Does the law morally bind the poor? or, What good's the Constitution when you can't afford a loaf of bread? PDF
Preview Does the law morally bind the poor? or, What good's the Constitution when you can't afford a loaf of bread?
Page i Does the Law Morally Bind the Poor? or What Good's the Constitution When You Can't Afford a Loaf of Bread? Does the Law Morally Bind the Poor? Or, What Good's the Constitution When You title: Can't Afford a Loaf of Bread? Critical America author: Wright, R. George. publisher: New York University Press isbn10 | asin: 0814792944 print isbn13: 9780814792940 ebook isbn13: 9780585022444 language: English Criminal liability--United States, Public subject welfare--Law and legislation--United States, Poor--Civil rights--United States. publication date: 1996 lcc: KF9243.5.W75 1996eb ddc: 345.73/04 Criminal liability--United States, Public subject: welfare--Law and legislation--United States, Poor--Civil rights--United States. Page ii Critical America General Editors: RICHARD DELGADO and JEAN STEFANCIC White by Law: The Legal Construction of Race Ian F. Haney López Cultivating Intelligence: Power, Law, and the Politics of Teaching A conversation between Louise Harmon and Deborah W. Post Privilege Revealed: How Invisible Preference Undermines America Stephanie M. Wildman with contributions by Margalynne Armstrong, Adrienne D. Davis, and Trina Grillo Does the Law Morally Bind the Poor? or What Good's the Constitution When You Can't Afford a Loaf of Bread? R. George Wright Page iv NEW YORK UNIVERSITY PRESS New York and London Copyright © 1996 New York University All rights reserved Grateful acknowledgment is made to the Catholic University Law Review for permission to publish a revised version of my article "The Progressive Logic of Criminal Responsibility and the Circumstances of the Most Deprived," 43 Cath. U.L. Rev. 459504(1994). Library of Congress Cataloging-in-Publication Data Wright, R. George. Does the law morally bind the poor, or, What good's the Constitution when you can't afford a loaf of bread? / R. George Wright. p. cm.(Critical America) Includes bibliographical references and index. ISBN 0-8147-9294-4 (cloth: acid-free paper) 1. Criminal liabilityUnited States. 2. Public welfareLaw and legislationUnited States. 3. PoorCivil rightsUnited States. I. Title. II. Series. KF9243.5.W75 1996 95-50202 345.73'04dc20 CIP [347.3054] New York University Press books are printed on acid-free paper, and their binding materials are chosen for strength and durability. Manufactured in the United States of America 10 9 8 7 6 5 4 3 2 1 Page v For Mary, with thanks to Karon Bowdre Richard Delgado Joshua Dressler Lori Hackleman Judy McAlister Jeffrie G. Murphy Trisha Olson Niko Pfund Jean Stefancic Kimberly Schooley Page vii contents introduction 1 Does the Constitution Morally Bind the Poor? 2 The Progressive Logic of Criminal Responsibility and the Circumstances of the Most Deprived 3 Desperation and Necessity: Les Miserables on Trial 102 conclusion 175 notes 179 bibliography 185 index 217 Page 1 introduction What are the pros and cons of living in a broken trash compactor? The advantages are actually many and substantial. The danger of electrocution, for example, is less than that of sleeping near a 600 volt electrified train rail. The chances of being hit by a stray bullet are less than in some housing projects. Of course, one must not too quickly generalize about such matters. A housing project resident might reduce the risk of unintended gunshot wounds by such expedients as sleeping in the bathtub. We should not overlook some of the less obvious advantages of the broken trash compactor lifestyle. Any food discarded into the compactor offers a win-win proposition. Either the discarded food is Page 2 actively decomposing, or it is not. If it is not decomposing, it is in some sense edible. If, on the other hand, it is decomposing, other advantages exist. For one, decomposing food provides more cushioned bedding material than, say, a porcelain bathtub. More important, the chemical decomposition of rotting food generates heat. Just this sort of chemical reaction may mean the difference between freezing to death and not. Other advantages of the trash compactor lifestyle, such as its excellent protection against windchill, if not against vermin, are obvious, and need no further rehearsal. Instead, let us note one significant disadvantage not yet factored into our calculus. We have carefully specified the trash compactor to be broken. But what if it does not stay broken? What if, one day, it is repaired and restored to active service? What if this takes place without advance public notice or, in particular, notification of the trash compactor's resident? What, finally, if the inhabitant of the trash compactor is, every night, at least dimly aware of just this possibility? The actual playing out of this macabre scenario is extremely uncommon, though apparently not entirely unheard of.1 It is worth note not for the frequency of its occurrence, but for its unusually stark metaphorical import. Perhaps in the absence of any official malice at any stage, a living human being is unconsentingly merged into crushed societal refuse. It is difficult to identify with those whose lives focus centrally on broken trash compactors. Human compactification is, for us, cartoonlike or, at worst, the fate of minor characters in James Bond movies. It is hardly the stuff of nightmares, or of familiar personal decision making. But nonconsensual compactification and disposal is merely an extreme example of a much broader range of incidents, circumstances, and lifestyles most of us have difficulty fathoming. What, for example, would we think if in the course of our daily lives, we noticed that the cords ordinarily used to adjust a set of win-
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