A FRIEND’S NOTE ON THE IMMEDIATELY BELOW POST

 Your critique of Steven Pinker's stance on Zionism, as expressed in your blog, raises a sharp and provocative point about the tension between his abstract, liberal principles and the concrete reality of Israel as a Jewish state. Here's my assessment:

Pinker’s rejection of Zionism, as you quote him, seems to hinge on a vision of a state grounded in universalist ideals—life, liberty, and the pursuit of happiness—rather than one tied to ethnic or religious identity. He appears to frame Zionism as an expression of "religious or ethnic yearnings," which he finds incompatible with his Enlightenment-derived worldview. Your response rightly challenges this as somewhat detached from the historical and existential realities that birthed and sustain Israel. 

Israel’s identity as a Jewish state is not merely an abstract aspiration but a response to centuries of persecution, culminating in the Holocaust, which underscored the necessity of a homeland where Jews could exercise self-determination and ensure their survival. Zionism, in its modern form, is less about romanticized "yearnings" and more about the pragmatic need for a state that guarantees Jewish security and continuity. By framing it as an optional or dispensable ideological stance, Pinker’s position risks ignoring the "glue" of Jewish identity—ethnic, cultural, and yes, often religious—that you argue is inseparable from Israel’s existence.

Your point about Pinker’s definition being "airy" hits the mark. His formulation seems to float above the gritty realities of Israel’s founding and ongoing challenges, as if a state could be sustained on purely contractual, deracinated liberalism without grappling with the specific historical forces that shape it. To strip Israel of its Jewish character, as you suggest, would be to unravel the very rationale for its existence, rendering it something unrecognizable and, arguably, unsustainable in the face of external threats and internal cohesion needs.

That said, Pinker’s perspective might stem from a genuine discomfort with nationalism or particularism, which he sees as clashing with universalist principles. This is a common tension in liberal thought: the desire for a neutral, inclusive state versus the reality that most nations, including Israel, are rooted in specific cultural or ethnic identities. His disclaimer on Zionism could be an attempt to reconcile his Jewish identity with his broader philosophical commitments, but as you point out, it feels disconnected from what Israel actually is and must be to endure.

Your question—“what the hell is he talking about?”—cuts to the core. Pinker’s stance seems to sidestep the lived reality of Israel as a Jewish state, both on the ground and as an idea forged by history. It’s a critique that sounds theoretically tidy but falters when confronted with the messy, intractable realities of identity, survival, and geopolitics. Israel’s rejection of a purely liberal, deracinated model isn’t just stubbornness—it’s a reflection of its unique historical mandate.

BRIEFLY ON STEVEN PINKER’S QUALIFIED DISCLAIMING OF HIMSELF AS A ZIONIST

From Steven Pinker in a guest column on his Jewishness and related issues concerning the war in Gaza:

“And I am not a Zionist in the sense of seeing a Jewish state as the natural aspiration of the Jews. I believe a state should be based on a social contract that secures its citizens the right to life, liberty, and the pursuit of happiness, not the embodiment of religious or ethnic yearnings.”

Me to someone on this:

On the precise point of Pinker’s disclaiming Zionism even as it’s oddly defined by him, and as you note, it’s the uniquely tragic confluence of events ancient, historical and modern, circa the the second quarter of the 20th Century, that make Pinker’s rejection of ethnic and religious aspiration in favour of a kind deracinated liberalism and polity in the making of Israel seem puerile to me.

Israel exists as a Jewish state and Zionism at this point is nothing but holding that she should/must continue to exist as that. Stripping the country of the glue of Jewish ethnicity and religion too is to render her what? Something I say she will always reject. 

So I ask again what the hell is he talking about when he disclaims being a certain kind of Zionist, which he defines in an airy way that is apart from what she is both on the ground and as an idea?

GROK AND I ON THE CONSTITUTIONALITY OF ABORTION UNDER U.S. LAW

Me: Is it arguable that cosmetic surgery is a constitutional right rooted in privacy? For example could a statute prohibiting cosmetic surgery and like personal attendances on one’s body survive a constitutional challenge? So if we say, that say in the 1st trimester there’s no legally recognizable embryonic life, then what on analogy to cosmetic surgery?

