susceptible to radicalization. The inability to tackle chronic unemployment has led to widespread Muslim disillusionment with the left (a disillusionment aggravated by another, often glossed over, factor: widespread Muslim opposition to the Socialist Party’s championing of same-sex marriage). Essentially, one left-wing constituency (unions) has made the unemployment of another constituency (Muslim youth) the mechanism for maintaining its privileges.
Kepel does not, however, cite deprivation as the sole or even main contributing factor to Islamist radicalization. One Parisian banlieue that has sent more than 80 residents to fight in Syria, he notes, has “attractive new apartment buildings” built by the state and features a mosque “constructed with the backing of the Socialist mayor.” It is also the birthplace of well-known French movie stars of Arab descent, and thus hardly a place where ambition goes to die. “The Islamophobia mantra and the victim mentality it reinforces makes it possible to rationalize a total rejection of France and a commitment to jihad by making a connection between unemployment, discrimination, and French republican values,” Kepel writes. Indeed, Kepel is refreshingly derisive of the term “Islamophobia” throughout the book, excoriating Islamists and their fellow travelers for “substituting it for anti-Semitism as the West’s cardinal sin.” These are meaningful words coming from Kepel, a deeply learned scholar of Islam who harbors great respect for the faith and its adherents.
Kepel also weaves the saga of jihadism into the ongoing “kulturkampf within the French left.” Arguments about Islamist terrorism demonstrate a “divorce between a secular progressive tradition” and the children of the Muslim immigrants this tradition fought to defend. The most ironically perverse manifestation of this divorce was ISIS’s kidnapping of Didier François, co-founder of the civil-rights organization SOS Racisme. Kepel recognizes the origins of this divorce in the “red-green” alliance formed decades ago between Islamists and elements of the French intellectual left, such as Michel Foucault, a cheerleader of the Iranian revolution.
Though he offers a rigorous history and analysis of the jihadist problem, Kepel is generally at a loss for solutions. He decries a complacent French elite, with its disregard for genuine expertise (evidenced by the decline in institutional academic support for Islamicists and Arabists) and the narrow, relatively impenetrable way in which it perpetuates itself, chiefly with a single school (the École normale supérieure) that practically every French politician must attend. Despite France’s admirable republican values, this has made the process of assimilation rather difficult. But other than wishing that the public education system become more effective and inclusive at instilling republican values, Kepel provides little in the way of suggestions as to how France emerges from this mess. That a scholar of such erudition and humanity can do little but throw up his hands and issue a sigh of despair cannot bode well. The third-generation jihad owes as much to the political breakdown in France as it does to the meltdown in the Middle East. Defeating this two-headed beast requires a new and comprehensive playbook: the West’s answer to The Global Islamic Resistance Call. That book has yet to be written.
resident Trump, in case you haven’t noticed, has a tendency to exaggerate. Nothing is “just right” or “meh” for him. Buildings, crowds, election results, and military campaigns are always outsized, gargantuan, larger, and more significant than you might otherwise assume. “People want to believe that something is the biggest and the greatest and the most spectacular,” he wrote 30 years ago in The Art of the Deal. “I call it truthful hyperbole. It’s an innocent form of exaggeration—and a very effective form of promotion.”
So effective, in fact, that the press has picked up the habit. Reporters and editors agree with the president that nothing he does is ordinary. After covering Trump for more than two years, they still can’t accept him as a run-of-the-mill politician. And while there are aspects of Donald Trump and his presidency that are, to say the least, unusual, the media seem unable to distinguish between the abnormal and significant—firing the FBI director in the midst of an investigation into one’s presidential campaign, for example—and the commonplace.
Consider the fiscal deal President Trump struck with Democratic leaders in early September.
