FOR THE SECRET
“We dance round in a ring and suppose, But the Secret sits in the middle and knows.”
You are about to confront, my dear reader, a subtle and unusual argument. I will ask you to put aside your conventional assumptions about the law and the Constitution. I invite you to think about the American legal system in the way you might think about the psychological makeup of a person. We all know that beneath the manifest behavior of an individual there lies a deep structure of understanding that guides our actions more than we realize. We call this bedrock of the personality the “unconscious.” Or, we could call this underlying dimension of the legal personality the “deep structure” of the legal culture. The term comes from the field of grammar. Noam Chomsky conceptualized the rules that guide our sense of correct usage as the “deep structure” of language. 1 Therefore, the first idea that I ask you to imagine is that there is an analogous bedrock of our legal culture that influences and shapes the decisions of courts and lawyers the way the unconscious influences behavior or the deep grammar shapes our sense of proper syntax.
In the same way that experience shapes our individual unconscious, the historical experience of the American legal culture defines the deep structure of the legal system. The most significant event in American