The Treasury Department Is Entrenching Trump’s Nonsense View of Trade Deficits

President Donald Trump’s basic misunderstanding of America’s trade deficits will continue to haunt American taxpayers after he leaves office thanks to changes made this year to a little-noticed Treasury Department report.

The Treasury Department’s annual report to Congress on “Macroeconomic and Foreign Exchange Policies of Major Trading Partners of the United States” is supposed to alert elected officials to currency manipulation conducted by governments in places where American companies do a lot of business, but as this year’s report notes, “there has been a decline in the scale and persistence” of that sort of behavior.

The Trump administration, however, has found a new way to make the study relevant. “Starting with this report,” the Treasury says it will expand its investigations “to monitor for external imbalances” in trade. Specifically, the report will scrutinize any U.S. trading partner that runs an annual trade imbalance with the United States of more than $40 billion—a list that includes not only China but also key allies like Japan, South Korea, Germany, Italy, and Ireland.

There’s nothing inherently wrong with the Treasury Department rounding up a list of America’s trading partners and noting which ones run a goods surplus of more than $40 billion, of course. But the language suggests data-gathering is not the endgame.

“The Treasury Department is working vigorously to achieve stronger growth and to ensure that trade expands in a way that helps U.S. workers and firms and protects them from unfair foreign trade practices,” Treasury Secretary Steven T. Mnuchin said in a statement accompanying the release of the report late last month. The report itself echoes that economic nationalism. “Treasury will continue to press major U.S. trading partners that have maintained large and persistent external surpluses to support stronger and more balanced global growth…while durably avoiding foreign exchange and trade policies that facilitate unfair competitive advantage,” reads part of the executive summary.

And the real problem here is that it’s all based on Trump’s faulty conviction that trade deficits matter—when they really don’t.

“By this document the Treasury is institutionalizing nuttiness,” writes John Cochrane, an economist and Senior Fellow of the Hoover Institution at Stanford University.

To understand why trade deficits don’t matter, Cochrane outlines a simple exercise. Imagine three nations trading with one another—Australia, China, and the United States. America buys $1 million in shoes from China, Australia buys $1 million in airplanes from America, and China buys $1 million in coal from Australia. All three nations are now running $1 million bilateral trade deficits with one of their partners, but all three are better off. “Bilateral trade ‘deficits’ are meaningless,” Cochrane writes. “In quotes as this is a horrible word too, implying something is deficient every time you go to the Starbucks and suffer a coffee trade ‘deficit.'”

Don Boudreaux, an economist at the Mercatus Center at George Mason University, says the report’s focus on bilateral trade deficits is “completely untethered to economic reality.” In an interview this week with Reason, he compared the Treasury Department’s scrutiny of bilateral trade deficits to astrophysicists giving serious consideration to a geocentric model of the solar system.

But such is the gravitational pull of Trump-style economic nationalism, which posits that trade deficits are proof other countries are taking advantage of the United States.

Peter Navarro, Trump’s top trade advisor, argued in a recent Wall Street Journal op-ed that lowering America’s trade deficit would boost growth. In fact, no such correlation seems to exist for other countries around the world. As I’ve previously written:

In 2017, for example, the United States recorded GDP growth of 2.22 percent and ran a trade deficit of about $502 billion. But look at other countries that had similar growth rates. France grew at 2.16 percent but had a trade deficit of $18 billion. Germany grew at 2.16 percent too, but ran a trade surplus of $274 billion.

The same is true at the higher end of the growth scale. Ireland grew by 7.22 percent and had a $101 billion trade surplus in 2017; India grew by 7.17 percent with a $72 billion trade deficit. It’s also true at the bottom. Italy’s economy grew by a mere 1.57 percent with a $60 billion trade surplus; the United Kingdom grew by 1.82 percent despite a $29 billion trade deficit.

But maybe the best evidence of faultiness of the Trump administration’s view of trade deficits comes from the very Treasury Department report that’s meant to bolster the Trump administration’s worldview.

On the first page, the report highlights how the United States’ trade deficit with China grew to a record high of $419 billion in 2018. “A key driver of this increase was a sharp decline in U.S. exports to China in the fourth quarter of 2018, a time when U.S. imports from China were sustained,” the report says.

The fourth quarter of 2018, of course, is the first full quarter after Trump imposed two rounds of tariffs on Chinese imports—the first in July and the second, larger set in August—with the expressed intent of reducing America’s trade deficit. The opposite occurred.

As developments in the trade war go, this is not an earth-shattering one. But it’s a good example of how the Trump presidency is institutionalizing a worldview that’s at odds with free trade. Like how civil liberties violations under George W. Bush paved the way for worse ones under Barack Obama, this is exactly how new ideas worm their way into the executive branch’s ongoing perception of its role in the economy and the world at large. Presidential administrations don’t end when the guy in charge exits the White House for the last time.

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Professor Stephen Gillers (NYU) Unwittingly Demonstrates Why ABA Model Rule 8.4(g) Chills Protected Speech

Prof. Josh Blackman, who has commented extensively on the Rule 8.4(g) debates, passes this along:

In 2016, the American Bar Association proposed Model Rule 8.4(g). Under the Rule, it is misconduct for an attorney to “engage in conduct that the lawyer knows or reasonably should know is harassment or discrimination on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status in conduct related to the practice of law.” Comment [4] explains that “conduct related to the practice of law . . . includes representing clients; interacting with witnesses, coworkers, court personnel, lawyers and others while engaged in the practice of law; operating or managing a law firm or law practice; and participating in bar association, business or social activities in connection with the practice of law.”

Over the past three years, almost every state court that has considered the issue has declined to adopt Model Rule 8.4(g). Several state attorneys general have concluded that the Rule would violate the First Amendment. Only one state—Vermont—adopted Model Rule 8.4(g) as proposed. Recently, Maine adopted a variant of Model Rule 8.4(g) with certain changes to address constitutional concerns. Specifically, Maine modified the comment to exclude conduct at “bar association, business or social activities in connection with the practice of law.”

After the rule was adopted, Bloomberg Law sought comments from me and Professor Stephen Gillers (NYU), which I reproduce in their entirety:

“Critics say the rules could be unconstitutional. ‘Rule 8.4(g) is well-intentioned, but it has the potential to suppress attorney speech on matters of public concern, if that speech may be viewed as ‘demeaning’ to others,’ Josh Blackman, a professor of constitutional law at the South Texas College of Law in Houston, said in an email. ‘The government should not chill attorneys from talking about these important matters.'”

“But New York University School of Law legal ethics professor Stephen Gillers disagreed. ‘The preposterous claim that the First Amendment entitles lawyers to make racist, sexist, and homophobic statements in connection with law practice is an embarrassment,’ Gillers said in an email. ‘It has come almost exclusively from white men who apparently see some advantage in being able to do so. No case supports it.'”

I was stunned by these comments, so I checked with Gillers to verify their accuracy. He told me they were accurate.

Gillers is profoundly mistaken on several fronts. First, he does not accurately characterize Rule 8.4(g). The rule does not police “statements in connection with law practice.” It regulates speech and conduct “related to the practice of law.” There is a significant difference between statements made in open court, or during a deposition, and statements made at a bar function or a CLE event. Indeed, Maine addressed this constitutional infirmity by specifically excluding social functions from the comment concerning “conduct related to the practice of law.”

Second, Rule 8.4(g) is not limited to “racist, sexist, and homophobic statements.” The rule prohibits far more innocuous expressions that may simply be “demeaning” to others. I published an article in the Georgetown Journal of Legal Ethics that considers various debates about same-sex marriage, affirmative action, and other hot-button issues that may be viewed as demeaning.

Third, Gillers’ hyperbole—”preposterous” and “embarrassment”—is self-evidently wrong. The positions I have advanced, along with Eugene Volokh, have been echoed by several Attorneys General, state court judges, and bar committees nationwide. Maybe we are right. Maybe we are wrong. But these arguments are well within the bounds of rational discourse. Moreover, there are several cases that support this position, including NIFLA v. Becerra. A recent ABA Section on Litigation publication quoted Professor Cassandra Burke Robertson, who observed that “the biggest question about Rule 8.4(g) has been whether it unconstitutionally infringes on lawyers’ speech rights—and after the Court’s decision in [NIFLA v.] Becerra, it increasingly looks like the answer is yes.” These positions are not “preposterous” or an “embarrassment.”

Fourth, Gillers should be embarrassed by his ad hominem attack on those who challenge the law’s constitutionality: “white men” who “see some advantage” from criticizing the rule. This sort of discourse has no place in academic dialogue. Both Volokh and I have engaged in respectful debates on this topic in academic forums, without our adversaries resorting to these baseless slurs.

There is some irony to Gillers’s statement. He made a statement that people could reasonably find demeaning based on race—that is, white people oppose Rule 8.4(g) so they can gain some advantage by harassing minorities. Had Gillers made this statement in “conduct related to the practice of law,” perhaps during a debate sponsored by a bar association, he could be subject to discipline. Of course, I would vigorously oppose such a charge. All lawyers, especially academics, should have the space necessary to make a wide range of statements on matters of public concern, without fear of punishment. But Gillers could be subject to discipline under a fair application of the rule that he defends.

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Professor Stephen Gillers (NYU) Unwittingly Demonstrates Why ABA Model Rule 8.4(g) Chills Protected Speech

Prof. Josh Blackman, who has commented extensively on the Rule 8.4(g) debates, passes this along:

In 2016, the American Bar Association proposed Model Rule 8.4(g). Under the Rule, it is misconduct for an attorney to “engage in conduct that the lawyer knows or reasonably should know is harassment or discrimination on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status in conduct related to the practice of law.” Comment [4] explains that “conduct related to the practice of law . . . includes representing clients; interacting with witnesses, coworkers, court personnel, lawyers and others while engaged in the practice of law; operating or managing a law firm or law practice; and participating in bar association, business or social activities in connection with the practice of law.”

