“Ceci n’est pas une décision de reconnaissance”? or, Zivotofsky’s passport to postmodernism via Plessy and Palestine

     The famous Magritte painting of a pipe, La trahison des images (“The Treachery of Images”), better known as Ceci n’est pas une pipe (“This is not a pipe”), only represents a pipe, true, but still causes confusion with its title. On that note, the November 3 oral argument in Zivotofsky v. Kerry(the present author is one of three amici—not to be confused with “Three Amigos”—on Secretary Kerry’s side) had surprising and possibly “postmodern” views of what saying “Israel”, instead of “Jerusalem”, on Israeli-American tween Menachem B. Zivotofsky’s passport would mean. (The oral arg is a little while ago, but the opinion isn't out yet.)
     Some Justices, thankfully, did not wander too far into the realm of fantasy or speculation: Justice Breyer noted, with true judicial restraint, “Now, I’m a judge. I’m not a foreign affairs expert.” However, after Solicitor General Verrilli said that when Congress passed it, Section 214(d) caused trouble and distress among the Palestinians, Chief Justice Roberts fascinatingly opined,

     But that’s partly because the Executive Branch made such a big deal out of it. I mean, they issue a statement saying, this is unconstitutional and all that. They could easily have said, this is no big deal, they’re just letting whoever is born there pick the name they want to put on . . . nothing to see here, move on, and we’re proving that by going ahead and signing it. And over the intervening course, the executive has litigated this. It’s a self-fulfilling prophecy that it’s going to be such a huge deal.

But, epistemologically speaking: how does he know this, and with what greater foreign-affairs expertise than Breyer? Does the Court have its own secret diplomatic corps? (“The Supreme Corps”?) Is the Court really supposed to be sua sponte conjecturing (“fact-finding sans citation”) about foreign affairs, or does that exceed the Court’s limited role in our tri-branched system of government?

     As for Justice Scalia, he stated that what foreign powers think about the issue does not matter. (And Justice Alito said foreigners might either misunderstand, or even exploit, the situation.) However, not needlessly angering other nations is a compellingly important part of American diplomacy. So, if the Executive feels it has a compelling interest in keeping “Jerusalem” on the passport, that counts: a paramount state interest makes Kerry’s argument much more powerful.
     And declaring that any feelings of offense by Middle-Eastern Arabs or Muslims, or American Arabs or Muslims for that matter, are either irrelevant, stupid, dishonest, or the fault of George W. Bush instead of Congress, has an uncomfortable resemblance to the part of Plessy v. Ferguson saying of “the assumption that the enforced separation of the two races stamps the colored race with a badge of inferiority”, that “If this be so, it is not by reason of anything found in the act, but solely because the colored race chooses to put that construction upon it.” But African Americans were not fooled by that nonsense, just as no one should believe that putting “Israel” instead of “Jerusalem” on a passport is anything but a recognition decision, and an insulting one.
     (Or, as Justice Sotomayor pithily put it, concerning putting “Israel” on the passport: “How could you tell me it’s not a lie?”)

     Justice Kennedy, in perhaps a thoughtful attempt at compromise, proffered that “This designation is neither an acknowledgment nor a declaration by the Congress or President of the United States that Jerusalem is within the borders of the State of Israel” would be a saving disclaimer on the passport. But how convincing is this, really? It did not seem to convince the four more liberal justices (three of whom are Jewish, incidentally). One is not sure whom it could credibly convince, since it seems a bit schizophrenic: “This passport recognizes Jerusalem as Israeli, except that it is not recognizing Jerusalem as Israeli.” This is more confusing and less accurate than “Ceci n’est pas une pipe”, by a long shot.
     (“Ceci n’est pas une décision de reconnaissance”—“This is not a recognition decision” —, a would-be Magritte might quip; except that 214(d) caused Palestinian riots in the real world, not unlike the trouble which Justice Kagan noted is going on right now in Jerusalem. This would be like the pipe in Magritte’s painting emitting real smoke, and proving to be a real pipe.)
     This sort of “deconstructionist jurisprudence”, where a text, i.e., “Israel” instead of “Jerusalem”, can mean anything and is untethered by context (and a mere disclaimer does not provide real context), is also arguably in play in another case, King v. Burwell. King revolves around what is basically a glorified typo in the Affordable Care Act, which typo does not explicitly allow for federal insurance subsidies, and is taken out of context as a reason (“excuse”) for ending federal subsidies. But reference to other parts of the Act shows plenty of reason to believe that Congress wanted federal subsidies to occur. Interpreting text without context is vexing indeed. And as Justice Ginsburg noted, the rest of Section 214’s text supports a reading that 214(d) is indeed about recognizing Jerusalem as Israeli.
     (Much of the Zivotofsky briefing, by the way, had an acontextual feel too. Especially in the Petitioner’s briefs, much of which were about long-ago American diplomatic practice studded with names like “Adams” and “Madison”, there was a “Tonight we’re gonna party like it’s 1799” vibe which did not do justice to the era in which we live, an era where Curtiss-Wright still holds sway, and an era with decades of deference to both Democratic and Republican U.S. Presidents re the “international status of Jerusalem” issue.)
     Also, Kennedy is an interesting Justice to offer the solution he did, since, on his Zivotofsky logic, he should have preserved Section 3 of DOMA in United States v. Windsor simply by allowing the Executive Branch to issue a disclaimer whenever Section 3 was implemented to interpret marriage solely as opposite-sex, “This designation is neither an acknowledgment nor a declaration by the Congress or President of the United States that same-sex marriages are inferior to other ones.”

     Overall, the Kennedy “compromise” is too non-credible to be a real compromise at all. A real compromise might, say, be something like declaring that all Jerusalem-born Palestinian-Americans can put “Palestine” on their passports as well, lest the Equal Protection Clause be offended.
     After all, the Chief Justice once said, famously, “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” Then, if followers of his dictum want to be consistent, they should not approve of Section 214(d), since that statutory provision essentially says of an Arab-American born in Jerusalem, “This is not a Palestinian” (thank you René Magritte), in a way that could be considered blatantly bigoted, and may give Jerusalem-born Israeli-Americans a racialized (or national-origin-ized) privilege that may deeply offend the Constitution and the idea of equality and fairness.

     In conclusion: a jurisprudence that outdoes Magritte in terms of postmodern obscurity or evasiveness is not something to be envied. Pretense, even well-meaning pretense, that putting “Israel” on the passport is not a recognition decision, or that it will not rightfully offend many people, or that it does not bring up racialized or quasi-racialized issues of privilege and prejudice, is something the Justices should eschew, not only for the sake of all Americans, whether Israeli-American, Palestinian-American, or otherwise, but also for the sake of “decent respect to the opinions of mankind” in general. The world of nations is not just some colorful painting à la Magritte, but a live, complex, and dangerous reality to be taken seriously and respectfully. One looks forward to the Court taking it seriously and respectfully in Zivotofsky.