President Trump on December 11 signed an executive order extending protections to Jewish American citizens as a newly defined national origin group under Title VI of the 1964 Civil Rights Act.
The law has six sections relating to discrimination against persons on the basis of “race, color, or national origin” for federally funded programs, and therefore inasmuch as constitutionality is concerned, the statute is just as strong after the executive order as it was when it passed under Lyndon Johnson.
At the much-covered signing ceremony, Trump was flanked by son-in-law Jared Kushner and other Jewish celebrities like his friend, New England Patriots owner, Robert Kraft.
While this measure is receiving rave reviews from many Jews of different political persuasions, the order was not necessary. The flawed logic behind it can easily be abused in order to extend protections to other groups that the same supporters would reject as protected groups, and there is also the matter of the inherently ambiguous nature of defining Jewish identity that makes enforcing such protection so fraught with pitfalls.
For this and other reasons, the executive order is a mistake regardless of the sincerity of Trump and Kraft.
The debate over what the Jews/Judaism/Children of Israel are is one that has raged for ages and will never end. If we are accepting that being Jewish is an example of national origin, it is a very loose definition indeed. In Exodus 19:3-6 Moses is told by the Lord that the children of Israel shall be a “kingdom of priests [or princes; mamlekhet kohanim] and a holy nation [goy kadosh].” In the modern sense nationality refers to something else, as a person is born with a national origin, he cannot assume one.
Everyone knows that a Mexican American must have hereditary ties to a person born in Mexico. Ethnicity is separate, as there are ethnic Hungarians born in Romania. A person can convert to Judaism, however, and become a fully recognized part of the Holy Covenant with Abraham. This is a religious process, with the main dispute between the Jewish denominations being the standard and practice of that conversion.
Still, there is no disagreement as to whether a convert becomes fully Jewish; no “half conversion.” Does a Russian or a Pakistani person who converts to Judaism automatically flip their national origin or assume multiple ones? It will be an interesting (i.e., annoying) legal debate in the future.
The varying national origins of Jews would make this new definition easy to abuse.
Many Hispanics, curious about their complicated ancestry in the New World, come to discover that an ancestor somewhere in the 1500s was a converso Spaniard who had hidden his or her faith and was a crypto-Jew. This is typically discovered by research into the DNA haplotypes of sampled study subjects in countries like Colombia and Brazil.
The Alhambra Decree (1492) in Spain banned the practice of Judaism, so a portion of them converted to Catholicism and settled in the Americas. Using this predicate, newly elected Democratic representative Alexandria Ocasio-Cortez claimed that she had “Jewish heritage” at a Hanukkah candle-lighting ceremony in 2018 while presenting no proof. The weak boundaries of these definitions may work against the intent of the law in the courtroom, and there could be legally valid grounds to apply the same rule against Jewish or pro-Israel speakers and figures for statements made that would seem to discriminate against others.
A Hammer to Turn Screws
By shifting the definition of “Jews” to a nationality, Trump’s executive order exposes inherent flaws in the Civil Rights Act and other anti-discrimination legislation.
Whatever their intentions, the laws have not led to a more racially harmonious society because in electoral politics it’s still common to use racial constituencies as a “rainbow coalition” rather than working toward a society that has moved beyond racial conflict. Just as Title IX of the 1972 Education Act was supposed to lead to “equity in education” based on sex, it was fantastically marketed as necessary for human progress when in fact it was just a new element of state control that only exacerbates social division. Likewise, the main target of Title VI is the higher education sector.
Ostracization either of Israelis, Zionists, or Jews in educational settings is indeed common. The frustration in arguing for the freedom of speech of the Boycott, Divestment, and Sanctions movement is that the movement is viciously opposed to free speech. Not content to host their own myriad conferences, BDS campaigns seek the silencing and cancellation of their opponents’ events. So while their freedom of speech as such remains the same as anyone else’s, they present a menace to the very concept of a society of free dialogue and open conversation.
BDS loves to deny its opponents a platform as it did at Arizona State University, gleefully employs anti-Jewish rhetoric while claiming to condemn a racist nation as it did at Tamer Nafar’s concert at UNC-Chapel Hill, and vandalizes private property by posting fake eviction notices at NYU, Emory, and Florida Atlantic. They even were shown on video stealing flags and disrupting a forum relating to the genocide of Armenians and Kurds that was hosted by a pro-Israel group at UCLA. These are examples where campus officials already have the grounds to discipline students for behavior that violates conduct policies, but simply refuse to do so.