Over the past three years, almost every state court that has considered the issue has declined to adopt Model Rule 8.4(g). Several state attorneys general have concluded that the Rule would violate the First Amendment. Only one state—Vermont—adopted Model Rule 8.4(g) as proposed. Recently, Maine adopted a variant of Model Rule 8.4(g) with certain changes to address constitutional concerns. Specifically, Maine modified the comment to exclude conduct at “bar association, business or social activities in connection with the practice of law.”

After the rule was adopted, Bloomberg Law sought comments from me and Professor Stephen Gillers (NYU), which I reproduce in their entirety:

“Critics say the rules could be unconstitutional. ‘Rule 8.4(g) is well-intentioned, but it has the potential to suppress attorney speech on matters of public concern, if that speech may be viewed as ‘demeaning’ to others,’ Josh Blackman, a professor of constitutional law at the South Texas College of Law in Houston, said in an email. ‘The government should not chill attorneys from talking about these important matters.'”

“But New York University School of Law legal ethics professor Stephen Gillers disagreed. ‘The preposterous claim that the First Amendment entitles lawyers to make racist, sexist, and homophobic statements in connection with law practice is an embarrassment,’ Gillers said in an email. ‘It has come almost exclusively from white men who apparently see some advantage in being able to do so. No case supports it.'”

I was stunned by these comments, so I checked with Gillers to verify their accuracy. He told me they were accurate.

Gillers is profoundly mistaken on several fronts. First, he does not accurately characterize Rule 8.4(g). The rule does not police “statements in connection with law practice.” It regulates speech and conduct “related to the practice of law.” There is a significant difference between statements made in open court, or during a deposition, and statements made at a bar function or a CLE event. Indeed, Maine addressed this constitutional infirmity by specifically excluding social functions from the comment concerning “conduct related to the practice of law.”

Second, Rule 8.4(g) is not limited to “racist, sexist, and homophobic statements.” The rule prohibits far more innocuous expressions that may simply be “demeaning” to others. I published an article in the Georgetown Journal of Legal Ethics that considers various debates about same-sex marriage, affirmative action, and other hot-button issues that may be viewed as demeaning.

Third, Gillers’ hyperbole—”preposterous” and “embarrassment”—is self-evidently wrong. The positions I have advanced, along with Eugene Volokh, have been echoed by several Attorneys General, state court judges, and bar committees nationwide. Maybe we are right. Maybe we are wrong. But these arguments are well within the bounds of rational discourse. Moreover, there are several cases that support this position, including NIFLA v. Becerra. A recent ABA Section on Litigation publication quoted Professor Cassandra Burke Robertson, who observed that “the biggest question about Rule 8.4(g) has been whether it unconstitutionally infringes on lawyers’ speech rights—and after the Court’s decision in [NIFLA v.] Becerra, it increasingly looks like the answer is yes.” These positions are not “preposterous” or an “embarrassment.”

Fourth, Gillers should be embarrassed by his ad hominem attack on those who challenge the law’s constitutionality: “white men” who “see some advantage” from criticizing the rule. This sort of discourse has no place in academic dialogue. Both Volokh and I have engaged in respectful debates on this topic in academic forums, without our adversaries resorting to these baseless slurs.

There is some irony to Gillers’s statement. He made a statement that people could reasonably find demeaning based on race—that is, white people oppose Rule 8.4(g) so they can gain some advantage by harassing minorities. Had Gillers made this statement in “conduct related to the practice of law,” perhaps during a debate sponsored by a bar association, he could be subject to discipline. Of course, I would vigorously oppose such a charge. All lawyers, especially academics, should have the space necessary to make a wide range of statements on matters of public concern, without fear of punishment. But Gillers could be subject to discipline under a fair application of the rule that he defends.

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Intersectionality 101

The Women’s March came to Washington, D.C., on January 21, 2017, the day after Donald Trump’s inauguration. Its purpose was to call attention to the incoming president’s history of appalling behavior toward women—behavior to which Trump had all but admitted in the infamous hot-mic moment during an Access Hollywood taping. “When you’re a star, they let you do it,” Trump had said. “You can do anything. Grab ’em by the pussy.”

This was a statement that rightly offended millions of Americans of all political stripes—Trump’s electoral fortunes were never lower than immediately after the tape’s release—and thus the march held the promise of uniting the country around a universal, positive message: It’s not OK to abuse women.

More than half a million people descended on D.C. for the march, making it the largest protest in the United States since the Vietnam War era. It was a fairly awe-inspiring spectacle. Walking just a few blocks from my apartment, I was greeted by a sea of pink hats. Many of the protesters had chosen to reclaim Trump’s own vulgar language, and I saw dozens of signs bearing some variant of the slogan “This pussy grabs back.” Others were less confrontational: A young woman with pink streaks in her brown hair held a sign that said, “To love, we must survive; to survive, we must fight; to fight, we must love.” Her friend stood next to her, waving a sign that featured a hand-drawn Donald Trump with the universally recognized emoji for excrement atop his head and the words Dump Trump.

All in all, the Women’s March was a success for the nascent anti-Trump movement informally known as the #Resistance. More people showed up to protest than to attend the inauguration—something that seemed to infuriate the president, forcing several Trump staffers to make false statements about the relative sizes of the crowds. (This was the genesis of presidential adviser Kellyanne Conway’s now infamous line about “alternative facts.”)

Yet many of the young leftists I interviewed told me they thought the protest was a disgrace. According to them, it became too inclusive.

“That’s actually fucking right,” said Laila, a 26-year-old Muslim woman and political activist, when I asked if that was why she did not attend the march. Although she lives in Washington, D.C., Laila skipped town that weekend. “I’m tired of being a poster child for someone else’s attempt at inclusivity,” she explained.

In her view, by including so many different perspectives, organizers had watered down the message and ended up marginalizing the people who should have been the focus. They took “an approach that co-opted the narratives of many who have already been fighting in this space, specifically, black women.”

Laila was hardly the only young activist who felt that way about the Women’s March. Juniper, a 19-year-old trans woman, castigated the event as “super white” and “super cisgender-centric.” (Cisgender, the opposite of transgender, describes people who identify as the gender they were assigned at birth.) She was skeptical of it at best, she said. And others were even harsher.

“I hated it,” said Ma’at, a student of color at American University. “It was super cis-centric. It was exclusive of trans identities. It was whitewashed. It just in general was very co-opting and ineffective.”

“I just felt like it wasn’t very sincere,” said Yanet, a student of color at the University of Maryland. “It just felt like a moment for people who aren’t as involved or didn’t care before to feel like, ‘Oh, I did something.'”

“Insincere” and “ineffective” will strike many readers as surprising ways for leftist activists to describe the most well-attended mass march in four decades. But it makes perfect sense when one considers the priorities of the new activist culture, which prefers quality—intellectual purity—over quantity. A protest is successful only if it highlights the correct issues, includes the right people—people who check all the appropriate boxes—and is organized by a ruling coalition of the most oppressed. This is what intersectionality dictates.

Though the words intersectionality and inclusion sound like synonyms, they are actually in conflict with each other—a conflict perfectly encapsulated by the Women’s March and activists’ dissatisfaction with it. In case there was any confusion, Roxane Gay, a celebrated feminist author and voice of the left, tweeted this in response to the idea of people who oppose abortion participating in the event: “Intersectional feminism does not include a pro-life agenda. That’s not how it works!”

Intersectionality is the operating system for the modern left. Understanding what it means and where it comes from is essential for comprehending the current state of activism on college campuses, at protests in major cities, and elsewhere.

Put simply, the idea is that various kinds of oppression—racism, sexism, homophobia, transphobia, economic inequality, and others—are simultaneously distinct from each other and inherently linked. They are distinct in the sense that they stack: A black woman suffers from two kinds of oppression (racism and sexism), whereas a white woman suffers from just one (sexism). But they are also interrelated, in that they are all forms of oppression that should be opposed with equal fervor. For instance, a feminist who isn’t sufficiently worked up about the rights of the gay community is at odds with the tenets of intersectionality. She is a feminist, but she is not an intersectional feminist.

Holly, a 23-year-old Berkeley student whom I met at the April 2017 People’s Climate March in Washington, D.C., told me that for her, intersectionality means all issues are “connected and tie in with each other, like indigenous rights, Black Lives Matter, and climate change.”

Kimberlé Williams Crenshaw, a law professor at the University of California, Los Angeles and Columbia University, coined the term intersectionality in her 1989 paper “Demarginalizing the Intersection of Race and Sex.” She needed a word to describe the lives of black women who were discriminated against because of both their race and their sex. Their experiences were fundamentally different from those of black men, who were privileged to the extent that they were men, and from those of white women, who were privileged to the extent that they were white.

“Discrimination, like traffic through an intersection, may flow in one direction, and it may flow in another,” wrote Crenshaw. “If an accident happens in an intersection, it can be caused by cars traveling from any number of directions and, sometimes, from all of them. Similarly, if a Black woman is harmed because she is in the intersection, her injury could result from sex discrimination or race discrimination.”

Crenshaw got the idea from a 1976 federal district court case, DeGraffenreid v. General Motors, in which five black women had sued the auto giant. They argued that G.M.’s policy of laying off the most recently hired employees violated Title VII of the 1964 Civil Rights Act, which prohibits both racial and gender-based discrimination. Since it had been only a little more than a decade since the law had begun requiring G.M. to hire black and female employees, the most recent hires tended to be black women, the plaintiffs argued.