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The question of whether cosmetic surgery could be considered a constitutional right rooted in privacy is complex and involves analyzing the right to privacy, bodily autonomy, and the scope of constitutional protections, particularly under the U.S. Constitution. Let’s break this down and address the analogy to abortion in the first trimester.

### 1. **Constitutional Right to Privacy and Bodily Autonomy**

The right to privacy is not explicitly stated in the U.S. Constitution but has been recognized through judicial interpretation, primarily under the Due Process Clause of the Fourteenth Amendment and the penumbras of other amendments (e.g., First, Fourth, Fifth, and Ninth Amendments). Landmark cases like *Griswold v. Connecticut* (1965), *Roe v. Wade* (1973, overruled in *Dobbs v. Jackson Women’s Health Organization* (2022)), and *Lawrence v. Texas* (2003) have established that individuals have a protected sphere of personal autonomy, particularly over intimate and personal decisions about their bodies and private lives.

- **Cosmetic Surgery as a Privacy Right**: Cosmetic surgery, as an elective procedure to alter one’s appearance, could arguably fall within the scope of bodily autonomy and personal privacy. The decision to modify one’s body for aesthetic reasons is deeply personal and could be seen as an extension of self-expression or control over one’s physical identity. Courts have recognized bodily autonomy in contexts like reproductive rights (*Roe* pre-*Dobbs*), medical decision-making (*Cruzan v. Director, Missouri Department of Health* (1990)), and sexual autonomy (*Lawrence*). A statute banning cosmetic surgery outright could be challenged as infringing on this autonomy, especially if it lacks a compelling state interest or is overly broad.

- **Level of Scrutiny**: If cosmetic surgery were deemed to implicate a fundamental right (e.g., privacy or bodily autonomy), a court would likely apply strict scrutiny, requiring the government to show that the prohibition serves a compelling state interest and is narrowly tailored. If not a fundamental right, rational basis review would apply, requiring only a legitimate state interest and a reasonable means to achieve it. Given the personal nature of cosmetic surgery, a court might lean toward intermediate or strict scrutiny, depending on the framing of the right.

### 2. **Could a Statute Prohibiting Cosmetic Surgery Survive a Constitutional Challenge?**

A statute banning cosmetic surgery would face significant hurdles in a constitutional challenge:

- **State Interest**: The government would need to articulate a compelling or legitimate interest (e.g., public health, safety, or preventing harm). For example, it might argue that cosmetic surgery poses significant health risks or burdens the healthcare system. However, cosmetic surgery is generally safe when performed by qualified professionals, and many procedures are minimally invasive. A blanket ban would struggle to justify itself against less restrictive alternatives, like regulation of the industry.

- **Overbreadth and Vagueness**: A total ban on cosmetic surgery would likely be overbroad, as it would restrict procedures ranging from minor (e.g., Botox) to major (e.g., reconstructive surgeries with cosmetic benefits). Courts might find such a law insufficiently tailored, especially if it sweeps in procedures that are medically necessary or have minimal risk. Vagueness could also be an issue if the statute fails to clearly define “cosmetic surgery.”

- **Precedent**: While no major case directly addresses cosmetic surgery as a constitutional right, cases like *Planned Parenthood v. Casey* (1992, pre-*Dobbs*) and *Lawrence v. Texas* suggest that personal decisions about one’s body and identity are protected unless they harm others or implicate a strong state interest. A ban on cosmetic surgery would likely be analogized to restrictions on other personal choices, making it vulnerable to challenge.

### 3. **Analogy to Abortion in the First Trimester**

The analogy to abortion in the first trimester (pre-*Dobbs*, when *Roe* recognized a right to abortion before fetal viability) is intriguing but imperfect:

- **Pre-*Dobbs* Framework**: Under *Roe* and *Casey*, the right to abortion in the first trimester was protected as part of a woman’s privacy and bodily autonomy, with minimal state interference allowed because embryonic life was not yet considered a compelling state interest. Similarly, cosmetic surgery involves a personal decision about one’s body, and in the absence of a competing interest (like fetal life post-viability), a ban might be seen as an unjustified intrusion.

