Summary

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  • Caselist.RoundClass[47]
  • Caselist.CitesClass[56]

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Caselist.RoundClass[47]

EntryDate

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1		-2016-12-18 01:33:12.706
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Caselist.CitesClass[56]

Cites

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	1	+First-
	2	+We cannot escape the social norms around the constitution. Social ontology has concrete effects on how black flesh is constructed.
	3	+Polizzi ’13. “Pursuing Trayvon Martin Historical Contexts and Contemporary Manifestations of Racial Dynamics” 2013 Edited by George Yancy and Janine Jones – Chapter 13: “Social Presence, Visibility, and the Eye of the Beholder A Phenomenology of Social Embodiment” by David Polizzi // LW-DD
	4	+“In its most general sense, the social presenting of the body refers to the way in which the body flesh becomes viewed and constructed from a variety of social interactions and social contexts. At its most mundane, the body of the individual or the embodied subject retains what Merleau-Ponty has called an intervolvement with world that is experienced as a fluid and open shared possibility for embodied existence.2 However, in the absence of such openness, the possibility for embodied subjectivity is denied and the body is reduced to that of a shadow, or pathological artifact of social visibility. The recent killing of Trayvon Martin provides yet another tragic re minder as to how the black flesh body continues to be constructed as the manifestation of social threat and danger. As such, the contours of these constructed fears are not only present within the visibility of the physical body, but also come to represent a type of geographical demarcation or territorialization whereby the body may be "legitimately" pres- enced as a problematic body. Such a dynamic evokes the "invisible wall" described by Kenneth Clark: that cultural line of demarcation that separates the racially marginalized from those who wield social power. 3Tray von Martin's killing represents not only the way in which his killer con structed the m eaning of his presence, but the way in which the social context of that presencing was employed by him to further "justify" the legitimacy of this construction. In this chapter I explore the phenomenolbgy of the social presencing of the black body through the work of Merleau-Ponty and his notion of embodied subjectivity. I also include a description of Drew Leder's no tion of the absent body relative to the way in which these theoretical constructs may help to better understand the tragic killing of Trayvon Martin. I will begin with a brief description of embodied subjectivity outlined by Merleau-Ponty in his classic text. Phenomenology of Perception. THE PHENOMENOLOGY OF THE BODY AND ANTI-BLACK RACISM Merleau-Ponty and Embodied Subjectivity In the Phenomenology of Perception, Merleau-Ponty formulates his theory of the body or what he describes as embodied subjectivity. From this vantage point, embodied subjectivity becomes a theory of human perception, and I would argue a theory of ethics as well, which encounters the world from a specific perspectival point of view, thereby allowing for a particular profile of an object or other embodied subjects to appear.4 Unlike empiricism (Behaviorism), which understands the body as an ob ject among other objects, or intellectualism (Idealism), which recognizes the body as an extension of consciousness, here the body is taken up as a lived-body, as incarnate-subjectivity, which is inseparable from the world. Shabot describes this process as follows: In perception, thus a deep ambiguity takes place regarding the rela tionship of subject-object: no apparent distance separates the subject from the object in perception, and the object is recognized only as the sum of multiple subject perspectives of it, from his/her concrete position. By theorizing flesh body and world in this manner, both becomes "intervolved" within a system of meaning that can never be viewed in isolation. Ultimately, then, this relationship between individual and world reveals the situated nature of our existence which both acts and is acted upon by the world. "The body is the vehicle of being in the world, and having a body means being united with a definite milieu, merging with certain projects, and being perpetually engaged therein." Merleau-Ponty's theory of the body becomes the description by which human existence is situated and its specific meanings experienced and lived. It becomes the point from which we take up the projects of our lived-experience. The intervolvement with world, according to Merleau- Ponty, becomes the ground from which existence rises up to embrace a world and by so doing gives birth to a contextualized constellation of meaning. These meanings are not independent of me, they inhabit me and I them. The context, in which I find myself, is one that also extends beyond me, taking in a world shared by others, and it is through this shared relationship with the world that the other becomes recognizable to me. But how does this recognition of the other come about?” (173-175)
