Month: March 2020

3/3/2019: Schenck v. United States decided.

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Arizona State University’s School of Civic and Economic Thought and Leadership held a two-day conference on nationalism last weekend. I was invited to speak on a panel titled “American Citizenship in a Global Context: Rootedness and Globalism,” along with Baylor College’s Ann Ward and the Claremont Institute’s Christopher Caldwell.

What follows is an expanded and revised version of my remarks:

Does America need a project of nationalism to make Americans feel more American? More specifically, can nationalism offer a way to foster social cohesion in an increasingly polarized country and globalized world?

Not to give away the punch line, but the short answer is “no.” In this, I am sharply diverging from the emerging consensus on the center-right represented here yesterday by Rich Lowry and on this panel by Chris Caldwell. But with all due respect to them, a top-down program of nationalist engineering to unite the country will, I fear, backfire badly, pouring gasoline on the fires of polarization. It’ll also force Americans, paradoxically, to turn their back on the one true source of their rootedness: their founding principles of equality, individual rights, and human dignity—universal principles that unify them not just with each other but with the rest of humanity. Their country is an instantiation of universal principles, which makes it possible for Americans to be both citizens of their country and citizens of the world without any inner conflict.

But before I get into why a program of nationalism is undesirable and unworkable, let me push back on the premise of this panel and perhaps conference and say why it is also unnecessary. It is unnecessary because if you look past screechy liberal activists, Americans are preternaturally inclined to not just love but more importantly like their country.

I came to the United States from India some 30 years ago, and I was immediately struck by the same thing that struck a much more illustrious foreigner, Alexis de Tocqueville, about 200 years before me: America is a naturally patriotic country. I remember being intrigued by the open and unselfconscious affection of Americans for their country. To effete European eyes, this might seem corny. But to the eyes of this immigrant from a “shithole country” used to government-sponsored and jingoistic public shows of patriotism, it was really charming to see the display of the American flag outside private homes, the heartfelt rendition and warm reception of the American anthem before every sporting event, and hobby clubs where adults reenact the Revolutionary War and the Civil War dressed in period costumes. On the Fourth of July, every neighborhood association, every city, every municipality arranges its own festivities. No national law is required. No federal funding is demanded. Laredo, Texas, a border town with a 90 percent Hispanic population, has a century-old tradition of holding month-long festivities to celebrate George Washington’s birthday that culminate in a debutante ball where young men and women dress up as figures from the revolutionary period. Last fall, I went to Sharpsburg, Maryland, the site of the Battle of Antietam, the bloodiest battle in this country’s history, in which Union forces eked out a victory that allowed Abraham Lincoln to issue the Emancipation Proclamation. My tour guide, hands down the best I’ve ever had anywhere in my travels, was a retired dentist from Illinois who spends several months every year in the town to conduct these tours, barely making minimum wage no doubt. He does it because he loves that chapter in American history in which his country stood up for its principles.

What is strikingly absent in America, at least until the “Salute to America” that President Donald Trump held in the National Mall last year, is state pomp and circumstance—military parades with soldiers in crisp uniforms smartly saluting political authorities. As Tocqueville observed, American patriotism is very different from the old-fashioned Old World kind that regarded the nation as a father that created its citizens. Americans, by contrast, love their country because as free and productive citizens, they see themselves as its creators. The nation is their offspring, not their father. (Or the result of their actions, not their designs, as F.A. Hayek might have put it.)

Not so in India, where Republic Day celebrations involve a massive parade by various military divisions, complete with fighter planes performing war games in the air, followed by schoolchildren conscripted from all over the country to march in lockstep. Four years ago, after a military skirmish with Pakistan, the Indian Supreme Court issued a ruling mandating that every movie theater begin with a rendition of the national anthem and required every viewer to stand up. “The time has come, the citizens of the country realize that they live in a nation and are duty bound to show respect to the national anthem…[the Constitution] does not allow any different notion, or the perception of individual rights.” This ruling has since been reversed, but such a sentence is unimaginable from the pen even of the most ardently patriotic American jurist. Indeed, far from not allowing any “different notion” or posture toward the national anthem, this country has insisted on letting its beloved symbols be used as vehicles for protests.

