john a. powell

Director, Kirwan Institute for the Study of Race and EthnicityWilliams Chair in Civil Rights & Civil Liberties, Moritz College of Law

CHILDRESS LECTUREOctober 2, 2009St. Louis University School of Law

Objectivity Determinacy

(Certainty) Universal Truth Neutrality Subject-Object

Duality Linear Causality Man-Nature Duality

Mind-Body Duality Representationalism Transparency of

Mind Reductionism Reason/Emotion

Duality Unitary, Stable Self

They Know!

What do these folks have in common?

Isaac Newton

Justice Scalia

Rene Decartes

Jerry Falwell

Who are We?

A short history of knowing

Transcendent Authority:

Adam and Eve and

The Tree of Knowledge

Rene Decartes

Sense Perceptions are Sense Deceptions.

Which line is longer?

But Not Everyone Trusted Observation…

Rene Decartes

The Thinker by Rodin

Dubito, ergo cogito, ergo sum (English: "I

doubt, therefore I think, therefore I am")

The Cartesian Cut

Francis Bacon

Johannes Kepler

Galileo Galilei

Isaac Newton

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.”

Modern jurisprudence has been an attempt to make the law more scientific: Objective, neutral, mechanical, certain.

Hugo Grotius: “The Galileo of law”

Francis Bacon Blackstone Montesquieu

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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

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.

The Newtonian Legal Paradigm

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

A belief in the objective meaning of words is the essence of textualism.

Objective

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.

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.

Position

Momentum

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.

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.

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)

Natural

“Natural science does not simply describe and explain nature; it is partof the interplay between nature and

ourselves…[The Cartesian] separation between the world and I [is]

impossible.”

Heisenberg

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Justice Henry

Billings Brown

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.

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.

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From which top hat will the magician pull a bunny?

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Neither one. When a question is framed as a dichotomy, it is difficult to think outside of

the “either – or” mindset.

Decartes “Automaton” duck

The State certainly has a legitimate and substantial interest in ameliorating, or

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.

Justice Powell

In Bakke

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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

Systems Thinking:

A D

C

B

E

Causation is reciprocal, mutual, and

cumulative.

The Newtonian Perspective:

A B C D E

Linear causation

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Patterns arise from the interaction of parts.

Termite Colony Mound

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Lower Educational

Outcomes for Urban

School Districts

Increased Flight

of Affluent

Families from

Urban Areas

Neighborhood

(Housing)

Segregation

School

Segregation

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.

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Victim/perpetrator

(individualistic view)

Intent (purpose or motive)

(prejudiced “bad apple)

Decision-maker self awareness

(transparency of mind)

The individual is the focus of much discrimination law, even though discrimination can often be the product of numerous factors.

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.

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.

Or a Rabbit?

A Duck?

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The Kanizsa Triangle

Source: Drew Westin, the Political Brain

Planet or a Satellite?

The Answer depends on your paradigm

Beautiful

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What colors are the following lines of text?

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What colors are the following lines of text?

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What colors are the following lines of text?

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What colors are the following lines of text?

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What colors are the following lines of text?

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http://www.youtube.com/watch?v=yrqrkihlw-s

http://www.youtube.com/watch?v=FqGqGwRaILg&feature=player_embedded

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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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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.

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57http://thesituationist.wordpress.com/2007/08/19/

https://implicit.harvard.edu/implicit/

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.

Adam and Eve: Original Sin

What Do These Folks Have in Common?

Thomas Hobbes

Rene Decartes

They are afraid! Ontological Fear

Anglo-American

- Don Cherry

You Lie!

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

You Lie, (Boy)!

[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.

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.

Not About Race?

[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/

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

From Bacon to Montesquieu

Sir William Blackstone

Blackstone systematized and organized

English law.

Hobbes The Leviathan State

John Locke: Social Contract Theory

“Life, Liberty, Property” “Life, Liberty, and the Pursuit of Happiness”

Montesquieu

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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…

things to be represented

representation

experimenting

theorizing

objects

meaning

subjects

matter

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.