From our January 2010 issue: Israel’s efforts to resolve its conflict with the Palestinians have not only failed; they have…
When the Oslo process began in 1993, one benefit its adherents promised was a significant improvement in Israel’s international standing. And initially, it seemed as if that promise would be kept: 37 countries soon established or renewed diplomatic relations with Israel; a peace treaty was signed with Jordan; five other Arab states opened lower-level relations.
But 16 years later, it is clear that this initial boost was illusory. Not only is Israel’s standing no better than it was prior to the famous handshake between Yitzhak Rabin and Yasir Arafat on the White House Lawn in September 1993, it has fallen to an unprecedented low. Efforts to boycott and divest from Israel are gaining strength throughout the West, among groups as diverse as British academics, Canadian labor unions, the Norwegian government’s investment fund, and American churches. Israeli military operations routinely spark huge protests worldwide, often featuring anti-Semitic slogans. References to Israel as an apartheid state have become so commonplace that even a former president of Israel’s closest ally, the United States, had no qualms about using the term in the title of his 2007 book on Israel. European polls repeatedly deem Israel the greatest threat to world peace, greater even than such beacons of tranquility and democracy as Iran and North Korea. Courts in several European countries, including Belgium, Britain, and Spain, have seriously considered indicting Israeli officials for war crimes (though none has actually yet done so). And in October, when the United Nations Human Rights Council overwhelmingly endorsed a report that advocated hauling Israel before the International Criminal Court on war-crimes charges, even many of Jerusalem’s supposed allies refused to vote against the measure. In academic and media circles, it has even become acceptable to question Israel’s very right to exist—something never asked about any other state in the world. None of these developments was imaginable back in the days when Israel refused to talk to the Palestine Liberation Organization, had yet to withdraw from an inch of “Palestinian” land, and had not evacuated a single settlement.
Yet even today, conventional wisdom, including in Israel, continues to assert that Israel’s international standing depends on its willingness to advance the “peace process.” That invites an obvious question: if so, why has Israel’s reputation fallen so low despite its numerous concessions for peace since 1993?
The answer is unpleasant to contemplate, but the mounting evidence makes it inescapable: Israel’s standing has declined so precipitously not despite Oslo but because of Oslo. It was Israel’s very willingness to make concessions for the sake of peace that has produced its current near-pariah status.
Why should this be so? There are several reasons.
First, Oslo led Israel to sideline its own claim to the West Bank and Gaza, which all Israeli governments (and international Jewish leaders) had stressed to some extent before 1993. Though there had long been a lively debate as to whether Israel ought to hold on to these territories in practice, until 1993 all sides were ready to assert that it had a valid claim to them in principle. The argument in favor of Israel’s right to sovereignty there was simple: these territories are the historic Jewish homeland, the heart of the biblical Jewish kingdom. They were explicitly allotted to the future Jewish state by the 1922 League of Nations Mandate, which was never legally superseded. Although the 1947 UN partition plan allotted part of the land to a putative Arab state—a plan that Palestinians and other Arabs rejected as a matter of principle—it was merely a nonbinding “recommendation” (as its own language stated). Thus once the Arabs rejected it, the measure had no more validity than any other unsigned deal. Nor did any sovereign state ever replace the Mandate on this territory: though Jordan and Egypt conquered the West Bank and Gaza, respectively, in 1948, neither conquest was ever internationally recognized. Legally, therefore, the territories remained stateless lands whose ownership is disputed; over time, the Palestinians simply replaced Egypt and Jordan as the Arab claimants.
None of this precludes an Israeli cession of these areas; countries often waive territorial claims to secure peace agreements. But only if Israel has a valid claim can the act of ceding these lands be a “painful concession” that could arouse sympathy and admiration from the world. If Israel has no claim, it is nothing but a thief. And no one would admire a thief for returning some, but not all, of his stolen property, or for offering to return some, but still not all, of the rest if granted sufficient compensation. Such behavior would be universally condemned. Indeed, if Israel has no claim to this land, even conditioning withdrawal on an end to Palestinian terror becomes harder to justify. If the land is Israel’s, Israel can obviously refuse to cede it unless it receives peace in exchange. But if the land belongs to the Palestinians, many might argue that it should be returned unconditionally.
