Allow Me to Retort: A Black Guy’s Guide to the Constitution

by Elie Mystal

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.

Video gamers would call the Bill of Rights a “day one patch,” and they’re a good indication that the developers didn’t have enough time to work out all the kinks. And yet conservatives use these initial updates to justify modern bigotry against all sorts of people.

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.

That’s the thing about the Constitution: many of the rules, rights, prohibitions, and concepts are actually pretty decent. The problem is they’ve never been applied to all of the people living here. Not even for a day just to see how it would feel. They’ve never been anything more than a cruel tease.

My goal is to expose what the Constitution looks like from the vantage of a person it was designed to ignore. My goal is to illustrate how the interpretation of the Constitution that conservatives want people to accept is little more than an intellectual front for continued white male hegemony. And my goal is to help people understand the key role the courts play in interpreting the Constitution and to arm additional people with the knowledge, information, and resolve to fight conservatives for control over the third branch of government in every election, and over every nomination.

Students of Western political philosophy will reflexively reach for their copy of Leviathan by Thomas Hobbes to answer my questions. In 1651, Hobbes gave one of the best articulations for a government having a “monopoly of violence” over its subjects. If I may reduce one of the greatest works of political thought down to a sentence: If we let people kill each other, literally everybody would do it, so the only way we can have nice things is to let only one man kill people and hope he’s not a complete asshole.

Indeed, our definition of a “failed state” is one where the nominal ruling government no longer has a monopoly on violence.

The thought that a person should accept their death at the hands of the state is not a concept we get from political philosophy; it’s a concept we get from religious philosophy. Jesus went to the cross willingly. Obi-Wan Kenobi let Darth Vader strike him down. These men fell because of their religious beliefs—they thought they would become one with the Trinity or the Force or whatever.

Of course, the Hobbesian right to self-defense is in conflict with the Hobbesian requirement that the sovereign has a monopoly on violence. Without religion, without shrugging your shoulders and saying, “Be happy when the state murders you because God will give you a mansion in the sky,” it’s really hard to square state violence, or even incarceration of a state’s own subjects with the right of those subjects to resist. When you think about it, “resisting arrest” shouldn’t be a crime: it’s a goddamn moral imperative to rage, rage against the dying of the light.

Understand, the right to self-defense, as applied in this country, is one of the most probably racist functions of law that we have statistics for, and stand your ground just makes those racial disparities worse. One well-respected study by the Urban Institute’s Justice Policy Center found that white people who kill Black people are 250 percent more likely to have their homicides ruled as “justified” than when white people kill other white people.

Is it any wonder that police use this same trope when they kill Black people? As we’ve discussed, every single time a cop guns down a Black victim, the cop turns around and claims he feared for his life. If this country wasn’t so suffused in racial prejudice, our “no retreat, no surrender” irrationally violent conception of self-defense would work against cops, not for them.

The universe in which the cops can break into a woman’s apartment and shoot her dead, but her boyfriend cannot fire back at the armed, unknown assailants who killed her, is deeply fucked. Where was Walker’s right to self-defense? Where were the ammosexuals speaking out for Walker’s right to defend himself? But that is the universe the Supreme Court wants.

All qualified immunity does is protect an officer or agent from being personally sued for their constitutional infringements. Everybody familiar with the calls for racial justice and police reform now knows that qualified immunity is a huge problem. Agents of the state, be they police officers or prosecutors or presidents, are immune from personal prosecution and punishment over constitutional violations they commit while carrying out their official duties.

Honestly, how in the hell is “I didn’t know I was violating an established constitutional right” a defense to police misconduct?

I’m not allowed to punch a cop who is trying to kill me, because the other cops are supposed to show up and stop their buddy from illegitimately using his monopoly of violence against me. That’s what living in a “nation of laws” is supposed to mean: I don’t have to fight the state, and I don’t have to wait for God to raise me up in the afterlife, because I can sue the pants off the state right now. I’ll take my mansion up front, thank you very much.

Even liberal justices accept the premise that cops should be allowed to violate the Constitution, maim or murder civilians, and not pay for it. I’m not allowed to resist the cops, I’m not allowed to sue the cops, all I’m legally allowed to do is beg the cops to not kill me and pray that they don’t choke the life out of me over eight minutes and forty-six seconds.

Why can’t I punch a cop? Because by the time a cop gets in punchable range it’s already too late. As a Black man in this country, I am prey, and the cops are my predators. My country and the courts have authorized these people to hunt me. My country and the courts refuse to place restraints on them to make them less likely to murder me. My country and the courts have left me in a Hobbesian state of nature, but in this jungle the police are far more powerful and terrifying than I will ever be.

The Fourth Amendment does all the work. Here’s the text: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Boom. Make stopping people because they’re Black an “unreasonable search.” Make shooting people because they’re Black an “unreasonable seizure.” Make “shall not be violated” include actually prosecuting cops and holding them personally accountable when they violate these principles. The way to fix the police was written into our Constitution before there were even police in need of fixing.

Of course, we won’t be implementing the Fourth Amendment as I suggest, and I won’t be getting my $1,145,000 in prize money, because white people want the police to act this way. They want them violent and unshackled from constitutional restraint. Maybe not all white people, all of the time, but enough of them, most of the time. I can’t stop police brutality, not because it’s difficult to stop, but because too many white Americans want the police to be brutal.

There are no good cops or bad cops. There are just shitty white people.

At the dark heart of making the Sixth Amendment meaningful in any way for Black people lies an argument that white people, even white liberals, are reluctant to make: white jurors cannot sit in impartial judgment of Black people.

But the real argument is that a Black person cannot get an impartial jury if that jury is all white.

