Posted 10:18 AM by David Bernstein
Two notes on the Duvshani controversy.

Professor Wilkie writes:

"I have a huge problem with the way that the Israelis take the moral high ground from their appalling treatment in the Holocaust, and then inflict gross human rights abuses on the Palestinians because they (the Palestinians) wish to live in their own country."

(1) It was Jews, not Israelis (Israel didn't even exist) that suffered during the Holocaust. Thus, contrary to Eugene's more ambivalent view, this seems like rather naked anti-Semitism to me, of the typical Euro-leftist "well, you see, you can't hold Europe guilty for the Holocaust because the Jews turned around and treated the Palestinians the same way" variety. This manages to combine two elements of anti-Semitism into the same thought, both minimizing the Holocaust and maximizing perceived bad behavior by Jewish Israelis.

(2) Ehud Barak offered the Palestinians 96%+ of the West Bank, extra land in Israel to make up for the rest, and all of Gaza, for a state of their own, just three years ago. But Yasser Arafat decided to insist on an unlimited Palestinian "right of return" to Israel, which means not just wanting a state of their own, but Israel, too. The offer to Arafat was the culmination of the Oslo process, which began when the Palestinian leadership finally gave up its call for the destruction of Israel. Until the Oslo process began, the PLO had, from the day of its founding [update: in 1964, three years before the "occupation" of the West Bank and Israel], called for the total destruction of Israel. Since Israel had no one else to negotiate with (the PLO murdered anyone who tried), how can one say that Israel simply refused to let the Palestinians have their own country? As for Israel's human rights record, it's about as good as can be expected given the suicide-murder situation, and the need to defend its citizens. Remember, no suicide murders=no checkpoints, roadblocks, house demolitions, or assassinations.

The fact that Israel offered the Palestinians a state in almost all the territories, including Arab Jerusalem and the Temple Mount, and folks like Wilkie can still claim with a straight face that Israel has not offered the Palestinians a state shows either willful ignorance or gross bias, or both.

Posted 10:07 AM by David Bernstein
Eugene over at the Volokh Conspiracy notes the tendency of many Justice Thomas critics to claim that Thomas is basically Scalia's stooge. I ran into this argument a few years ago on an African American studies listserv, and pointed out that Thomas votes with Scalia far less often than Thurgood Marshall voted with William Brennan, but no one accused Marshall of being Brennan's lap dog. I was challenged for exact statistics. I provided them from the Harvard Law Review's annual Supreme Court survey. But I was still met with the argument that Scalia must be dictating Thomas's opinions.

This issues reminds me of when Thomas was first nominated to the Supreme Court, and a raft of biographical sketches appeared, many with the theme, "how did Thomas come to such conservative views." The articles typically tried to assess the effect of various biographical or psychological idiosyncracies on Thomas. None gave any serious weight to Thomas's own explanation, which is that he read a lot, ranging from Ayn Rand to Thomas Sowell, and concluded that libertarianish conservatism made sense. I thought those articles were insulting to Thomas and to blacks in general, and still do. If whites can read and be influenced by Ayn Rand and Thomas Sowell, why can't blacks? And if Scalia can win grudging praise for the sharpness of this legal writings, why can't Thomas, who, if anything, is a bolder and more original thinker than is Scalia?

Update: Ayn Rand?!?!?! This webpage documents Rand's influence on Thomas.

Posted 9:29 AM by David Bernstein
Why Israel is not excited about the impending unilateral ceasefire.

Posted 12:00 PM by David Bernstein
SODOMY DECISION: We spent a lot of time in my Con Law II class last semester talking about how the Supreme Court is affected by the attitudes of the times the Justices live in. By the time we got to Bowers v. Hardwick (the Supreme Court's 1987 sodomy case finding no constitutional right to homosexual sodomy), my students had become convinced of the importance of historical context, and were unanimously convinced, or so it seemed to me, that Bowers would be overruled this term. They were right.

Posted 5:50 AM by David Bernstein
Victory for freedom of speech:

Residents of the enclave of Broad Channel in Jamaica Bay expressed approval yesterday of a judge's decision that three residents' First Amendment rights were violated when they were fired for racial depictions in the 1998 Labor Day parade.