But the court determined that black women enjoyed no special protection under the law—the employees were protected from racial discrimination and gender-based discrimination, but not from the combined effects of these two categories. “The plaintiffs are clearly entitled to a remedy if they have been discriminated against,” wrote the court. “However, they should not be allowed to combine statutory remedies to create a new ‘super-remedy’ which would give them relief beyond what the drafters of the relevant statutes intended.”

DeGraffenreid v. General Motors was Crenshaw’s lightbulb moment. Black women lived in the midst of two kinds of discrimination—racism and sexism—and thus languished under an oppressive force greater than the sum of its parts.

“What Kimberlé is saying with intersectionality is that, in order to understand how power operates, you have to understand how people live their lives,” says Alicia Garza, an activist and co-founder of the Black Lives Matter movement. “Intersectionality is the very basic notion that we live multiple experiences at once. It’s not just, ‘Oh, I’m black and I’m a woman and I’m a black woman.’ It’s to say that I’m uniquely discriminated against. I uniquely experience oppression based on standing at the intersection of race and gender.”

Though Crenshaw came up with the term, the concept itself predates her. As far back as 1892, the black feminist Anna Julia Cooper had criticized leading anti-racists for failing to advance the cause of black women. “Only the black woman can say when and where I enter, in the quiet undisputed dignity of my womanhood.…Then and there the whole race enters with me,” she wrote in A Voice From the South.

For the Boston-based black feminist lesbian organization known as the Combahee River Collective, which existed in the 1970s and early ’80s, “simultaneity” was the word used to describe the cumulative impact of the various oppressions they experienced. Their manifesto called not just for the abolition of racism and sexism but for “the destruction of the political-economic systems of capitalism and imperialism as well.” Avowed enmity toward all the various -isms: This is the strategy required by the intellectual framework that became known as intersectionality.

Patricia Hill Collins, a professor of sociology at the University of Maryland, expanded upon Crenshaw’s work, publishing Black Feminist Thought: Knowledge, Consciousness, and the Politics of Empowerment in 1990. Taking a cue from Crenshaw, she used the term intersectionality to refer to the interlocking matrices of oppression that serve to marginalize people. Initially focused on race and gender, Collins gave additional consideration to class as a matrix in her 1992 book Race, Class and Gender: An Anthology. Later, she would add sexual orientation to the mix. “Intersectional paradigms view race, class, gender, sexuality, ethnicity, and age, among others, as mutually constructing systems of power,” she wrote in 2004’s Black Sexual Politics. “Because these systems permeate all social relations, untangling their effects in any given situation or for any given population remains difficult.”

That’s quite the understatement, since every new addition to the list of interrelated oppressions makes the task even more cumbersome. There are more of these categories than most people might imagine, and every year, intellectual peers of Crenshaw and Collins propose new ones. Meanwhile, intersectionality has become a ubiquitous force on college campuses, where young people are taught to perceive all social issues through the lens of interrelated oppression and to find more grievances to add to the pile. Those who grasp the truth of intersectionality are said to be “woke,” slang that describes someone who has awakened to the reality of their own privilege and adopted a progressive worldview.

The spread of intersectionality poses some problems for the left, since the theory divides people as often as it unites them. In recent years, Hulu’s The Handmaid’s Tale, a prestige drama based on feminist author Margaret Atwood’s beloved novel, became mandatory #Resistance viewing for its depiction of an oppressive society where women have been enslaved by theocratic authoritarians—a future toward which Trump’s America is hurtling, according to many on the left. But the second seasonwhich debuted in 2018, drew criticism: The show was accused of a “failure of intersectionality” because it never grappled with racism, only sexism. “This is a show all about gender—it is built entirely around that concept—but until The Handmaid’s Tale learns to make its feminism intersectional, it’s going to keep letting its audience down,” commented BuzzFeed TV writer Louis Peitzman.

In the years since Crenshaw introduced the term, intersectionality has broadened in both scope (that is, more kinds of oppression have been identified) and reach (more people are aware of the concept and what it implies).

The academy loves intersectionality, and the theory’s popularity has soared in sociology, psychology, English, philosophy, history, and other social science and humanities departments. Indeed, more and more universities have created entire academic wings dedicated to studying specific kinds of oppression and explaining how they relate to others. Thus the rise of women’s studies, African American studies, Hispanic studies, Asian studies, queer studies, and more.

What began at the intersection of race and sex now includes economic class, gender identity (the gender category to which a person feels attachment, which may be different from the person’s biological sex), gender expression (the way a person looks and behaves), sexual orientation, immigration status, disability status, age, religious belief (though certain believers—such as Muslims—are perceived as more oppressed than others), and size (whether you are overweight or not).

In practice, intersectionality frequently forces the left to engage in self-cannibalism. Not all victims of oppression get along, since they’re quite often in tension with each other. The intersectional progressive says, in effect: “We must fight racism, and sexism, and homophobia, and transphobia, and the Trump administration’s immigration policies, and the wealthy, and global warming, and anti-Muslim bigotry, and ableism, etc.” There are millions of people, though, who want to fight some of these things but not others—and if intersectionality requires them to commit to every single cause at once, they simply won’t.

Some people might decry racism and sexism without fully understanding or agreeing with the demands of the trans community; indeed, there’s a community of feminists who specifically reject the notion that trans women should be considered women. Other people might want economic equality for the poor but hold socially conservative views on gay rights, or oppose Trump’s harsh treatment of immigrants but feel ambivalent about climate change. Still others might be strident progressives in nearly all respects but dissent from the notion that Muslims deserve space in the club when Jews do not.

That’s not a theoretical example. In modern progressive parlance, Muslims are oppressed and Israel is the oppressor. Thus, anti-Islamic bias is viewed as a source of oppression, while anti-Semitism is frequently ignored—even though Jews tend to be much more politically progressive than Muslims.

There are three main problems with intersectionality: the education problem, the perfection problem, and the coalition problem.

First, the problem of education. One important implication of intersectionality is that the sole authority on an individual’s oppression is the individual in question. White men who are heterosexual and cisgender shouldn’t try to “mansplain” the struggles of black women or people of color: They aren’t oppressed, so they can never understand what it’s like, even if they happen to be extremely progressive or well-educated about left-wing causes.

At the same time, “it’s not my job to educate you” is one of the most frequently recited catchphrases in activist circles. “It is not my responsibility as a marginalized individual to educate you about my experience,” wrote Elan Morgan in a popular Medium post, which provided 21 arguments for why that statement was correct. The feminist news website Everyday Feminism has highlighted the work of YouTuber and transgender activist Kat Blaque, who opined in a video that it is “demeaning and dehumanizing to explain to people of privilege why people like them have historically and currently oppressed people like me.” And in an article for HuffPost, the feminist writer Melanie Hamlett wrote: “Dear Men, It Is Not My Responsibility to Explain Feminism to You.” Doing so, she said, required too much “emotional labor.”

But here we have an obvious issue: Asking people about their oppression—even earnestly, out of a sincere desire to become better educated—is discouraged, and there’s no other way to gain this knowledge, since the oppressed themselves are the only acceptable experts. This makes it frustratingly difficult to have supportive conversations about oppression, let alone tense ones.

The second problem, which follows logically from the first, is the perfection problem. Very few people can grasp with 100 percent accuracy the various requirements of intersectional progressivism, given that they aren’t allowed to interrogate the oppressed, who are the only source of knowledge about their oppression. I once saw this issue explained perfectly in a blog post, written by a woman complaining about all that was required of her. “As an ally, my job is to not impose my own beliefs of what’s ‘right,’ but instead amplify the voices of the oppressed people that I’m trying to be an ally for,” she wrote. “Except that I shouldn’t bug them about educating me, because that’s not what they’re there for. And it’s my duty to talk about the issue of oppression in question, because it’s the job of all of us, rather than the oppressed people, to fix it. Except that when I talk, I shouldn’t be using my privilege to drown out the voices of the oppressed people. Also, I should get everything right, 100% of the time. Including the terminology that the oppressed people in question themselves disagree on.”

Even the most well-intentioned person is bound to slip up. My Facebook feed recently served up a note from someone asking for help finding shelter for a wheelchair-bound neighbor. The immediate reply was this: “The only resource I have for you at the moment is in regards to the words wheelchair bound,” accompanied by a link to a HuffPost article titled “Stop Saying ‘Wheelchair-Bound’ and Other Offensive Terms.” You probably didn’t know wheelchair-bound was offensive terminology—I certainly didn’t—and in any case, you shouldn’t ask someone in a wheelchair what the correct terminology is, because it’s not that person’s job to educate you.

In The Daily Beast, Kristen Lopez described the 2018 Marvel superhero film Ant-Man and the Wasp as “ableist”—that is, disparaging of people with disabilities—for including a character who suffers from chronic pain and is attempting to cure her condition. “Instead of helping Ava find a way to cope [with] (and not necessarily eradicate) her disability, the film seeks to provide a cure.” That’s a bad thing, Lopez wrote, because not all disabled people want to overcome their disability.  Who knew you could run afoul of disability activism by making a movie in which a character who suffers from chronic pain tries to overcome it?

The writer, academic, and activist Fredrik deBoer once described an event he witnessed: “A 33-year-old Hispanic man, an Iraq war veteran who had served three tours and had become an outspoken critic of our presence there, [was] lectured about patriarchy by an affluent 22-year-old white liberal arts college student.” The veteran had committed a crime of the “wheelchair-bound” variety: He had called on other veterans to “man up” and denounce the war. What he could not have known, since he had spent much of his adult life on a battlefield rather than in feminist studies lectures, is that man up is a gendered term and thus unacceptable.

