Remaking Law: Moving Beyond an Enlightenment Jurisprudence
1. john a. powell
Director, Kirwan Institute for the Study of Race and Ethnicity
Williams Chair in Civil Rights & Civil Liberties, Moritz College of Law
CHILDRESS LECTURE
October 2, 2009
St. Louis University School of Law
2.
3. Objectivity Mind-Body Duality
Determinacy Representationalism
(Certainty) Transparency of
Universal Truth Mind
Neutrality Reductionism
Subject-Object Reason/Emotion
Duality Duality
Linear Causality Unitary, Stable Self
Man-Nature Duality
4. What do these folks have
in common?
Justice Scalia
Isaac Newton
Rene Decartes
Jerry Falwell They Know!
12. Since Newton had proved that the universe
worked according to certain laws, discovered
via the scientific method, shouldn't man,
society, government work according to
universal laws, too?
This is the birth of the social sciences:
sociology, economics, psychology,
anthropology…
David Hume: The Newton
of the “Moral Sciences.”
13. Modern jurisprudence has been an attempt to
make the law more scientific:
Objective, neutral, mechanical, certain.
Francis Bacon Hugo Grotius: “The Blackstone Montesquieu
Galileo of law”
14. Professor Herbert Wechsler‟s Neutral
Principles
◦ Wechsler‟s assailed Brown v. Board of Education as
unprincipled violation of neutral principles of law:
“If the freedom of association is denied by segregation,
integration forces an association upon those for whom
it is unpleasant or repugnant”
◦ According to Wechsler, there was no „neutral‟ way
to decide between these two claims
14
15. The Newtonian Legal Paradigm
Law as a neutral non
actor, much like
the neutral
background of
space in Newton‟s
model
Instead, we should think of the
law as bending or curving
around certain ideals of society
to better understand how
“clockwork” policies affect
different parts of society
differently.
16. Newton‟s theory of gravity was based on flat
space
Einstein theorized that space is not inert:
Space is acted on by objects and objects are
acted on by space
Objects curve space
17. Objective
A belief in the objective
meaning of words is the
essence of textualism.
18. Newtonian physics defined space and time as
absolute.
General Relativity:
◦ While the speed of light is constant time and space
are not
◦ Rest and motion are relative
There is no place of absolute rest
There is no independent point of reference.
19. Assumed intrinsic separability of the knower and
known, subject and object (Cartesian cut)
◦ Observer could view world without affecting it.
Quantum Physics calls into question the limits of
possible objectivity and certainty.
Uncertainty Principle: in measuring the
characteristics of a particle, we necessarily disturb
its pre-measurement values.
21. Newtonian physics assumed that all objects
have position and momentum, and that these
properties are knowable.
Heisenberg Uncertainty Principle: we cannot
know both the position and the momentum
of a particle simultaneously. There is a
trade-off.
The observer is never separate from the
system studied.
22. Uncertainty v. Indeterminacy
◦ For Bohr, it was not that we cannot know both the
position and momentum of a particular; rather, the
particles do not have determinate values of position
and momentum simultaneously.
◦ Contradicts idea of determinacy in Newtonian
physics
◦ The world is merely probabilitistic.
23. Natural
Racial imbalance (in schools) can result
from any number of innocent private
decisions, including voluntary housing
choices.
Individuals schools fall in and out of
balance in the natural course, and the
appropriate balance will shift with a
school district‟s changing
demographics.
Justice Thomas, Concurring, Parents Involved in Community Schools v.
Seattle School Dist. No. 1 (2007)
24. Heisenberg
“Natural science does not simply
describe and explain nature; it is part
of the interplay between nature and
ourselves…[The Cartesian] separation
between the world and I [is]
impossible.”
25. The object of the amendment was undoubtedly to enforce
equality of the races before the law, but, in the nature of
things, it could not have intended to abolish distinctions
based upon color, or to enforce social as distinguished
from political, equality, or a commingling of the races
upon terms unsatisfactory to either.
Justice Henry
Billings Brown
We consider the underlying fallacy of the plaintiff’s argument to
consist in the assumption that the enforced separation of the
two races stamps the colored race with a badge of inferiority.
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.
25
29. The State certainly has a legitimate and Justice Powell
substantial interest in ameliorating, or In Bakke
eliminating where feasible, the disabling
effects of identified discrimination.
[That] goal [is] far more focused than
the remedying of the effects of “societal
discrimination,” an amorphous concept
of injury that may be ageless in its reach
into the past.
30. It is this essential fact of a predominantly
Negro school population in Detroit –
caused by unknown and perhaps
unknowable factors such as in-
migration, birth rates, economic changes,
or cumulative acts of private racial fears
– that accounts for the ‘growing core of
Negro schools,’ a core that has grown to
include virtually the entire city.
