Editor's Note
This post is the first in a series that draws together several U.S. historians to consider how anti-Semitism has been studied and theorized in the American past.
Victoria Saker Woeste is a Research Professor at the American Bar Foundation. Dr. Woeste has published on many areas of legal history, including the history of civil rights and hate speech. Her current projects include a study of the Westboro Baptist Church and “an inquiry into the roots of the ‘fake news’ trope in the history of antisemitic propaganda.”
Since the election of Donald Trump and the sharp spike in antisemitic vandalism, violence, and murder, I have been reflecting on American Jewish historiography and the relationship of past antisemitic attitudes to what we are seeing at present. My reflections arise from my training as a legal historian. In my field, most of the work that has been done on the effects of antisemitism pertains to the difficulties Jewish lawyers faced when they sought to join the legal profession and in particular were denied employment or partnership with elite urban law firms beginning in the early part of the twentieth century.[1]
Courtesy of Amazon
In writing Henry Ford’s War on Jews and the Legal Battle Against Hate Speech,[2] I realized that a significant gulf exists between legal history and the history of antisemitism. Apart from the historical study of the legal profession, there is not much work on the impact of antisemitic attitudes on Jews seeking access to justice, which is quite distinct from access to the legal profession. Moreover, since Jerold Auerbach’s pathbreaking study was published in 1976, almost all of the work done on antisemitism in the legal profession has been contributed by sociologists and law professors, not historians.[3] Likewise, in the field of American Jewish history, there seems to be little interest in understanding Jewish lawyers and judges from any perspective other than their Jewishness.[4]
So where might American Jewish history and legal history intersect? Which field bears the potential for transforming the other? What might we learn from this cross-pollination that we wouldn’t gain from other hybrids, such as law and race, or law and gender?
In December, the historian Lila Corwin Berman described what she calls the “present absence” of antisemitism in the historiography of the U.S. and American Jews. This lacuna, she suggests, supports the “progressive narrative of American history.” Antisemitism has moved “inexorably” towards the edges of social consciousness over time, and its eventual eradication is an essential marker of American exceptionalism. She locates this attitude in the work of John Higham, Lucy Dawidowicz, Jonathan Sarna, Hasia Diner, and most American Jewish historians, including herself. I would add Leonard Dinnerstein, the late Leo Ribuffo, Norman Cohn, and Naomi Cohen. Their common commitment to the progressive narrative of U.S. history has led to a dangerous narrowing of the meaning and theory of antisemitism.
The legal history of group libel, what we today call hate speech, is rooted in what we might reasonably include in the “present absence” historiography of antisemitism. Jewish lawyers were at the forefront of protesting antisemitic publications of all kinds: books, plays, newspapers, and advertisements that boasted “no Jews.” The first law to criminalize the distribution of such ads came from the pen of Louis Marshall, the most distinguished lawyer (Jewish or otherwise) of his day. But Marshall himself took a passive approach to eradicating such literature. Rather than bring lawsuits under his new statute or spearhead its enactment in other states or in Congress, he helped advertisers comply with the New York law voluntarily. The law of group libel hit its apogee in 1953, when the Supreme Court upheld the Illinois version of the New York law. But the case did not involve antisemitic speech; it was an anti-black housing leaflet. That the law’s fate was tied to the trajectory of African-American civil rights became even more explicit in New York Times v. Sullivan (1964), which involved an NAACP advertisement.[5] Sullivan all but overruled earlier decisions recognizing group libel, and the long civil rights movement continued its focus on race to the exclusion of religion and gender. These and other groups eventually won inclusion in the new legal regime of civil rights and antidiscrimination. But, in line with the fracture of the black-Jewish coalition that had guided the movement in the first half of the century, the implications of antisemitic discrimination seemed to fall away to nothing at the close of the millennium.
What we are seeing now in politics and in society threatens to upend the neat narrative of “present absence” antisemitic historiography. The resurgence of antisemitic speech, violence, and murder in the age of Trump puts the lie to the idea that antisemitism had all but disappeared and that historians of the American Jewish experience, law, immigration, or politics could safely consign this form of prejudice to the shadows. Advocates of nativism and antisemitism assumed prominent places in Donald Trump’s campaign and presidential administration not just because of Trump’s own prejudice. Rather, they harvested the strains of antisemitic attitudes that had never disappeared from conservative politics; the language of antisemitism, long coded and disguised, dropped the niceties and resumed the age-old slogans and conspiracy theories. The “fake news” trope that Trump has deployed to unmoor voters from facts, critical reporting, and history is itself rooted in nineteenth-century European antisemitic propaganda.