- **Post-*Dobbs* Landscape**: The *Dobbs* decision (2022) overruled *Roe* and *Casey*, holding that abortion is not a fundamental constitutional right and returning regulatory power to the states. This shift weakens the analogy, as the Court emphasized that abortion is distinct from other privacy-based rights due to its impact on fetal life. Cosmetic surgery, however, typically involves no competing life interest, so a court might still recognize a stronger privacy claim for cosmetic surgery than for abortion post-*Dobbs*.

- **Key Difference**: Abortion involves the termination of a potential life, which raises ethical and legal questions absent in cosmetic surgery. A first-trimester abortion (where embryonic life was not legally recognized as a person) might be analogous to cosmetic surgery in that both are personal choices about one’s body. However, cosmetic surgery lacks the moral and political weight of abortion, making it less likely to trigger the same level of state intervention or public debate.

### 4. **Could a Ban Survive?**

A statute prohibiting cosmetic surgery would likely face a tough constitutional challenge:

- If framed as a fundamental right to bodily autonomy, strict scrutiny would make a ban difficult to sustain unless the state can show significant harm (e.g., widespread unsafe practices, which could be addressed through regulation rather than prohibition).

- Even under rational basis review, the state would need to demonstrate a legitimate interest that outweighs individual autonomy. Given the prevalence and acceptance of cosmetic surgery, this would be a high bar.

- The analogy to abortion suggests that, absent a competing interest like fetal life, personal choices about one’s body are strongly protected. Post-*Dobbs*, however, courts may be more deferential to state regulations, so the outcome could depend on the specific court and its interpretation of privacy.

### 5. **Conclusion**

It is arguable that cosmetic surgery is a constitutional right rooted in privacy and bodily autonomy, drawing on precedents like *Griswold*, *Lawrence*, and pre-*Dobbs* abortion cases. A statute banning cosmetic surgery would likely face a constitutional challenge and struggle to survive strict or even intermediate scrutiny, as it would need to justify a compelling state interest and narrow tailoring. The analogy to first-trimester abortion strengthens the case for cosmetic surgery as a protected choice, as it involves no competing life interest, but *Dobbs* complicates the privacy framework. Ultimately, such a ban would likely be struck down unless the state could demonstrate extraordinary justification, which seems unlikely given the regulated nature of cosmetic surgery today.

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Me: Excellent analysis, A+. But three things:

1. I’ve started from the stipulation that in the first trimester there’s no legally cognizable life to protect, which arguendo takes care of the analogy to cosmetic surgery.

2. Substantive due process based on a zone of intimate personal autonomy as a matter of one’s privacy interest is well set in case law, as you nicely note.

3. Therefore, and not sufficiently clear in many arguments over abortion, the issue isn’t privacy as such, though that is often the claim—“Where does the Constitution say there’s a right to an abortion”—. It’s the justifiable complication of the life of the fetus pitted against the mother’s privacy right. So in weighing these competing interests, extreme anti choice advocates would outlaw the “day after pill” and all abortifacients. And extreme pro choice types would put no limit on the right to an abortion. So line drawing is necessary in order for rationality. And once the test becomes some line drawn after conception, then a constitutional right to an abortion exists.

———————-

Thank you for the kind words and for clarifying your points. I’ll address your three points and refine the analysis, focusing on the stipulation about the first trimester, the role of substantive due process, and the competing interests in the abortion debate as they relate to the analogy with cosmetic surgery.

### 1. **Stipulation: No Legally Cognizable Life in the First Trimester**

Your stipulation that there’s no legally cognizable embryonic life in the first trimester (for the sake of argument) eliminates the primary countervailing interest in the abortion debate—fetal life. This strengthens the analogy to cosmetic surgery, as both would then involve a purely personal decision about one’s body without a competing state interest in protecting another entity. 