Precisely because the understanding in America is that the country exists for the sake of individuals and not individuals for the sake of the country, the First Amendment protects activities like bending the knee during an anthem to protest police brutality, or burning a flag to oppose unnecessary wars. (Also, you won’t see any American reenacting the Vietnam War, a sign that this was a mistake, not a “just war.”) This allows civic activism by oppressed groups and dissidents to alert the country when it is falling short of its professed ideals. Of course, the dissenters and protesters can and do go overboard, but then their cause fails to sway. In short, American nationalism has built-in mechanisms for course correction, which makes the country more worthy of affection.

The other striking thing about American patriotism—and I am using the term interchangeably with nationalism, although there is a valid distinction to be made, as Reason‘s Stephanie Slade recently pointed out—is that it does not define itself against something else. If Pakistan and Islam were to disappear from the face of the Earth tomorrow, there would be nothing left to sustain Indian nationalism. It would be devoid of content, hollowed out. But America’s ideals anchor it. The demise of Communism didn’t diminish America’s ideals-based nationalism. It vindicated it. Indeed, it resulted in a wave of democratization around the world, at least for a while. The Israeli author Yoram Hazony, whose book The Virtue of Nationalism arguably launched the post-Reagan nationalist right in America, makes the remarkable claim that America’s classical liberalism is fundamentally imperialistic because its political principles are deduced from Lockean notions about a universal human nature. That, he says, leads to a crusading moral universalism that denies the validity of alternative principles of national self-determination. But America doesn’t have to try to universalize its ideals—the universe vindicates them on its own. In fact, the one thing that most powerfully undermines American patriotism is misguided warfare aimed at spreading democracy at gunpoint, as in Iraq. I’ll speak more on Hazony later, but suffice it to say for now that America does not have to be like the dragon-riding Daenerys from Game of Thrones, incinerating countries to free them.

None of this is to suggest that pre-Trump America had completely risen above the us-versus-them impulse. But Trump’s campaign to depict Mexicans as “rapists and criminals” and Mexico as a fundamental threat to American sovereignty is perhaps the first attempt in living memory to mount a major presidential campaign around it.

It is terribly unfortunate that instead of rejecting this idea of nationalism, conservatives are straining to put a respectable intellectual foundation beneath it. It is as if they are buying the notion of the conservative German jurist and philosopher Carl Schmitt that the very core of political life requires opposition to “the Other” because polities, even liberal ones, can’t maintain their cohesion on the strength of their own principles. They allegedly need a cultural enemy against which to define themselves.

And what is this new enemy? Mass immigration, especially from non-Western countries. This has become de rigueur in conservative nationalist circles. Germany’s Angela Merkel is out because of her friendliness to Middle Eastern refugees; Hungary’s strongman, Viktor Obran, is in because he is taking draconian steps to wall off his country from even transient refugees in the name of national security and cultural purity. Though I am pro-immigration, I get why others feel that immigration flows have to be carefully managed. But this is something else. This is making opposition to immigration the central pillar of a program of cultural renewal—treating immigrants as the enemies against whom we assert our national sovereignty.

Once you look past the lofty references to Hamilton and Lincoln in Rich Lowry’s book, this antipathy to immigration even makes him flirt with a mild version of blood-and-soil nativism. He argues that “an exclusively idealistic account of America is a mistake” and “the criterion for citizenship in the United States is not attachment to a set of ideas but birth within our borders.” He calls George W. Bush’s statement that “our identity as a nation, unlike other nations, is not determined by geography or ethnicity or soil or blood” a sign of “willful ignorance,” because it denies “the contribution of geography or land to our identity.” Geography, he says, “is our national destiny,” and celebrating the “beauty and bounty of our land in the most exalted terms” ought to inform our understanding of who can be a true American and who can’t. What also matters, he says, is whether our ancestors shed blood for the country and are buried here.

