The Shattered Mirror: Identity, Authority, and Law

At Stanford Law School, there are a stunning number of student organizations. Some of them have been around for a while. Others come and go. We have or have had organizations of black students, Hispanic students, Native American students, Asian and Pacific Islander students, gay and lesbian students, Jewish students, Christian students, women students, older students, students interested in high technology, students interested in entertainment law. Most of these groups are identity groups. A few are groups organized around some field of law. When I went to law school, almost fifty years ago, there were (if I am remembering correctly) none of these organizations. To be sure, there were very few women or minority students in law school at that time. It is no great mystery why so many such organizations can be found in law schools today; almost everybody would connect them with the rise of identity politics. For many people, identity politics itself is a serious national problem. Identity politics, they fear, shatters the unity of the country. There are far too many of these groups, each of them apparently demanding a place in the sun, a share in the stock of power and legitimacy. If we grant their claims, what will be left of national identity in the United States? What is the nation, or, is there any actual nation any more? Indeed, sometimes it seems as if the nation has disintegrated, and given way to a multiplicity of nations inside the historic borders of the actual nation. In a sense, each identity group forms a kind of nation and indeed, the very word "nation" is used. We have all heard of the Nation of Islam. A gay activist group calls itself the Queer Nation. There are even gangs that call themselves nations. It would not be farfetched to talk about the feminist nation or the Hispanic nation, or the nation of the blind or the deaf In many countries, ethnic minorities, living in compact areas - the French speakers in Canada, for example - do constitute sub-nations within a larger nation, in a quite literal sense. But in the United States, the internal nations do not live in geographically compact areas. They are everywhere and nowhere. Before I go any further, I want to make clear the thesis of my speech. It is a story of a rise and a fall. The rise is the rise of a new concept of equality, which I call plural equality. The fall is the fall of a regime of cultural dominance. My thesis is that once upon a time there was a real cultural ruling class in this country. This period lasted roughly through the middle of the twentieth century. Gradually, slowly, its position was eroded. Today, there is a much more complex cultural and moral landscape; this is the situation I call plural equality. The metaphor of a mirror can be used to describe the earlier state of affairs - smooth, uniform, glassy. But the mirror has now shattered, and cannot be put together again. I will describe briefly a few aspects of this story which, as you can imagine, is quite complicated. I will then try to connect the thesis to other developments in American culture, law, and life. I will begin with a California case from 1931 - Melvin v. Reid.1 This was a right of privacy case. The plaintiff was a woman whose original name was Gabrielle Darley. She had led a colorful life. She came from a small town, and fell in love with an evil stranger, Howard, who lured her to New Orleans, where he put her to work as a prostitute in the red-light district. Howard then double-crossed and abandoned her; she followed him to Los Angeles, where he was about to marry another woman. There she killed him. She was arrested and tried, but the jury acquitted her. This all took place in 1917 and 1918.2 Gabrielle then "abandoned her life of shame," married a man named Bernard Melvin, and began to live what the court described as a "righteous" life, earning herself a place in "respectable society."3 Her new friends did not know about her scarlet past. …