	5	+Especially true in the context of language. Words like “constitutionally protected” cannot escape their social meaning.
	6	+Mills ’07. “Race and Epistemologies of Ignorance” 2007 Edited by Shannon Sullivan and Nancy Tuana – Chapter One: “White Ignorance” by Charles W. Mills // LW-DD
	7	+“Start with perception. A central theme of the epistemology of the past few decades has been the discrediting of the idea of a raw perceptual “given,” completely unmediated by concepts. Perceptions are in general simultaneously conceptions, if only at a very low level. Moreover, the social dimension of epistemology is obviously most salient here, since individuals do not in general make up these categories themselves but inherit them from their cultural milieu. “The influence of social factors begins at birth, for language is not reinvented by each individual in social isolation, nor could it be. Because language acquisition is socially mediated, the concepts we acquire are themselves socially mediated from the very beginning” (Kornblith 1994a, 97). But this means that the conceptual array with which the cognizer approaches the world needs itself to be scrutinized for its adequacy to the world, for how well it maps the reality it claims to be describing. In addition, it is not a matter of monadic predicates, reciprocally isolated from one another, but concepts linked by interlocking assumptions and background belief sets into certain com- plexes of ideation that by their very nature tend to put a certain interpretation on the world. So in most cases the concepts will not be neutral but oriented toward a certain understanding, embedded in subtheories and larger theories about how things work. In the orthodox left tradition, this set of issues is handled through the category “ideology”; in more recent radical theory, through Fou- cault’s “discourses.” But whatever one’s larger metatheoretical sympathies, whatever approach one thinks best for investigating these ideational matters, such concerns obviously need to be part of a social epistemology. For if the society is one structured by relations of domina- tion and subordination (as of course most societies in human history have been), then in certain areas this conceptual apparatus is likely going to be shaped and inflected in various ways by the biases of the rul- ing group(s). So crucial concepts may well be misleading in their inner makeup and their external relation to a larger doxastic architecture. Moreover, what cognitive psychology has revealed is that rather than con- tinually challenging conceptual adequacy by the test of disconfirm- ing empirical data, we tend to do the opposite—to interpret the data through the grid of the concepts in such a way that seemingly discon- firming, or at least problematic, perceptions are filtered out or margin- alized. In other words, one will tend to find the confirmation in the world whether it is there or not.” (25)
	8	+
	9	+Second-
	10	+The social norms around the constitution are fucked- it’s historical legacy legitimizes anti blackness and the commodification of black bodies. Your invocation of ‘constitutional protections’ historically used to perpetrate slavery makes it impossible to divorce your speech and politics from anti-blackness
	11	+Weinberg, Louise. "Overcoming Dred: A Counterfactual Analysis." Constitutional Commentary 24 (2007): 733-770.
	12	+But a Lincoln Court could not pretend that the Constitution did not recognized slavery, even though, as Lincoln argued at Cooper Union, the Constitution did not "expressly" affirm slavery. 7 " The Constitution does not establish property in slaves, but it variously recognizes the existence of slavery and makes accommodations to slavery. Paul Finkelman has discussed these at length in various of his writings. 77 Slaves were to count as fractions of persons for the purposes of both taxation and representation.7 x Fugitive slaves were to be returned. 74 The slave trade was not to be prohibited before 1808.80 It also seems relevant that the Senate consists of two representatives from each state, large or small, without possibility of amendment,' 1 an arrangement enabling a Southern majority to block an appointment to the federal judiciary. Furthermore, the supermajorities that the logic of the Constitution required for the amendment processx2 ensured that the South would enjoy a permanent veto over proposed amendments to the Constitution. While neither provision was merely an obeisance to the concerns of the slave South, Southern delegates to the Constitutional Convention could return to the South claiming them as victories. In providing that no person shall be deprived of life, liberty, or property without due process of law, the Fifth Amendment is understood to mean at a minimum that before federal authorities can execute, imprison, or fine anyone, before a federal court can impose a sentence or assess damages or issue an injunction, due process first requires notice, trial, and judgment. And