Where the Law Lies: Constitutional Fictions and Their Discontents
Law and Lies: Deception and Truth-Telling in the American Legal System, ed. Austin Sarat (Cambridge Univ. Press 2015)
19 Pages Posted: 19 Aug 2015 Last revised: 17 Mar 2016
Date Written: April 2, 2015
My contribution to the volume Law and Lies begins with the observation that America is built on a lie. That lie inheres in its foundational text, the Constitution of the United States, which begins in the false claim to speak of and for “we the people” even as the majority of its population – in particular black men and all women – were denied access to the most basic forms of political participation. This simultaneous act of symbolic inclusion and material exclusion has never been fully acknowledged or confronted, which is another way of saying that it has never really ended. As many lies are, America’s constitutional lie is generative: it produces other, secondary, mutually reinforcing legal fictions that obscure the deception buried deep in the social and political structure. These fictions serve multiple purposes, including providing reassurance to those holding abstract commitments to equality as well as seducing and subduing excluded groups that might otherwise demand recognition and reparation for injustices done to them. As long as these constitutional fictions persist, the political existence of women and black men remains fundamentally unstable.
Keywords: Fourth Amendment, police brutality, suffrage, stop and frisk, racial profiling, coverture, rape, domestic violence, constitutional theory, deception, testilying, racism, sexism, Fourteenth Amendment, equality, Constitution, Declaration of Independence, Kant
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