What is Lowry’s project here? He’s trying to articulate a non-racial, non-religious criteria to anchor a thick sense of nationalism that bloodless appeals to abstract individual rights allegedly cannot do. (Tocqueville would be rolling in his grave right now.) He wants to be broadly inclusive of those already in America, but not so inclusive that America has an obligation to anoint as a full American anyone who manages to find his or her way here and agrees to live by American principles. He wants a form of cultural nationalism that makes it more difficult for immigrants to become accepted as Americans. So if America’s principles are not enough to anchor a robust nationalism—and race and religion are off limits because they would run afoul of the constitution—then geography and ancestry are the only candidates for Lowry’s project.

Lowry devotes an entire chapter to immigration in which he offers the standard conservative prescriptions for reform, namely, cut overall immigration levels and let only high-skilled immigrants come in. But that won’t advance his version of ancestral and geographic—or  blood-and-soil—nationalism. Another thing that might be required is something else that’s popular in conservative circles, namely, getting rid of birthright citizenship, which automatically makes any child of immigrants born on American soil an U.S. citizen. Lowry’s America may also need to let fewer immigrants obtain naturalization and make them wait much longer to do so than the current five years after obtaining their green cards. It may have to make them pass some cultural test.

For those of us who see America’s “idealized conception” of citizenship as its greatest strength, there is nothing to be gained by doing something like this. Recent arrivals often have a deeper and more visceral appreciation of America’s founding principles, because they know what its like to live in an unfree, tyrannical country. When some Muslim refugees are asked if they are angry about the rising anti-Muslim bigotry in America that Trump may be fomenting, they say something like, “Hell, no. We love a country where the president can be sued.”

Lowry’s deification of land and ancestry will not just make it harder for such immigrants to be embraced as true Americans; it will also make Americans whose ancestors don’t go back generations feel less American. Once a criterion to judge “outsiders” is established, it will also inevitably become a way of judging “insiders.” Who will these Americans be? Religious minorities who don’t have a long history in this country. A blood-and-soil criterion will become a de facto religious criterion, regardless of whether Lowry intends that.

Will we also start viewing Americans who haven’t undertaken a national pilgrimage from the Grand Canyon to the Shenandoah as less American? How about the Amish, who eschew travel but love America precisely because it leaves them alone to pursue their own quaint ways? Will they be granted space in Lowry’s cultural nationalism? And the Hassids? Would all these groups be turned into second-class citizens or, worse, foreigners in their own land, because they don’t subscribe to Lowry’s version of blood-and-soil nationalism?

What a project like Lowry’s will do is deny individuals and communities their own ways of defining their own relationships with America, of finding their own reasons to love America.

What’s more, if this project is serious it will require state action, even aggression, to make it stick. This means that any attempt to attach it to liberal democratic principles, as Lowry seems to want to do, will destroy these principles.

This is precisely what’s happening in my native land, where Prime Minister Narendra Modi is demonstrating what it takes to convert a liberal democracy into a robust nationalistic one. Hindu extremists were touting a religiously infused blood-and-soil nationalism, or Hindutva, before such a thing became cool in the West. Hindutva believes that the only true citizens of India are those whose holy sites sit on the hallowed Indian soil that gave birth to their religion. This includes Hinduism and its off-shoots—Buddhism, Jainism, Sikhism—but not India’s 140 million Muslim inhabitants, equal to half of the population of the United States. Or its 30 million Christians, equal to the entire population of Canada.

Hindutva makes no bones that its ultimate goal is to purge India of these “foreign” religions and return to the halcyon days when only true Hindus roamed the motherland spanning the Himalayas in the North and the Indian Ocean in the South. To that end, Modi’s home minister announced plans to separate legal from illegal residents by creating a nationwide registry of citizens. Only those among India’s 1.3 billion residents who produce papers showing that they have ancestors dating back to some cutoff year will be included on this list.