The three men — a former police officer, Joseph Locurto, and two former firefighters, Jonathan Walters and Robert Steiner — dressed in blackface and ate fried chicken and watermelon as they rode on a float called "Black to the Future: Broad Channel 2098."

There was outrage elsewhere over the decision. One tabloid headline called the ruling a "Bigots' Victory" and another announced "Free to Hate." Former Mayor Rudolph W. Giuliani, who supported the firings in 1998, also denounced the ruling.

Little of that anger could be found in Broad Channel yesterday. "The incident sent a wrong message, but as Americans, they have the right to say what they want," said Joe Cutrone, 27, a tugboat mate and lifelong resident who said he knew the men on the float.

Comment: Cutrone is right on target. Of course, a private employer has the right (at least in at-will states) to fire individuals for engaging in private conduct that it thinks reflects badly on the employer's image. But government employees, as a rule, cannot be disciplined for offensive but legal private behavior.

Update: I've thought about this some more, and am less confident about the view I expressed above. Perhaps not being a known racist is in a sense a qualification for being a police officer or a firefighter, as the trust of the community is essential to success in those jobs. Regardless, in the Broad Channel situation the court was almost certainly correct, because (1) the men involved had been working in minority communities and with minority colleagues for years without incidence; and (2) Mayor Guiliani, and not the relevant commissioners, made the decision to fire the men, not based on how it would affect their departments, but based on political considerations. Indeed, Guiliani made it clear before he knew who was involved that he was planning to fire any city employee that participated in the float. Yet, it's hard to see how it matters to an employer, including New York City, whether a janitor or accountant it employs has expressed racist views, so long as that employee keeps his opinions to himself during working hours.

Posted 10:55 AM by David Bernstein
One-third of all Americans are born out of wedlock. Maybe one or two percent of people I know have had their children out of wedlock, including none of my friends or extended family. I would guess that many members of the "knowledge class" live in similar social isolation.

Posted 6:20 AM by David Bernstein
Israelis, especially young Israelis, are much thinner than their American counterparts. No wonder. The fruits and vegetables are much fresher and taste much better there, and are served constantly--they are much cheaper there than here, and meat is more expensive. Israelis also have a very long life-span on average, especially considering the poverty that exists in development towns, Arab villages, and ultra-Orthodox neighborhoods. Score one for the Mediterranean diet.

Posted 6:18 AM by David Bernstein
More reflections on my trip to Israel: Compared to eighteen years ago, my last visit to Israel, the country is far wealthier now. Many more cars are on the road, nice restaurants have largely replaced streetside falafel and schwarma stands, cell phones ring constantly compared to the seven year wait for phone installation in '85 and completely disfunctional public phones, McDonald's, Burger King, and other western firms and products abound, many more people speak English, many more people travel abroad, etc., etc. However, many of the gains have been limited to the big cities; a Acco (Acre), a small town in the North, reminds me of the Israel I remember from 18 years ago: dirty, poor, with a general vague sense of Middle Eastern backwardness.

Two conditions are sorely needed for Israel to reach its full potential: an enforceable peace deal, and further desocialization of the economy. If those conditions materliaze, Israel will have the standard of living of Japan (which is similarly densely populated) or better.

Posted 5:56 AM by David Bernstein
I've maintained for some time that more and more censorship is inevitable in countries that do not share the United States' constitutional commitment to freedom of speech, but instead allow restrictions on such freedom in the name of equalitarian concerns [see, for example, the final chapter of my forthcoming You Can't Say That! The Growing Threat to Civil Liberties from Antidiscrimination Laws, which discusses the situation in Australia and Canada]. According to an article in the Guardian, a draft proposal for the EU states "that while freedom of expression must be respected, sex discrimination and affronts to human dignity should be banned from media and advertising."

"'The purpose is to avoid throughout all forms of mass media all stereotypical portrayals of women and men, as well as any projection of unacceptable images affecting human dignity and decency in advertisements,' an internal commission document says."

Exactly who is going to be charged with deciding what images are "unaccepable" because they affect "human dignity and decency?" Undoubtedly, if this proposal passes lobby groups will form to get the EU to declare anything that goes against their own ideology as "unacceptable."