Justice Potter Stewart, Concurring, Milliken v. Bradley
30
31. 31
Systems Thinking:
The Newtonian
Perspective:
A D
C
ABCDE
B
Linear causation E
Causation is
reciprocal, mutual, and
cumulative. 31
32. Patterns arise from the interaction of parts.
Termite Colony Mound
33.
34. Lower Educational
School
Outcomes for Urban
Segregation
School Districts
Increased Flight
Neighborhood
of Affluent
(Housing)
Families from
Segregation
Urban Areas
34
35.
36. A defendant‟s action must be sufficiently
related to an injury to be held the cause of
that injury. Generally, the injury must be
reasonably foreseeable by the defendant.
– Emphasis on causation as limited in time
and space, and directly traceable to one
cause.
– Emphasis on foreseeability.
38. The individual is the focus of much discrimination law, even
though discrimination can often be the product of numerous
factors.
39. It is necessary to consciously will discrimination for
the 14th Amendment's Equal Protection Clause to
apply.
This assumes the
enlightenment precept of
complete access to the
mind.
40. As little as 2% of our thinking takes place at
the conscious level.
Much of the mind operates, makes decisions,
and processes information at a level below
consciousness. It turns out that these
processes are necessary for both survival and
intelligence.
54. People have multiple networks that may be
activated without our awareness
◦ Depending on the situation, one network becomes
dominant over the others
Even though we may fight them, implicit
biases reside within us…
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55. In a video-game experiment, images of suspects -
both armed and unarmed, black and white – flash
rapidly on a monitor. Within a split-second,
subjects must decide whether to shoot.
Participants must assess whether the man in each
picture is carrying a gun. Within 850 milliseconds
they must press one key to shoot or another to
leave the figure unharmed.
After repeated experimentation, people‟s mistakes,
although rare, follow a pattern:
◦ They shoot more unarmed blacks than unarmed whites;
◦ They fail to shoot more whites than blacks are holding weapons.
55
58. Before enlightenment causation was in god or
magic
After there is an inter (intra)action between
subject/object/environment
◦ There is no inert environment or background
Observing affects the observed and the
observe affects the observer
There is a limit to certainty
The self needs to be re-conceptualized.
64. I think an overwhelming portion of the intensely
demonstrated animosity toward President Barack
Obama is based on the fact that he is a black man,
that he's African-American
66. [M]y impression is that race is largely beside the
point. There are other, equally important strains in
American history that are far more germane to the
current conflicts.
For example, for generations schoolchildren studied the long debate
between Hamiltonians and Jeffersonians. Hamiltonians stood for
urbanism, industrialism and federal power. Jeffersonians stood for
[states-rights, local control, and was suspicious of financial
concentration].
Jefferson‟s philosophy inspired Andrew Jackson, who led a movement
of plain people against the cosmopolitan elites. Jackson dismantled
the Second Bank of the United States because he feared the fusion of
federal and financial power.
67. This populist tendency continued through the centuries.
Sometimes it took right-wing forms, sometimes left-
wing ones. Sometimes it was agrarian. Sometimes it was
more union-oriented. Often it was extreme,
conspiratorial and rude.
What we‟re seeing is the latest iteration of that populist tendency
and the militant progressive reaction to it. We now have a populist
news media that exaggerates the importance of the Van Jones and
Acorn stories to prove the elites are decadent and un-American,
and we have a progressive news media that exaggerates stories
like the Joe Wilson shout and the opposition to the Obama schools
speech to show that small-town folks are dumb wackos.
69. [Obama] attended a Black Liberation Theology church for 20 years.
Black Liberation Theology teaches it is the white man that has kept
you down. It is the white man that you must take money from, you
must take power from to make up for the past.
Barack Obama is setting up universal healthcare, universal college,
green jobs as stealth reparations. That way the victim status is
maintained. And he also brings back back-door reparations.
http://www.glennbeck.com/content/articles/article/198/28317/
70. What we‟re seeing is the latest iteration of that populist
tendency ... We now have a populist news media that
exaggerates the importance of the Van Jones and Acorn
stories to prove the elites are decadent and un-American…
Scene from Birth of a
Nation
79. People have multiple networks that may be
activated without our awareness.
◦ Depending on the situation, one network becomes
dominant over the others
Even though we may fight them, implicit biases
reside within us…
79
81. objects
experimenting
matter meaning
theorizing
subjects
82. Reductionism permeates our legal system.
Cross-cutting issues such as environmental
law, housing, or national security have been
divided into many discrete agencies with
specific missions.
Coordination is almost impossible.