in 1860 it is fair to say not only that most Americans, North and South, would have thought the Due Process Clause to be purely ''procedural" in this sense, but also that most Americans, North and South, would have understood the "property'' protected by the Clause to include slave property. Many today still believe that it did. Recently David Currie, for example, has termed "fatuous" the argument in the 37th Congress, as it prepared to abolish slavery in the capital, that there could be no property in human beings, because that argument was "contradicted by decades of history in the District of Columbia and centuries of it elsewhere.""' Southerners took the argument further. They also argued that the Fifth Amendment protected slave-owners' "liberty" as well as their "property." This was a liberty to take their slaves with them into the territories, free of federal interference. They sometimes argued that the concesrt of ''due process" included the concept of ''equality" as well. In this view, due process required the nation to give equal respect to Southern as to Northern property rights, to slave as to other property, and to Southerners' as well as Northerners' rights to travel to, or settle in, a United States territory-with their "property."
	13	+Constitutional protections have a legacy of not applying to oppressed groups- the intent of the constitution has been defined to only include the privileged by social precedent
	14	+Marshall, Thurgood. "Reflections on the bicentennial of the United States Constitution." Harvard Law Review 101.1 (1987): 1-5.
	15	+"We the People." When the Founding Fathers used this phrase in 1787, they did not have in mind the majority of America’s citizens. "We the People" included, in the words of the framers, "the whole Number of free Persons." 3 On a matter so basic as the right to vote, for example, Negro slaves were excluded, although they were counted for representational purposes- at three-fifths each. Women did not gain the right to vote for over a hundred and thirty years. 4 These omissions were intentional. The record of the framers’ debates on the slave question is especially clear: the Southern states acceded to the demands of the New England states for giving Congress broad power to regulate commerce, in exchange for the right to continue the slave trade. The economic interests of the regions coalesced: New Englanders engaged in the "carrying trade"would profit from transporting slaves from Africa as well as goods produced in America by slave labor. The perpetuation of slavery ensured the primary source of wealth in the Southern states. Despite this clear understanding of the role slavery would play in the new republic, use of the words "slaves"and "slavery"was carefully avoided in the original document. Political representation in the lower House of Congress was to be based on the population of "free Persons" in each state, plus three-fifths of all "other Persons." 5 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: the self-evident truths "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." 6 It was not the first such product of its times, and embodied a compromise which, under other circumstances, would not have been made. But the effects of the framers’ compromise have remained for generations. They arose from the contradiction between guaranteeing liberty and justice to all, and denying both to Negroes. The original intent of the phrase, "We the people," was far too clear for any ameliorating construction. Writing for the Supreme Court in 1857, Chief Justice Taney penned the following passage in the Dred Scott case, 10 on the issue of whether, in the eyes of the framers, slaves were "constituent members of the sovereignty," and were to be included among "We the People" : We think they are not, and that they are not included, and were not intended to be included..... They had for more than a century before been regarded as beings of an inferior order, and altogether unfit to associate with the white race....; and so far inferior, that they had no rights which the white man was bound to respect; and that the negro might justly and lawfully be reduced to slavery for his benefit.... ...Accordingly, a Negro of the African race was regarded... as an article of property, and held, and bought and sold as such... No one seems to have doubted the correctness of the prevailing opinion of the time.11 And so, nearly seven decades after the Constitutional Convention, the Supreme Court reaffirmed the prevailing opinion of the framers regarding the rights of Negroes in America. It took a bloody civil war before the thirteenth amendment could be adopted to abolish slavery, though not the consequences slavery would have for future Americans. While the Union survived the civil war, the Constitution did not.
	16	+Third- the Alternative
	17	+The NC engages in a counterfactual analysis of the constitution- we advocate that the Dred Scott V. Stanford (1857) supreme court case be decided in Dred Scott’s favor, by deciding that there could be no property in human beings.
