Bench Memos

Law & the Courts

Rachel Maddow’s Racial Smear of Second Circuit Nominee Steven Menashi

Rachel Maddow during the first debate of the 2020 Democratic presidential candidates in Miami, Fla., June 26, 2019 (Mike Segar/Reuters)

In a 2010 law-review article titled “Ethnonationalism and Liberal Democracy,” Second Circuit nominee Steven Menashi argues that “ethnonationalism remains a common and accepted feature of liberal democracy that is consistent with current state practice and international law.”

Menashi’s specific purpose in the article is to refute claims that “Israel’s particularistic identity—its desire to serve as a homeland for the Jewish people—contradicts principles of universalism and equality upon which liberal democracy supposedly rests.” In fact, argues Menashi, “[p]articularistic nationalism and liberal democracy … emerged together at the same historical moment and persisted in symbiosis.” Further, the “idea that a sovereign democratic government represents a particular ethnonational community has its root in the principle of ‘self-determination of peoples’ espoused at the foundation of the League of Nations and the United Nations.” Surveying the laws of European nations, he further explains that Israel’s Law of Return, which guarantees citizenship to Jews worldwide, is similar to kin-repatriation policies that are widespread throughout Europe. In sum, “[f]ar from being unique, the experience of Israel exemplifies the character of liberal democracy by highlighting its dependence on particularistic nation-states.”

In a lengthy segment on MSNBC last night, Rachel Maddow grossly distorts Menashi’s argument and tries to twist it into “a high-brow argument for racial purity.” (Video at 9:00-9:36.) She falsely claims that Menashi argues “how definitely democracy can’t work unless the country is defined by a unifying race.” (Video at 6:57-7:10.)

But Menashi’s argument about national identity is clearly not about “racial purity” or a “unifying race.” Indeed, the fact that Israelis from Ethiopia are black makes it impossible to take seriously the claim that Menashi is making a case for “racial purity.” Menashi further states that it “is not even clear … that Israel’s national identity can even be described as ‘ethnic’” (in a narrow sense of that concept), as Israeli Jews come from “Argentina, Ethiopia, Germany, Morocco, Russia, and Yemen.”

What actually fosters “ethnonationalism”—what makes a population regard itself as a nation, what gives rise to national self-consciousness—is a complicated matter that is far beyond Menashi’s inquiry. He quotes at length from an International Commission of Jurists that explored whether the people of what is now Bangladesh constituted a distinct “people.” That commission’s discussion, which Menashi clearly finds intelligent, cites multiple elements—historical, racial or ethnic, cultural or linguistic, religious or ideological, geographical or territorial, economic—that might bear on whether a “particular group constitutes a people,” but it also states that none of those elements is “either essential or sufficiently conclusive.”

What matters for national identity, Menashi emphasizes—quoting John Stuart Mill—is that a people are “united among themselves by common sympathies which do not exist between them and any others, which make them cooperate with each other more willingly than with other people, [and] desire to be under the same government.” That—and not race—is clearly what Menashi means by his broader concept of ethnic, or “ethnocultural” or ethnonational, identification.

Israeli Jews and Palestinians clearly do not share an ethnonational identity. The United States is beyond the scope of, and barely mentioned in, Menashi’s article, but it’s plain from his analysis that all people, irrespective of race or of narrower concepts of ethnicity, who see themselves as part of the American national community do share an ethnonational identity.

Most Popular

Politics & Policy

Yes, They Are Coming for Your Guns

At the Democratic-primary debate in Houston last night, Beto O’Rourke formally killed off one of the gun-control movement’s favorite taunts: The famous “Nobody is coming for your guns, wingnut.” Asked bluntly whether he was proposing confiscation, O’Rourke abandoned the disingenuous euphemisms that have ... Read More
White House

Politico Doubles Down on Fake Turnberry Scandal

It's tough to be an investigative reporter. Everybody who feeds you a tip has an axe to grind. Or, alternatively, you find yourself going, "I wonder if . . . ?" You put in your research, you talk to lots of people, you accumulate a huge pile of information, but you still haven't proved your hypothesis. A wise ... Read More
Culture

Four Cheers for Incandescent Light Bulbs

It brought me much -- indeed, too much -- joy to hear of the Trump administration's rollback of restrictions on incandescent light bulbs, even if the ban will remain in place. The LED bulbs are terrible. They give off a pitiable, dim, and altogether underwhelming "glow," one that never matched the raw (if ... Read More
White House

Rachel Maddow’s Turnberry Tale

To a certain kind of Rachel Maddow viewer, there are few more titillating preludes to a news segment than the one she delivered Monday: “If you have not seen it yet, you are going to want to sit down.” Maddow’s story began, as many of her stories do, with President Trump, this time focused on his hotel ... Read More