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       About NYU Press

      A publisher of original scholarship since its founding in 1916, New York University Press Produces more than 100 new books each year, with a backlist of 3,000 titles in print. Working across the humanities and social sciences, NYU Press has award-winning lists in sociology, law, cultural and American studies, religion, American history, anthropology, politics, criminology, media and communication, literary studies, and psychology.

       The Smart Culture

       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 LOUISE HARMON and DEBORAH W. POST

      Privilege Revealed: How Invisible Preference Undermines America STEPHANIE M. WILDMAN with 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

      Hybrid: Bisexuals, Multiracials, and Other Misfits under American Law RUTH COLKER

      Critical Race Feminism: A Reader Edited by ADRIEN KATHERINE WING

      Immigrants Out! The New Nativism and the Anti-Immigrant Impulse in the United States Edited by JUAN F. PEREA

      Taxing America Edited by KAREN B. BROWN and MARY LOUISE FELLOWS

      Notes of a Racial Caste Baby: Color Blindness and the End of Affirmative Action BRYAN K. FAIR

      Please Don’t Wish Me a Merry Christmas: A Critical History of the Separation of Church and State STEPHEN M. FELDMAN

      To Be an American: Cultural Pluralism and the Rhetoric of Assimilation BILL ONG HING

      Negrophobia and Reasonable Racism: The Hidden Costs of Being Black in America JODY DAVID ARMOUR

      Black and Brown in America: The Case for Cooperation BILL PIATT

      Black Rage Confronts the Law PAUL HARRIS

      Selling Words: Free Speech in a Commercial Culture R. GEORGE WRIGHT

      The Color of Crime: Racial Hoaxes, White Fear, Black Protectionism, Police Harassment, and Other Macroaggressions KATHERYN K. RUSSELL

      Was Blind, But Now I See: White Race Consciousness and the Law BARBARA J. FLAGG

       The Smart Culture

       Society, Intelligence, and Law

      Robert L. Hayman, Jr.

      NEW YORK UNIVERSITY PRESS

      New York and London

      Copyright ® 1998 by New York University

      All rights reserved

      Portions of chapter 7 originally appeared as Robert L. Hayman, Jr., and

      Nancy Levit, The Tales of White Folk: Doctrine, Narrative and the Reconstruction of Racial Reality, 84 CALIFORNIA LAW REVIEW 377 (1996). Reprinted by permission of California Law Review, Inc.

      Library of Congress Cataloging-in-Publication Data

      Hayman, Robert L.

      The smart culture: law, society, and intelligence / Robert L. Hayman, Jr.

      p. cm.

      Includes bibliographical references and index.

      ISBN 0-8147-3533-9 (alk. paper)

      1. Mental health laws—United States. 2. Mentally handicapped—Civil

      rights—United States. 3. Culture and law. I. Title.

      KF480.H37 1997

      323′.0973-dc21 97-29366

      CIP

      New York University Press books are printed on acid-free paper,

      and their binding materials are chosen for strength and durability.

      Manufactured in the Unites States of America

      10 9 8 7 6 5 4 3 2 1

       For my family, who taught me to know better

      Do nothing from selfish ambition or conceit, but in humility regard others as better than yourselves. Let each of you look not to your own interests, but to the interests of others.

      —PHILIPPIANS 2.3-4

      But, after all, nothing is true that forces one to exclude. Isolated beauty ends up simpering; solitary justice ends up oppressing. Whoever aims to serve one exclusive of the other serves no one, not even himself, and eventually serves injustice twice. A day comes when, thanks to rigidity, nothing causes wonder any more, everything is known, and life is spent in beginning over again. These are the days of exile, of desiccated life, of dead souls.

      — Albert Camus, RETURN TO TlPASA

       Contents

       Acknowledgments

       1 Introduction: Smart People

       2 The First Object of Government: Creation Myths

       3 In the Nature of Things: Myths of Race and Racism

       4 A Neutral Qualification: Myths of the Market

       5 Creating the Smart Culture: Myths of Inferiority

       6 The Smart Culture: Myths of Intelligence

       7 The Constitution Is Powerless: Myths of Equality under Law

       Epilogue: The Next Reconstruction

       Notes

       Index

Acknowledgments

      I am indebted to many people who, in various ways, made this book possible.

      This is, first of all, very much an interdisciplinary effort, and some of the disciplines are not my own. For the science in particular, I have depended on the work of those scholars who have made contemporary understandings accessible to the general public. Ned Block, Stephen Jay Gould, Leon Kamin,

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