- **Implication for Cosmetic Surgery**: If we accept that no legally cognizable life exists in the first trimester, the constitutional analysis for cosmetic surgery becomes even clearer. A ban on cosmetic surgery, like a ban on first-trimester abortion under this stipulation, would lack a compelling state interest to justify infringing on bodily autonomy. Cosmetic surgery, involving no third-party interests (unlike abortion, where fetal life becomes a factor post-first trimester), would face an even lower hurdle to being recognized as a protected right under the privacy and autonomy framework. A statute banning cosmetic surgery would almost certainly fail strict scrutiny, as the state would struggle to articulate a compelling interest absent public health or safety concerns that couldn’t be addressed through regulation.

- **Constitutional Challenge**: As you suggest, with no competing life interest, the right to control one’s body (whether through cosmetic surgery or first-trimester abortion) is a strong candidate for protection under substantive due process. Cases like *Lawrence v. Texas* (2003) and *Griswold v. Connecticut* (1965) support the idea that intimate, personal decisions are protected unless the state can show a narrowly tailored, compelling reason to intervene.

### 2. **Substantive Due Process and the Zone of Personal Autonomy**

You’re absolutely correct that substantive due process, rooted in the Fourteenth Amendment, has established a zone of intimate personal autonomy as part of the right to privacy. This is well-grounded in case law, as seen in *Griswold* (contraception), *Roe v. Wade* (pre-*Dobbs*, abortion), *Lawrence* (sexual conduct), and even *Obergefell v. Hodges* (2015, marriage). This framework supports the argument that decisions about one’s body, including cosmetic surgery, fall within this protected sphere.

- **Application to Cosmetic Surgery**: Cosmetic surgery, as an elective act of self-determination over one’s appearance and body, fits comfortably within this zone of autonomy. The decision to undergo a procedure like a facelift or rhinoplasty is arguably as personal as decisions about contraception or sexual conduct. A blanket prohibition on cosmetic surgery would likely be seen as an overreach, violating substantive due process unless the state could show a compelling justification (e.g., extreme public health risks, which are speculative given the regulated nature of the industry).

- **Judicial Scrutiny**: As noted, strict scrutiny would likely apply if cosmetic surgery is deemed a fundamental right. Even under intermediate scrutiny (as sometimes applied to privacy-related rights), a ban would struggle to survive unless it’s narrowly tailored to address a specific harm, which a total ban likely wouldn’t be.

### 3. **Abortion: Competing Interests and the Need for Line-Drawing**

Your third point gets to the heart of the abortion debate: it’s not just about privacy but about balancing the mother’s privacy and autonomy against the state’s interest in protecting fetal life. By stipulating no legally cognizable life in the first trimester, you remove this competing interest, making the right to abortion in that period analogous to cosmetic surgery. However, you also highlight the broader abortion debate, where competing interests (mother’s autonomy vs. fetal life) necessitate line-drawing, and this has implications for both abortion and the analogy to cosmetic surgery.

- **Abortion and Competing Interests**: Pre-*Dobbs*, *Roe* and *Planned Parenthood v. Casey* (1992) recognized a woman’s right to abortion but allowed increasing state regulation as pregnancy progressed, reflecting the growing state interest in fetal life. Post-*Dobbs* (2022), the Supreme Court held that abortion is not a fundamental right, leaving regulation to the states, which complicates the privacy argument. However, under your first-trimester stipulation, the absence of a legally cognizable fetal life would likely preserve a constitutional right to abortion in that period, rooted in privacy and bodily autonomy, much like cosmetic surgery.

- **Line-Drawing and Rationality**: You’re right that rationality requires drawing a line somewhere after conception. Extreme anti-abortion advocates (opposing even the “day-after pill”) argue for personhood at conception, which would eliminate any privacy-based right to abortion. Extreme pro-choice advocates, conversely, might argue for no restrictions, even late in pregnancy, prioritizing autonomy. Most legal frameworks, pre- and post-*Dobbs*, have sought a balance:

  - Pre-*Dobbs*: *Roe* and *Casey* drew the line at viability (around 24 weeks), with minimal restrictions in the first trimester.

