Название: The Smart Culture
Автор: Robert L. Hayman Jr.
Издательство: Ingram
Жанр: Юриспруденция, право
Серия: Critical America
isbn: 9780814773178
isbn:
When I was eleven my mom remarried and we moved away, and I pretty much lost touch with Huey and Mike and the whole gang of kids in my grandparents’ neighborhood. I didn’t get to spend summers with my grandparents anymore, and Huey made other friends, and I really got to see him only at Christmas. For a few years I still got him Christmas presents, like some baseball cards or comic books, but then he seemed too old for those, and I didn’t know what to get him, and then I didn’t go see him at all.
It was 1976, and I was a sophomore in college in North Carolina, when my grandparents called me with the news about Huey. He had become the first kid in his family to go to college, and he was nearing the end of his freshman year at the University of Delaware. He was on his way to Florida for his spring break, and he and his friend stopped for gas in North Carolina. They filled the tank and looked for somebody to give their money to, but as the witnesses later explained, there appeared to be no one there. So Huey and his friend got tired of looking and waiting, and they got back in their car, and drove away. At that moment the gas station owner showed up, and he had a rifle, and he shot my friend Huey in the head. Huey died. He was eighteen years old.
The gas station owner was at first not charged, but the attorney general of Delaware intervened, and the man eventually pled guilty to manslaughter and served a year or so in prison, and was reportedly much aggrieved even at that. He was, after all, merely defending what was rightfully his.
Huey and I had played a lot of games when we were kids, and we made up a lot of rules. Some of them were good, and some of them were bad, and, looking back, some of them could have been both, depending on how you used them. But there is in my mind nothing doubtful or contingent or equivocal about this: it’s a bad rule—a terrible, vicious, hateful rule—that says it’s basically okay to shoot a kid who doesn’t pay for a tank of gas. And I cannot help thinking when I remember Huey that somebody, somehow, has us playing a really stupid game, and that somewhere along the line, we—all of us—turned the wrong way.
I didn’t go to Huey’s funeral, but my grandparents did, and they said it was a pretty rough thing, especially for Huey’s mom. But probably nobody took it harder than Michael. Mike was always kind of shy, but after Huey’s death, he seemed to close off completely from the rest of the world. It wasn’t until his mom died, some twenty years later, that Mike really went outside again. He was thirty-four when he got a job and learned how to drive. It was my grandfather who taught him.
The Original Construction
The United States celebrated the bicentennial of its Constitution in 1987, but the celebrations were momentarily interrupted by a dissenting opinion. It was Supreme Court Justice Thurgood Marshall who sounded a more critical note: the Constitution—as originally constructed in 1787—was not, he said, necessarily worth celebrating. Justice Marshall objected to the “complacent belief” that the founding fathers presented us with a finished product two centuries ago, a completed text with a meaning permanently fixed. For Marshall, the Constitution was and remained a living document; it had to be, because the initial effort was so fundamentally flawed:
Nor do I find the wisdom, foresight, and sense of justice exhibited by the framers particularly profound. To the contrary, the government they devised was defective from the start, requiring several amendments, a civil war, and momentous social transformation to attain the system of constitutional governments, and its respect for the individual freedoms and human rights, that we hold as fundamental today.
What Marshall saw in the Constitution of 1787 was principally contradiction: a text that purports to represent the voice of “We the people,” that asserts at the outset a dedication to justice and to liberty, and that is designed to be the governing charter of a nation premised on the self-evident truths of human equality and inalienable rights, in fact excluded from its protections all but a privileged few, and acquiesced in the complete subordination—through chattel slavery—of a substantial part of its citizenry. As Marshall explained, “Moral principles against slavery, for those who had them, were compromised, with no explanation of the conflicting principles for which the American Revolutionary War had ostensibly been fought.”1
Marshall’s statements evoked the predictable howls of protest: his comments were unpatriotic, unseemly, and ill-tempered. But what Marshall’s critics did not say, and what they could not say, was that he was wrong.
The Constitution was written by some very smart people; on this score, Marshall and his critics would agree. But Marshall was revealing an additional, less comfortable truth: that the Constitution was written for “smart” people—it protected, above all, the interests of a natural elite. Rights in property were ascendant; individual interest the priority; liberty the governing principle. It was inevitable in such a scheme that the “diversity in the faculties of men” would lead to social and economic inequality, and there was no communitarian ethic, no egalitarian commitment to mitigate the trend. Quite the contrary: the “first object” of the new government was the preservation of the natural order. The rules it established were those dictated by nature, and they were—naturally—the rules of a rigged game: for those born to lose, it would be very difficult to win.
The Spirit of the Nation
The framers of the Constitution of 1787 had choices to make, some theoretical, some practical. Not infrequently, they chose the less egalitarian path, even when that path entangled them in contradiction.
They spoke of themselves as “we the people,” but they embraced an ethos of liberal individualism that was explicitly at odds with communitarian norms. Those communities, principally in the agrarian South, that continued to champion republican virtues, did so without abandoning their commitment to the traditional hierarchies of social and political life. Lost between these competing ethos—the liberal individualism of northern Federalists on the one hand, the conservative communitarianism of southern Republicans on the other—was any sense of the egalitarian commitments of a Rousseau; indeed, there is no record that the great French philosopher was even mentioned at the 1787 convention. As a result, the founding fathers all could agree with Jefferson’s ringing declaration that “all men are created equal” precisely because they shared common ground in rejecting that notion, except at an impossible level of political abstraction.
The framers spoke in universal terms about “liberty,” “justice,” and “equality,” but these principles seemed merely instrumental to rights in property, rights that were of real importance only to a privileged few. Thus, partly echoing Locke, they construed “liberty” to mean, above all, the natural right to own private property, to maintain, through the protection of the state, the fruits of one’s labor. “Justice” in turn became the protection of property from the democratic impulses of the laboring masses; “equality” then became the equal right to own property, and enjoy the attendant public benefits of propertied status.
And on this score, the framers were more or less explicit about what they were doing. According to Madison’s notes on the Philadelphia convention, Charles Pinckney of South Carolina was moved to remark on the singular equality of the American people:
Among them there are fewer distinctions of fortune & less of rank, than among inhabitants of any other nation. Every freeman has a right to the same protection & security; and a very moderate share of property entitles them to all the honors and privileges the public can bestow: СКАЧАТЬ