Negrophobia and Reasonable Racism. Jody David Armour

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СКАЧАТЬ to his claim that average Americans share his fear of Black violence, the Reasonable Racist can point to evidence such as a 1990 University of Chicago study which found that more than one out of two Americans endorses the proposition that Blacks tend to be “violence prone.”² Moreover, numerous recent news stories chronicle the widespread exclusion of Blacks from shops and taxicabs by anxious storekeepers and cabdrivers, many of whom openly admit to making race-based assessments of the danger posed by prospective patrons.³ Thus, it is unrealistic to dispute the Reasonable Racist’s depressing contention that Americans tend to associate violence with Black people.

      That most Americans share the Reasonable Racist’s discriminatory reactions to Blacks does not necessarily mean that they also share his racial prejudice. Many may claim to have completely nonracist grounds for their fear of Blacks. Specifically, many may insist that their racial fears are born of a sober analysis, or at least of rough intuition, of crime statistics that suggest Blacks commit a disproportionate number of violent street crimes. We shall consider such “rational racial fears” in the next chapter. Here we focus on irrational racial fears for two reasons. First, as we shall see in the discussion of unconscious mental reflexes in chapter 6, irrational factors figure to some extent in the racial fears of all Americans. Thus, just as he can prove that most Americans share his belief that Blacks are “prone to violence,” the Reasonable Racist can also prove that, like him, most Americans harbor irrational responses to Blacks. Thus, his most controversial contention is that most Americans’ heightened fear of Blacks is based primarily on conscious racial animus. This is equivalent to saying that most Americans are racist. I vigorously dispute this contention throughout this book.

      The most apt description of the motivations that drive racial fears is “scrambled eggs.” That is, racial fears rest on mixed motives, with the yolks of the rational impulses completely and seemingly inextricably commingled with the irrational whites. To probe the legal relevance of racial fears, these motives must be temporarily unscrambled and separately evaluated. If neither the irrational nor the rational motives can justify racial discrimination standing alone, there is no reason to recognize such discrimination when its underlying motives revert to their naturally scrambled state. Therefore, let us provisionally accept the Reasonable Racist’s disquieting assumption that, like him, most Americans base their heightened fear of Black violence primarily on racism.

      From the standpoint of legal doctrine, the Reasonable Racist also seems to have a case. Self-defense is generally defined as the use of a reasonable amount of force against another when the defender honestly and reasonably believes that she is about to be attacked, and that she must use such force to repel the attack.⁴ To be excused, then, the shooter in our tableau must convince the jury that she honestly and reasonably believed that she had to shoot just when she did to avoid being killed or seriously injured, and that nothing less drastic than deadly force would have saved her.⁵

      Reasonableness is the linchpin of legal self-defense in two respects. First, even if the defender is mistaken in her belief that she is under attack (as was the shooter in the tableau), she has a valid defense as long as her mistaken belief was reasonable.⁶ Second, from a juror’s perspective, the reasonableness of a belief is a window on its honesty; that is, the more reasonable the belief seems to a jury, the more likely a jury is to be convinced that the defendant honestly held the belief herself. In the law of self-defense, therefore, “reasonableness” is the pivotal standard to which all other legal requirements are related and by which all others are measured.

      The Reasonable Racist’s case hinges, therefore, on whether he can establish that typical beliefs are reasonable beliefs. The notion that typical beliefs are reasonable finds legal expression in certain familiar personifications of the reasonableness requirement, such as “the ordinary prudent man,” “the average man,” “the man in the street,”⁷ and “the man who takes the magazines at home, and in the evening pushes the lawn mower in his shirt sleeves.”⁸ The layreader must understand that “reasonableness” in legal discourse is a term of art, that is, a word whose legal usage differs markedly from that of ordinary language. A “reasonable” attitude or belief in legal discourse is not necessarily rational or right from some objective, eye-in-thesky point of view. Instead, as the “average man” formulation of the reasonableness standard suggests, courts tend to equate reasonable beliefs and attitudes with typical beliefs and attitudes. In the words of one criminal law expert, the Reasonable Man “is more appropriately described as the Ordinary Man (i.e., a person who possesses ordinary human weaknesses).”⁹ Moreover, in practically applying the reasonable person standard, the jurors—themselves typical people holding typical beliefs—ordinarily judge the reasonableness of the defendant’s beliefs by projecting themselves into the defendant’s situation and asking whether they would have shared his beliefs under similar circumstances. If the answer is yes, the Reasonable Racist maintains, the defendant should prevail.

      How We Know What We Know: The Typical, the Reasonable, and the Accurate

      Typical beliefs may be considered reasonable for two very different reasons. First, they are presumed to be accurate.¹⁰ Most of our claims to knowledge about the world rest on typical beliefs; we assume that the propositions about the world that “everyone knows” (propositions often equated with “common sense”) are true unless we have reason to doubt them. Of course, common sense may reflect and perpetuate oppressive myths and expedient misconceptions. Many women died excruciating deaths several hundred years ago because of the typical belief that witches cast spells that poisoned well water and caused crop failures. To see the disturbing implications for self-defense doctrine of the deep-seated assumption that typical beliefs are accurate, we need only make a few modifications in our earlier hypothetical situation and place it in the first half of the seventeenth century, the height of witch burnings in Europe:

      The owner of a general store is counting his lucre at day’s end when out of the corner of his eye he suddenly notices a figure approaching his store. Focusing his full attention on the approaching figure, he notes that the person is an old woman (at least 65); that she is wearing a black dress and a cone-shaped black hat; and that she has a wart on her nose. As the old woman crosses the threshold, she reaches toward a pouch on a string around her neck (where she keeps her money, to buy something from the storekeeper) but which the storekeeper thinks is a pouch for potions. Panic-stricken and conscious of the bad graces he is in with the old women of the town (he has never passed up an opportunity to bilk or insult one he came across), he pulls a crossbow from under his counter and levels it at the entering figure. Seeing the crossbow trained on her, the woman thrusts her right hand in front of her while shouting at the man not to release the arrow. Perceiving spell-inducing gesticulations and unintelligible incantations, the storekeeper shoots and kills the old woman, who dies clutching a gold ducat.

      However disturbing it may seem, in a seventeenth-century court that indulged the still prevalent presumption of accuracy for typical beliefs, there is no reason to think the storekeeper’s self-defense claim would not pass muster. Yet, despite the long and deplorable litany of injustices that historically have sprung from blind faith in conventional wisdom, conservatives continue to tout the sovereignty of “common sense” (Oliver North calls his syndicated talk show “common sense radio—for all America,” and Philip Howard’s book, Death of Common Sense, has been celebrated by conservatives for its catchy title, even though its substance does not necessarily bolster the conservative agenda).

      American courts have shown undue deference to typical beliefs even in the case of scientific knowledge, an area where one would hope for a more searching truth-seeking methodology than mere nose counting. Until very recently, the test courts adopted for determining whether an expert could give an opinion on a scientific matter was whether the expert’s methodology and conclusions were consistent with the consensus of the scientific community. In other words, courts would not permit experts to talk about СКАЧАТЬ