According to deBoer, these incidents frequently result in would-be allies growing disheartened with the cause. Nobody’s perfect—and that’s an issue for intersectionality, since it demands total adherence to all facets of its approach.

The third problem, which grows out of the first two, is the coalition problem: The demands of intersectionality make it extremely difficult to form strategic relationships for the purpose of advancing a single issue.

Take legalizing marijuana, for example. There are a lot of Americans who subscribe to a diverse range of ideologies with some interest in the issue. There are liberals and leftists who think using marijuana is no big deal, there are libertarians who think the government has no right to tell consenting adults what they can put in their own bodies, and there are even some conservatives who think enforcing federal marijuana prohibition is a waste of law enforcement resources and a blow to states’ rights. People from all three of these groups could and should work together to advance the cause, despite their myriad differences on other issues. But intersectionality gets in the way, since the intersectional progressive only wants to work with people who oppose all the various strains of oppression—not just the ones relevant to the narrow issue of marijuana policy.

It’s difficult to imagine that the campaign for gay marriage would have gone as relatively smoothly as it did had intersectionality been as ubiquitous a decade ago as it is today. This was in some sense the last nonintersectional leftist cause: Activists who supported it were extremely disciplined and specifically avoided tying it to other, more fringe issues. Believers in same-sex marriage, in fact, worked tirelessly to bring people on the political right into the movement, stressing that gay couples only wanted legal equality and sought to form the same kinds of family arrangements that social conservatives believe are desirable for society. The marriage equality movement even turned to Ted Olson, a Republican and former solicitor general under President George W. Bush, to represent it in the lawsuit against California’s Proposition 8, which had banned gay marriage in the state.

One of the strongest voices on this issue was Andrew Sullivan, a gay right-of-center writer who made the case for same-sex marriage in a 1989 New Republic article: “Marriage provides an anchor, if an arbitrary and weak one, in the chaos of sex and relationships to which we are all prone,” he wrote. “It provides a mechanism for emotional stability, economic security, and the healthy rearing of the next generation. We rig the law in its favor not because we disparage all forms of relationship other than the nuclear family, but because we recognize that not to promote marriage would be to ask too much of human virtue. In the context of the weakened family’s effect upon the poor, it might also invite social disintegration.”

That’s a fundamentally conservative argument, crafted specifically to appeal to people on the right. And it worked. Support for gay marriage increased from 27 percent in 1996 to 67 percent two decades later. It is now legal everywhere in the United States.

This happy development is in large part due to the work of a coalition that would be impossible to put together in the age of intersectionality. Sullivan and Olson would almost certainly have been chased away by activists refusing to engage with them due to their conservative views on other policy matters.

Contrast the triumph of gay marriage with some examples of the setbacks and infighting that occur within an intersectional framework. During the June 2017 Chicago Pride Parade, organizers asked Laurel Grauer, a Jewish lesbian, to leave. Grauer had dared to carry a flag bearing a rainbow (the symbol of the LGBT community) and the Star of David. She was told her display made people feel unsafe. One might expect everybody who supports equal rights and dignity for LGBT people to be welcome at pride events, but from the standpoint of the organizers, the march was intended to be intersectional—meaning it was both pro-LGBT and “anti-Zionist,” or opposed to the state of Israel’s existence.

For the modern left, Jews are outranked by minority groups whose oppression is considered more serious than, and to some degree at odds with, their own. The incident at the Chicago Pride Parade is not a one-off. Linda Sarsour, an activist and Women’s March leader, has made the dubious claim that anti-Semitism is “different than anti-black racism or Islamophobia because it’s not systemic.”

Sarsour and fellow Women’s March leaders Tamika Mallory and Carmen Perez have drawn criticism for their ties to controversial Nation of Islam leader Louis Farrakhan, who is widely considered to be anti-Semitic. Farrakhan has compared Jewish people to termites and asserted that “powerful Jews are my enemy.” He made the latter remark at a February 2018 rally attended by Mallory, who distanced herself from his rhetoric but would not condemn the man himself—and who was steadfast in her commitment to working with his group.

Or consider an illuminating episode involving the Democratic Socialists of America (DSA), a left-wing group that got a huge boost from Bernie Sanders’ 2016 presidential campaign. In January 2018, the DSA tweeted that it would be unveiling its Medicare for All campaign, an effort to extend the national health insurance program to everyone in the country.

This was an unsurprising development—empowering the government to provide more comprehensive health care coverage is a fairly standard goal of liberal activists, not just the far left. More surprising was the furious blowback the DSA received from many of its own members who identified as disabled. The DSA’s Medicare for All committee had apparently failed to consult the Disability Working Group about the campaign’s rollout, which led the latter to protest that they were being excluded from relevant decision making. Since disabled people are especially affected by health care policy, the Medicare for All group had essentially failed to let disabled people be the experts on their own oppression—an intersectionality no-no.

Amber A’Lee Frost, a Medicare for All proponent and prominent DSA member known for co-hosting the left-wing Chapo Trap House podcast, hit back, accusing her critics of trying to sabotage the movement with their “pathological anti-social behavior.” This made matters much worse: The comment was perceived as an attack on the autistic community.

Frost had committed ableism. Several dozen DSA members signed a petition demanding that she “immediately remove herself from any involvement, official or unofficial, with DSA’s Medicare for All campaign, and should she not, that she be removed.” This was necessary, because intersectionality means casting suspicion on organizing efforts if these efforts do not make the marginalized the center of attention.

College campuses, where the grievances are significant but the stakes are low, play host to some of the most farcical examples of intersectionality-induced bickering. A particularly revelatory crisis emerged at Evergreen State College in Washington during the spring 2017 semester.

Every year, activists there organized a Day of Action during which students of color would deliberately leave campus as a means of protest against racism. But in 2017, the activists decided to try something new: They would ask students of color to remain and white people to leave.

This tactic didn’t sit well with Bret Weinstein, a biology professor at Evergreen. Weinstein was a progressive—he had supported Sanders over Hillary Clinton the year before—and sympathized with the activists’ goals, but he felt that the new plan for the Day of Action was unsound. “There is a huge difference between a group or coalition deciding to voluntarily absent themselves from a shared space in order to highlight their vital and under-appreciated roles, and a group or coalition encouraging another group to go away,” Weinstein told an administrator. The latter, he contended, “is a show of force, and an act of oppression in and of itself.”

In response, activists surrounded Weinstein outside his classroom and accused him of being a racist. “This is not a discussion!” they told him. A student named Hadley later told Vice correspondent Michael Moynihan that her message to Weinstein was: “You don’t get to spread this problematic rhetoric.”

A subsequent dialogue between the activist students and college President George Bridges similarly spiraled out of control. During the meeting, activist students repeatedly belittled Bridges, a meek, bow-tie-wearing white man, even instructing him to keep his hands at his sides and stop pointing at people. “Fuck you, George!” one student said. “We don’t want to hear a goddamn thing you have to say.” When Bridges asked the students to let him leave the room so he could use the lavatory, they told him to hold it.

Hadley would tell Moynihan that Weinstein should go be a “racist and a piece of shit” somewhere else. The campus police said they could no longer guarantee the professor’s safety on campus, and he eventually resigned.

Each of these examples shows how activists who worship at the altar of intersectionality felt compelled to turn on people for committing venial sins. It’s not enough to share the intersectional progressives’ goals relating to a specific issue: One must also support their tactics, know their language intuitively, defer to the wisdom of the oppressed without either speaking on their behalf or expecting them to speak for themselves, and commit to every other interrelated cause.

The intersectional approach often seems petty and performative. The symbol of the gay rights movement, the rainbow flag, was designed by activist Gilbert Baker in 1978. Its colors were pink, red, orange, yellow, green, turquoise, indigo, and violet, which he said represented sex, life, healing, sunlight, nature, magic, serenity, and spirit. In 2017, Philadelphia debuted a new rainbow flag to celebrate Pride Month—this one including brown and black stripes, in recognition of people of color.

Many members of the LGBT community—particularly younger ones, according to BuzzFeed—liked the new intersectional flag, which takes a stand against homophobia and racism. But many older LGBT activists were confused, since none of the original colors reflected ethnicity at all. Will the flag eventually have to add stripes for Latinos, Asians, and Native Americans? What about the disabled community and those who languish under the oppression of sizeism?

The thinkers who first defined intersectionality probably hoped that by linking all kinds of oppression together, they could force people to fight against a wider swath of bad things. The University of Maryland’s Collins hinted at this when she wrote that “many African Americans deny the existence of sexism, or see it as a secondary concern that is best addressed when the more pressing problem of racism has been solved. But if racism and sexism are deeply intertwined, racism can never be solved without seeing and challenging sexism.” Collins wanted to tie the problems together so that everybody fighting one would have to fight the other, too.

But the more -isms added to the pile, the more tenuous this approach becomes. It’s all well and good to say that sexism is as pervasive a problem as racism, but the intersectional activist of 2019 is reaching much further and making many more demands. From the standpoint of this movement, a woman marching against the Republican Party, against police brutality, against war, against sexual violence, and for Israel’s existence is not an ally or potential ally: She is an enemy. She is part of the problem. She has failed the test of intersectionality. She is not, as the poet Elisa Chavez put it, “intersectional as fuck.” She might as well have voted for Trump.

A hopelessly divided opposition movement that cannot resist cannibalizing itself over intersectionality-induced disagreements is not going to be very effective. In fact, it’s probably a good recipe for the continued political dominance of the Trump coalition.