On September 6, the president held an Oval Office meeting with Vice President Pence, Treasury Secretary Mnuchin, and congressional leaders of both parties. He had to find a way to (a) raise the debt ceiling, (b) fund the federal government, and (c) spend money on hurricane relief. The problem is that a bloc of House Republicans won’t vote for (a) unless the increase is accompanied by significant budget cuts, which interferes with (b) and (c). To raise the debt ceiling, then, requires Democratic votes. And the debt ceiling must be raised. “There is zero chance—no chance—we will not raise the debt ceiling,” Senate Majority Leader Mitch McConnell said in August.
The meeting went like this. First House Speaker Paul Ryan asked for an 18-month increase in the debt ceiling so Republicans wouldn’t have to vote again on the matter until after the midterm elections. Democrats refused. The bargaining continued until Ryan asked for a six-month increase. The Democrats remained stubborn. So Trump, always willing to kick a can down the road, interrupted Mnuchin to offer a three-month increase, a continuing resolution that will keep the government open through December, and about $8 billion in hurricane money. The Democrats said yes.
That, anyway, is what happened. But the media are not satisfied to report what happened. They want—they need—to tell you what it means. And what does it mean? Well, they aren’t really sure. But it’s something big. It’s something spectacular. For example:
1. “Trump Bypasses Republicans to Strike Deal on Debt Limit and Harvey Aid” was the headline of a story for the New York Times by Peter Baker, Thomas Kaplan, and Michael D. Shear. “The deal to keep the government open and paying its debts until Dec. 15 represented an extraordinary public turn for the president, who has for much of his term set himself up on the right flank of the Republican Party,” their article began. Fair enough. But look at how they import speculation and opinion into the following sentence: “But it remained unclear whether Mr. Trump’s collaboration with Democrats foreshadowed a more sustained shift in strategy by a president who has presented himself as a master dealmaker or amounted to just a one-time instinctual reaction of a mercurial leader momentarily eager to poke his estranged allies.”
2. “The decision was one of the most fascinating and mysterious moves he’s made with Congress during eight months in office,” reported Jeff Zeleny, Dana Bash, Deirdre Walsh, and Jeremy Diamond for CNN. Thanks for sharing!
3. “Trump budget deal gives GOP full-blown Stockholm Syndrome,” read the headline of Tina Nguyen’s piece for Vanity Fair. “Donald Trump’s unexpected capitulation to new best buds ‘Chuck and Nancy’ has thrown the Grand Old Party into a frenzy as Republicans search for explanations—and scapegoats.”
4. “For Conservatives, Trump’s Deal with Democrats Is Nightmare Come True,” read the headline for a New York Times article by Jeremy W. Peters and Maggie Haberman. “It is the scenario that President Trump’s most conservative followers considered their worst nightmare, and on Wednesday it seemed to come true: The deal-making political novice, whose ideology and loyalty were always fungible, cut a deal with Democrats.”
5. “Trump sides with Democrats on fiscal issues, throwing Republican plans into chaos,” read the Washington Post headline the day after the deal was announced. “The president’s surprise stance upended sensitive negotiations over the debt ceiling and other crucial policy issues this fall and further imperiled his already tenuous relationships with Senate Majority Leader Mitch McConnell and House Speaker Paul Ryan.” Yes, the negotiations were upended. Then they made a deal.
6. “Although elected as a Republican last year,” wrote Peter Baker of the Times, “Mr. Trump has shown in the nearly eight months in office that he is, in many ways, the first independent to hold the presidency since the advent of the two-party system around the time of the Civil War.” The title of Baker’s news analysis: “Bound to No Party, Trump Upends 150 Years of Two-Party Rule.” One hundred and fifty years? Why not 200?
The journalistic rule of thumb used to be that an article describing a political, social, or cultural trend requires at least three examples. Not while covering Trump. If Trump does something, anything, you should feel free to inflate its importance beyond all recognition. And stuff your “reporting” with all sorts of dramatic adjectives and frightening nouns: fascinating, mysterious, unexpected, extraordinary, nightmare, chaos, frenzy, and scapegoats. It’s like a Vince Flynn thriller come to life.