Update: I posted the above on a Constitutional Law list. I then responded to a post about whether European rules should necessarily follow American rules, and whether I find it troubling that the Europeans seem unconcerned with stifling festering anti-Semitism, with the following:

"Despite my general views on these issues, I can understand Germany's ban on anti-Semitic speech. Sometimes, rules need to be tailored to particular cultures and histories, and that may be one example. However, the problem [the post I'm responding to] describes, that hate speech rules originally allowed in order to prevent a revival of Naziism in Europe now may shift focus to hate speech rules geared toward preventing speech that offends feminists, is exactly the problem that one would expect to arise once one makes any meaningful exemptions to a free-speech-even-if-it-offends-somone principle (unless an enforceable Constitution very specifically limits the rule to one circumstance, e.g., pro-Nazi speech in Germany). Over the long-term, public policy is driven more by interest groups and political considerations than by moral considerations, so once an exception is made because of strong moral considerations, that exception will later be used and expanded by interest groups seeking to suppress the views of those that disagree with them. Yes, it's a slippery slope argument, but, as Eugene [Volokh] has shown, slippery slope arguments aren't always wrong. As for the specific arguments [in the post I'm responding to] about Jews, I recall reading that anti-hate speech rules in England originally promulgated to protect Jews wound up being used to suppress pro-Israel speech at English universities. Arab student groups argued that since the UN decreed that Zionism is racism, pro-Israel speech is inherently racist and therefore illicit.

Posted 3:35 AM by David Bernstein
A new poll shows that 25% of American Jews say they will definitely vote for Bush, compared to 46% of other Americans. This is very good news for the Republicans. First, this is the best ratio for any Republican presidential candidate since Ronald Reagan ran against Jimmy Carter in 1980. Carter had the disadvantages of being perceived (fairly) as somewhat anti-Israel and (unfairly) as holding anti-Semitic religious views (because Southern Baptists believe that Jews, along with other non-believers, won't make it to heaven). Reagan, though far more conservative than most Jews, had a non-church going Hollywood background that made him far more comfortable to Jews than Carter, and was staunchly pro-Israel.

Moreover, opinion polls of Jews tend to undercount Russian immigrants (because they don't speak English well and tend to be suspicious of pollsters) and the ultra-Orthodox (suspicious, insular, and often poor, a combination that leaves them less susceptible to polling). Both of these groups tend to be far more likely to vote for Republican presidential candidates than Jews in general. So, if current numbers hold, and Bush gets about 50% of the general popular vote, he is likely to get a bit over 30% of the Jewish vote, about double what he got last time. Bad news for the Dems in several battleground states, though perhaps less so in Florida than many expect, because the Jewish elderly tend to be stubbornly Democratic.

Update: The Republican Jewish Committee sent me a press release claiming that the survey in question was based on only 99 Jewish responses, and suggesting that the RJC expects Bush to do a lot better among Jews than the 99 responses suggest. However, unless Al Sharpton becomes a force in the Democratic Party, I'd be very surprised if Bush receives more than 35% of the Jewish vote.

Posted 4:41 PM by David Bernstein
Book reviews can be very annoying. Traditionally, reviewers could mangle what the author said or make outrageous, incorrect claims about the book’s thesis without any real chance that he would be called on it. My last book , Only One Place of Redress: African Americans, Labor Regulations and the Courts from Reconstruction to the New Deal (Duke 2001) has been widely reviewed in history, labor, economics, law, and public policy reviews. You can find many of the reviews here. Most of the reviews have been positive, some wildly so, and even the critical reviews have mostly grudgingly acknowledged that the book makes an important contribution to the literature. I see this as a triumph, given that the book takes on many sacred historical cows, that the review authors have rarely shared my general ideological perspective, and that many of the reviewers have, to put it nicely, been innocent of any knowledge of the public choice and labor economics that are at the heart of the book’s interpretation of its historical subject matter.

However, I have grown annoyed at some reviews I think are inaccurate, ideologically biased, or both. I’ve resisted the temptation to respond, mostly because I’ve been busy working on other things, but also because responding would normally involve writing a letter to the editor of the review, who could then edit the letter as he saw fit, plus invite the reviewer to get the last word. However, the Web, and this blog, change the equation. In the age of the World Wide Web, why should reviewers always have the last word?

