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6 Innocence and Affirmative Action THOMAS ROSS When we create arguments, when we act as rhetoricians, we reveal ourselves by the words and ideas we choose to employ. Verbal structures that are used widely and persistently are especially worth examination. Arguments made with repeated, almost formulaic, sets of words suggest a second argument flowing beneath the apparent argument . Beneath the apparently abstract language and the syllogistic form of these arguments , we may discover the deeper currents that explain, at least in part, why we seem so attached to these verbal structures. In particular, the rhetoric of innocence persists as an important tool in discussions of race. It is hard to know how rhetoric works. We do know, however, that both judges and academicians often use the rhetoric of innocence. Those who use the rhetoric presumably find it persuasive or at least useful. What then could be the sources and nature of its apparent power? Innocence "Innocence" is connected to the powerful cultural forces and ideas of religion , good and evil, and sex. "Innocence" is defined typically as "freedom from guilt or sin" or, in the sexual sense, as "chastity." The idea of innocent victims, particularly when coupled with the specter of those who victimize them, is a pervasive and potent story in our culture. The centrality of the conception of "innocence" to the Christian religion is obvious. Christ is the paradigmatic "innocent victim." Mary is the perfect embodiment of innocence as chaste. Although the concept of "original sin" complicates the notion of innocence in Christian theology, the striving toward innocence and the veneration of those who come closest to achieving it and thereby suffer are important ideas in modern Christian practice. "Blessed are those who are persecuted for righteousness' sake, for theirs is the kingdom of heaven."l The idea of innocence also is connected to the myths and symbols of evil. For example, Paul Ricoeur in The Symbolism of Evil demonstrates the cultural significance of the "dread of the impure" and the terror of "defilement."2 The contrasting state for "impure," or the state to which the rites of purification might return us, is "innocence," freedom from guilt or sin. Ricoeur 's thesis spans the modern and classical cultures. He makes clear the persistence and power of the symbolism of evil and its always present contrast, the state of innocence. What is central within the modern culture surely will be reflected in its literature. And 43 VAND. L. REV. 297 (1990). Originally published in the Vanderbilt Law Review. Reprinted by permission. Copyrighted Material 28 Thomas Ross in literature the innocent victim is everywhere. In Innocent Victims: Poetic Injustice in Shakespearean Tragedy, R. S. White argued "that Shakespeare was constantly and uniquely concerned with the fate of the innocent victim." White observed, "In every tragedy by Shakespeare, alongside the tragic protagonist who is proclaimed by himself and others as a suffering centre, stands, sometimes silently, the figure of pathos who is a lamb of goodness: Lavinia, Ophelia, Desdemona, Cordelia, the children."3 Shakespeare was not alone in the use of women and children drawn as innocent victims. In the work of Dickens, Hugo, Melville, and others, the suffering innocent is a central character. The innocent victim is part of sexual practice and mythology. The recurring myth of the "demon lover" and its innocent victim is one example.4 Moreover, we are preoccupied with innocence in the female partner as part of the mythological background of rape and prostitution and in our prerequisites in the chosen marriage partner.s The idea of the innocent victim always conjures the one who takes away her innocence and who thereby himself becomes both the"defiler" and the"defiled." In literature and in life the innocent victim is used as a means of conjuring the notion of defilement. In fact, it is impossible to make sense of the significance of either the "innocent victim" or the"defiler" without imagining the other. Each conception is given real significance by its implicit contrast with the other. Thus, the invocation of innocence is also the invocation of sin, guilt, and defilement. Race and Innocence The rhetoric of innocence in affirmative action discourse uses one of the most powerful symbols of our culture, that of innocence and its always present opposite, the defiled taker. When the white person is called the innocent victim of affirmative action, the rhetorician is invoking not just the idea of innocence but also that of the not innocent, the defiled taker. The defiled taker...


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