Adapted from Panic Attack: Young Radicals in the Age of Trump by permission of All Points Books/St. Martin’s Press.

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Intersectionality 101

The Women’s March came to Washington, D.C., on January 21, 2017, the day after Donald Trump’s inauguration. Its purpose was to call attention to the incoming president’s history of appalling behavior toward women—behavior to which Trump had all but admitted in the infamous hot-mic moment during an Access Hollywood taping. “When you’re a star, they let you do it,” Trump had said. “You can do anything. Grab ’em by the pussy.”

This was a statement that rightly offended millions of Americans of all political stripes—Trump’s electoral fortunes were never lower than immediately after the tape’s release—and thus the march held the promise of uniting the country around a universal, positive message: It’s not OK to abuse women.

More than half a million people descended on D.C. for the march, making it the largest protest in the United States since the Vietnam War era. It was a fairly awe-inspiring spectacle. Walking just a few blocks from my apartment, I was greeted by a sea of pink hats. Many of the protesters had chosen to reclaim Trump’s own vulgar language, and I saw dozens of signs bearing some variant of the slogan “This pussy grabs back.” Others were less confrontational: A young woman with pink streaks in her brown hair held a sign that said, “To love, we must survive; to survive, we must fight; to fight, we must love.” Her friend stood next to her, waving a sign that featured a hand-drawn Donald Trump with the universally recognized emoji for excrement atop his head and the words Dump Trump.

All in all, the Women’s March was a success for the nascent anti-Trump movement informally known as the #Resistance. More people showed up to protest than to attend the inauguration—something that seemed to infuriate the president, forcing several Trump staffers to make false statements about the relative sizes of the crowds. (This was the genesis of presidential adviser Kellyanne Conway’s now infamous line about “alternative facts.”)

Yet many of the young leftists I interviewed told me they thought the protest was a disgrace. According to them, it became too inclusive.

“That’s actually fucking right,” said Laila, a 26-year-old Muslim woman and political activist, when I asked if that was why she did not attend the march. Although she lives in Washington, D.C., Laila skipped town that weekend. “I’m tired of being a poster child for someone else’s attempt at inclusivity,” she explained.

In her view, by including so many different perspectives, organizers had watered down the message and ended up marginalizing the people who should have been the focus. They took “an approach that co-opted the narratives of many who have already been fighting in this space, specifically, black women.”

Laila was hardly the only young activist who felt that way about the Women’s March. Juniper, a 19-year-old trans woman, castigated the event as “super white” and “super cisgender-centric.” (Cisgender, the opposite of transgender, describes people who identify as the gender they were assigned at birth.) She was skeptical of it at best, she said. And others were even harsher.

“I hated it,” said Ma’at, a student of color at American University. “It was super cis-centric. It was exclusive of trans identities. It was whitewashed. It just in general was very co-opting and ineffective.”

“I just felt like it wasn’t very sincere,” said Yanet, a student of color at the University of Maryland. “It just felt like a moment for people who aren’t as involved or didn’t care before to feel like, ‘Oh, I did something.'”

“Insincere” and “ineffective” will strike many readers as surprising ways for leftist activists to describe the most well-attended mass march in four decades. But it makes perfect sense when one considers the priorities of the new activist culture, which prefers quality—intellectual purity—over quantity. A protest is successful only if it highlights the correct issues, includes the right people—people who check all the appropriate boxes—and is organized by a ruling coalition of the most oppressed. This is what intersectionality dictates.

Though the words intersectionality and inclusion sound like synonyms, they are actually in conflict with each other—a conflict perfectly encapsulated by the Women’s March and activists’ dissatisfaction with it. In case there was any confusion, Roxane Gay, a celebrated feminist author and voice of the left, tweeted this in response to the idea of people who oppose abortion participating in the event: “Intersectional feminism does not include a pro-life agenda. That’s not how it works!”

Intersectionality is the operating system for the modern left. Understanding what it means and where it comes from is essential for comprehending the current state of activism on college campuses, at protests in major cities, and elsewhere.

Put simply, the idea is that various kinds of oppression—racism, sexism, homophobia, transphobia, economic inequality, and others—are simultaneously distinct from each other and inherently linked. They are distinct in the sense that they stack: A black woman suffers from two kinds of oppression (racism and sexism), whereas a white woman suffers from just one (sexism). But they are also interrelated, in that they are all forms of oppression that should be opposed with equal fervor. For instance, a feminist who isn’t sufficiently worked up about the rights of the gay community is at odds with the tenets of intersectionality. She is a feminist, but she is not an intersectional feminist.

Holly, a 23-year-old Berkeley student whom I met at the April 2017 People’s Climate March in Washington, D.C., told me that for her, intersectionality means all issues are “connected and tie in with each other, like indigenous rights, Black Lives Matter, and climate change.”

Kimberlé Williams Crenshaw, a law professor at the University of California, Los Angeles and Columbia University, coined the term intersectionality in her 1989 paper “Demarginalizing the Intersection of Race and Sex.” She needed a word to describe the lives of black women who were discriminated against because of both their race and their sex. Their experiences were fundamentally different from those of black men, who were privileged to the extent that they were men, and from those of white women, who were privileged to the extent that they were white.

“Discrimination, like traffic through an intersection, may flow in one direction, and it may flow in another,” wrote Crenshaw. “If an accident happens in an intersection, it can be caused by cars traveling from any number of directions and, sometimes, from all of them. Similarly, if a Black woman is harmed because she is in the intersection, her injury could result from sex discrimination or race discrimination.”

Crenshaw got the idea from a 1976 federal district court case, DeGraffenreid v. General Motors, in which five black women had sued the auto giant. They argued that G.M.’s policy of laying off the most recently hired employees violated Title VII of the 1964 Civil Rights Act, which prohibits both racial and gender-based discrimination. Since it had been only a little more than a decade since the law had begun requiring G.M. to hire black and female employees, the most recent hires tended to be black women, the plaintiffs argued.

But the court determined that black women enjoyed no special protection under the law—the employees were protected from racial discrimination and gender-based discrimination, but not from the combined effects of these two categories. “The plaintiffs are clearly entitled to a remedy if they have been discriminated against,” wrote the court. “However, they should not be allowed to combine statutory remedies to create a new ‘super-remedy’ which would give them relief beyond what the drafters of the relevant statutes intended.”

DeGraffenreid v. General Motors was Crenshaw’s lightbulb moment. Black women lived in the midst of two kinds of discrimination—racism and sexism—and thus languished under an oppressive force greater than the sum of its parts.

“What Kimberlé is saying with intersectionality is that, in order to understand how power operates, you have to understand how people live their lives,” says Alicia Garza, an activist and co-founder of the Black Lives Matter movement. “Intersectionality is the very basic notion that we live multiple experiences at once. It’s not just, ‘Oh, I’m black and I’m a woman and I’m a black woman.’ It’s to say that I’m uniquely discriminated against. I uniquely experience oppression based on standing at the intersection of race and gender.”

Though Crenshaw came up with the term, the concept itself predates her. As far back as 1892, the black feminist Anna Julia Cooper had criticized leading anti-racists for failing to advance the cause of black women. “Only the black woman can say when and where I enter, in the quiet undisputed dignity of my womanhood.…Then and there the whole race enters with me,” she wrote in A Voice From the South.

For the Boston-based black feminist lesbian organization known as the Combahee River Collective, which existed in the 1970s and early ’80s, “simultaneity” was the word used to describe the cumulative impact of the various oppressions they experienced. Their manifesto called not just for the abolition of racism and sexism but for “the destruction of the political-economic systems of capitalism and imperialism as well.” Avowed enmity toward all the various -isms: This is the strategy required by the intellectual framework that became known as intersectionality.

Patricia Hill Collins, a professor of sociology at the University of Maryland, expanded upon Crenshaw’s work, publishing Black Feminist Thought: Knowledge, Consciousness, and the Politics of Empowerment in 1990. Taking a cue from Crenshaw, she used the term intersectionality to refer to the interlocking matrices of oppression that serve to marginalize people. Initially focused on race and gender, Collins gave additional consideration to class as a matrix in her 1992 book Race, Class and Gender: An Anthology. Later, she would add sexual orientation to the mix. “Intersectional paradigms view race, class, gender, sexuality, ethnicity, and age, among others, as mutually constructing systems of power,” she wrote in 2004’s Black Sexual Politics. “Because these systems permeate all social relations, untangling their effects in any given situation or for any given population remains difficult.”

That’s quite the understatement, since every new addition to the list of interrelated oppressions makes the task even more cumbersome. There are more of these categories than most people might imagine, and every year, intellectual peers of Crenshaw and Collins propose new ones. Meanwhile, intersectionality has become a ubiquitous force on college campuses, where young people are taught to perceive all social issues through the lens of interrelated oppression and to find more grievances to add to the pile. Those who grasp the truth of intersectionality are said to be “woke,” slang that describes someone who has awakened to the reality of their own privilege and adopted a progressive worldview.

The spread of intersectionality poses some problems for the left, since the theory divides people as often as it unites them. In recent years, Hulu’s The Handmaid’s Tale, a prestige drama based on feminist author Margaret Atwood’s beloved novel, became mandatory #Resistance viewing for its depiction of an oppressive society where women have been enslaved by theocratic authoritarians—a future toward which Trump’s America is hurtling, according to many on the left. But the second seasonwhich debuted in 2018, drew criticism: The show was accused of a “failure of intersectionality” because it never grappled with racism, only sexism. “This is a show all about gender—it is built entirely around that concept—but until The Handmaid’s Tale learns to make its feminism intersectional, it’s going to keep letting its audience down,” commented BuzzFeed TV writer Louis Peitzman.