A long and leather-tough genealogy links “fake news” to the Protocols of the Elders of Zion, Henry Ford’s The International Jew, post-war American conservatism, and the rise of the alt-right. They all share the worldview that rejects enlightenment epistemology, opposes progressive historicism, and harbors a deep disenchantment for the liberal state and, by implication, for constitutional recognition of racial and religious equality.
The present-day instantiation of white nationalism challenges the canonical idea, born of twentieth-century legal liberalism, that speech operates in a marketplace of ideas and that the best, indeed, only answer to speech we hate is speech we believe in. Can historians of antisemitism likewise tear themselves from the progressive narrative of American exceptionalism?
Notes
[1] See, e.g., Jerold Auerbach, Unequal Justice: Lawyers and Social Change in Modern America (New York: Oxford University Press, 1976).
[2] Stanford University Press, 2012.
[3] See, e.g., Ari Mermelstein, Victoria Woeste, Ethan Zadoff, and Marc Galanter, eds. Jews and the Law (New Orleans, Louisiana: Quid Pro Books, 2014); the work of John Heinz and his collaborators on the Chicago bar.
[4] Melvin I. Urofsky, Louis D. Brandeis: A Life (New York: Pantheon Books, 2009).
[5] Beauharnais v. Illinois, 343 U.S. 250 (1952); New York Times v. Sullivan, 376 U.S. 254 (1964).
4 Thoughts on this Post
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Thanks for this, Vicky! Fantastic.
On an intellectual-critical note, I think I want to resist the disappear/appear, or gone/present, binary for all forms of racism and ethnocentrism. I am most interested in the question of what causes flare-ups of always-existing-but-subdued forms of discrimination and hate. Also what causes a steady state of low-level forms of these problems to persist, without notice by observers and thinking classes.
I don’t believe, for instance, that there has ever been a time where antisemitism (or is it anti-Semitism?) has been stamped out or eradicated. And I wouldn’t believe it if asserted by any historian, anywhere. It seems foolish for any thinking historian, in the past or present, to argue for such a thing. Is it American exceptionalism or simply neglect on the topic? If neglected, is it a question of mentorship and academic priorities, or funding, or concerns about the lack of audience in relation to more numerically prominent kinds of discrimination (e.g., versus blacks).
Anyway, thanks again for this post. I’m glad we’re hosting a roundtable on this topic. – TL
Thanks for the post; interesting. I think your point about the long roots of the “fake news” trope is esp. well taken.
I haven’t taken the time to click on Lila C. Berman’s essay, but the post leaves me wondering exactly what is meant here by “the progressive narrative of U.S. history.”
If — and I emphasize the word “if” — the “progressive narrative of U.S. history” means, in this context, that overt, legally sanctioned forms of discrimination in the U.S. based on religion, race, gender, ethnicity, and other similar categories have, on the whole, declined over time, then I think a case can be made that that narrative is accurate. That does *not* mean, of course, that racism, sexism, antisemitism, and other forms of prejudice ever disappeared — they didn’t, nor did their effects — but that their expression in daily life and behavior and in legal codes was less onerous and visible and oppressive in, say, 1985 than it was in, say, 1925 seems somewhat hard to deny. I’m not particularly well-versed in the historiography of antisemitism in the U.S., so I don’t feel comfortable taking further issue, or indeed taking any strong issue, with Lila Berman’s essay, especially since I’m only going on the summary of it in the post.
But I do think that the present visibility of white nationalism, antisemitism etc. that has accompanied the phenomenon (or is phenomena, plural?) of Trumpism, plus the fairly recent sharp rightward turn of the federal courts, and the Supreme Court in particular, can lead one to lose sight of the fact that some progress *was* made over the course of the twentieth century, and, w.r.t. race, especially after — if one wants to take a semi-arbitrary marker — the year 1965, which was the year of the Voting Rights Act and also *roughly* the time when the Brown decision finally began to be enforced in the deep South, approx. ten years after it was handed down in 1954.