This latter notion, however, is precisely the picture Israeli discourse has increasingly painted since 1993. Perhaps because pro-Oslo Israelis viewed Israel’s own rights as too self-evident to need restating, they inevitably focused on defending the Oslo accord’s new and domestically controversial claim: that Palestinians, too, have “legitimate and political rights” in the West Bank and Gaza. Thus, for instance, Labor party chairman (and later prime minister) Ehud Barak said in a 1998 television interview that had he been a Palestinian, he would have joined a terrorist organization, because “there is legitimacy for a Palestinian to fight.” Such claims were rarely heard from mainstream Israelis prior to 1993: while the moderate Left had always favored ceding territory, it historically framed this as a necessity of peacemaking rather than a matter of Arab rights.
Moreover, as repeated Israeli concessions brought only more Palestinian terror, making them harder to justify in the name of peace, even right-of-center Israeli leaders increasingly justified them in the language of Palestinian rights. Then Prime Minister Ariel Sharon, for instance, stunned the Knesset in 2003 by declaring, “I think the idea that it is possible to continue keeping 3.5 million Palestinians under occupation—yes, it is occupation, you might not like the word, but what is happening is occupation—is bad for Israel, and bad for the Palestinians.”
But if Palestinians have “legitimate rights” to this land, it must belong to them. And if Israel is “occupying” the land, it must not belong to Israel. That, in plain English, is what “rights” and “occupation” mean.
The problem was exacerbated by Sharon’s unilateral disengagement from Gaza in 2005 and Ehud Olmert’s election the following year on a platform of unilaterally quitting most of the West Bank. Until then, Israel had deemed evicting settlers from their homes a personal and national tragedy that merited sympathy and compensation. But then two successive Israeli prime ministers declared that for both demographic and security reasons, uprooting settlements was an Israeli interest. A plurality of Israelis even endorsed this view in a national election. And if so, dismantling settlements cannot be a “painful concession” for which Israel deserves to be rewarded.
Granted, much of the world was disposed to accept the Palestinian claim even before Oslo. But as the sage Hillel famously said 2,000 years ago, “If I am not for myself, who will be for me?” Oslo marked the moment when Israel stopped defending its own claim to the West Bank and Gaza and instead increasingly endorsed the Palestinian claim. And with no competing narrative to challenge it any longer, the view of Israel as a thief, with all its attendant consequences, has gained unprecedented traction.
This alone would be devastating to Israel’s image. But the problem has been compounded by another unanticipated consequence of Oslo: the territorial withdrawals it entailed have resulted not only in more dead Israelis but also in more dead Palestinians. Nothing undermines a country’s image more quickly than pictures of bleeding victims recycled endlessly on television and computer screens. That is precisely why worldwide protests against both the Second Lebanon War in 2006 and Operation Cast Lead in Gaza last January—operations aimed at halting terror launched from territory Israel had evacuated to the last inch—drew far larger crowds than protests against Israel’s ongoing occupation of the West Bank. Death causes more outrage than occupation.
Statistics compiled by B’Tselem (the Israeli Information Center for Human Rights in the Occupied Territories) clearly reveal the correlation between withdrawals and increased Palestinian fatalities. During the first intifada, from 1987 through 1993, when Israel controlled the territories, Israeli forces killed 1,070 Palestinians. That is only slightly more than the 1,015 killed in a single year (September 2001 to August 2002) of the second intifada, which erupted after the Israel Defense Forces (IDF) had already left much of Gaza and the West Bank, and less than 30 percent of the 3,713 killed during a six-year period of the second intifada. Indeed, it is fewer than the number killed in just three weeks in the January 2009 Gaza war: the lowest estimate of Palestinian fatalities, which comes from the IDF, is 1,166.
Moreover, Palestinian fatalities in the West Bank, which peaked at 667 in the second intifada’s second year (September 2001 to August 2002), dropped dramatically after Israel reoccupied this territory in Operation Defensive Shield in April 2002. They plunged by almost two-thirds in the third year, to 242, then to 199 in the fourth, 105 to 125 in each of the next three, and 52 in the eighth, which ended in September 2008 (B’Tselem has yet to publish statistics for 2009). In Gaza, by contrast, Palestinian fatalities soared after Israel withdrew in August 2005. In fact, the second intifada’s eighth year, which produced the lowest number of West Bank fatalities since the fighting began, produced the highest number of deaths in Gaza—532, almost 100 more than the previous worst year. And the following year was worse yet: the number of Gazans killed during the January 2009 war alone—1,166 (at least)—is seven times the 162 killed in Gaza’s single worst month until then.