A review just appeared in the Summer 2003 issue of the Law and History Review, the journal of the American Society for Legal History, that I decided to respond to on this blog. The review, by Professor Clarence Taylor of Florida Atlantic University, contains some good examples of illogic, error, and exaggeration that have appeared in a few other reviews

Taylor provides a reasonably accurate synopsis of the historical meat of the book:

“Bernstein focuses on several areas in an attempt to demonstrate the adverse affect that occupational regulation had on African Americans. He notes that emigrant agent laws which restricted labor agents from recruiting southern blacks to northern industries; plumbers', barbers', and physicians' licensing laws limiting these professions to whites; the 1926 Railroad Labor Act and the 1934 amendment to the act, which gave racist white unions the power to exclude blacks from their ranks, all helped to maintain a racist and hierarchal labor force. Moreover, Bernstein argues that the 1931 Davis Bacon Act, which made it mandatory that construction workers on public projects be paid above the market rate, all but eliminated blacks from government contract construction work. He also points out the racism of such New Deal programs as the National Industrial Recovery Act, because its minimum wage provision did not cover areas in which African Americans were heavily employed, such as agricultural and domestic work. It also maintained a ‘grandfather’ wage clause creating wage differentials that harshly impacted black workers. The author even suggests that if the NRA had not been ruled unconstitutional, African Americans would have [sic: I wrote ‘might have,’] been forced into a ‘permanent second-class and economic status.’ The NRA and other New Deal legislation such as the Wagner, the Fair Labor Standard, and the Agricultural Adjustment Acts provided benefits to white workers at the same time it reinforced racial barriers.”

Taylor even acknowledges that “Bernstein is correct to note that unions acted to protect the privileges of their white membership at the expense of people of color. Besides using legal remedies to protect white workers, the author correctly points out that the employment of race strikes and even the use of violence on the part of white workers were tools used to assure the denial of certain occupations to African Americans.”

After this fair synopsis and mild praise, the trouble begins. Taylor claims that “[Bernstein] erroneously equates labor's struggle for collective bargaining with a racially exclusionary agenda as though they were one in the same.” First of all, the book is not about “labor’s [sic: only some workers, not some imaginary entity ‘labor,’ wanted collective bargaining; in equating ‘labor’ with prounion workers, Taylor reveals an ideological bias that helps explain his unwillingness to grapple with the interest group theory that underlies the book’s thesis] struggle for collective bargaining,” it is about how facially-neutral labor laws negatively affected African American welfare.

Even in that more limited context, I do not claim that these laws were always motivated by racism, as the “one in the same” comment suggests. In fact, I emphasize in several different places that much of the harm done to African American workers by labor legislation promoted by unions was incidental. Indeed, on page 5 of the book, in the Introduction, I wrote with regard to the labor regulations I discuss:

“The body of the book presents several case studies of how facially-neutral occupational regulations passed between the 1870s and the 1930s harmed African-American workers. Sometimes, racism motivated the laws, either directly (as when the sponsors of the legislation were themselves racists), or indirectly (when legislative sponsors responded to racism among their constituents). Some laws had the primary goal of restricting African-American access to the labor force, while in other instances this was a secondary goal related to the broader goal of limiting competition faced by entrenched workers. In yet other situations, racism did not motivate the laws, but the adverse effects on African-Americans were foreseen, and critics pointed out the likely adverse effects when the legislation was under consideration. And, finally, whether intended or not, whether actually foreseen or not, the adverse effects of some legislation were foreseeable in light of the way labor markets operate.”

Next, Taylor claims that “Bernstein completely ignores what labor historians and others have noted for a long time: management used race to defeat unions.” Since I spend a reasonable amount of time on the fact that blacks disproportionately served as strikebreakers, what Taylor apparently means is that I neglect the old Marxist-Progressive shibboleth that working class white racism was largely fostered by corporations that sought to divide and conquer workers. This ancient way of excusing union (and, more generally, white working class) racism is utter nonsense, and was only made up by Marxists who sought to explain why the fundamental interests of “the workers” were not aligned by class as Marxist theory suggests they should be, and supported by Progressives who turned a blind eye to union racism. It’s true, of course, that companies sometimes took advantage of and helped exacerbate the preexisting hostility whites had for blacks. But, contrary to the traditional view (and apparently Taylor’s view), I argue that labor unions’ racism preexisted any “capitalist” manipulation (note by contrast, that corporations did not, because they could not, take advantage of similar preexisting hostility of, say, Methodists to Baptists), and suggest in the book that blacks were often aware that their interests lay with the “capitalists” who were willing to employ them and not with racist unions who tried to prevent their employment, and acted accordingly.