The moral argument against the death penalty is actually a lot harder to make than the legal objection to the practice. I feel like anti-death penalty folks, like me, sometimes get that backwards.

But it’s not. Most people have no problem killing people who deserve it, or at the very least looking the other way while the people who deserve it are killed. The entire scope of recorded human history bears that out. People kill other people all the time, and nearly everybody can be convinced to kill somebody else.

In our popular culture, we don’t hesitate to glorify the killing of people who deserve it. The good guy almost always kills the bad guy. Thanos gets snapped, Sauron gets melted, John Wick kills the guy who killed his dog, and that guy’s dad, and maybe one third of New York City who got in his way. That’s just how movies work. In fact, when the bad guy is not killed, when they’re merely captured or arrested, the entire theater knows: “Oh, they’re setting up a sequel.”*

To oppose the death penalty on moral grounds is to deny two of the most fundamental human emotions: fear and revenge.

Capital punishment, as applied in our legal system, has none of the characteristics of good laws. It’s not reliable: we literally convict and condemn innocent people all the time. It’s not repeatable: similar crimes are treated as capital offenses or not depending on minor aggravating factors, the random geography of where the crime took place, or the good graces of the judge or jury that happens to hear the case. And,

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.

I will stipulate that the people who wrote the Constitution had a sense of humanity that was so underdeveloped they could eat sandwiches while watching a man being hung from the neck until death.

It makes no sense that we’ve been able to remove ourselves from an eighteenth-century view of who gets punished but remain locked in an eighteenth-century view of how to punish people.

For instance, some form of solitary confinement has been viewed as a fairly standard and appropriate punishment since forever. But now, with our modern understanding of, you know, human psychology, studies suggest that solitary confinement is especially cruel. It’s torture for your brain. James Madison did not understand this and likely wouldn’t have cared if he did. Why in the hell should that matter now? We know. We are the ones who know. And we are the ones who have the option of making cruel punishments, like solitary confinement, unconstitutional.

Gorsuch goes on to create an entirely new standard for Eighth Amendment objections. This is what originalists do when confronted with an area of law that was originally vague or open for interpretation: they make some shit up.

People don’t notice he’s wrong, because he’s wrong in the way that originalists almost always are when describing the fairy tale they’ve invented around the founding of America. He forgot about the slaves.

From the perspective of the framers, what distinguished a cruel and unusual punishment from an allowable and normal punishment was not the method of execution, but the victim who was executed. And it is that original public purpose of the Eighth Amendment that conservatives want to take us back to.

Of course we should not be executing people when we can’t even be sure that they are guilty, and the fact that 165 people have been freed from death row because they’ve been proven innocent since 1973 should make us despair at how many innocent people may have been put to death.

Naw. That’s not a real argument. That’s too stupid to be a real argument. The real argument being made by originalists, and all the pro–death penalty people going all the way back to the founding, is that these people deserve to die. They’re saying Russell Bucklew and all other death row inmates deserve to die and nobody should give a shit if it hurts.

It’s monstrous for the state to kill people when the state regularly convicts the wrong people of crime. And it’s unethical to kill people based more on the effectiveness of their legal counsel than the severity of their offenses.

But arguing against the death penalty as a thing that cannot be done in a civilized society is a little different than arguing against it as a moral failure.

you want a moral argument for why Bucklew should live, you’ll have to pull out your copy of A Black Guy’s Guide to the Bible (many of you have one, you probably just call it the New Testament in your house).

But my understanding of the Constitution does not have to be limited to the document as originally written, nor the first ten amendments as the framers originally understood and implemented them. That original Constitution, the one drafted at the Constitutional Convention in 1787, ratified by the thirteen colonies, and venerated by conservatives as if it were gospel, is dead. It was shot at Bull Run. It burned in the Battle of the Wilderness. It bled the ground red at Gettysburg. As a Black person, I do not even acknowledge the legitimacy of the original Constitution, much less think our modern rights and responsibilities can be understood only through its lens.

But when you dig deeper, you realize that the three-fifths clause was put in there to help the slavers and the slave states. The Northern states out-peopled the Southern states, and so, rightly, the Southerners were worried about a federal government controlled by the states in the North with more people in them. You know, like a democracy or something.

A document that flawed, one animated by such evil, and one that so spectacularly failed that the country fought a live-ammo Civil War less than a hundred years after its conception, should have been thrown out with the bathwater. That’s what they did in South Africa.

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.

Liberals, conversely, act like the new amendments changed everything. Writing about the Thirteenth, Fourteenth, and Fifteenth Amendments—collectively known as the Reconstruction Amendments—Eric Foner in his book The Second Founding explains the profound changes brought about by the new rules. He says:

Without the Thirteenth, Fourteenth, and Fifteenth Amendments (and the Nineteenth Amendment, which finally acknowledged women’s fundamental right to vote), the Constitution is a violent piece of shit that can be used to justify or allow the legalized supremacy of white men over all others. Those four amendments do not perfect the original Constitution; they’re not the final pieces of the puzzle that complete a picture by filling in some obvious holes. Instead, they recast the entire document, destroying the slave state that the founders wrote into existence and replacing it with something new, something heterogenous, and something still flawed yet not utterly unredeemable.

Which is why the entire conservative legal project, since ratification of those amendments during Reconstruction to the present day, has been to limit the scope and effectiveness of this “new” Constitution.

The only time conservative white men have agreed to share power is when other white men make them do it at the point of a gun.

Show me an artifact of institutionalized bigotry or sexism that is upheld through force and effect of law, and I can tell you how to constitutionally destroy it. I cannot make people less racist. I cannot change hearts and minds. But I can make damn sure that racists and misogynists don’t have the protection of law while they’re doing their racism and misogyny in the name of the government.