It may be worth remembering that when O.W. Holmes Jr., probably still the most famous single judge in the modern history of the U.S., was appointed to the Sup Ct by Theodore Roosevelt in 1902 (I think it was), racism and Social Darwinism — and antisemitism — were attitudes openly and explicitly embraced by wide swaths of the U.S. political elites (or ruling classes, if you prefer that phrase). Holmes himself wrote an opinion (I was reminded of this recently in dipping again into Sheldon Novick’s biography of Holmes, a book I read years ago and of which I’d forgotten many or most of the details) — an opinion saying in essence that the state of Alabama was free to disenfranchise most of its black electorate via literacy tests and other devices and the federal government couldn’t do anything about it.
If you take that Holmes opinion from the early part of the 20th century and then go to the mid-1940s, when the Sup Ct struck down a whites-only primary in Texas, and then on to the school desegregation cases starting in the 50s, there does appear to have been some progress up through the landmark legislation of the mid-60s and its implementation in the ’70s. As Robert Mickey has argued, the U.S. can claim to have been a functioning democracy w.r.t. all its citizens only since the implementation of the Voting Rights Act in the ’70s — but that was preceded by a long, incremental process of change through the courts and the legislatures.
I realize this has strayed a bit off topic (insofar as that phrase is even applicable), but I think it’s occasionally important to remind oneself that, whether one wants to call it a “progressive narrative of U.S. history” or not, there has been slow change over time, and that, notwithstanding all the persisting systemic injustices and inequalities, it was, ceteris paribus, better for virtually any member of a minority group to have been born in the U.S. in 1970 than in 1910, let alone 1870.
P.s. I realize it is not necessarily all that fashionable to say the above, even in a hedged way, but since blog comments are supposed to be for discussion, and not simply for agreement, I thought I would throw it out there.
P.p.s. A small factual note: I don’t think Leo Ribuffo was Jewish, so I think his name is out of place in the list of American Jewish historians in the fourth paragraph of the post.
Hi Louis,
I think that the narrative arc you sketch is what Lila had in mind. When she publishes that paper, I’ll be sure to publicize the link.
I don’t know if Ribuffo was Jewish or not, but he certainly wrote about Jewish history and American antisemitism, and that’s what I mean to be talking about.
And Tim, thanks for your comments and nice words. I too reject the binary formulation of here today, gone tomorrow, but no doubt did not write as elegantly as I should have. I think of prejudice, racism, and all forms of disparate attitudes towards others as like a giant thistle in the garden. You can yank, you can cut it off, you can pull as hard as you can, but the last few inches of the damned tap root just will not come out of the soil, and soon they’ve regenerated another bush of prickles and weed, to self-propagate at its pleasure unless we keep hacking away at it.
As for the rumored disappearance of antisemitism, that’s wishful thinking. Yesterday some idiot read from Mein Kampf on the floor of the U.S. Congress. We may be more aware of it now–we see headstones tipped over and swastikas painted on synagogues with apparent impunity (though arrests have been made in several such cases here in Indiana in the past year)–but it never goes away. What intrigues me about Lila’s project is the way she captures historiographically the phenomenon of apparent disappearance. I suppose she does hold some historians responsible for fostering the attitude that it’s possible to eradicate some forms of racism. Compared to African-Americans, Jews have fared far better in achieving degrees of inclusion across social, professional, political, etc. sectors. I hope someone will use this moment as inspiration to go back and look at why the famed coalition between blacks and Jews fell apart and, more importantly, why so little has been done to bring them back into a united front.
Thanks to you both for this conversation.
I think the late Leonard Dinnerstein was different than the other historians you mentioned. Dinnerstein was one of the few scholars who emphasized antisemitism as an important factor in American Jewish history. He also traced American antisemitism primarily to Christianity, as opposed to economic and nativist causes, like Higham and others. I think Dinnerstein, though a brilliant scholar, was mistaken on both of these counts, and agree with the consensus position. I like to quote Stephen Whitfield, who called antisemitism in America a case where “the dog didn’t bark.”
I think antisemitism in America is minimized because of the enormity of the Holocaust. So it is probably more significant than the consensus American Jewish historians (myself included) have believed.