This data flies in the face of conventional wisdom, which holds that a continuous IDF presence increases the likelihood of deadly encounters. But when the IDF controls an area, it can usually arrest suspected terrorists rather than kill them. Israel cannot arrest suspects in territory it has ceded to Palestinian control. Thus the only way to fight terror emanating from territory the IDF has quit is by military means—namely, killing the terrorists. And military action inevitably involves collateral civilian casualties as well. That is true even of the most civilian-friendly form of military action, precision aerial bombing. Haaretz reported that by 2007, the IDF had reduced collateral civilian deaths to less than 3 percent of all those killed in Israeli air strikes. Yet, since human beings are imperfect, some mishaps will always occur: faulty intelligence will leave the army unaware of nearby civilians, or pilot error might send a bomb off course. And ground operations are far deadlier: just as the Gaza war was the worst month of the intifada for Gazans, so was Israel’s April 2002 incursion into the West Bank for residents of that territory, with a Palestinian fatality level 50 percent higher than in the second-worst month.
Clearly, withdrawals would not have required military action, with its resultant Palestinian casualties, had the Palestinians not turned every bit of territory they received into a launching pad for terror attacks. But that is exactly what they have done. In the first two and a half years after Oslo, Palestinian terrorists killed more Israelis than they had in the preceding decade. In 2000-04, according to the Shin Bet security service, Israel’s terror-related casualties exceeded those of the preceding 53 years. And between the mid-2005 disengagement from Gaza and the 2009 war, Gazan terrorists fired almost 6,000 rockets and mortars at southern Israel, according to the Intelligence and Terrorism Information Center. Hence, every withdrawal has faced Israel with a stark choice: sit with folded hands while its citizens are attacked, or take military action that will inevitably produce Palestinian casualties and consequent international outrage.
Israeli withdrawals have also had another unintended consequence: they have energized anti-Israel radicals who, despite their small numbers, have contributed greatly to the anti-Israel climate by propelling the boycott and divestment movement. Because groups such as labor unions and churches are generally viewed positively, when a wide variety of such groups throughout the West all start targeting one particular country for boycott and divestment, people without any prior knowledge of the facts might naturally assume that the accused country must indeed be guilty to merit such treatment. What those people fail to realize is that boycotts and divestments are usually approved not by an organization’s full membership but by a handful of activists, which enables a few radicals to hijack the debate. When the British lecturers’ union, NATFHE, approved an academic boycott of Israel at its annual conference in May 2006, for instance, the New York Times noted that only 198 of its 67,000 members actually voted, and of those, a bare majority—106—-voted in favor. Theoretically, these delegates represent the members. In practice, few members choose delegates based on their views on the Israeli-Palestinian conflict; most have more pressing concerns.
And while boycott initiatives are popularly viewed nowadays as a response to Israeli “war crimes,” not only did most such boycotts predate the major military operations of 2006 and 2009, but many were launched during periods when Israel was seemingly moving rapidly toward withdrawal. After Israel removed every last settler and soldier from Gaza in August 2005, for instance, Ehud Olmert ran for prime minister on a platform of doing the same in most of the West Bank. Polls showed him winning the March 2006 election handily, which he did. Hence, until the Second Lebanon War erupted in July 2006, one might have expected the boycotters to rest on their laurels. Instead, this period witnessed an unprecedented spate of high-profile boycott activity, including an article headlined “Boycott Israel” in the prestigious magazine published by the Davos World Economic Forum, a cover story in the Guardian entitled “Israel and Apartheid: A Special Report,” the adoption of a commercial boycott by the Canadian Union of Public Employees’ Ontario chapter, and the British academic boycott.
This seemingly counterintuitive behavior has a simple explanation: among anti-Israel radicals, Israel’s increasingly frantic pursuit of peace has aroused not admiration but rather the instincts of a predator scenting blood. Over the past 16 years, even as Palestinian positions have remained unchanged, Israel has repeatedly ditched red lines that enjoyed massive consensus pre-Oslo, including no negotiations with terrorist organizations, no Palestinian state, no concessions on Jerusalem, no negotiations or withdrawals under fire, and no unilateral pullbacks. Worse, these retreats occurred in exchange for ever diminishing returns, and often in response to pressure. This convinced the radicals (and Palestinians as well) that Israel could be pressured into abandoning any red line if the heat was turned high enough. Hence the Ontario boycott, for instance, is explicitly designed to continue until Israel grants a Palestinian “right of return,” thereby requiring Israel to commit demographic suicide.
