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by
Elie Mystal
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June 8 - June 10, 2022
And yet you rarely see liberals make the point that the Constitution is actually trash. Conservatives are out here acting like the Constitution was etched by divine flame upon stone tablets, when in reality it was scrawled out over a sweaty summer by people making deals with actual monsters who were trying to protect their rights to rape the humans they held in bondage.
The Constitution is not gospel, it’s not magic, and it’s not even particularly successful if you count one civil war, one massive minority uprising for justice that kind of worked against tons that have been largely rebuffed, and one failed coup led by the actual president, as “demerits.” It was written by a collection of wealthy slavers, wealthy colonizers, and wealthy antislavery white men who were nonetheless willing to compromise and profit together with slavers and colonizers. At no point have people of color or women been given a real say in how it was written, interpreted, or amended.
Democracies tend to elevate any person with enough wealth and charisma to stand out in a crowd. Democracies neither necessarily nor naturally reward merit. Nor do they punish incompetence. Democracies tend to go along with the popular will, and Socrates knew that the popular will could be easily manipulated into believing any odd thing.
White people with contrarian views who find themselves on the wrong end of a Twitter ratio spend a lot of time complaining about “cancel culture.”
Did the cancel culture–concern club raise a ruckus over the Fairooz prosecution? No. Andrew Sullivan wrote no screeds about the dangerous precedent of the Justice Department prosecuting somebody for laughing at Congress. Did these people write about Juli Briskman, a woman who was fired after she was caught flipping off the Donald Trump motorcade while she was out for a bike ride? No. David Brooks found no spare words to defend the right of American citizens to flip the president the bird. Name me your favorite cancel culture writer or thinker, and I will show you a person who remained mute in
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But, against this normal operation of a normal antidiscrimination law, Phillips raised an objection under the First Amendment’s free exercise clause. The so-called religious objection to same-sex marriage is always taken at face-value, and it shouldn’t be. Craig and Mullins were not asking Phillips to get married to a man. They weren’t attempting to pay Phillips in sexual favors. They did not want Phillips to put himself inside the cake and jump out and scream “I love gay people” at an opportune moment. They simply wanted Phillips to accept payment for services he started an entire business to
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Free speech protects people with theocratic views, but it doesn’t give them the right to impose those views on things like the market economy and the health care system.
It turns out, you don’t need guns to overthrow the government: you just need to be white and enjoy the permissiveness of people like Josh Hawley and Ted Cruz, and a little bit of better luck while trying to find the leaders you intend to kidnap or assassinate.
Of course, Black people being able and willing to defend themselves from racist Americans was a very serious problem for racist Americans. In a direct response to African Americans patrolling Oakland, California, and “copwatching,” Republicans in California passed the Mulford Act, which banned open carry of loaded firearms in California. Who signed that law? Republican patron saint and then governor of California Ronald Reagan. The absolutist interpretation of the Second Amendment is new, but using gun rights or gun control, as necessary, to maintain racial dominance is old.
The principal way of quelling slave revolts was (wait for it): armed militias of white people. Gangs of white people roving around, imposing white supremacy, is nothing new.
The original public purpose for a citizens’ militia was not some theoretical worry about standing armies or an idealized right of citizens’ militias to resist federal power. Instead the original purpose was a practical concern that the antislavery North would leave the South vulnerable to slave revolts. Scalia omits that rationale. And of course he has to. Because grounding the case for “self-defense” that satisfies the NRA’s permissiveness of shooting Black children walking home with Skittles, in an amendment designed to help slavers keep people in bondage, would be a little too on the nose.
People think that the continued mass murder of innocent civilians will, one day, shake Republicans loose from the thrall of the NRA. That will not happen. Republicans will not make the killing stop, because they still think that near-unfettered access to guns is the only thing keeping them safe from Black people.
Unfortunately, we share the country with people who will not let us have nice things. These people are called originalists, and they will not allow our polity to function rationally. They think the Constitution can be only as good as the worldview of the small-minded slavers and colonists who wrote it, and because of that they insist the death penalty must be constitutional.
Now, imagine that executioner saying, “It’ll hurt like a bitch and frankly I don’t give a damn.” That will give you an idea about Gorsuch’s majority opinion in Bucklew. He wrote: “The Eighth Amendment forbids ‘cruel and unusual’ methods of capital punishment but does not guarantee a prisoner a painless death.” What a bastard, what a heartless-bastard thing to write while condemning a man to die painfully.
Adopted in 1996, the South African Constitution now stands as a model for the world, while we have a “constitutional crisis” every time a Republican president figures out a new way to commit crimes.
The real debate between liberals and conservatives on the Supreme Court, the true argument, when you drop out the legal jargon and hot-button culture-war issues, is the debate over whether or not the new amendments worked to redeem the document. Conservatives, fundamentally, act as though they did not. They act like the post–Civil War amendments were mere updates to the original slave document. We still have a white supremacist’s Constitution—we just have to count Black people as full people for the purposes of congressional representation, is all. Not much has changed.
Of course privacy is a thing. The Constitution scarcely makes sense without it. Conservatives who mock the right to privacy are ironically the same people who think homeowners can shoot people to death should somebody invade their “castle.”
But instead of anthropomorphizing the fetus, let’s never lose sight of the actual person in this story, the woman, and what the state is trying legally to force her to do.
Most women won’t know they’re carrying the state’s legitimate interest for the first couple of weeks, but once the state’s interest disrupts their menstrual cycle, a simple home test can detect the invasion of the state. By six weeks or so, the woman might start becoming violently ill. As the state’s interest grows, a woman’s bones will soften and her joints will stop functioning properly. By the end of the first trimester, she’ll have created an entirely new organ, the placenta, which will start leaching nutrients from her bloodstream and feeding it to the state’s interest. To compensate, the
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But the better legal frame is “Forced birth is some evil shit that can never be compelled by a legitimate government. The end.”
conservatives do. This is what they always do. Schlafly had a neat little twist—arguing that social inequality benefited women instead of harming them—but even that is not new. Conservatives love arguing that the people they oppress are well taken care of by the oppressors.