	18	+This is key to reverse the commodification of black people in the constitution. Such a decision is materially possible- there is a precedent from 1836 and in the courts dissent
	19	+Weinberg, Louise. "Overcoming Dred: A Counterfactual Analysis." Constitutional Commentary 24 (2007): 733-770.
	20	+A better basis for an overruling of Dred Scott might have been presented by a redefinition of the word "property" in the Due Process Clause of the Fifth Amendment. Of course, the Supreme Court could not bind the states to its view of property as a matter of state law. Even in those days when the Court generally was not bound to follow state case law where it applied,62 the states were certainly not bound to follow the Supreme Court's lead as to matters of state law. 63 But the Court could authoritatively redefine ''property" as that word is used in the Fifth Amendment. In his 1858 debates with Douglas, Lincoln said that Chief Justice Taney's essential mistake of constitutional interpretation in Dred Scott lay in the assertion that "the right of property in a slave is distinctly and expressly affirmed in the Constitution."64 61. Cf. Daniels. 474 U.S. at 336 (Stevens, J., concurring in the judgment) (pointing out that there are three different kinds of Fourteenth Amendment due process: First, "incorporating" rights enumerated in the Bill of Rights: second, incorporating unenumerated rights and rights to be free of arbitrary law; and, third, protecting under the bare Due Process Clause rights to fair procedures). 62. Cf. Swift v. Tyson, 41 U.S. 1 (1842). overruled. Erie R. Co. v. Tompkins, 304 u.s. 64 (1938). 63. Erie, 304 U.S. at 74 (Brandeis. J.) (noting the persistence of state courts in applying their own laws on questions of common law). Brandeis's observation points up the fact that the common law available in federal courts under Swift had never been federalized, and thus was not the "supreme" law of the land. It simply represented an independ· ent judgment of what state law ought to be, and as such was not binding on the state judges. 64. Abraham Lincoln. Reply in the Galesburg Joint Debate (Oct. 7. 1858), in I COMPLETE WORKS. supra note 22. at 437. 445. 2007 OVERCOMING DRED 751 Lincoln firmly contradicted any such assertion as ''not true in fact. "65 A strong Lincoln Court might well reinterpret the meaning of the word "property" in the Due Process Clause of the Fifth Amendment. There is a brief passage in Aves' Case that suggests the possibility of such a reinterpretation. Aves' Case is a celebrated Massachusetts opinion by Chief Justice Shaw, influential for the seminal distinction it drew, crucial to antebellum thought, between fugitives escaping from slave territory and slaves voluntarily brought into free territory. Fugitives were to be rendered up to their masters under the Fugitive Slave Clause" -part of the sacred constitutional bargain."" Even slaves brought voluntarily into a free state were to be rendered up, if they were only in transit there. But those brought voluntarily into a free state, sojourning there for a period of time, were not within the terms of the sacred bargain. "Sojourners'' could become free."" In the course of discovering this distinction, through a prolonged struggle, Chief Justice Shaw briefly, in passing, suggested the more fundamental point that there could be no property in human beings. Here is Lemuel Shaw wrestling with this insight: But it is not speaking with strict accuracy to say, that a property can be acquired in human beings, by local laws. Each state may, for its own convenience, declare that slaves shall be deemed property, and that the relations and laws of personal chattels shall be deemed to apply to them; as, for instance, that they may be bought and sold, delivered, attached, levied 65. /d. at 446. 66. Commonwealth v. Aves, 35 Mass. 193, 219 (1836) (Shaw, C.J.). See LEONARD W. LEVY, THE LAW OF THE COMMONWEALTH AND CHIEF JUSTICE SHAW (1957), at 84. 67. U.S. CONST. art. 4, § 2, cl. 3. See Paul Finkelman, Legal Ethics and Fugitive Slaves: The Anthony Burns Case, Judge Loring, and Abolitionist Attorneys, 17 CARDOZO L. REV. 1793 (1997); Louise Weinberg, Methodological Interventions and the Slavery Cases: Night-Thoughts of a Legal Realist, 56 MD. L. REV. 1316, 1342-59 (1997) (recounting the struggle in the courts over fugitive slaves). 68. It is sometimes remarked that the South would never have joined the Union had not the Constitution embodied a sacred bargain guaranteeing Southern state signatories' rights to their existing labor systems. The Fugitive Slave Clause was a prominent feature of the sacred bargain. Interestingly, at least one Northern judge reasoned. to the contrary, that the North would not have signed the Constitution had it imagined that it could be invaded by bounty hunters. and its own free black citizens kidnapped and sent into chattel slavery. In re Booth. 3 Wis. 13. 72 (1854) (Crawford. J.. dissenting). 