The Construction of Power and Privilege Entitlements

I’ve learned that, because of my heritage and ancestry, I have received an inheritance.  This birthright consists of an unacknowledged set of special privileges that provide me with certain advantages in life, even when these benefits are not intentionally redeemed.  They have been bestowed on me, not because of any special deservedness, but rather they are determined by something of which no person has control – skin color.  This bequest helps me to ‘get ahead’ in life, perhaps through better opportunities in schooling, employment, and living communities, for example.  I had always taken these privileges for granted.  I thought of them as rights that were offered to all citizens equally.  Part of my inheritance is that I was taught to think in this way.

As a little girl, I learned that the Declaration of Independence proclaimed as a self-evident truth “that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.”  Our founding fathers, I was taught, established a form of government for the United States of America that guarantees all individuals equality under the rule of law.

Yet, in the year 1987, U.S. Supreme Court Justice, Thurgood Marshall (Bender & Braveman, 1995, pp. 135-141.) excellently argued that this is not how the founding fathers acted out their stated beliefs.  On the contrary, the framers of the U.S. Constitution, he explained, intentionally omitted slaves and women as part of the ‘whole number of free persons’ when they wrote of ‘We the People’.  At the time of the framing of the Constitution, all individuals were not guaranteed equality under the law.  He stated that, “the government [that] they devised was defective from the start, requiring several amendments, a civil war, and momentous social transformation to attain the system of constitutional government, and its respect for the individual freedoms and human rights, that we hold as fundamental today (Bender & Braveman, 1995, p.135)”.   Furthermore, Justice Marshall made clear that the framers also carefully avoided documenting the words slave or slavery, and instead used terms such as ‘free persons’ and ‘other persons’.  The founding fathers were cautious to choose language that would avoid calling attention to the contradictory moral principles for which the American War of Independence from the rule of Great Britain had been waged.

In this same way as the founding fathers, the U.S. legal system has historically used such manner of expression to create a system of power and privilege for the dominant and controlling members of society, and simultaneously denied members of less dominant groups from participating fully by limiting their access to opportunity.  Bender and Braveman (1995) give examples of the legal parlance that they name as the “rhetoric of exclusion,” for which I will provide a few examples in the historical case described below.

In Person v. Hall (1854), in which the Supreme Court of California established that Chinese-Americans and Chinese immigrants had no right to testify against white citizens, there are many examples of the ‘rhetoric of exclusion’ present.  The ruling was based on the (1850) Criminal Proceedings that stated, “No black or mulatto person, or Indian, shall be allowed to give evidence in favor of, or against a white man.” In light of then current anthropological evidence that American Indians and Asian Indians were not of the same race, it was held that racial terms were to be taken in the general sense where “Indian” indicated those of the mongoloid race and that “black” applied to anyone not white.  Justice Murray argued that,

The European white man who comes here would not be shielded from the testimony of the degraded and demoralized caste, while the Negro, fresh from the coast of Africa, or the Indian of Patagonia, the Kanaka, South Sea Islander, or New Hollander, would be admitted, upon their arrival, to testify against white citizens in our courts of law.

To argue such a proposition would be an insult to the good sense of the Legislature.

The evident intention of the Act was to throw around the citizen a protection for life and property, which could only be secured by removing him above the corrupting influences of degraded castes (Bender and Braveman, 1995, p. 143).

Additionally, Justice Murray stated,

The same rule which would admit them to testify, would admit them to all the equal rights of citizenship, and we might soon see them at the polls, in the jury box, upon the bench, and in our legislative halls (Bender & Braveman, 1995, p. 145).

Present in this case is the rhetoric of self/other in which the real or imagined differences between the races was addressed.  All non-white races (them) were assigned a lower status than the white race.  The differences were generalized as opposed to being absolute (racial terms were to be taken in the general sense), and this was done in order to justify the privilege of denying the testimony of a non-white person. Explicit group-targeted difference language and stereotyping included the verbiage pronouncing non-white people as ‘the degraded and demoralized caste’ (also present here is racial stratification) amongst other such derogatory language.  It was claimed that social problems would be created if the mongoloid race were given equal rights, which for a degraded and demoralized race would likely lead to a slippery slope, indeed.  Additionally, the precedent and reliance on historical discrimination is evident in that the 1850 Criminal Proceedings were cited.  In using this citation, it was shown to be the framer’s intent to deny privilege of equality under the rule of law to all people who were not classified as white. 

It is this type of exclusionary rhetoric that creates systems of power and privilege and the resultant systemic racism, and there are many ways in which this rhetoric can be embedded into legalese discourse.  Through the crafty use of language, a legal structure of entitlement was designed that served to benefit those very designers, at the expense of great number of people whom they oppressed.

Our contemporary notion of equal rights under the law is the product of change over time in the way that we understand our own humanity and the humanity of those we think of as being others.  This can be demonstrated by looking at the historical record of the manner in which language played a part in the construction of U.S. legal argument.  Regardless of the failures of the past, when we see potential for the justice and fairness that is inherent in the U.S. Constitution and U.S. law, such as is the case with Justice Thurgood Marshall, it can be demonstrated that U.S. law is a reflection of how we think about social issues, and this can and does change over time.

I’ve learned that, because of my heritage and ancestry, I have received an inheritance.  This birthright consists of a set of special privileges that also demand a certain responsibility from me.  My responsibility is to work to ensure that all citizens may equally count as rights those very privileges that are extended to me.

References:

Bender, L., & Braveman, D. (1995).  Power, privilege, and law: A civil rights reader. St. Paul, Minn.: West Publishing Company.

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