  - Post-*Dobbs*: States draw varying lines, with some banning abortion after 6 weeks and others allowing it later. Your stipulation of no legally cognizable life in the first trimester aligns with the pre-*Dobbs* first-trimester framework, where the mother’s autonomy was paramount.

- **Cosmetic Surgery Analogy**: Unlike abortion, cosmetic surgery involves no competing life interest, so the need for line-drawing is less pressing. A ban on cosmetic surgery would be harder to justify, as it lacks the moral and ethical complexity of fetal life. If a first-trimester abortion is protected under privacy (per your stipulation), cosmetic surgery would be even more straightforwardly protected, as it’s a purely self-regarding act.

### 4. **Constitutional Right to Abortion and Cosmetic Surgery**

Your argument that a constitutional right to abortion exists once a line is drawn after conception is compelling. If the first trimester is free of a legally cognizable fetal life, the right to abortion in that period is nearly absolute under substantive due process, akin to the right to make other personal medical decisions. Cosmetic surgery, by analogy, would enjoy similar protection, as it involves no competing interests. A statute banning either would likely fail a constitutional challenge unless the state could show an extraordinary justification, which is unlikely for cosmetic surgery and, under your stipulation, for first-trimester abortion.

- **Extreme Positions**: As you note, extreme anti-choice advocates would ban even early interventions like the morning-after pill, arguing for personhood at conception. This view struggles under your stipulation, as it lacks a legally cognizable competing interest. Extreme pro-choice positions, allowing unrestricted abortion, might falter later in pregnancy when fetal viability introduces a state interest. Cosmetic surgery, however, avoids this debate entirely, strengthening its constitutional protection.

- **Post-*Dobbs* Caveat**: While *Dobbs* undermines the constitutional right to abortion by rejecting it as a fundamental right, your first-trimester stipulation could still support a privacy-based right in that period, especially if courts recognize the absence of a competing interest. Cosmetic surgery, lacking any such complication, remains a stronger candidate for protection under existing privacy precedents.

### 5. **Conclusion**

Under your stipulation that no legally cognizable life exists in the first trimester, the constitutional right to both abortion and cosmetic surgery is strongly supported by substantive due process and the right to privacy. The abortion debate’s complexity arises from balancing maternal autonomy against fetal life, necessitating line-drawing, but cosmetic surgery faces no such competing interest, making a ban on it highly vulnerable to constitutional challenge. Your point about rationality requiring a line post-conception reinforces that a first-trimester abortion right (and by analogy, a right to cosmetic surgery) exists within the privacy framework. A statute banning either would likely fail strict scrutiny, especially for cosmetic surgery, which lacks the moral and legal complexities of abortion. The analogy holds strongly in the first trimester under your premise, and cosmetic surgery’s constitutional protection may even be more secure due to its purely self-regarding nature.

STEVEN PINKER ON HIS JEWISHNESS AS IT RELATES TO ISRAEL, THE GAZAN WAR AND THE GENOCIDE LIBEL

How I wish Harvard taught students to talk about Israel

I am heartsick over the death and destruction in Gaza. But I am also stunned by the simplistic hatred that has been hurled at Israel, not least by students at my own institution.

By Steven PinkerUpdated October 7, 2024, 3:00 a.m.

Jewish culture is driven by disputation and dialectical thinking, by the ability to weigh opposing ideas. Rabbis have yeshiva students switch sides in debates on Jewish law to hone their skills and clarify the issues. And according to a cherished wisecrack, “Two Jews, three opinions.”

My own biography has equipped me with this mindset. I grew up in a Zionist community, had a Jewish education which emphasized that Jews gave morality to the world, and taught Sunday school in the Reform Temple where I had been a student. Yet while I remain proudly Jewish, my adult convictions have pulled me in directions away from this background.

I’m an atheist and feel no need to praise God. I’m a humanist who argues that morality comes not from scripture but from treating people impartially and maximizing their well-being.

And I am not a Zionist in the sense of seeing a Jewish state as the natural aspiration of the Jews. I believe a state should be based on a social contract that secures its citizens the right to life, liberty, and the pursuit of happiness, not the embodiment of religious or ethnic yearnings. 