The case for the significance of the budget deal would be stronger if there were a consensus about whom it helped. There isn’t one. At first the press assumed Democrats had won. “Republicans left the Oval Office Wednesday stunned,” reported Rachael Bade, Burgess Everett, and Josh Dawsey of Politico. Another trio of Politico reporters wrote, “In the aftermath, Republicans seethed privately and distanced themselves publicly from the deal.” Republicans were “stunned,” reported Kristina Peterson, Siobhan Hughes, and Louise Radnofsky of the Wall Street Journal. “Meet the swamp: Donald Trump punts September agenda to December after meeting with Congress,” read the headline of Charlie Spiering’s Breitbart story.
By the following week, though, these very outlets had decided the GOP was looking pretty good. “Trump’s deal with Democrats bolsters Ryan—for now,” read the Politico headline on September 11. “McConnell: No New Debt Ceiling Vote until ‘Well into 2018,’” reported the Washington Post. “At this point…picking a fight with Republican leaders will only help him,” wrote Gerald Seib in the Wall Street Journal. “Trump has long warned that he would work with Democrats, if necessary, to fulfill his campaign promises. And Wednesday’s deal is a sign that he intends to follow through on that threat,” wrote Breitbart’s Joel Pollak.
The sensationalism, the conflicting interpretations, the visceral language is dizzying. We have so many reporters chasing the same story that each feels compelled to gussy up a quotidian budget negotiation until it resembles the Ribbentrop–Molotov pact, and none feel it necessary to apply to their own reporting the scrutiny and incredulity they apply to Trump. The truth is that no one knows what this agreement portends. Nor is it the job of a reporter to divine the meaning of current events like an augur of Rome. Sometimes a cigar is just a cigar. And a deal is just a deal.
Remembering something wonderful
Not surprisingly, many well-established performers were left in the lurch by the rise of the new media. Moreover, some vaudevillians who, like Fred Allen, had successfully reinvented themselves for radio were unable to make the transition to TV. But a handful of exceptionally talented performers managed to move from vaudeville to radio to TV, and none did it with more success than Jack Benny, whose feigned stinginess, scratchy violin playing, slightly effeminate demeanor, and preternaturally exact comic timing made him one of the world’s most beloved performers. After establishing himself in vaudeville, he became the star of a comedy series, The Jack Benny Program, that aired continuously, first on radio and then TV, from 1932 until 1965. Save for Bob Hope, no other comedian of his time was so popular.
With the demise of nighttime network radio as an entertainment medium, the 931 weekly episodes of The Jack Benny Program became the province of comedy obsessives—and because Benny’s TV series was filmed in black-and-white, it is no longer shown in syndication with any regularity. And while he also made Hollywood films, some of which were box-office hits, only one, Ernst Lubitsch’s To Be or Not to Be (1942), is today seen on TV other than sporadically.
Nevertheless, connoisseurs of comedy still regard Benny, who died in 1974, as a giant, and numerous books, memoirs, and articles have been published about his life and art. Most recently, Kathryn H. Fuller-Seeley, a professor at the University of Texas at Austin, has brought out Jack Benny and the Golden Age of Radio Comedy, the first book-length primary-source academic study of The Jack Benny Program and its star.* Fuller-Seeley’s genuine appreciation for Benny’s work redeems her anachronistic insistence on viewing it through the fashionable prism of gender- and race-based theory, and her book, though sober-sided to the point of occasional starchiness, is often quite illuminating.
Most important of all, off-the-air recordings of 749 episodes of the radio version of The Jack Benny Program survive in whole or part and can easily be downloaded from the Web. As a result, it is possible for people not yet born when Benny was alive to hear for themselves why he is still remembered with admiration and affection—and why one specific aspect of his performing persona continues to fascinate close observers of the American scene.B orn Benjamin Kubelsky in Chicago in 1894, Benny was the son of Eastern European émigrés (his father was from Poland, his mother from Lithuania). He started studying violin at six and had enough talent to pursue a career in music, but his interests lay elsewhere, and by the time he was a teenager, he was working in vaudeville as a comedian who played the violin as part of his act. Over time he developed into a “monologist,” the period term for what we now call a stand-up comedian, and he began appearing in films in 1929 and on network radio three years after that.
