HOW THE RIGHT HIJACKED THE MAGIC WORDS
by and copyright by Stanley Fish

DURHAM. N.C. When the verdict in the first Rodney King beating trial was announced many were amazed at the acquittal of the police officers, especially since their actions had been filmed by an amateur photographer. How could a jury ignore the evidence of its own eyes? A part of the answer emerged in the account of the defense strategy. It had two stages. First, the film was slowed down so that each frame was isolated and stood by itself. Second, the defense asked questions that treated each frozen frame as if everything in the case hung on it and it alone. Is this blow an instance of excessive force? Is this blow intended to kill or maim?

Under the pressure of such questions, the event as a whole disappeared from view and was replaced by a series of discontinuous moments. Looking only at individual moments cut off from the context that gave them meaning, the jury could not say of any of them that this did grievous harm to Rodney King. This strategy - of first segmenting reality and then placing all the weight on individual bits of it - is useful whenever you want to deflect attention away from the big picture, and that is why it has proved so attractive to those conservative Republicans who want to roll back the regulatory state. On every front, from environmental protection to affirmative action, large questions of ecology and justice are pushed into the background by the same segmenting techniques that made it easy for the jurors in Simi Valley to forget it was a beating they were seeing.

As examples, consider two cases recently decided by the Supreme Court. In Babbitt v. Sweet Home, the question was whether an E.P.A. regulation against "taking" an endangered species includes acts of "habitat modification" or whether words like "take" and "harm" refer narrowly to single assaults on single animals by single hunters.

Those taking the broader view agree that when you destroy the last remaining ground on which the piping plover breeds, you make it "impossible for any piping plovers to reproduce." Those on the other side, the side of developers and logging interests, reply that no single plover will have been targeted and no living plover injured.

"Taking," they insist, describes only "acts done directly and intentionally to particular animals." One side recognizes indirect effects caused by large-scale patterns of action taking place over time. The other side recognizes only effects caused in a particular moment by the intentional behavior of individuals. Beginning from these two perspectives - not on the issue, but determinative of the way the issue will be framed and seen -- the two sides come to predictably opposing conclusions.

Just about everything remains the same when the topic is affirmative action. In Adarand v, Pena, the question was whether the policy of giving financial incentives to prime contractors who hire minority subcontractors is constitutional. Those in favor of the incentives justify them by invoking constitutional history and the history of discrimination in the contracting industry. They remind us, in Justice John Paul Stevens words, that the "primary purpose of the Equal Protection Clause to end discrimination of the former slaves," and they report that even today certain groups remain entrenched in the building trades while ethers are virtually shut out.

Those opposed to the incentives reject arguments from history and specifically reject the argument that historical patterns of discrimination have impaired the life chances of African-Americans as a group. They say it is individuals, not groups, that are protected by the Constitution, and they would allow remedies for discrimination only in cases where there has been "an individualized showing" of harm, a harm inflicted discreetly on a specific person by a specific agent at a specific time.

The idea is that even though different histories may have brought us here, we are new all Individuals who enter life's race with equal opportunities and therefore any injury we suffer (at least if the law is going to recognize it) is injury done to us by an individual and not by impersonal forces either in the past or present. Harm in this model can only be imagined as a discrete event: you hit me over the head with a baseball bat. No Rube Goldberg accounts of cause and effect allowed.

The Rodney King beating, endangered species, affirmative action - - three very different issues, but all subject to the same analysis which reaches the same conclusion: either a particular person at a particular moment did it or no one did it. Blows can only kill one by one, and not in relation to other blows in a sequence. Birds can only he taken one by one and not by the destruction of the environment essential to their survival. Persons can only be discriminated against one by one, and not by the massive effects of longstanding structural racism.

One more example to clinch the point. In the first aftermath of the Oklahoma bombing, rumors of an Arab suspect were followed by the usual mutterings about an Islamic terrorist culture, but when Timothy McVeigh surfaced, talk of holding culture responsible was strongly denounced by the very same people engaging in it because the culture now under the spotlight was their own.

Immediately Mr. McVeigh was detached from everything and everyone around him and proclaimed to be "merely an individual", and more pointedly, an individual "kook," someone acting out of some inner and private compulsion and not in response to the values and goals of any group.

He may have worn the same clothes as those other guys, and held the same views, and listened to the same radio stations, and read or wrote the same anti-government pamphlets, and marched in the same woods with the same guns, but what he did (if he did it) he did entirely on his own, uninfluenced by anyone or anything. Just as we are to believe that Rodney King received each blow in isolation, and the piping plover experienced no harm when its habitat was degraded, and minority subcontractors suffered no disadvantage by centuries of exclusion from the trades they were now "free" to enter.

The question is, why do arguments like these often have so much force? At first glance it seems odd, Even bizarre, to discount the cumulative effects of many blows, or to deny that habitat degradation constitutes a harm to individual birds, or to announce that massive patterns of societal discrimination leave minorities in the same position as everyone else, or to decide that white Timothy McVeigh talks like a militia member, walks like a militia member, thinks likes militia member and hates like a militia member, what he does has nothing to do with the militia culture.

How is the trick done? Well, first of all by a sleight of hand. The eye is deflected away from the whole -- history, culture, habitats, society and the parts, now freed from any stabilizing context, can be described in any way one likes - but why is the sleight of hand successful? Why don't more people see through it?

Because it is performed with the vocabulary of America's civil religion - the vocabulary of equal opportunity, color-blindness, race neutrality and, above all, individual rights. This was also the vocabulary of civil rights activists, anti-McCarthyites and liberals in general, many of them are now puzzled and even defensive when they hear their own words coming out of the mouths of their traditional opponents.

Their mistake is to assume that the words mean what they did in 1960, when in fact they have been repackaged and put in the service of the very agenda they once fought, When the goal was to end Jim Crow practices that kept blacks in the back of the bus and out of schools, "individual rights" was a powerful slogan in support of change. But now "individual rights" operates to maintain the status quo by ruling out as a consideration the very history that made the phrase a rallying cry in the first place.

When the goal was to make discrimination illegal, "color-blind" meant removing the obstacles to full citizenship, but "color-blind" now means blind to the effects of what has been done in the past to people because of their color, When the goal was to provide access to those long denied it, "equal opportunity" was a weapon against old habits and vested interests, but new those same interests have learned how to say "equal opportunity" and mean maintenance of all conditions that still make it a myth.

Liberals and progressives have been slow to realize that their preferred vocabulary has been hijacked and that when they respond to once-hallowed phrases they are responding to a ghost now animated by a new machine, The point is not a small one, for in any debate, especially one fought in the arena of public opinion, the battle is won not by knock-down arguments but by the party that succeeds in placing its own spin on the terms presiding over the discussion.

That's what the conservatives in and out of Congress have managed to do with old war horses like "individual" and so long as they are allowed to get away with it, the opposition will spend its time insisting that it too is for the individual or for color-blindness or equal opportunity - and before we know it all the plovers will be dead and all the subcontractors will once again be white.