69. For the antebellum interstate conflict over the freedom vel non of non-fugitive slaves, see Louise Weinberg, Of Theory and Theodicy: The Problem of Immoral Law, in LAW AND JUSTICE IN A MULTISTATE WORLD (Symeon Symeonides ed., 2002), at 473-99; PAUL FINKELMAN, AN IMPERFECT UNION: SLAVERY. FEDERALISM. AND COMITY (1981); ROBERT M. COVER, JUSTICE ACCUSED: ANTI-SLAVERY AND THE JUDICIAL PROCESS (1975); Weinberg, Methodological Interventions, supra note 67. at 1316. 752 CONSTITUTIONAL COMMENTARY Vol. 24:733 upon, that trespass will lie for an injury done to them. or trover for converting them. But it would be a perversion of terms to say, that such local laws do in fact make them personal 70 property generally .... A similar uneasiness with the chattel aspect of slavery is echoed, also in passing, in Salmon P. Chase's brief in the Birney case in Ohio. 7 ' Chase wrote, "I maintain that the relation of owner and property, as existing between person and person, has. or can have, no existence in this state ...... On some such thinking, a Lincoln Supreme Court might overrule Dred Scott- by redefining the category of "property'' as incapable of attaching to human beings for purposes of the Due Process Clause. The question was raised in argument in Dred Scott.n Yet in Dred Scott, only Justice McLean, dissenting, seems to have had a doubt about property in human chattel, and he expressed this quite casually, without developing the argument: "But we know as a historical fact, that James Madison. that great and good man, a leading member in the Federal Convention, was solicitous to guard the language of that instrument so as not to convey the idea that there could be property in man. ~, 7~ True, the Founders owned slaves themselves. a fact on which Chief Justice Taney relied in Dred Scott. Taney suggested that the Founders could not, without hypocrisy, own slaves while thinking it wrong.74 Dred Scott's originalism on this point is among Taney's least edifying tropes. Justice McLean, dissenting, responded, I prefer the lights of Madison, Hamilton, and Jay, as a means of construing the Constitution in all its bearings, rather than to look behind that period, into a traffic which is now declared to be piracy, and punished with death by Christian nations. I do not like to draw the sources of our domestic relations from so dark a ground. 7 ' Chief Justice Taney's kind of originalism would fasten upon us the sins of the fathers, stripping them, and with them the Con- 70. Aves' Case. 35 Mass. at 216. 71. Birney v. State. 8 Ohio 230.231 (1837) (brief of Salmon P. Chase). 72. Dred Scott. 60 U.S. at 451 ("lt seems. however. to be supposed. that there is a difference between property in a slave and other property. and that different rules may be applied to it in expounding the Constitution of the United States .... "). 73. Dred Scott. 60 U.S. at 537. 74. /d. at 410. 75. /d. at 537. 2007 OVERCOMING DRED 753 stitution, of their ideals and aspirations.
	21	+And- court decisions are performative acts with real consequences for the way that the constitution is socially understood. The NC is able to change our understanding of the constitution through counterfactual analysis.
	22	+White, James Boyd. "Constructing a constitution: Original intention in the slave cases." Md. L. Rev. 47 (1987): 239.
	23	+My examination will proceed at two levels, which might be called the explicit and the performative. At the explicit level, the Court expresses a restatable view, perhaps directly, perhaps partly by implication, of what the Constitution is, how it ought to be interpreted, and so forth, and we can ask what that view is. But in addition to the articulation, or implication, of views of this sort, the judge in her actual writing performs as a writer and mind in ways that enact her sense of who a judge is, what the Constitution is, how constitutional arguments should proceed, and so forth. These enactments or performances may themselves be analyzed and judged; and they may be found to be either consistent or inconsistent with the judge's explicitly stated views on these matters. Let me give three brief examples of what I mean. In McCulloch v. Maryland3 Chief Justice Marshall describes the Constitution as a kind of testamentary trust, a document created by a mythical figure, 1. 41 U.S. (16 Pet.) 539 (1842). 2. 60 U.S. (19 How.) 393 (1857). 3. 17 U.S. (4 Wheat.) 316 (1819). 240 VOL. 47:239 CONSTRUCTING A CONSTITUTION "The People of the United States," who existed at one time and for one purpose only, namely the creation of this document, after which they resolved themselves into the competing political and economic factions that we see around us.

EntryDate

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	1	+2016-12-18 01:33:17.655

Judge

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	1	+Kris, Jeremy Dang, Tyler Sullivan

Opponent

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	1	+Saavan

ParentRound

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	1	+47

Round

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	1	+Semis

Team

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	1	+North Crowley Reed Neg

Title

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	1	+4- Counterfactual K

Tournament

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	1	+Strake