Radio comedy, like silent film, is now an obsolete art form, but the program formats that it fostered in the ’20s and ’30s all survived into the era of TV, and some of them flourish to this day. One, episodic situation comedy, was developed in large part by Jack Benny and his collaborators. Benny and Harry Conn, his first full-time writer, turned his weekly series, which started out as a variety show, into a weekly half-hour playlet featuring a regular cast of characters augmented by guest stars. Such playlets, relying as they did on a setting that was repeated from week to week, were easier to write than the free-standing sketches favored by Allen, Hope, and other ex-vaudevillians, and by the late ’30s, the sitcom had become a staple of radio comedy.
The process, as documented by Fuller-Seeley, was a gradual one. The Jack Benny Program never broke entirely with the variety format, continuing to feature both guest stars (some of whom, like Ronald Colman, ultimately became semi-regular members of the show’s rotating ensemble of players) and songs sung by Dennis Day, a tenor who joined the cast in 1939. Nor was it the first radio situation comedy: Amos & Andy, launched in 1928, was a soap-opera-style daily serial that also featured regular characters. Nevertheless, it was Benny who perfected the form, and his own character would become the prototype for countless later sitcom stars.
The show’s pivotal innovation was to turn Benny and the other cast members into fictionalized versions of themselves—they were the stars of a radio show called “The Jack Benny Program.” Sadye Marks, Benny’s wife, played Mary Livingstone, his sharp-tongued secretary, with three other characters added as the self-reflexive concept took shape. Don Wilson, the stout, genial announcer, came on board in 1934. He was followed in 1936 by Phil Harris, Benny’s roguish bandleader, and, in 1939, by Day, Harris’s simple-minded vocalist. To this team was added a completely fictional character, Rochester Van Jones, Benny’s raspy-voiced, outrageously impertinent black valet, played by Eddie Anderson, who joined the cast in 1938.
As these five talented performers coalesced into a tight-knit ensemble, the jokey, vaudeville-style sketch comedy of the early episodes metamorphosed into sitcom-style scripts that portrayed their offstage lives, as well as the making of the show itself. Scarcely any conventional jokes were told, nor did Benny’s writers employ the topical and political references in which Allen and Hope specialized. Instead, the show’s humor arose almost entirely from the close interplay of character and situation.
Benny was not solely responsible for the creation of this format, which was forged by Conn and perfected by his successors. Instead, he doubled as the star and producer—or, to use the modern term, show runner—closely supervising the writing of the scripts and directing the performances of the other cast members. In addition, he and Conn turned the character of Jack Benny from a sophisticated vaudeville monologist into the hapless butt of the show’s humor, a vain, sexually inept skinflint whose character flaws were ceaselessly twitted by his colleagues, who in turn were given most of the biggest laugh lines.
This latter innovation was a direct reflection of Benny’s real-life personality. Legendary for his voluble appreciation of other comedians, he was content to respond to the wisecracking of his fellow cast members with exquisitely well-timed interjections like “Well!” and “Now, cut that out,” knowing that the comic spotlight would remain focused on the man of whom they were making fun and secure in the knowledge that his own comic personality was strong enough to let them shine without eclipsing him in the process.
And with each passing season, the fictional personalities of Benny and his colleagues became ever more firmly implanted in the minds of their listeners, thus allowing the writers to get laughs merely by alluding to their now-familiar traits. At the same time, Benny and his writers never stooped to coasting on their familiarity. Even the funniest of the “cheap jokes” that were their stock-in-trade were invariably embedded in carefully honed dramatic situations that heightened their effectiveness.