In the years since Crenshaw introduced the term, intersectionality has broadened in both scope (that is, more kinds of oppression have been identified) and reach (more people are aware of the concept and what it implies).

The academy loves intersectionality, and the theory’s popularity has soared in sociology, psychology, English, philosophy, history, and other social science and humanities departments. Indeed, more and more universities have created entire academic wings dedicated to studying specific kinds of oppression and explaining how they relate to others. Thus the rise of women’s studies, African American studies, Hispanic studies, Asian studies, queer studies, and more.

What began at the intersection of race and sex now includes economic class, gender identity (the gender category to which a person feels attachment, which may be different from the person’s biological sex), gender expression (the way a person looks and behaves), sexual orientation, immigration status, disability status, age, religious belief (though certain believers—such as Muslims—are perceived as more oppressed than others), and size (whether you are overweight or not).

In practice, intersectionality frequently forces the left to engage in self-cannibalism. Not all victims of oppression get along, since they’re quite often in tension with each other. The intersectional progressive says, in effect: “We must fight racism, and sexism, and homophobia, and transphobia, and the Trump administration’s immigration policies, and the wealthy, and global warming, and anti-Muslim bigotry, and ableism, etc.” There are millions of people, though, who want to fight some of these things but not others—and if intersectionality requires them to commit to every single cause at once, they simply won’t.

Some people might decry racism and sexism without fully understanding or agreeing with the demands of the trans community; indeed, there’s a community of feminists who specifically reject the notion that trans women should be considered women. Other people might want economic equality for the poor but hold socially conservative views on gay rights, or oppose Trump’s harsh treatment of immigrants but feel ambivalent about climate change. Still others might be strident progressives in nearly all respects but dissent from the notion that Muslims deserve space in the club when Jews do not.

That’s not a theoretical example. In modern progressive parlance, Muslims are oppressed and Israel is the oppressor. Thus, anti-Islamic bias is viewed as a source of oppression, while anti-Semitism is frequently ignored—even though Jews tend to be much more politically progressive than Muslims.

There are three main problems with intersectionality: the education problem, the perfection problem, and the coalition problem.

First, the problem of education. One important implication of intersectionality is that the sole authority on an individual’s oppression is the individual in question. White men who are heterosexual and cisgender shouldn’t try to “mansplain” the struggles of black women or people of color: They aren’t oppressed, so they can never understand what it’s like, even if they happen to be extremely progressive or well-educated about left-wing causes.

At the same time, “it’s not my job to educate you” is one of the most frequently recited catchphrases in activist circles. “It is not my responsibility as a marginalized individual to educate you about my experience,” wrote Elan Morgan in a popular Medium post, which provided 21 arguments for why that statement was correct. The feminist news website Everyday Feminism has highlighted the work of YouTuber and transgender activist Kat Blaque, who opined in a video that it is “demeaning and dehumanizing to explain to people of privilege why people like them have historically and currently oppressed people like me.” And in an article for HuffPost, the feminist writer Melanie Hamlett wrote: “Dear Men, It Is Not My Responsibility to Explain Feminism to You.” Doing so, she said, required too much “emotional labor.”

But here we have an obvious issue: Asking people about their oppression—even earnestly, out of a sincere desire to become better educated—is discouraged, and there’s no other way to gain this knowledge, since the oppressed themselves are the only acceptable experts. This makes it frustratingly difficult to have supportive conversations about oppression, let alone tense ones.

The second problem, which follows logically from the first, is the perfection problem. Very few people can grasp with 100 percent accuracy the various requirements of intersectional progressivism, given that they aren’t allowed to interrogate the oppressed, who are the only source of knowledge about their oppression. I once saw this issue explained perfectly in a blog post, written by a woman complaining about all that was required of her. “As an ally, my job is to not impose my own beliefs of what’s ‘right,’ but instead amplify the voices of the oppressed people that I’m trying to be an ally for,” she wrote. “Except that I shouldn’t bug them about educating me, because that’s not what they’re there for. And it’s my duty to talk about the issue of oppression in question, because it’s the job of all of us, rather than the oppressed people, to fix it. Except that when I talk, I shouldn’t be using my privilege to drown out the voices of the oppressed people. Also, I should get everything right, 100% of the time. Including the terminology that the oppressed people in question themselves disagree on.”

Even the most well-intentioned person is bound to slip up. My Facebook feed recently served up a note from someone asking for help finding shelter for a wheelchair-bound neighbor. The immediate reply was this: “The only resource I have for you at the moment is in regards to the words wheelchair bound,” accompanied by a link to a HuffPost article titled “Stop Saying ‘Wheelchair-Bound’ and Other Offensive Terms.” You probably didn’t know wheelchair-bound was offensive terminology—I certainly didn’t—and in any case, you shouldn’t ask someone in a wheelchair what the correct terminology is, because it’s not that person’s job to educate you.

In The Daily Beast, Kristen Lopez described the 2018 Marvel superhero film Ant-Man and the Wasp as “ableist”—that is, disparaging of people with disabilities—for including a character who suffers from chronic pain and is attempting to cure her condition. “Instead of helping Ava find a way to cope [with] (and not necessarily eradicate) her disability, the film seeks to provide a cure.” That’s a bad thing, Lopez wrote, because not all disabled people want to overcome their disability.  Who knew you could run afoul of disability activism by making a movie in which a character who suffers from chronic pain tries to overcome it?

The writer, academic, and activist Fredrik deBoer once described an event he witnessed: “A 33-year-old Hispanic man, an Iraq war veteran who had served three tours and had become an outspoken critic of our presence there, [was] lectured about patriarchy by an affluent 22-year-old white liberal arts college student.” The veteran had committed a crime of the “wheelchair-bound” variety: He had called on other veterans to “man up” and denounce the war. What he could not have known, since he had spent much of his adult life on a battlefield rather than in feminist studies lectures, is that man up is a gendered term and thus unacceptable.

According to deBoer, these incidents frequently result in would-be allies growing disheartened with the cause. Nobody’s perfect—and that’s an issue for intersectionality, since it demands total adherence to all facets of its approach.

The third problem, which grows out of the first two, is the coalition problem: The demands of intersectionality make it extremely difficult to form strategic relationships for the purpose of advancing a single issue.

Take legalizing marijuana, for example. There are a lot of Americans who subscribe to a diverse range of ideologies with some interest in the issue. There are liberals and leftists who think using marijuana is no big deal, there are libertarians who think the government has no right to tell consenting adults what they can put in their own bodies, and there are even some conservatives who think enforcing federal marijuana prohibition is a waste of law enforcement resources and a blow to states’ rights. People from all three of these groups could and should work together to advance the cause, despite their myriad differences on other issues. But intersectionality gets in the way, since the intersectional progressive only wants to work with people who oppose all the various strains of oppression—not just the ones relevant to the narrow issue of marijuana policy.

It’s difficult to imagine that the campaign for gay marriage would have gone as relatively smoothly as it did had intersectionality been as ubiquitous a decade ago as it is today. This was in some sense the last nonintersectional leftist cause: Activists who supported it were extremely disciplined and specifically avoided tying it to other, more fringe issues. Believers in same-sex marriage, in fact, worked tirelessly to bring people on the political right into the movement, stressing that gay couples only wanted legal equality and sought to form the same kinds of family arrangements that social conservatives believe are desirable for society. The marriage equality movement even turned to Ted Olson, a Republican and former solicitor general under President George W. Bush, to represent it in the lawsuit against California’s Proposition 8, which had banned gay marriage in the state.

One of the strongest voices on this issue was Andrew Sullivan, a gay right-of-center writer who made the case for same-sex marriage in a 1989 New Republic article: “Marriage provides an anchor, if an arbitrary and weak one, in the chaos of sex and relationships to which we are all prone,” he wrote. “It provides a mechanism for emotional stability, economic security, and the healthy rearing of the next generation. We rig the law in its favor not because we disparage all forms of relationship other than the nuclear family, but because we recognize that not to promote marriage would be to ask too much of human virtue. In the context of the weakened family’s effect upon the poor, it might also invite social disintegration.”

That’s a fundamentally conservative argument, crafted specifically to appeal to people on the right. And it worked. Support for gay marriage increased from 27 percent in 1996 to 67 percent two decades later. It is now legal everywhere in the United States.

This happy development is in large part due to the work of a coalition that would be impossible to put together in the age of intersectionality. Sullivan and Olson would almost certainly have been chased away by activists refusing to engage with them due to their conservative views on other policy matters.

Contrast the triumph of gay marriage with some examples of the setbacks and infighting that occur within an intersectional framework. During the June 2017 Chicago Pride Parade, organizers asked Laurel Grauer, a Jewish lesbian, to leave. Grauer had dared to carry a flag bearing a rainbow (the symbol of the LGBT community) and the Star of David. She was told her display made people feel unsafe. One might expect everybody who supports equal rights and dignity for LGBT people to be welcome at pride events, but from the standpoint of the organizers, the march was intended to be intersectional—meaning it was both pro-LGBT and “anti-Zionist,” or opposed to the state of Israel’s existence.

For the modern left, Jews are outranked by minority groups whose oppression is considered more serious than, and to some degree at odds with, their own. The incident at the Chicago Pride Parade is not a one-off. Linda Sarsour, an activist and Women’s March leader, has made the dubious claim that anti-Semitism is “different than anti-black racism or Islamophobia because it’s not systemic.”