The retreats from Israel’s previous positions began the minute Oslo was signed. The last Israeli cession of territory—the return of Sinai to Egypt in 1982, and the subsequent handover of the Taba resort seven years later—followed a nine-year cease-fire and a full-fledged peace treaty backed by international guarantees, including a multinational force in Sinai. In contrast, Israel’s 1994 handover of Gaza and Jericho to the PLO came in the wake of six years of terrorist violence (the first intifada) and a mere interim agreement, with no international guarantees. The Palestinians promptly violated their side of the Oslo deal, which was to end terror: in the 30 months after Oslo, as previously noted, Palestinian terrorists killed more Israelis than they had during the entire preceding decade. Yet in 1995-97, due in part to American pressure, Israel transferred six more West Bank cities to the Palestinian Authority (PA), in exchange for nothing but renewed Palestinian pledges to end violence. In July 2000, Israel offered the Palestinians some 88 percent of the territories, including most of East Jerusalem. The Palestinians responded by launching the second intifada. But despite this gross violation of Oslo, Israel capitulated to American and international pressure and offered more territory, including the Temple Mount, in Washington in December 2000 and at the Taba talks in January 2001.
Over the next four years, Palestinian terror claimed more Israeli victims than in all the years from 1947 through 2000. Yet international pressure for Israeli concessions continued, and Israel again capitulated: in August 2005, it evacuated 25 settlements—something it had previously conditioned on a full-fledged peace treaty—for no recompense at all. And when the Palestinians responded with daily rocket fire from evacuated Gaza, as well as with a landslide electoral victory for Hamas, Israel responded by electing Olmert, who campaigned on a promise of unilaterally quitting most of the West Bank and evicting some 80,000 settlers (10 times the number removed from Gaza). Finally, when the ongoing barrages from Gaza and the Second Lebanon War combined to kill that plan, Olmert’s response was to sweeten Israel’s final-status offer. He proposed a withdrawal from 94 percent of the West Bank; territorial swaps to compensate for the remainder; international Muslim control over Jerusalem’s holy sites; and the resettlement of several thousand Palestinian refugees in Israel.
To Israelis, these ever growing concessions with no quid pro quo reflect the depth of their desire for peace. But to their enemies, they signal panic—a conclusion reinforced by verbal declarations like Olmert’s famous 2005 statement to the Israel Policy Forum that Israel “desperately needs” peace because “we are tired of fighting, we are tired of being courageous, we are tired of winning, we are tired of defeating our enemies.” Or his even more shocking statement to Haaretz in November 2007 that if “the two-state solution collapses?.?.?.?the State of Israel is finished.” If Israelis wrongly believe that their country’s survival depends on reaching a deal, they are clearly vulnerable to being pressured into concessions that really will endanger its survival. Sixteen years of unrequited concessions have convinced anti-Israel radicals that Israel is indeed vulnerable to this kind of pressure. Thus Israel’s very pursuit of peace has spurred its enemies to go for the jugular.
Yet this desperate quest for peace also failed to win Israel points among the general public, because each new initiative raised new hopes of a peace that was in fact never achievable. And it is human nature to be angrier over disappointed hope than over having never hoped at all. What is worse is the very fact that whenever negotiations broke down, it was Israel, rather than the Palestinian side, that came back with a better offer, created the impression that both sides thought peace would be achievable if Israel just gave enough. Thus the lack of peace must be Israel’s fault.
In fact, though, it became clear almost immediately after the Oslo deal was signed that peace was unachievable, because Israel’s initial territorial concessions produced such a sharp rise in terrorist violence. Whether this stemmed from Yasir Arafat’s unwillingness to control terror or his inability to do so was irrelevant: if ceding land for peace instead produced war, there were no grounds for believing that ceding more land, as Oslo required, would produce anything but more war.
