The Hi-Tech Traditionalist: Why Judicial Activism Is Enemy Number One For Western Democracies
A Reminder To The Judiciary, Before It’s Too Late, That They Work For The People
In 1963 I was born in Kiev, the Socialist Republic of the Ukraine, Union of Soviet Socialist Republics. My identification card, issued to me at birth, noted that I was a citizen of the USSR (under citizenship) and that I was a Jew (under nationality). The former was self-evident from the political entity into which I was born (the USSR). The latter was more interesting. Even though I was born in the Ukraine, my nationality was not recorded as “Ukrainian”. Why? Didn’t such a nationality exist? It most certainly did. Most people born in Kiev were of Ukrainian nationality. But not all. There were many Russians, Poles, Tartars, and, yes, Jews. Like me.
Why was this information deemed sufficiently important to merit its own line in my identification card? Because common sense dictated that people of varying nationalities may respond in different ways to certain crises, such as an attack on the USSR by a foreign power. Additionally, they may be subject do different government policies, both “good” and “bad”. Top Russian universities had unofficial Jew quotas and it was difficult for Jews to get admitted. My dad had to leave Kiev and study engineering in the provincial city of Poltava. On the other hand, I owe my very existence to the Soviet policy of discrimination based on national origin. When Nazi Germany invaded the USSR in June of 1941, it became quickly clear that the Germans were exterminating all the Jews in the territories that fell under their control. The USSR then organized voluntary evacuations of Jews from territories that they knew could not be defended to Central Asia, far away from the Nazis’ reach. Both of my grandmothers took advantage of this policy, saving my toddler mom and dad in the process. Had this “discriminatory” policy not been enacted, they would have mostly certainly perished, shot and buried by the Germans. (Both my grandfathers fell in action fighting the Nazis as members of the Red Army).
The second time my life was altered for the better by my registration as a Jew was in 1973, when the USSR, under pressure from the US, agreed to let a limited number of Jews emigrate to Israel, a policy my parents and I took full advantage of. No non-Jewish Soviet citizens could emigrate from the USSR at that time. In Israel, we were immediately granted full citizenship under the Law of Return, guaranteeing that right to all Jews wishing to make Israel their home. Our newly minted ID cards listed us as Israeli citizens, of Jewish nationality and Jewish religion. Israel has citizens of Arab nationality, and Christian Orthodox religion. Or Chechen nationality and Muslim religion. Or Druze nationality and Druze religion. While all Israeli citizens are equal under the law, common sense analysis of Israel’s security needs means that certain national and religious groups, specifically Muslim Arabs, pose a greater security risk than other minority national/religious combinations such as Christian Arabs, Druze, or Chechen (Circassian) Muslims. Unfortunately, this means that they experience longer security checkups at airports, are not invited to serve in the military (and thus do not partake in the benefits extended to veterans), and are prohibited from working for military contractors, to name a few examples. These common sense policies have been upheld by the courts because they are essential to the survival of Israel as a democratic and Jewish state, as mandated in the Israel’s founding document, its Declaration of Independence.
Many Western countries, for reasons that are well understood, must now cope with significant minorities of Muslims from various national and ethnic backgrounds. It is simply a fact of modern existence that a significant number of Muslims undergo radicalization, which them makes them prone to committing acts of horrific violence against innocent civilians. A common sense policy, would have classified Salman Abedi, the perpetrator of the Manchester massacre as a British citizen, a Libyan national, and a Muslim. This classification would be present in his passport, his National Health registry and so on. It could mean, just like in Israel, that he would not be allowed to join the British Armed Forces, or obtain a job in airport security. Would anyone want him to?
But, I hear my opponents say, he was ALREADY on a terror watch list. He merely “fell through the cracks”, just like the Moroccan Muslim in Niece, or the Afghan Muslim in Orlando. To answer this objection, we must revisit President Roosevelt’s decision to confine US citizens of Japanese descent (nationality/ethnicity) to internment camps at the start of WWII and the Korematsu decision by the US Supreme Court, which upheld this action. In America today, both Roosevelt’s executive order and the Supreme Court decision to uphold it are considered by all to have been shamefully wrong, to say the least. They weren’t. This was a common sense measure, taken at a time of global conflict and extreme uncertainty of victory and upheld by a court that understood its responsibility as a co-equal branch of GOVERNMENT. It is easy for our generation, raised as it is on American supremacy and invincibility, to sit in judgement of the Greatest Generation.