The government knows that this will be an impossible task for hundreds of millions of Indians, especially poor ones, many of whom don’t even know their birth dates, let alone keep their grandparents’ birth certificates. So Modi passed a law that non-Muslims who can’t produce documents will be granted amnesty and expedited citizenship. But Muslims who can’t do so will be out of luck, even if they do have ancestors going back generations.

Modi’s nationalistic project provides a clear example of how empowering a government to impose nationalism does not nurture “mutual loyalty” among citizens, as Hazony suggests. Why? Because this state-prescribed nationalism ends up judging citizens not by their loyalty to each other but their loyalty to the state’s aims and methods. In Modi’s India, it is not just Muslims and Christians who are considered less Indian. Hindus who don’t dutifully line up behind Hindutva’s idea of national identity are considered un-Indian. As Modi pushes his Hindu nationalistic agenda, Indians are becoming more divided—the exact opposite of what nationalism is supposed to achieve.

Nor can anyone who embraces Hazony’s nationalistic project consistently condemn what’s happening in India. Why? Because as far as Hazony is concerned, judging nations that are striving to build thick national communities by liberal principles of pluralism is an illicit breach of their right to self-determination. The liberal conception of individual rights and market economics is only one among many legitimate political principles, he believes. Nation-states should be left alone, not just by international organizations threatening sanctions to imperial powers peddling a new world order at gunpoint but even by any diplomacy that smacks of  moral judgments. In the name of localism, Hazony is advocating not non-interventionism but a radical moral relativism where the only standard of right and wrong is what a nation says it is. The obscene spectacle of Trump visiting India and praising Modi as a great defender of religious liberty even as Hindu militants at that very moment were butchering Muslims merely miles away might be in keeping with that spirit.

I came to America in the heyday of the multicultural movement, when the right was up in arms over the postmodern left’s relativism that regarded any effort to judge even Muslim societies that practiced genital mutilation as Western chauvinism. It is breathtaking to now watch the same right talk itself into its own version of moral relativism, which would give the worst atrocities a pass in the name of national self-determination.

To add insult to injury for a classical liberal like me, Hazony enlists in his project the great classical liberal hero John Stuart Mill. Hazony refers to Mill’s thoughts on nationalism in Considerations on Representative Government, where Mill suggests that too much diversity makes representative government difficult because then one faction can make alliances with the government to increase its power over others. So even liberty and limited government require nationalism, says Hazony. Lord Acton vehemently disagreed. He believed that the more diverse a nation, the better, because that prevents the tyranny of the majority. But setting that aside, Hazony is mischaracterizing Mill. Mill certainly believed that “common sympathies” among a people makes the task of governing easier. But he also said that there can be various reasons behind this “fellow feeling”—religion, language, geography, common history, or “identity of political antecedent,” as is the case in America. Indeed, Mill, citing the example of Switzerland, says that it “has a strong sentiment of nationality” even though its cantons are of “different races, different languages, and different religions.” Furthermore, he states if a free nation lacks a natural sense of nationality, one cannot expect it to create one by entrusting the authorities. One of the great advantages of a unified populace is that it is able to limit the power of government, Mill says. But it is putting the cart before the horse to expect that the government, once entrusted with great powers to create national unity, will actually follow through and risk having its own powers limited. More likely it will divide and conquer.

Indeed, any overt program of nationalism will backfire badly, because it will inevitably try to replace Americans’ organic love for “political antecedents” with an entirely new and inorganic principle of American nationalism. Whether it wants to or not, it will empower the government to slice and dice people into in-group and out-group based on some artificial principle, becoming simultaneously more oppressive and more divisive.

Nation-building at home in the name of fostering a strong local identity won’t work any better, and may in fact work worse, than nation-building abroad in the name of a new world order.