Sarsour and fellow Women’s March leaders Tamika Mallory and Carmen Perez have drawn criticism for their ties to controversial Nation of Islam leader Louis Farrakhan, who is widely considered to be anti-Semitic. Farrakhan has compared Jewish people to termites and asserted that “powerful Jews are my enemy.” He made the latter remark at a February 2018 rally attended by Mallory, who distanced herself from his rhetoric but would not condemn the man himself—and who was steadfast in her commitment to working with his group.

Or consider an illuminating episode involving the Democratic Socialists of America (DSA), a left-wing group that got a huge boost from Bernie Sanders’ 2016 presidential campaign. In January 2018, the DSA tweeted that it would be unveiling its Medicare for All campaign, an effort to extend the national health insurance program to everyone in the country.

This was an unsurprising development—empowering the government to provide more comprehensive health care coverage is a fairly standard goal of liberal activists, not just the far left. More surprising was the furious blowback the DSA received from many of its own members who identified as disabled. The DSA’s Medicare for All committee had apparently failed to consult the Disability Working Group about the campaign’s rollout, which led the latter to protest that they were being excluded from relevant decision making. Since disabled people are especially affected by health care policy, the Medicare for All group had essentially failed to let disabled people be the experts on their own oppression—an intersectionality no-no.

Amber A’Lee Frost, a Medicare for All proponent and prominent DSA member known for co-hosting the left-wing Chapo Trap House podcast, hit back, accusing her critics of trying to sabotage the movement with their “pathological anti-social behavior.” This made matters much worse: The comment was perceived as an attack on the autistic community.

Frost had committed ableism. Several dozen DSA members signed a petition demanding that she “immediately remove herself from any involvement, official or unofficial, with DSA’s Medicare for All campaign, and should she not, that she be removed.” This was necessary, because intersectionality means casting suspicion on organizing efforts if these efforts do not make the marginalized the center of attention.

College campuses, where the grievances are significant but the stakes are low, play host to some of the most farcical examples of intersectionality-induced bickering. A particularly revelatory crisis emerged at Evergreen State College in Washington during the spring 2017 semester.

Every year, activists there organized a Day of Action during which students of color would deliberately leave campus as a means of protest against racism. But in 2017, the activists decided to try something new: They would ask students of color to remain and white people to leave.

This tactic didn’t sit well with Bret Weinstein, a biology professor at Evergreen. Weinstein was a progressive—he had supported Sanders over Hillary Clinton the year before—and sympathized with the activists’ goals, but he felt that the new plan for the Day of Action was unsound. “There is a huge difference between a group or coalition deciding to voluntarily absent themselves from a shared space in order to highlight their vital and under-appreciated roles, and a group or coalition encouraging another group to go away,” Weinstein told an administrator. The latter, he contended, “is a show of force, and an act of oppression in and of itself.”

In response, activists surrounded Weinstein outside his classroom and accused him of being a racist. “This is not a discussion!” they told him. A student named Hadley later told Vice correspondent Michael Moynihan that her message to Weinstein was: “You don’t get to spread this problematic rhetoric.”

A subsequent dialogue between the activist students and college President George Bridges similarly spiraled out of control. During the meeting, activist students repeatedly belittled Bridges, a meek, bow-tie-wearing white man, even instructing him to keep his hands at his sides and stop pointing at people. “Fuck you, George!” one student said. “We don’t want to hear a goddamn thing you have to say.” When Bridges asked the students to let him leave the room so he could use the lavatory, they told him to hold it.

Hadley would tell Moynihan that Weinstein should go be a “racist and a piece of shit” somewhere else. The campus police said they could no longer guarantee the professor’s safety on campus, and he eventually resigned.

Each of these examples shows how activists who worship at the altar of intersectionality felt compelled to turn on people for committing venial sins. It’s not enough to share the intersectional progressives’ goals relating to a specific issue: One must also support their tactics, know their language intuitively, defer to the wisdom of the oppressed without either speaking on their behalf or expecting them to speak for themselves, and commit to every other interrelated cause.

The intersectional approach often seems petty and performative. The symbol of the gay rights movement, the rainbow flag, was designed by activist Gilbert Baker in 1978. Its colors were pink, red, orange, yellow, green, turquoise, indigo, and violet, which he said represented sex, life, healing, sunlight, nature, magic, serenity, and spirit. In 2017, Philadelphia debuted a new rainbow flag to celebrate Pride Month—this one including brown and black stripes, in recognition of people of color.

Many members of the LGBT community—particularly younger ones, according to BuzzFeed—liked the new intersectional flag, which takes a stand against homophobia and racism. But many older LGBT activists were confused, since none of the original colors reflected ethnicity at all. Will the flag eventually have to add stripes for Latinos, Asians, and Native Americans? What about the disabled community and those who languish under the oppression of sizeism?

The thinkers who first defined intersectionality probably hoped that by linking all kinds of oppression together, they could force people to fight against a wider swath of bad things. The University of Maryland’s Collins hinted at this when she wrote that “many African Americans deny the existence of sexism, or see it as a secondary concern that is best addressed when the more pressing problem of racism has been solved. But if racism and sexism are deeply intertwined, racism can never be solved without seeing and challenging sexism.” Collins wanted to tie the problems together so that everybody fighting one would have to fight the other, too.

But the more -isms added to the pile, the more tenuous this approach becomes. It’s all well and good to say that sexism is as pervasive a problem as racism, but the intersectional activist of 2019 is reaching much further and making many more demands. From the standpoint of this movement, a woman marching against the Republican Party, against police brutality, against war, against sexual violence, and for Israel’s existence is not an ally or potential ally: She is an enemy. She is part of the problem. She has failed the test of intersectionality. She is not, as the poet Elisa Chavez put it, “intersectional as fuck.” She might as well have voted for Trump.

A hopelessly divided opposition movement that cannot resist cannibalizing itself over intersectionality-induced disagreements is not going to be very effective. In fact, it’s probably a good recipe for the continued political dominance of the Trump coalition.

Adapted from Panic Attack: Young Radicals in the Age of Trump by permission of All Points Books/St. Martin’s Press.

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Qualified Immunity Is an Unqualified Disgrace 

In 2014, a Colorado social worker allegedly strip-searched and photographed a 4-year-old girl without a warrant. The mother sued on behalf of her traumatized daughter, but the two courts that subsequently dismissed the case never ruled on whether the girl’s Fourth Amendment rights were violated.

Instead, a U.S. district court and the 10th Circuit Court of Appeals ruled that the caseworker was shielded from the lawsuit by the doctrine of “qualified immunity,” which essentially allows public officials to violate a constitutional right as long as the right has not yet been clearly established in the courts. Reason Foundation (the nonprofit that publishes this magazine), the Cato Institute, and the American Civil Liberties Union (ACLU) have now filed petitions asking the Supreme Court to review the current standard for qualified immunity.

The ACLU’s petition is on behalf of Alexander Baxter, a Nashville man who was bitten by a police dog while he had his hands in the air, surrendering. Baxter sued, alleging excessive force, but the 6th Circuit Court of Appeals ruled in 2018 that it wasn’t clear using a police dog to apprehend him while his hands were raised was unconstitutional.

Judges of all stripes have assailed qualified immunity. Justice Clarence Thomas wrote in 2017 that the doctrine should be revisited, while Justice Sonia Sotomayor has bemoaned its effects on lawsuits over police misconduct.

U.S. Circuit Judge Don Willett, who was reportedly on President Donald Trump’s shortlist for the Supreme Court, wrote in a 2018 decision that “to some observers, qualified immunity smacks of unqualified impunity, letting public officials duck consequences for bad behavior—no matter how palpably unreasonable—as long as they were the first to behave badly.”

In 2017, the 4th Circuit Court of Appeals overturned a lower court’s ruling that granted qualified immunity to a police officer who obtained not one but two warrants to take naked pictures of a 17-year-old boy suspected of sending sexually explicit photos to his 15-year-old girlfriend. The officer then allegedly forced the teen to masturbate in front of him so he could get a picture of his erect penis.

“A reasonable police officer would have known that attempting to obtain a photograph of a minor child’s erect penis, by ordering the child to masturbate in the presence of others, would unlawfully invade the child’s right of privacy under the Fourth Amendment,” the court wrote.

Under qualified immunity, state actors can get away with almost anything. There’s nothing constitutional about that.

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Qualified Immunity Is an Unqualified Disgrace 

In 2014, a Colorado social worker allegedly strip-searched and photographed a 4-year-old girl without a warrant. The mother sued on behalf of her traumatized daughter, but the two courts that subsequently dismissed the case never ruled on whether the girl’s Fourth Amendment rights were violated.

Instead, a U.S. district court and the 10th Circuit Court of Appeals ruled that the caseworker was shielded from the lawsuit by the doctrine of “qualified immunity,” which essentially allows public officials to violate a constitutional right as long as the right has not yet been clearly established in the courts. Reason Foundation (the nonprofit that publishes this magazine), the Cato Institute, and the American Civil Liberties Union (ACLU) have now filed petitions asking the Supreme Court to review the current standard for qualified immunity.

The ACLU’s petition is on behalf of Alexander Baxter, a Nashville man who was bitten by a police dog while he had his hands in the air, surrendering. Baxter sued, alleging excessive force, but the 6th Circuit Court of Appeals ruled in 2018 that it wasn’t clear using a police dog to apprehend him while his hands were raised was unconstitutional.

Judges of all stripes have assailed qualified immunity. Justice Clarence Thomas wrote in 2017 that the doctrine should be revisited, while Justice Sonia Sotomayor has bemoaned its effects on lawsuits over police misconduct.

U.S. Circuit Judge Don Willett, who was reportedly on President Donald Trump’s shortlist for the Supreme Court, wrote in a 2018 decision that “to some observers, qualified immunity smacks of unqualified impunity, letting public officials duck consequences for bad behavior—no matter how palpably unreasonable—as long as they were the first to behave badly.”

