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Kindle Notes & Highlights
by
Elie Mystal
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September 9 - October 10, 2022
The Reconstruction and Nineteenth Amendments, on their textual face, obliterate the structures of white male supremacy this nation was founded upon. They obliterate whatever new structures white guys will think of next. These amendments are supposed to win the debate on whether we’re going to be a racist country or not.
And so originalists deploy one final trick from their big bag of bad ideas. They say that the Reconstruction Amendments must be interpreted according to the original public meaning of the people who wrote them after the Civil War.
But the conservative plea that we center the legal rights and privileges of everybody else on what the best available white men could imagine in the 1860s and ‘70s is ridiculous.
Given her burdens, one might expect the state to take a more active role in providing care and money to the woman so that its compelling interest may have its best chance at success. But the state does not. Many women continue to work so that they may provide for the state’s compelling interest out of their own pockets. Many countries encourage women to take time off from work at this point, but in America we provide no federally mandated financial assistance to women bearing the state’s interest to term.
It sounds like the kind of thing a legitimate government could never even ask a person to do, much less force a fully human person to do if they were unwilling. If somebody ever got me pregnant, I’d punch him right in the fucking mouth and demand an abortion under my Eighth Amendment rights against cruel and unusual punishment.
But you rarely hear even liberals talk about abortion this way. Especially if you listen to liberal white men. The white male liberal talking point on abortion has been that it should be “safe, legal, and rare.” Even Tim Kaine, Hillary Clinton’s running mate in 2016, has talked about it that way. Liberals consistently fail to articulate an equal protection argument for abortion rights. They cede the “legitimate state interest” ground.
That’s why abortion rights are under constant attack. It’s not because the attacks are legally any better than what conservatives usually do. Their legal argument against abortion is the same as their legal argument against gay marriage and the same as the legal argument in favor of the death penalty. It’s all one monster: they believe in a country that is limited to the best available thoughts of racist, long dead, white men.
The astute reader will have noticed that a central theme of this book is that conservatives are irredeemable assholes who consistently act in bad faith to uphold white supremacy and patriarchy over the objection of most minorities, women, and decent people.
But perhaps I am wrong about them. Perhaps conservatives simply promote an inert theory of constitutional interpretation because they genuinely believe that legislatures—the “people’s” body—is the appropriate place to enshrine “new” fundamental rights. Perhaps conservatives are not desperately committing to upholding white male supremacy and patriarchy, they just honestly believe that the only legitimate way to move beyond our white male supremacist roots is through additional amendments recognizing our evolution as a society, as opposed to interpreting old ones with modern sensibilities.
But even here, this fallback position of the allegedly reasonable conservative can be shown to be a lie. Because the people who believe in the most shallow and vindictive version of the Constitution are never at the vanguard of amending it.
Conservative: “Turns out, this machine I’m driving stabs gay people in the face.” Reasonable Person: “Oh my God! Turn it off.” Conservative: “Can’t.” Reasonable Person: “What do you mean you can’t? You’re in the goddamn driver’s seat.” Conservative: “Won’t.” Reasonable Person: “Why?” Conservative: “Look, we need this machine to get where we’re going.” Reasonable Person: “Who is the we?” Conservative: “Those of us allowed to drive.” Reasonable Person: “It just stabbed Bob in the face!” Conservative: “Yeah. Sucks for Bob. If only there was something we could do.” Reasonable Person: “STOP DRIVING
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If conservative judges felt they were being forced, for purely doctrinal reasons, to deny fundamental fairness to worthy litigants, wouldn’t they spend all their free time begging the people to update the document that binds them to upholding unjust laws?
Nowhere is the intellectual dishonesty of the conservative movement more obvious than in the fight over the Equal Rights Amendment.
I support the ERA, because sometimes you have to really dumb things down for men to get it. But if you ask me, the Equal Rights Amendment was ratified in 1868 and the problem is that white guys have spent the last 150 years trying to undo it.
The denial of equal rights was what motivated the anti-ERA movement. Schlaly’s organization, called STOP, an acronym for “Stop Taking Our Privileges,” argued that the ERA would end the gender privileges “enjoyed” by women: like “dependent” wife status for social security benefits, women’s restrooms, and exemption from the draft.
Schlafly employed the same two tactics that conservatives always do when attacking equal rights. She reduced equal treatment to “same” treatment and fought most desperately over social equality instead of political or civil equality. This is what 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.
If you can show how your amendment will restrict the government’s ability to meet modern challenges, the Federalist Society will at least take you out to lunch.
And, like a bizarro image of the ERA fight, there are some hardcore conservatives who will argue that an original interpretation of the Constitution grants personhood rights to fetuses already. Conservative thinker Ramesh Ponnuru has argued that the Fourteenth Amendment should be read to ban “unborn homicide.”
Yet some conservatives argue that Roe v. Wade is the intellectual doppelgänger of Dred Scott. They argue that the Court in Roe found that the unborn had no rights that (actual) people are bound to respect, and they argue that the ruling is every bit as erroneous as the one upholding slavery.
How dare they equate the bondage, rape, and torture that was American human chattel slavery to the failure of a clump of cells to implant in a uterus after a woman takes a drug cocktail a few weeks after accidental conception? The supposed rights of the unborn hold no moral suasion in a society that is willing to consign children who are born alive to poverty, malnutrition, and toxic air and water. I am unmoved by the alleged moral clarity of people who throw around the term anchor babies and are willing to deport children who have lived in this country for decades because they were brought
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As I’ve said, the right to an abortion is not even controversial as long as we proceed from the premise that women-people are people. Fetal personhood laws cannot overcome the Thirteenth Amendment’s prohibition on involuntary servitude, if we accept that a woman is a person who cannot be forced to labor.
If I seem flippant about the whole thing, it is because the legal argument that a fetus has a legal status on par with the woman to whom it is literally attached is illogical trash sprinkled with bad faith and misogyny. Fetal personhood amendments are the state writing a check it cannot cash, then forcing women to cover the bill against their will. It cannot be done in a “free” society. The Thirteenth Amendment flatly prohibits forced labor, and it doesn’t have an exception for labor that white men won’t do themselves but think is really important for others to do for society.
My dad could draw a legislature where all the districts looked “the same,” that Republicans could never win control of, despite having a significant advantage in voter registration in his county. Or he could squiggle out a legislature that would make Pythagoras cry, which was nonetheless a fair representation of all the county’s voters.
The problem with geometric integrity and keeping “towns” together is that there is a whole bunch of racism, segregation, and classism baked into where people live.
Unfortunately, the process of drawing districts that lead to a fair representation of the voters in a legislature is the exact same process as the one used for drawing districts that lead to the effective disenfranchisement of voters. Gerrymandering is like fire: it’s just a tool that can cook dinner or burn the house down. The real trick is to keep it contained.
But what if they had been doing the other thing? Would anybody have even noticed the difference? How could I even prove they were doing the other thing? How do you prove the absence of good faith that animates a negative racial gerrymander?
To think that they’re looking only at “political” factors and not “racial” factors requires one to be more naive than I was when I was twelve. To think that there is even a meaningful distinction between “political” factors and “racial” factors requires one to be more naive than me, and white.
Looking at all factors is how politicians get to know the difference between a politically “safe” district versus a competitive one in the first place. And these gerrymanders are getting more accurate—thereby locking in one-party domination—all the time. At least human politicians could be wrong.
Thanks to John Roberts, they’ll say their maps are “political” gerrymanders: it’s just a coincidence that Black people happen to overwhelmingly vote for Democrats, because Democrats seem to be the only party that can go four years at a stretch without giving aid and comfort to Klansmen.