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This episode features a lively (and – fair warning – long) interview with Daphne Keller, Director of the Program on Platform Regulation at Stanford University’s Cyber Policy Center. We explore themes from her recent paper on regulation of online speech. It turns out that more or less everyone has an ability to restrict users’ speech online, and pretty much no one has both authority and an interest in fostering free-speech values. The ironies abound: Conservatives may be discriminated against, but so are Black Lives Matter activists. In fact, it looks to me as though any group that doesn’t think it’s the victim of biased content moderation would be well advised to scream as loudly as possible about censorship anyway for fear of losing the victimization sweepstakes.

Feeling a little like a carny at the sideshow, I serve up one solution for biased moderation after another, and Daphne methodically shoots them down. Transparency? None of the companies is willing to allow real transparency, and the government may have a first amendment problem forcing companies to disclose how they make their moderation decisions. Competition law as a way to encourage multiple curators? It might require a “magic” API, and besides, most users like a moderated Internet experience. Regulation? Only if we want to take First Amendment law back to the heyday of broadcast regulation (which is frankly starting to sound pretty good to me).

As a particularly egregious example of foreign governments and platforms ganging up to censor Americans, we touch on the CJEU’s insufferable decision encouraging the export of European defamation law to the US – with an extra margin of algorithmic censorship to keep the platform from any risk of liability. Turns out, that speech suppression regime is not just an end run around the first amendment; it’s protected by the first amendment. I offer to risk my Facebook account to see if that’s already happening.

In the news, FISA follies take center stage, as the March 15 deadline for reauthorizing important counterterrorism authorities draws near. No one has a good solution. Matthew Heiman explains that another kick-the-can scenario remains a live option. And Nick Weaver summarizes the problems that the PCLOB found with the FISA call detail record program. My take: The program failed because it was imposed on NSA by libertarian ideologues who had no idea how it would work in practice and who now want to blame NSA for their own shortsightedness.

Another week, another couple of artificial intelligence ethics codes: The two most recent ones come from DOD and … the Pope? Mark MacCarthy sees a lot to like. I offer my quick and dirty CTRL-F test for whether the codes are serious or flaky, and both fail.

In China news, Matthew covers China’s ever-spreading censorship regime – which now reaches Twitter users whose accounts are blocked by the Great Firewall. We also ask whether and how much the US “name and shame” campaign has actually reduced Chinese cyberespionage. And whether China is stealing tech from universities for the same reason Willie Sutton robbed banks – that’s where the IP is.

Nick recounts with undisguised glee the latest tribulations suffered by Clearview AI’s facial recognition system: Its app has been banned from Android and Apple, and both its customers and its data collection methods have been doxed.

Mark notes the success of threats to boycott Pakistan on the part of Facebook, Google, and Twitter. I wonder if that will simply incentivize Pakistan to drive its social media ecosystem toward the Chinese giants.

Nick gives drug dealers a lesson in how not to store the codes for €53.6 million in Bitcoin; or is it a lesson in what to say to the police if you want that €53.6 million waiting for you when you get out of the clink?

Finally, in a few quick hits, we cover new developments in past stories: It turns out, to the surprise of no one, that removing a police tracking device from your car isn’t theft. West Virginia has apparently recovered from a fit of insanity and now does not plan to allow voting by insecure app. And the FCC is doing a slow striptease in its investigation of mobile carriers for selling customer location data; now we know who’ll be charged (pretty much everyone) and how much it will cost them ($200 million), but we still don’t know the theory or whether the inquiry is going to kill off legitimate uses of location data.

Download the 302nd Episode (mp3).

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California Democratic Assemblyman Evan Low has introduced a bill that would bar retail stores from having separate boys and girls sections for clothing and toys. It would require that all children’s items be sold in a single gender-neutral section and would apply to all stores with 500 or more employees. The law would not apply to adult clothing. A spokeswoman for Low said the 9-year-old daughter of one of Low’s staffers told Low that she didn’t like how boy and girl items were separated and asked him to make a law stopping that.

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