A celebrated case in point is the best-remembered laugh line in the history of The Jack Benny Program, heard in a 1948 episode in which a burglar holds Benny up on the street. “Your money or your life,” the burglar says—to which Jack replies, after a very long pause, “I’m thinking it over!” What makes this line so funny is, of course, our awareness of Benny’s stinginess, reinforced by a decade and a half of constant yet subtly varied repetition. What is not so well remembered is that the line is heard toward the end of an episode that aired shortly after Ronald Colman won an Oscar for his performance in A Double Life. Inspired by this real-life event, the writers concocted an elaborately plotted script in which Benny talks Colman (who played his next-door neighbor on the show) into letting him borrow the Oscar to show to Rochester. It is on his way home from this errand that Benny is held up, and the burglar not only robs him of his money but also steals the statuette, a situation that was resolved to equally explosive comic effect in the course of two subsequent episodes.
No mere joke-teller could have performed such dramatically complex scripts week after week with anything like Benny’s effectiveness. The secret of The Jack Benny Program was that its star, fully aware that he was not “being himself” but playing a part, did so with an actor’s skill. This was what led Ernst Lubitsch to cast him in To Be or Not to Be, in which he plays a mediocre Shakespearean tragedian, a character broadly related to but still quite different from the one who appeared on his own radio show. As Lubitsch explained to Benny, who was skeptical about his ability to carry off the part:
A clown—he is a performer what is doing funny things. A comedian—he is a performer what is saying funny things. But you, Jack, you are an actor, you are an actor playing the part of a comedian and this you are doing very well.
To Be or Not to Be also stands out from the rest of Benny’s work because he plays an identifiably Jewish character. The Jack Benny character that he played on radio and TV, by contrast, was never referred to or explicitly portrayed as Jewish. To be sure, most listeners were in no doubt of his Jewishness, and not merely because Benny made no attempt in real life to conceal his ethnicity, of which he was by all accounts proud. The Jack Benny Program was written by Jews, and the ego-puncturing insults with which their scripts were packed, as well as the schlemiel-like aspect of Benny’s “fall guy” character, were quintessentially Jewish in style.
As Benny explained in a 1948 interview cited by Fuller-Seeley:
The humor of my program is this: I’m a big shot, see? I’m fast-talking. I’m a smart guy. I’m boasting about how marvelous I am. I’m a marvelous lover. I’m a marvelous fiddle player. Then, five minutes after I start shooting off my mouth, my cast makes a shmo out of me.
Even so, his avoidance of specific Jewish identification on the air is noteworthy precisely because his character was a miser. At a time when overt anti-Semitism was still common in America, it is remarkable that Benny’s comic persona was based in large part on an anti-Semitic stereotype—yet one that seems not to have inspired any anti-Semitic attacks on Benny himself. When, in 1945, his writers came up with the idea of an “I Can’t Stand Jack Benny Because . . . ” write-in campaign, they received 270,000 entries. Only three made mention of his Jewishness.
As for the winning entry, submitted by a California lawyer, it says much about what insulated Benny from such attacks: “He fills the air with boasts and brags / And obsolete, obnoxious gags / The way he plays his violin / Is music’s most obnoxious sin / His cowardice alone, indeed, / Is matched by his obnoxious greed / And all the things that he portrays / Show up MY OWN obnoxious ways.” It is clear that Benny’s foibles were seen by his listeners not as particular but universal, just as there was no harshness in the razzing of his fellow cast members, who very clearly loved the Benny character in spite of his myriad flaws. So, too, did the American people. Several years after his TV series was cancelled, a corporation that was considering using him as a spokesman commissioned a national poll to find out how popular he was. It learned that only 3 percent of the respondents disliked him.
