Does the law morally bind the poor? or, What good's the Constitution when you can't afford a loaf of bread?

425 Pages·1996·0.95 MB·English

by  R. George Wright

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-