Nation vs. Faith
One person who was a staunch supporter of the executive order explained his rationale like so: “No one is discriminating against Jews because they light Sabbath candles or celebrate Passover. One could be an atheist born of Jewish lineage and still be hated by anti-Semites.” But this is an issue of whether perception accurately reflects reality. Many anti-Israel activists can’t or won’t draw a distinction between a subject that is Jewish and one that is Israeli.
One subject of fascination is the Talmud, the rabbinical interpretations of laws and legends written in the sixth century not recorded in the actual Hebrew Bible. In 2010, two Chinese booklets purporting to explain the “business secrets” of the Talmud contained fabricated quotes from George Soros. But while Soros is Jewish, he’s certainly not a Zionist, and as an atheist he has little interest in the Talmud.
Electronic Intifada wrote an article decrying Israeli Prime Minister Benjamin Netanyahu for promoting an “anti-Semitic conspiracy theory” against Soros. The Talmud is a central element of rabbinical Judaism, and even the anti-Zionist Neturei Karta uses it as a guide for studying Torah law. But some people chose to call themselves “anti-Zionists” such as UK Labour local councilor Damien Endicott, who called for the execution of all “Talmud Jews” because they ignore or are unaware of the distinction.
There is bitter debate over the ambiguous racial identity of Jews. There are those, both Jews and haters, who maintain that Jews who originated in Europe (Ashkenaz) cannot be white. Some hostile writers seek to explain why even those Jews who converted to Christianity or their descendants, cannot be accepted into the fold and use Medieval European imagery to promote their view.
Ironically, leftist Jewish groups like JFREJ and their intersectional allies rail against what they see as racism by “white Jews.” For a completely comprehensive survey of anti-Jewish beliefs, one has to acknowledge the different prisms through which the issue is presented.
There are three main categories under which these attitudes fit within vastly different schools of thought, roughly corresponding to how British radio host Maajid Nawaz describes anti-Semitism:
Traditionalist right-wing: Blaming Jews for things like the Pharisee persecution of Christ and Passover blood libels (religious), profaning white European culture (racial/cultural), and spreading both Communism and capitalism (economic).
Islamic: Focused on Israel-Palestine topics (national), but often evokes the wars of Mohammad like the Battle of Khaybar (religious), and occasionally echoes some of the same themes as the above.
Progressive Left: Heavy focus on Israel-Palestine (national); Israel is a white colonialist entity (racial); blames Jews for the ills of capitalism and the international monetary system (economic). Some rhetoric directly derived from Cold War Soviet propaganda as in the case of far-left Brazilian cartoonist Carlos Latuff.
Other “creative approaches,” such as those of the Nation of Islam, Black Hebrew Israelites or various Holocaust deniers like Arno Mayer, don’t fit neatly in the three categories, but there is overlap between each of them. This is why many right-wing Jew-haters like David Duke, Ryan Dawson, and Andrew Anglin endorsed UK Labour Party leader Jeremy Corbyn, as did convicted jihadist organizer Anjem Choudary. What other common thread do they have with an IRA supporting, pro-immigration, Marxist who didn’t solicit their support?
No Magic Decrees
The United States has guaranteed freedom of speech for purveyors of what today would be called “hate speech” through landmark court decisions like Brandenburg v. Ohio, a unanimous ruling that included the first black Supreme Court Justice Thurgood Marshall. In 1972, eight years after the passage of the Civil Rights Act, segregationist Governor George Wallace won 10 states in the Democratic presidential primaries including Michigan. Laws can’t force people to change their beliefs.
Likewise, the campus movements that today are leading incendiary protests against Israel are nothing new. The late historian Howard Zinn, patron saint of the far-Left, stated his philosophy most concisely in the quote, “You can’t be neutral on a moving train.” That was his attitude toward teaching at Boston University, a simple mantra and a warning that has gone unheeded by generations of comfortable alumni donors who continue to cut checks to schools that have become temples of angst.
Those who seek to defend both the Jewish community and Israel often misdirect their fire at people who have nothing to do with anti-Semitism or opposition to Israel. AIPAC has continually run ads targeting Senator Rand Paul (R-Ky.) for opposing anti-BDS laws by claiming that he supports boycotts. Not only is this not true, he has explicitly stated, “Americans have the right to boycott, even when it’s wrong.”
Those American Jews who believe in a free society but want to fight prejudice have better tools at their disposal than a redefinition of our legal status. They should stop donating to hostile schools, sue the ones that violate policies meant to protect their students, and as far as their personal safety goes, embrace gun ownership and self-defense. The idea that a benevolent ruler should protect the Jews is an antiquated notion, and reveals the degree to which many of us have embraced victimhood.
It is time to stop talking and stop asking others to do a job that we can do ourselves.
of a Good Law