Therein lay Benny’s triumph: He won total acceptance from the American public and did so by embodying a Jewish stereotype from which the sting of prejudice had been leached. Far from being a self-hating whipping boy for anti-Semites, he turned himself into WASP America’s Jewish uncle, preposterous yet lovable.W hen the bottom fell out of network radio, Benny negotiated the move to TV without a hitch, debuting on the small screen in 1950 and bringing the radio version of The Jack Benny Program to a close five years later, making it one of the very last radio comedy series to shut up shop. Even after his weekly TV series was finally canceled by CBS in 1965, he continued to star in well-received one-shot specials on NBC.
But Benny’s TV appearances, for all their charm, were never quite equal in quality to his radio work, which is why he clung to the radio version of The Jack Benny Program until network radio itself went under: Better than anyone else, he knew how good the show had been. For the rest of his life, he lived off the accumulated comic capital built up by 21 years of weekly radio broadcasts.
Now, at long last, he belongs to the ages, and The Jack Benny Program is a museum piece. Yet it remains hugely influential, albeit at one or more removes from the original. From The Dick Van Dyke Show and The Danny Thomas Show to Seinfeld, Everybody Loves Raymond, and The Larry Sanders Show, every ensemble-cast sitcom whose central character is a fictionalized version of its star is based on Benny’s example. And now that the ubiquity of the Web has made the radio version of his series readily accessible for the first time, anyone willing to make the modest effort necessary to seek it out is in a position to discover that The Jack Benny Program, six decades after it left the air, is still as wonderfully, benignly funny as it ever was, a monument to the talent of the man who, more than anyone else, made it so.
Review of 'The Transferred Life of George Eliot' By Philip Davis
Not that there’s any danger these theoretically protesting students would have read George Eliot’s works—not even the short one, Silas Marner (1861), which in an earlier day was assigned to high schoolers. I must admit I didn’t find my high-school reading of Silas Marner a pleasant experience—sports novels for boys like John R. Tunis’s The Kid from Tomkinsville were inadequate preparation. I must confess, too, that when I was in graduate school, determined to study 17th-century English verse, my reaction to the suggestion that I should also read Middlemarch (1871–72) was “What?! An 800-page novel by the guy who wrote Silas Marner?” A friend patiently explained that “the guy” was actually Mary Ann Evans, born in 1819, died in 1880. Partly because she was living in sin with the literary jack-of-all-trades George Henry Lewes (legally and irrevocably bound to his estranged wife), she adopted “George Eliot” as a protective pseudonym when, in her 1857 debut, she published Scenes from Clerical Life.
I did, many times over and with awe and delight, go on to read Middlemarch and the seven other novels, often in order to teach them to college students. Students have become less and less receptive over the years. Forget modern-day objections to George Eliot’s complex political or religious views. Adam Bede (1859) and The Mill on the Floss (1860) were too hefty, and the triple-decked Middlemarch and Deronda, even if I set aside three weeks for them, rarely got finished.
The middle 20th century was perhaps a more a propitious time for appreciating George Eliot, Henry James, and other 19th-century English and American novelists. Influential teachers like F.R. Leavis at Cambridge and Lionel Trilling at Columbia were then working hard to persuade students that the study of literature, not just poetry and drama but also fiction, matters both to their personal lives—the development of their sensibility or character—and to their wider society. The “moral imagination” that created Middlemarch enriches our minds by dramatizing the complications—the frequent blurring of good and evil—in our lives. Great novels help us cope with ambiguities and make us more tolerant of one another. Many of Leavis’s and Trilling’s students became teachers themselves, and for several decades the feeling of cultural urgency was sustained. In the 1970s, though, between the leftist emphasis on literature as “politics by other means” and the deconstructionist denial of the possibility of any knowledge, literary or otherwise, independent of political power, the high seriousness of Leavis and Trilling began to fade.
