It is beyond clear that in the United States, Jews have significant political influence. Many Jews occupy important levels of government, elected and appointed, and others are high profile opinion-influencers and policymakers in the media, in think tanks, and in academia. For the most part, insofar as a political response is feasible, Jews can receive one when they feel marginalized, hurt, or threatened.
Yet, though this is a tremendous privilege and something I’m extraordinarily grateful for, this is not the same thing as being empowered. Power, Carol Gilligan once wrote, means “you can opt not to listen. And you can do so with impunity.” (( Feminist Discourse, Moral Values, and the Law – A Conversation: The 1984 James McCormick Mitchell Lecture, 34 Buff. L. Rev. 11, 62 (1985) (Isabel Marcus and Paul J. Spiegelman, moderators; Ellen C. DuBois, Marx C. Dunlap, Carol J. Gilligan, Catherine A. MacKinnon, and Carrie Menkel-Meadow, participants) )) Whatever else Jews are or are not in a position to do, we are certainly not in a position where we can afford not to listen with impunity. The power and influence we do have is at the sufferance of others. The minute that it ceases to be in the interests of the majority, it becomes very precarious indeed.
Far from signaling our full inclusion in American society, the political power Jews have amassed is currently serving as brute hedge against the default norm of Jewish exclusion which continues to be expressed through American law. My senior thesis, When Separation Doesn’t Work: The Religion Clause as an Anti-Subordination Principle, (( 5 Dartmouth L.J. 145 (2007) )) explored how the legal rights supposedly afforded to religious minorities, such as Jews, under the religion clause of the First Amendment have proven nearly entirely hollow. Here’s a statistic for you: In the entire history of the United States — from 1789 to 2009 — Jews have never once won a Free Exercise case before the Supreme Court. (( Stephen M. Feldman, Religious Minorities and the First Amendment: The History, the Doctrine, and the Future, 6 U. Pa. J. Const. L. 222, 251 (2003). )) In fact, there has been a grand total of one successful Supreme Court free exercise case in American history launched by a non-Christian group, and unsurprisingly, it represented perhaps the most flagrant breach of free exercise norms imaginable: a state city law specifically targeted at a minority religious practice, that was motivated entirely out of animus. (( Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 501 U.S. 520 (1993). The Santaria religion at issue in that case was itself a “fusion” religion that incorporated elements of Christianity in it. ))
This is not to say that Jews have had no protection for their religious or cultural practices. But the protection we’ve achieved is nearly entirely legislative. Jewish security in America is guaranteed by brute political force, but it is not yet recognized as a right. The mechanics that protect Jews from discrimination and unequal treatment are not considered as legal and moral imperatives — they are solely defined by what we can convince others to give us through the democratic process. There is a difference between a legal right and a legislative privilege, and it isn’t just that the former is more difficult to dislodge. I’ve already written about why I think rights are important beyond the technical protections they do and do not provide. There is considerable expressive power in being seen as a rights-holder. A person who is protected from unequal treatment merely because they currently hold the favor of the sovereign and her sword exists on a qualitatively different plane from the person whose protection stems from the fact that society — as per the strong moral norms expressed through the language of rights — considers such discrimination to be a grave normative wrong.
There are people who would say the distinction I’m drawing here is facile. The supposed moral appeal of rights is a chimera — whether through rights or other means, society only protects those who have the power to protect themselves. This was the observation of the Black Power writers at the tail end of the civil rights movement. Zionism, I think, stems from a very similar impulse: that there is no purchase in purely moral appeals — Jews will be protected only when they cease to depend on the magnanimity of others. Courts, and the rights-based arguments they represent, are a “hollow hope” (( Gerald Rosenberg, The Hollow Hope: Can Courts Bring About Progressive Legal Change? (University of Chicago Press, 2008) )) . Political power is the alpha and omega of equal protection. If you don’t have it, you don’t have anything.
I am sympathetic to this view. I think that moral appeals and rights-based claims cannot stand against a determined majority dedicated to preserving existing inequalities. Because I don’t think the formal existence of rights protections itself grants anything, I am sympathetic to the idea that for all practical purposes self-empowerment is the best remedy. If others won’t protect you simply because it’s the right thing to do, get yourself in a position where it’s in their own material interests to assist. Or better yet, be in a position where your security isn’t in the hands of others at all.
But I still cannot adopt the idea whole-heartedly. The fact that rights often are a formalist facade does not, to my mind, mean they always are, or that they are meaningless. I think that possessing rights is a powerful social signal of full inclusion into the community. A protection by right is one that is normalized, a protection by special legislation is exceptional. I would much prefer to be in a position where I am protected because it is seen as wrong to hurt me, than to be protected simply because those who wish to hurt me are (currently) in no position to do so. The cynics would tell you that the former case does not exist. I refuse to believe that is true.
How are the ICE concentration camps different from, say Dachau in 1935? What criteria have to be met before you…