Nor did this pattern change after Mahmoud Abbas replaced Arafat in 2004. Even during Abbas’s year in sole control of the PA, before Hamas triumphed in the Palestinian elections in 2006, terror continued. According to the Intelligence and Terrorism Information Center, Palestinians killed 54 Israelis and wounded 484 that year (2005), while nonfatal attacks numbered in the thousands, including 1,059 rockets and mortars fired at Israel from Gaza. The rocket attacks are particularly significant, because the IDF left Gaza in August 2005, which meant Abbas could not accuse Israeli forces of impeding his efforts there. Yet not only did he never order his own forces to stop the attacks, he explicitly and repeatedly declared that he never woulddo so. Indeed, he began cracking down on Hamas only in 2007, after the Islamic group’s takeover of Gaza made him realize that it threatened his own power, and has repeatedly offered to reverse this crackdown as part of a proposed reconciliation with Hamas (which Hamas has so far rejected). Again, it makes no difference whether he was genuinely reluctant or merely felt powerless: Israel cannot cede land if that land will become a base for terror attacks against it.
Equally important, however, is that Palestinian negotiating positions preclude any deal. While it was initially plausible to believe that these positions would eventually moderate, a decade and a half with no movement whatsoever has proved otherwise. No Israeli government, for instance, could sign a deal forfeiting all Israeli connection to the Temple Mount, Judaism’s holiest site, to which Jews have prayed three times a day for millennia. To do so would be cultural and spiritual suicide. But even worse is the Palestinians’ insistence on a “right of return” to Israel for 4.7 million descendants of Palestinian refugees (according to the UN’s almost certainly inflated figure). Added to Israel’s 1.5 million Arab citizens, these “refugees” would outnumber its 5.6 million Jews and could thereby simply vote the Jewish state out of existence. That would not be cultural and spiritual suicide but actual physical suicide. And how can peace even be seriously negotiated with someone who insists that its price is your disappearance from the map?
Yet rather than stating clearly that peace is not and never will be possible unless the Palestinians end terror and stop insisting that any deal result in the Jewish state’s eradication, Israeli prime ministers never stopped assuring their fellow citizens and the world that a deal was possible. It began with Yitzhak Rabin, who instead of acknowledging that the upsurge in terror proved Oslo a failure began incanting a mantra about fighting terror as if there were no negotiations, and negotiating as if there were no terror. The implication was clear: terror is not an insurmountable obstacle; peace is still achievable.
In his first go-round as prime minister, Benjamin Netanyahu continued the illusion: he not only campaigned in 1996 on a slogan of bringing “peace with security,” again implying that peace was possible, but he continued negotiating with, and ceding territory to, Arafat. These would have been reasonable moves in the context of a viable peace process, but would be senseless if peace were actually unachievable and territorial concessions only produced more terror. To the uninformed, the obvious conclusion was that peace was achievable—in which case Netanyahu’s visible distaste for both negotiations and concessions would certainly be an impediment.
Similarly, when Palestinians responded to Prime Minister Ehud Barak’s July 2000 offer with the second intifada, Barak did not declare peace unachievable; he went to Washington and Taba and offered additional concessions. Again, the implication was that he still thought peace was possible if he offered enough—so if peace remained elusive, the fault must lie with Israel’s stinginess. Then, despite Abbas’s failure even to respond to Olmert’s far-reaching offer of September 2008 (Abbas remained mute for nine months, until long after Olmert had left office—finally telling the Washington Post that the offer was unacceptable), Olmert nevertheless told Haaretz in September 2009 that Abbas was not to blame for the talks’ failure and was still a partner. And today, in his second stint as prime minister, Netanyahu is again paying lip service to the idea that peace is achievable.
American and European leaders are also guilty of endlessly proclaiming that peace is achievable, even though they know better (this knowledge explains why most European leaders are less hostile to Israel than their publics). But they cannot be more Catholic than the pope. As long as Israel’s government maintains this fiction, other world leaders can do no less. And so the world is constantly being told that peace is around the corner only to be constantly disappointed, which inevitably produces frustration and rage. And even worse, Israel’s very efforts to achieve peace—its refusal to acknowledge that peace is unachievable, its habit of responding to every failure with a better offer— has led the world to conclude that Israel is to blame for the endless disappointments.
Reversing the devastating damage Israel’s international standing has suffered since 1993 will be difficult at best. But it will not be possible at all unless Israel and its friends overseas understand that the desperate pursuit of peace is not the solution but the problem. Only then can Israel and its supporters halt the destructive behavior of the past 16 years and start doing what is needed to reverse the decline.
