Where the law lies: Constitutional fictions and their discontents

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1 Scopus citations

Abstract

The Constitutional Lie 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 act of simultaneous 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. To understand these claims, we must first clearly define what is meant by a “lie.” Lying can have multiple meanings, and there is considerable philosophical debate over what qualifies as a lie in various contexts. For present purposes, I will use a Kantian definition: “the making of an untruthful statement with the intention that the statement be believed to be true.” That is, a lie is not a mere suggestive act, omission, or mistake. A lie is an affirmative statement by an entity who knows the statement to be false and who intends to mislead others into believing that it is true. This Kantian conception of lying is usefully supplemented by Freudian insight: the audience we intend to mislead often includes ourselves. Lies can be harmful or beneficial, portentous or slight, obscure or obvious, or any combination thereof. Here, I take aim at lies embedded in law itself, which as a category tend to be harmful, portentous, and obscure. This is especially true of lies that are “constitutional” in a dual sense, that is, laws that are both foundational to a society and embedded in a society's actual founding documents.

Original languageEnglish (US)
Title of host publicationLaw and Lies
Subtitle of host publicationDeception and Truth-Telling in the American Legal System
PublisherCambridge University Press
Pages32-80
Number of pages49
ISBN (Electronic)9781316258293
ISBN (Print)9781107108783
DOIs
StatePublished - Jan 1 2015

ASJC Scopus subject areas

  • Social Sciences(all)

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