The study of George Eliot and her life has gone through many stages. Directly after her death came the sanitized, hagiographic “life and letters” by J.W. Cross, the much younger man she married after Lewes’s death. Gladstone called it “a Reticence in three volumes.” The three volumes helped spark, if they didn’t cause, the long reaction against the Victorian sages generally that culminated in the dismissively satirical work of the Bloomsbury biographer and critic Lytton Strachey in his immensely influential Eminent Victorians (1916). Strachey’s mistreatment of his forbears was, with regard to George Eliot at least, tempered almost immediately by Virginia Woolf. It was Woolf who in 1919 provocatively said that Middlemarch had been “the first English novel for adults.” Eventually, the critical tide against George Eliot was decisively reversed in the ’40s by Joan Bennett and Leavis, who made the inarguable case for her genuine and lasting achievement. That period of correction culminated in the 1960s with Gordon S. Haight’s biography and with interpretive studies by Barbara Hardy and W.J. Harvey. Books on George Eliot over the last four decades have largely been written by specialists for specialists—on her manuscripts or working notes, and on her affiliations with the scientists, social historians, and competing novelists of her day.
The same is true, only more so, of the books written, with George Eliot as the ostensible subject, to promote deconstructionist or feminist agendas. Biographies have done a better job appealing to the common reader, not least because the woman’s own story is inherently compelling. The question right now is whether a book combining biographical and interpretive insight—one “pitched,” as publishers like to say, not just at experts but at the common reader—is past praying for.
Philip Davis, a Victorian scholar and an editor at Oxford University Press, hopes not. His The Transferred Life of George Eliot—transferred, that is, from her own experience into her letters, journals, essays, and novels, and beyond them into us—deserves serious attention. Davis is conscious that George Eliot called biographies of writers “a disease of English literature,” both overeager to discover scandals and too inclined to substitute day-to-day travels, relationships, dealings with publishers and so on, for critical attention to the books those writers wrote. Davis therefore devotes himself to George Eliot’s writing. Alas, he presumes rather too much knowledge on the reader’s part of the day-to-day as charted in Haight’s marvelous life. (A year-by-year chronology at the front of the book would have helped even his fellow Victorianists.)
As for George Eliot’s writing, Davis is determined to refute “what has been more or less said . . . in the schools of theory for the last 40 years—that 19th-century realism is conservatively bland and unimaginative, bourgeois and parochial, not truly art at all.” His argument for the richness, breadth, and art of George Eliot’s realism—her factual and sympathetic depiction of poor and middling people, without omitting a candid representation of the rich—is most convincing. What looms largest, though, is the realist, the woman herself—the Mary Ann Evans who, from the letters to the novels, became first Marian Evans the translator and essayist and then later “her own greatest character”: George Eliot the novelist. Davis insists that “the meaning of that person”—not merely the voice of her omniscient narrators but the omnipresent imagination that created the whole show—“has not yet exhausted its influence nor the larger future life she should have had, and may still have, in the world.”
The transference of George Eliot’s experience into her fiction is unquestionable: In The Mill on the Floss, for example, Mary Ann is Maggie, and her brother Isaac is Tom Tulliver. Davis knows that a better word might be transmutation, as George Eliot had, in Henry James’s words, “a mind possessed,” for “the creations which brought her renown were of the incalculable kind, shaped themselves in mystery, in some intellectual back-shop or secret crucible, and were as little as possible implied in the aspect of her life.” No data-accumulating biographer, even the most exhaustive, can account for that “incalculable . . . mystery.”
Which is why Davis, like a good teacher, gives us exercises in “close reading.” He pauses to consider how a George Eliot sentence balances or turns on an easy-to-skip-over word or phrase—the balance or turn often representing a moment when the novelist looks at what’s on the underside of the cards.
George Eliot’s style is subtle because her theme is subtle. Take D.H. Lawrence’s favorite heroine, the adolescent Maggie Tulliver. The external event in The Mill on the Floss may be the girl’s impulsive cutting off her unruly hair to spite her nagging aunts, or the young woman’s drifting down the river with a superficially attractive but truly impossible boyfriend. But the real “action” is Maggie’s internal self-blame and self-assertion. No Victorian novelist was better than George Eliot at tracing the psychological development of, say, a husband and wife who realize they married each other for shallow reasons, are unhappy, and now must deal with the ordinary necessities of balancing the domestic budget—Lydgate and Rosamund in Middlemarch—or, in the same novel, the religiously inclined Dorothea’s mistaken marriage to the old scholar Casaubon. That mistake precipitates not merely disenchantment and an unconscious longing for love with someone else, but (very finely) a quest for a religious explanation of and guide through her quandary.