Sanctimoniously easy. Imagine that as you turn on your favorite news channel, you hear that North Korea had just destroyed both aircraft carrier groups stationed in the West Pacific with thousands of American lives lost. That it opened a massive artillery barrage on the US forces stationed in South Korea, utterly obliterating all twenty-eight thousand of them. Imagine furthermore that the US is already engaged in an escalating conflict on a second front, for example with Iran, and that hundreds of thousands of US citizens of North Korean descent are concentrated near the Pacific Fleet HQ in San Diego California. Victory is far from certain. A nuclear strike on US soil is imminent. The remaining fleet in San Diego harbor is the only hope. What would you do? Would you, as President, engage in judicial absolutism and refuse to discriminate against US citizens regardless of their origin? Or would you, as Roosevelt did, prefer the safety of tens of millions to the temporary inconveniencing of a few hundred thousand? And what would have happened had the war gone differently? Had the Japanese been able to invade San Francisco Bay as was feared at the time? Would you bet YOUR life on ALL of the US Japanese nationals residing in the area siding with the US over their ancestral homeland?
The UK, according to the news media has twenty-three thousand active Jihadists. Is it possible to confine them to a holding facility in the Outer Hebrides and empanel commissions that would examine each individual case with the presumption of expulsion of that individual from the UK with loss of citizenship unless convinced otherwise by a court-appointed defense attorney? Yes, it is. It would require an act of Parliament and a review by the High Court that would uphold such legislation. Again, I am hearing my opponents. In between screams of rage and extreme name calling, I discern cooler heads telling me that such a thing would never happen. Ah, but it would, I say. In fact, it is easy to imagine. Imagine simply, that the following events happened over a week’s time rather than over a few years: the London Subway bombing (fifty-six dead), the Westminster stabbing/vehicular murder (six dead), Fusilier Lee Rigby’s decapitation attack, and of course the Manchester Massacre (twenty-two dead). Had these utterly non-fictional events been simply committed on a more compressed time scale, the UK would now be on war footing and major actions would have been underway, including those that seem utterly unthinkable to many today.
Finally, a word on that bastion of sanctimonious hypocrisy that is the United States of America and specifically its federal judiciary. As far as I know, the US has never recorded its citizens’ nationality (ethnicity) or religion in its official records. However, discrimination, both affirmative and deleterious, along both of these metrics had always been and still is today a hallmark of American society. Furthermore, such discrimination has been upheld by the highest levels of the judiciary all throughout American history and to the present day. It is a well-known fact that Ivy League schools had caps on Jewish admissions into the 1950’s. I suspect that they have them again today. They fail to publicize them, precisely because of this history and the outcry that such publicity would engender. So they keep it under wraps. Asian Americans, lacking a holocaust and an over-representation in the American mass media, are not so lucky. They are openly discriminated against in Ivy League admissions as compared to other ethnic groups such as African Americans, Hispanics, and Native Americans. This blatant discrimination by race in university admissions was upheld by the Supreme Court as late as LAST YEAR. Only once we remember how determinative, in fact nearly dispositive, is the origin of one’s university degree to one’s future in America, can we ponder the depth of anti-white, anti-Jewish, and anti-Asian discrimination that is currently rampant in America under the veil of constitutionality so conveniently granted to it by the Supreme Court.
Absurdities of course abound, just like in any policy enacted without democratic review or legislative process. If your name is Jonah Goldberg and your mom’s name is Kaye Johnson, you are not Jewish according to Jewish law, which awards (if that’s the right term) Jewishness based on the ethnicity of the mother. But I wouldn’t bother explaining this to Harvard admissions. Lately it’s been reported that Hispanic-Asian “hybrids” are highly sought after by Ivy Leagues. So if your mom is Wang and your dad is Rodriguez – guess what? You’re in! (Assuming you publicized your advantageous ancestry in your admissions essay). If it’s the other way around and your family name is Wang, and assuming that playing identity politics never occurred to you – not so much. This insane racial and ethnic profiling would clearly be the peak of both stupidity and hypocrisy, but, says the American judiciary, hold my gavel. According to its rulings to date, it is completely constitutional to discriminate against peaceful, law-abiding, never belonging to any group that’s likely to do anyone any harm Asian Americans in a way that will negatively impact them forever, BUT it is utterly unconstitutional to discriminate against non US citizens, or even residents, who belong to a group that is known to be extremely dangerous in a way that would inconvenience them for up to three months.
This insanity, this judicial absolutism cum activism with an electorally untested agenda is ripping apart the fabric of American society and putting American lives at risk. The American federal judiciary has forgotten that it is a branch of government and as such is a subject to the real sovereign, the American people, on whose behalf they must render common-sense reviews and interpretations of existing laws and established precedents. If they persist much longer in ignoring the express wishes of the American citizenry and legislating from the bench policies that are at odds with them, if they persist in viewing themselves as divinely ordained to “educate” and “lead” the American electorate, our two hundred and forty one year old experiment in constitutional republicanism will come to an end. Considering America’s might, this is a sobering thought indeed, no matter where on planet Earth you happen to live.