I plead guilty to Taylor’s “accusation” that I portray black workers as “conscious and willing strikebreakers who desired to take full advantage of labor and management strife.” Taylor argues that “Bernstein’s odd conception of black agency flies in the face of historical reality. There is no mention of how management manipulated black workers desperately in need of employment by hiring them to break strikes.” The notion that blacks were the ignorant and foolish pawns of white industrialists has been around for decades, and has won support on the labor-left from both the enemies of blacks (who though it showed blacks to be foolish simpletons incapable of organization) and their friends (who wished to absolve blacks from the charge of intentional strikebreaking and preserve hope for future black-white amity). As a matter of history, however, the portait of black strikebreakers as simple dupes happens to be inaccurate. While occasionally prounion blacks were mislead into strikebreaking, strikebreaking against racist unions was in blacks’ interest, they knew it, and they followed their interests. As I point out on pages 91-92 of the book,

“African Americans often made their strikebreaking positions into permanent employment. By 1909 African Americans had used strikebreaking to break into the building trades in Chicago, the mining industry in various locales, packinghouses, foundries in Birmingham and Decatur, and the steel industry in Pittsburgh and Youngstown. Years later African American broke into the meatpacking industry following a strike in 1921, the coal industry after a Pennsylvania strike in 1922, the metal trades in Detroit after a strike in 1921, brickmaking after a New Jersey strike in 1923, and railway shop employment after a strike in 1922. According to one expert, the list of industries opened to African Americans by strikebreaking ‘could be continued indefinitely.’”

If one is to engage in history rather than apologetics and propaganda, one will acknowledge that most blacks who encouraged and participated in strikebreaking were aware of the advantages that accrued to them from that activity. If the workers weren't aware of this themselves, there were plenty of church leaders, nationalist leaders (e.g., Marcus Garvey), and other leaders who were more than willing to point this out to them. While modern labor historians, who are far more sensitive to the plight of black workers than previous generations, have acknowledged (most) labor unions' and (most) blacks' mutual hostility in pre-CIO times, these historians have mostly shied away from acknowledging that blacks were willing strikebreakers, because among labor historians, strikebreaking is still considered a great sin. In my experience, most labor historians are pro-union ideologues, even those that acknowledge and excoriate unions' racism, so much so that books published by presitigious university presses casually refer to strikebreakers as scabs, without any sense of awareness that by using this term they are demonstrating an obvious pro-union bias.

In any event, Taylor also complains that I treat industrialists as much more "enlightened" than "their workers" on race. Actually, I make it clear that industrialists shared workers' racist outlook. However, industrialists had an incentive to expand the labor market as much as possible, and to get an accurate idea of how much blacks could contribute. In other words, even racist white industrialists would sometimes be willing hire blacks. It was in their economic interest to do so, unless their white workers imposed extra costs on them for doing so (strikes, slowdowns, racial strife in the workplace, etc). Racist white workers, by contrast, had two options. Try to include blacks and thereby prevent competition from them via strikebreaking, etc. Or exclude blacks through legislation, violence, strikes, harassment etc., reducing the overall supply of labor to union members' benefit. Until the mid-1930s and the rise of industrial unionism, most unions chose the latter route because, as I explain in the book, craft and professional unions served a social function as well as an economic one. For the most part, employers did not lose social status if they hired black workers; for the most part, white workers lost social status if they worked with blacks, and especially if they worked under blacks. And white workers often had access to legislative and other (violence, etc.) means of excluding blacks, thereby ensuring the success of otherwise unstable cartels. By contrast, even if employers wanted to agree to exclude black workers, they rarely had the means to prevent cheating on such agreements. When racist employers could do so, and it was in their economic interest, they also pursued anti-black cartels, as plantation owners did with regard to the emigrant agent laws discussed in Chapter 1. As for the charge that I don't pay sufficient attention to gratuitous discrimination by employers, Taylor should recognize that the book is about the discriminatory effects of labor regulations, not about discrimination in labor markets per se. I argue that free labor markets mitigated discrimination relative to regulated labor markets during a particular historical era, nothing more, nothing less. A reviewer should review the book the author wrote, not the book the reviewer would have written.