It’s the religio-philosophical side of George Eliot about which Davis is strongest—and weakest. Her central theological idea, if one may simplify, was that the God of the Bible didn’t exist “out there” but was a projection of the imagination of the people who wrote it. Jesus wasn’t, in Davis’s characterization of her view, “the impervious divine, but [a man who] shed tears and suffered,” and died feeling forsaken. “This deep acceptance of so-called weakness was what most moved Marian Evans in her Christian inheritance. It was what God was for.” That is, the character of Jesus, and the dramatic play between him and his Father, expressed the human emotions we and George Eliot are all too familiar with. The story helps reconcile us to what is, finally, inescapable suffering.
George Eliot came to this demythologized understanding not only of Judaism and Christianity but of all religions through her contact first with a group of intellectuals who lived near Coventry, then with two Germans she translated: David Friedrich Strauss, whose 1,500-page Life of Jesus Critically Examined (1835–36) was for her a slog, and Ludwig Feuerbach, whose Essence of Christianity (1841) was for her a joy. Also, in the search for the universal morality that Strauss and Feuerbach believed Judaism and Christianity expressed mythically, there was Spinoza’s utterly non-mythical Ethics (1677). It was seminal for her—offering, as Davis says, “the intellectual origin for freethinking criticism of the Bible and for the replacement of religious superstition and dogmatic theology by pure philosophic reason.” She translated it into English, though her version did not appear until 1981.
I wish Davis had left it there, but he takes it too far. He devotes more than 40 pages—a tenth of the whole book—to her three translations, taking them as a mother lode of ideational gold whose tailings glitter throughout her fiction. These 40 pages are followed by 21 devoted to Herbert Spencer, the Victorian hawker of theories-of-everything (his 10-volume System of Synthetic Philosophy addresses biology, psychology, sociology, and ethics). She threw herself at the feet of this intellectual huckster, and though he rebuffed her painfully amorous entreaties, she never ceased revering him. Alas, Spencer was a stick—the kind of philosopher who was incapable of emotion. And she was his intellectual superior in every way. The chapter is largely unnecessary.
The book comes back to life when Davis turns to George Henry Lewes, the man who gave Mary Ann Evans the confidence to become George Eliot—perhaps the greatest act of loving mentorship in all of literature. Like many prominent Victorians, Lewes dabbled in all the arts and sciences, publishing highly readable accounts of them for a general audience. His range was as wide as Spencer’s, but his personality and writing had an irrepressible verve that Spencer could only have envied. Lewes was a sort Stephen Jay Gould yoked to Daniel Boorstin, popularizing other people’s findings and concepts, and coming up with a few of his own. He regarded his Sea-Side Studies (1860) as “the book . . . which was to me the most unalloyed delight,” not least because Marian, whom he called Polly, had helped gather the data. She told a friend “There is so much happiness condensed in it! Such scrambles over rocks, and peeping into clear pool [sic], and strolls along the pure sands, and fresh air mingling with fresh thoughts.” In his remarkably intelligent 1864 biography of Goethe, Lewes remarks that the poet “knew little of the companionship of two souls striving in emulous spirit of loving rivalry to become better, to become wiser, teaching each other to soar.” Such a companionship Lewes and George Eliot had in spades, and some of Davis’s best passages describe it.
Regrettably, Davis also offers many passages well below the standard of his best—needlessly repeating an already established point or obfuscating the obvious. Still, The Transferred Lives is the most formidably instructive, and certainly complete, life-and-works treatment of George Eliot we have.