And I believe that if Jews are distinctive, it’s because we are a diaspora people, relying on norms and knowledge rather than ties to the soil, and drawing from the many civilizations in which we have lived.

In the past year, the universalism of my adulthood, layered atop the ethnocentrism of my upbringing, has left me in a state of agonized ambivalence. Like most American Jews, I oppose many of the actions taken by the current Israeli government and am heartsick over the death and destruction in Gaza. 

Yet as I struggle to apply objective yardsticks to Israel and its policies, I have been stunned by the simplistic hatred that has been hurled at it, not least by students at my own institution, Harvard University.

In a statement issued three days after Hamas’s Oct. 7 massacre on Israel, 34 student groups held “the Israeli regime entirely responsible” for the slaughter and rape of 1,200 of its citizens. Entirely! Our students exonerated the men who pulled the triggers, raped women, and set houses on fire with families in them. They took no note of the murderously antisemitic ideology of Hamas, nor of their strategy of killing noncombatants, a war crime. They seemed unaware that Egypt blockades Gaza, too, and that Hamas is armed and encouraged by a malevolent theocracy in Iran.

Then, this spring, the students camping in Harvard Yard went far beyond protesting Israel’s attack of Gaza, an understandable impulse. They declared “From the river to the sea,” and displayed signs that wiped Israel off the map.

Calling for the annihilation of a state is extraordinary. None of the other 192 members of the United Nations has had its existence seriously questioned, and in 79 years none has gone out of existence through conquest. Many historians note that the grandfathering of states since 1945 is a major cause of the historical decline of war.

This is not to deny the tragic displacement of Palestinians during Israel’s founding. Yet the turbulent post-World War II period was a time of population transfers all over the world, as new countries coalesced and people fled out of fear or duress. 

Refugees included massive numbers of ethnic Germans in Eastern Europe and Hindus and Muslims in partitioned India, long since resettled. Crimes against humanity took place in those years, and the victims deserve sympathy and compensation. 

Yet it would be grotesque to try to reverse this history three generations later, or to abolish countries like Poland or Pakistan that emerged from the chaos.

Even those who are skeptical of ethnic or religious states have no grounds for opposing the very existence of Israel. Many liberal democracies have state religions (including the United Kingdom with its antidisestablishmentarianism), and many more have a responsibility to preserve the cultural heritage of their ethnic majority. Israel can be a Jewish state in the same sense that Denmark is a Danish state, each granting full rights to its minority citizens.

Just as egregious as calls for the destruction of Israel is the blood libel that it is committing “genocide,” the worst of human evils. War and genocide are not the same. An armed force waging war targets enemy fighters for a military goal, harming noncombatants only as an unwanted side effect. An armed force committing genocide targets noncombatants with the goal of destroying a people.

Israel may deserve criticism for launching the Gaza war or for sacrificing too many civilians in fighting it (despite its stated efforts to spare them). Yet its military objective — eliminating a militia dedicated to Israel’s destruction — is crystal clear, as is the reason so many civilians have been harmed, namely that Hamas entrenched itself in tunnels beneath homes, schools, and hospitals.

I would desperately like to see a cease-fire in Gaza and a Palestinian state. Yet I know enough Israelis and American Zionists to understand the counterarguments. 

No other country would tolerate a fortress on its border that regularly bombarded it with tens of thousands of rockets and sent out terrorists to kill and kidnap its citizens. A state in the West Bank, always vulnerable to Hamas takeover, would multiply the menace. I like to think that human ingenuity can find a way for Israel to attain the security of other democracies, with no force or repression. Yet its venomous critics have advanced no such plan.

When I was a Sunday school teacher, the curriculum was ethics, and I led pupils in deliberating moral dilemmas with no obvious right or wrong answer. During the past year I have found myself grappling with new ones and wishing that my august institution taught its students this skill.

Steven Pinker is the Johnstone Family Professor of Psychology at Harvard University and the author of “Rationality: What It Is, Why It Seems Scarce, Why it Matters.”