Next, Taylor accuses me of an “at best” “misleading” “accusation” that on occasion “socialist W.E.B. Du Bois … advocated African American cooperation with industry against unions.” First of all, it’s not an “accusation;” if I had to make a moral judgment about Du Bois’s advocacy (which I noted in the book was limited to incorrigible AF of L unions), I’d applaud it as just desserts for the racist unions. Second, Taylor does not dispute that what I said is true, but finds it misleading (at best) only because I don’t also note that Du Bois tried to get organized labor to end its racist policies, and more generally I don’t note that Du Bois would have preferred to cooperate with a non-racist labor movement than to cooperate with “capitalists” in opposing a racist labor movement. I would have thought that this fact was implicit in my purposeful reference to Du Bois as a “socialist;” if Taylor can present me with an example of a 1920s socialist who opposed organized labor on principle, I’d be very interested to see it. Nowhere do I suggest that Du Bois was generally anti-union, as opposed to being anti-union when the unions at issue were incorrigibly racist.

Taylor also claims that I argue that a “’classical liberal’ state promoting free market principles is the best remedy to end racial discrimination.” This is an outrageous mischaracterization of what the book says. On pages 109-110, I suggest that a classical liberal alternative to the modern civil rights regime was possible, and would have had some advantages, but I explicitly state that “the classical liberal vision of civil rights admittedly holds little utopian promise. It does not obligate the state to eradicate discrimination, or to guarantee ‘equal opportunity.’” One can charitably attribute Taylor’s interpretation of my statement that a classical liberal state would not eradicate discrimination to mean its exact opposite to utter carelessness, a fault that also apparently led him to overlook my further comment on page 114 that “Lochnerian jurisprudence [which was, of course, classical liberal in nature] cannot presently be supported as sound policy based on the fact that it disproportionately benefited African Americans in the past when they were disenfranchised.”

I could lodge other complaints against the review. For example, Taylor suggests that if my thesis is correct, I could not possibly explain why blacks became strong Democrats who supported the New Deal state. Had he read the book more closely, he would have noticed that I briefly mention this issue on page 107, and discuss it in more detail in the associated footnote 118 on page 156. He could have found this by looking in the index under “New Deal: African American Support for.” He may disagree with the analysis presented, but he should not have implied that I ignored the issue.

I could go on, but I don’t want to try the reader’s patience. Suffice to say that if a student had handed in a similarly-short (two pages) review of this quality to my Constitutional History class, with this many errors, unsupported ideological presuppositions, and distortions, and with its failure to meaningfully engage the book’s thesis, the review would get “at best” a C-. I expect far more from a professor.

Posted 9:34 AM by David Bernstein
Before the Michigan affirmative action cases were decided, I wrote an op-ed arguing that whatever limits the Supreme Court places on public university affirmative action, private universities should be exempt. While I was away, the piece appeared in the Arizona Star and other Knight-Ridder newspapers.

Posted 7:02 AM by David Bernstein
I'm back from Tel Aviv. My major impression: Israel is winning the war, and the Palestinians are losing it. True, the economy in Israel is suffering because of the violence; the Intercontinental Hotel in Tel Aviv seemed nearly empty on Monday when I left. More generally, very few tourists were around. And people are worried about themselves and their children. I even met a law professor at Tel Aviv University who was in the cafeteria at Hebrew U. when it was blown up by a suicide murderer; fortunately he emerged unscathed. But, overall, life goes on in Israel almost normally. The restaurants are packed, albeit with security guards at the entrances. Shoppers shop at the malls; workers go to work; kids go to school; sunworshippers hang out at the beach; clubgoers line up at the clubs. I saw no signs that Israeli society is anywhere near a breaking point; the young(ish) Israelis I met who wanted to leave seemed motivated primarily by a desire to meet (a Jewish) someone of the opposite sex (preferably in the US), their social life having stagnated in a very small country. In contrast, the Palestinians have brought upon themselves poverty, unemployment, and misery by embracing suicide murder as a diplomatic tactic.