First, Israel and its supporters must reiterate Israel’s own claim to the territories at every opportunity. While many have grown accustomed to disavowing Israel’s right to this land, Israelis of all political stripes were outraged by President Barack Obama’s Cairo speech, in which the only justification for the existence of a Jewish state was assumed to be the Holocaust—while the Jews’ historical claim to the land of Israel was thrown down the memory hole. By taking this stand, Obama may have unwittingly provided the impetus for reviving a broad-based assertion of Jewish rights. For instance, on July 17, the left-wing Haaretz’s star columnist Yoel Marcus wrote that Obama’s “disregard of our historical connection to the land of Israel” was “extremely upsetting.” Marcus concluded that “as a leader who aspires to solve the problems of the world through dialogue, we expect him to come to Israel and declare here courageously, before the entire world, that our connection to this land began long before the Israeli-Arab conflict and the Holocaust, and that 4,000 years ago, Jews already stood on the ground where he now stands.” If even a hard-core Oslo supporter such as Marcus can be provoked into reasserting Israel’s claim to the land, then there is hope for reviving such sentiments across the Israeli political spectrum.
Second, Israel must cede no more land until the Palestinians prove they can and will keep it from becoming a base for anti-Israel terror. And if rocket fire from Gaza resumes, Israel will have to consider reoccupying it, as that may be the only alternative to periodic wars that inevitably cause heavy Palestinian casualties. There is not currently much of an appetite for such a course of action within Israel, but that could easily change if the rocket barrages resume, just as Israelis’ initial reluctance to return to the West Bank was swept aside by escalating terror from that territory in the early part of this decade. And while a return to Gaza would certainly cause an initial wave of outrage abroad, so did Operation Defensive Shield in 2002, when Israeli troops returned to Palestinian cities in the West Bank following a wave of deadly suicide bombings. Yet that criticism died down fairly quickly, and today Israel hears very few complaints about the IDF’s ongoing total control over the West Bank. What it does hear complaints about, on an almost daily basis, from both world leaders and human-rights activists, is evacuated Gaza—not just Israel’s military operations there but also the blockade, another defensive measure aimed at compensating for the absence of troops. So it seems reasonable to assume that a reoccupation of Gaza would follow the same pattern: initial outrage that would gradually die down as the Palestinian death toll dropped and life in Gaza improved, thanks to the end of the blockade, resumption of trade across the border, and improved employment opportunities.
Third, Israel and its supporters must start telling the truth about the impossibility of peace at present—and about the reasons for the impasse. This is by far the hardest task for those seeking to change the “peace process” culture. And that is true not just for the international arena but for Israeli domestic opinion as well. Most Israelis know perfectly well that peace is not currently possible, and why, but they still think it is essential to speak as if this were not true. Nevertheless, Netanyahu’s leadership represents a unique opportunity because, in marked contrast to most Israeli politicians, serving as the national explainer is something at which he excels. Both his speech at Bar-Ilan University in June 2009—where he outlined his approach to the peace process—and his address to the United Nations General Assembly in October struck a real chord with mainstream Israelis. Netanyahu is capable of explaining, in a way Israelis can readily understand, why his country’s national discourse about peace needs to change. The same principle applies to overseas opinion; in 2006, during the Second Lebanon War, Netanyahu was not even a member of the government, but he was still one of the most sought-after, if not the most sought-after, Israeli interviewees by the foreign media. This is a moment in history when someone must finally start telling the world the truth about the situation, and the prime minister is uniquely qualified to do it.
Finally, Israel must stop projecting a sense of panic, through both words and deeds, which merely emboldens its enemies. Israel has not only survived for 61 years despite the absence of peace; it has thrived. Its population has increased more than seven-fold; its per capita income has risen nine-fold; it has maintained a strong democracy in a region where democracy is otherwise unknown. And it can continue surviving and thriving without peace for as long as necessary.
That is, unless its own mistakes destroy it. Right now, that is what is happening: Israel’s growing pariah status poses a far more serious long-term danger to its survival than any extant military threat. Yet because this pariah status is largely due to its own actions, Israel has the power to reverse the trend.?That process must begin with recognizing where the problem truly lies.
The Deadly Price of Pursuing Peace
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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.