In 2017, the 4th Circuit Court of Appeals overturned a lower court’s ruling that granted qualified immunity to a police officer who obtained not one but two warrants to take naked pictures of a 17-year-old boy suspected of sending sexually explicit photos to his 15-year-old girlfriend. The officer then allegedly forced the teen to masturbate in front of him so he could get a picture of his erect penis.

“A reasonable police officer would have known that attempting to obtain a photograph of a minor child’s erect penis, by ordering the child to masturbate in the presence of others, would unlawfully invade the child’s right of privacy under the Fourth Amendment,” the court wrote.

Under qualified immunity, state actors can get away with almost anything. There’s nothing constitutional about that.

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Brickbat: Looking at the Evidence

When Jennifer Seavers had to take a drug test as part of a custody proceeding, she used the Alabama Department of Human Resources’ local vendor. She says she was stunned when the test came back positive. Because of the test, a judge limited her access to her children. Seavers and her family started looking into it. She said the doctor who approved the test said he’d never seen her reports. Now, the Ozark Police have arrested the woman who ran the lab that did the tests, Brandy Murrah, on charges of forgery and officials are looking to see if  the lab falsified other drug or paternity tests.

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Brickbat: Looking at the Evidence

When Jennifer Seavers had to take a drug test as part of a custody proceeding, she used the Alabama Department of Human Resources’ local vendor. She says she was stunned when the test came back positive. Because of the test, a judge limited her access to her children. Seavers and her family started looking into it. She said the doctor who approved the test said he’d never seen her reports. Now, the Ozark Police have arrested the woman who ran the lab that did the tests, Brandy Murrah, on charges of forgery and officials are looking to see if  the lab falsified other drug or paternity tests.

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Appellate Court Upholds Constitutionality of Federal Hate Crimes Act Conviction Based on the Commerce Clause

The US Court of Appeals for the Fourth Circuit recently issued a notable  decision upholding the constitutionality of a federal Hate Crimes Act prosecution, by concluding that Congress’ power to regulate interstate commerce gives it the power to ban the conduct in question. In United States v. Hill, the court issued a divided 2-1 ruling overturning a district court decision that invalidated the conviction of an Amazon employee who assaulted a gay co-worker out of homophobic motives.

The decision is a complicated one. Both the majority opinion by Judge James Wynn and the dissent by Judge G. Steven Agee do an excellent job of outlining their respective positions and trying to ground them in the Supreme Court’s Commerce Clause jurisprudence. If you really want to understand all the back and forth arguments, there is no substitute for reading both opinions in full. In this post, I will briefly outline the key issues at stake, and explain why I think the majority opinion sets a problematic precedent.

Homophobic assaults and other hate crimes deserve severe punishment. Perhaps hate crimes should even be punished more severely than otherwise similar “ordinary” violent crime. But, in most situations, the Constitution leaves that task to the states, not the federal government.

Hill assaulted the victim while the two were on the job. He was convicted under Section 249(a)(2)(B)(iv)(II) of the 2009 federal Hate Crimes Prevention Act, which criminalizes bias-motivated assaults (in this case an assault motivated by homophobia) in situations where assault “interferes with commercial or other economic activity in which the victim is engaged at the time of the conduct.”

Before considering the decision, it’s worth noting two constraints on its analysis. First, for procedural reasons, the court did not address the argument that the Hate Crimes Act is  unconstitutional as a whole; it only considered Hill’s claim that it was unconstitutional “as applied” to his specific conduct. Second, the government argued only that this provision of the Act is a permissible exercise of Congress’ Commerce Clause powers. It did not claim that it was also authorized by Congress’ powers under the Thirteenth Amendment (which gives Congress the power to enact laws to suppress “slavery” and “involuntary servitude”). Several court decisions have upheld other parts of the Hate Crimes Act under the Thirteenth Amendment (in cases dealing with racially motivated violence, rather than homophobic attacks). I critique this sort of reasoning here.

In cases such as United States v. Lopez and United States v. Morrison, the Supreme Court ruled that the Commerce Clause gives Congress the power to regulate almost any “economic activity” as long as it had some substantial “aggregate” effect on interstate commerce. But it also emphasized the need to limit federal power under the Clause, so that it would not turn into an unconstrained general “police power,” and noted that, at least as a general rule, Congress cannot use the Commerce Clause to regulate “noneconomic” activity merely because it had an aggregate effect on interstate commerce. Otherwise, Congress would have the power to restrict almost any activity, as virtually anything we do affects interstate commerce in some way (especially in combination with similar behavior by others).

In this case, both the majority and dissent recognize that Hill’s assault was not “economic” activity in and of itself. It was not an economic transaction, nor did he have any kind of economic motive for his actions.

Nonetheless, the majority concludes that the prosecution falls within the commerce power for two main reasons. The first is that the relevant section of the Hate Crimes Act does not permit prosecution of any and all assaults that might affect the economy, but only those that  “interfere with commercial or other economic activity in which the victim engaged at the time of the conduct.” This, Judge Wynn argues, provides a limiting principle that prevents this part of the Hate Crimes Act from morphing into a justification for unconstrained federal power: “For example, if Defendant had assaulted [the victim] Tibbs  at a private residence while Tibbs was not engaged in activity related to interstate commerce, then Defendant would not be subject to prosecution under the Hate Crimes Act.”

Judge Wynn’s second major point is that what matters is not the nature of the defendant’s act, but its effect on interstate commerce:

[I]t is irrelevant that a bias-motivated “punch in the face” is non-economic, standing alone…. It is not the violent act itself, or the motivation behind that act, that triggers Congress’s regulatory authority under the Commerce Clause, but the effect of that act on interstate commerce that renders it susceptible to federal regulation.

In my view, Judge Wynn’s second argument undercuts his first. If what matters is the “effect” on commerce, and not either the motivation or the inherent nature of the defendant’s actions, then the logic cannot be limited to cases where the defendant has disrupted “commercial or other economic activity in which the victim engaged at the time.” Even if the victim was indeed just sitting at home and not doing anything “economic,” an assault on him could have an impact on commerce. After all, the injured victim might end up buying fewer (or more) products in interstate commerce as a result. Even if that doesn’t happen in any given case, it is surely true if we aggregate the impact of all similar assaults.

And Judge Wynn’s logic requires us to do just that. That is how he gets around the fact that the evidence indicates that this particular attack had no effect on commerce, because  it did not in any way reduce the productivity of the Amazon facility where it took place.

For this reason, I agree with Judge Agee’s dissent, where he points out that “[t]his unauthorized Commerce Clause expansion would result in a host of problems including the federalization of commercial property, the regulation of all aspects of employment and workplace conduct, and even the home, should individuals be engaged in work while there.” Indeed, the majority’s reasoning might even allow Congress to regulate activities in the home even in situations where the person in question does not “engage in work while there.” After all, such activities still often have an aggregate effect on interstate commerce.

If, for example, I engage in a “couch potato” lifestyle at home, that might reduce my productivity at work, and in turn reduce the quantity or quality of interstate commerce. The aggregate commercial impact of such behavior may well be at least as great as that of bias-motivated crimes.

This flaw in the majority’s logic explains why there is good reason to decry the Fourth Circuit’s decision even if we sympathize with the objectives of the Hate Crimes Act (as I do). In the short run, it may make little difference whether the likes of Hill are prosecuted in federal or state court. If found guilty, they likely deserve what they get.

But the same logic that allows this prosecution, could also justify federal regulation of almost any activity that might have an aggregate impact on interstate commerce. Among other things, it would surely justify the proposed Protect And Serve Act, which would make it a federal hate crime to assault a police officer, thereby creating dangers for civil liberties. Liberals who might be tempted to cheer the outcome of this case should consider all the other things the federal government could criminalize using the same legal rationale.

Such an expansion of federal power makes a hash of the constitutional scheme of limited federal power, and can easily be abused. It would also undercut the usefulness of constitutional federalism as a tool for mitigating the conflicts caused by severe political polarization.

In my view, Section 5 of the Fourteenth Amendment does allow Congress to punish some types of hate crimes in situations where state authorities systematically fail to do so, out of reasons of racial, ethnic, or gender bias. In that scenario, the federal law would simply be countering state-government discrimination. This was an all-too-common problem throughout much of American history, particularly in the segregation-era South, where states routinely turned a blind eye to hate crimes committed by whites against African-Americans.

Today, however, few if any states are unwilling to prosecute hate crimes. Indeed, as the Fourth Circuit ruling explains, the Hill case ended up as a federal prosecution only after state prosecutors turned it over the feds. Virginia prosecutors were more than willing to go after Hill for assault and battery. But they preferred a federal case because the Virginia does not have a specialized hate crime law that covers homophobic assaults, like the federal Hate Crimes Act does. They apparently turned the case over to federal prosecutors because Hill could get a stiffer sentence as a result.  Even if you believe that prosecution under a hate crime law is preferable to prosecution for “ordinary” assault, the situation is a far cry from the sort of state-government bias that would justify federal intervention under the Fourteenth Amendment.

If some states do continue to exhibit bias against prosecuting hate crimes against certain groups, the appropriate—and constitutional—response would be a federal law specifically targeting those types of jurisdictions. We should not instead open the door to federal control of a vast range of private activities that in some way affect interstate commerce.

Later decisions could potentially limit the negative impact of Hill. The majority opinion is long and complicated and offers various potential hooks for judges who want to restrict its impact without overruling it. But I don’t think they can coherently do it without imposing constraints on the key elements of Judge Wynn’s reasoning described above.

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