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Kindle Notes & Highlights
by
Elie Mystal
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March 23 - April 19, 2022
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.
What conservatives do and try to do through the Constitution and the law is disgusting. They use the law to humiliate people, to torture people, and to murder people, and tell you they’re just “following orders” from the Constitution. They frustrate legislation meant to help people, free people, or cure people, and they tell you it’s because of “doctrinal interpretative framework.” They use the very same legal arguments that have been used to justify slavery, segregation, and oppression for four hundred years on this continent and tell you it’s the only “objective” way of interpreting the law.
The law is not science; it’s jazz. It’s a series of iterations based off a few consistent beats. I make my argument for why the notes that I like, people and activities I like, should be protected and promoted, and I’m not ashamed of it. I think that if we interpret laws to protect the people and activities I like, and then apply those laws objectively to all people, everybody will come out ahead.
When I’m wrong, it’s usually because I haven’t fully thought through how insidious and creative racists can be.
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.” They spend a lot of time talking about their “free speech” rights. But these people have no claim to constitutional protection, because our laws and the laws of most modern societies are written to avoid tragedies like the trial of Socrates, not to protect trash people from losing endorsement contracts.
Constitutional protections of speech are mainly concerned with the government’s attempts to silence or punish views the ruling party doesn’t like. The Constitution cares about people limiting the inquiry of a free press through lawsuits or the threat of lawsuits. It cares about armed agents of the state threatening or jailing citizens who dare to protest the actions of that state. In short, the First Amendment cares about the things Republicans do when they control the government.
well, let’s just say that if you ever find yourself trying to explain how laws work to a jury comprised of “Florida Man,” you’ve probably already lost.
The real cancel culture is the one practiced by conservatives. They are the ones leading the assault on the First Amendment and freedom of speech. It’s rich people and conservative politicians using frivolous lawsuits to chill journalism and clean up their mentions. It’s law enforcement using tear gas and rubber bullets to clear the streets of peaceful protesters. It’s the police committing police brutality against people protesting police brutality. It’s the attorney general trying to prosecute people who laugh at him. These are the First Amendment threats of our time.
The failure of Clinton and ’90s-era Democrats to appreciate the double-edged danger of the RFRA is what led to Hobby Lobby. Officially known as Burwell v. Hobby Lobby Stores, the 2014 case is the nadir of the RFRA approach to free exercise cases.
In a 5–4 ruling written by Justice Samuel Alito, the Court found that the RFRA, initially passed to protect the rights of people being denied government services because of their religious beliefs, actually also applied to corporations eager to deny health services to women. It took only twenty years for the RFRA to go from something that defended people who used drugs as part of religious ceremonies, to something that prevents women from accessing drugs for their own health.
Protected class status is a concept that is crucial to our antidiscrimination laws but often overlooked by mainstream media reports.
Phillips’s claim that his religious freedom would be compromised by being forced to engage in his own business is ludicrous on its face. Refusing to do your job because the person paying you to do it has different beliefs than you is not a religious objection, it’s plain and simple bigotry.
Kennedy is what I’d call a First Amendment extremist: where others see reasonable distinctions between types of speech and the level of protection each should be accorded, Kennedy thinks the Constitution is the First Amendment and a bunch of other suggestions nobody would have the right to complain about without the First Amendment.
That’s right: Kennedy wouldn’t call Phillips illegally bigoted against gay couples; instead he called the Colorado board illegally bigoted against religious people.
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. This is why free speech is relatively useless to theocrats.
Phillips is currently being defended by a group called the Alliance Defending Freedom, a nonprofit Christian legal defense group labeled as an “anti-LGBTQ hate group” by the Southern Poverty Law Center. In addition to taking cases, the group runs a nine-week seminar (called the Blackstone Legal Fellowship) where they teach people how to use the law to support evangelical causes. New Supreme Court justice Amy Coney Barrett has been an instructor at one of these seminars, to give you a sense of how integrated these people are into conservative politics and judicial interpretation.
The First Amendment is a fantastic idea, but that doesn’t make it immune from being twisted and weaponized. We shouldn’t give deference to people who simply claim to be following sacred constitutional principles or claim to have devout beliefs. Because sometimes they’re lying. Sometimes they’re wrong. Sometimes they’re straight-up evildoers wearing an American flag uniform.
Arguing with devout ammosexuals (ammosexual is the scientific categorization for a person who fetishizes firearms and can’t win at Scrabble) is among the most frustrating experiences available on the internet. It’s almost impossible to have a rational discussion with them, because their arguments are not based on reason—they’re drenched in fear.
What Republicans think is their strongest and most ancient defense of gun rights is actually a mere advertising campaign from gun manufacturers.
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 controlling Supreme Court case on gun rights used to be United States v. Miller, which was a case about the National Firearms Act of 1934. The NFA of 1934 was basically an “Al Capone Is Kind of an Asshole” law. It mandated the registration and allowed for the taxation of firearms, and attempted to create different classifications of guns in order to make certain kinds harder to get.
The NRA’s wholesale reimagining of the Second Amendment hasn’t just lured Republican politicians, it’s become part of the gospel of Republican judges. The Federalist Society and the Heritage Foundation, the two outside interest groups most responsible for telling Republican judges how to rule, have fully adopted an absolutist, blood-soaked interpretation of the Second Amendment. These groups of alleged “textualists” read “well regulated militia” clear out of the text of the Amendment. Instead, they substitute self-defense as the “original purpose” of the language.
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.
If the Second Amendment has evolved to incorporate the right to self-defense, surely it’s evolved to allow us to make it harder for people to kill themselves or their spouses.
What I experienced was the vehicular version of what the lawyers call a “Terry stop.” It’s named after a seminal 1968 Supreme Court case: Terry v. Ohio. In an 8–1 ruling, the Court found that the Fourth Amendment’s protection against unreasonable searches and seizures still allows police officers to lay hands all over you, if they had reasonable suspicion to stop you in the first place. The Court also ruled that any evidence turned up against the person who is searched in this way can be used against the suspect.*
Terry is the case that governs what Fourth Amendment rights you have against cops who have no cause to arrest you.
Despite the deep tensions between competing societal goals, tensions that Warren took pains to address, the result in Terry v. Ohio seems obvious and inevitable. The police must have some ability to question “suspects of crime” in situations where they do not yet have enough evidence to arrest. And while questioning those suspects, a search for dangerous weapons that could be used to harm the police officer seems like a reasonable protection to afford those officers.
Absent the kind of psychic technology available to Tom Cruise in Minority Report, there is rarely an objectively reasonable suspicion that a crime is about to be committed, and that’s especially true of low-level crimes for which no planning is required.
The numbers do not lie about the disparate racial impact of stop and frisk. The program started by Giuliani was continued during the term of his successor, Michael Bloomberg, who defended stop and frisk right up until he briefly, unsuccessfully, and expensively ran for the Democratic presidential nomination in 2020. The racism reached new heights during Bloomberg’s regime: in 2011, 685,724 New Yorkers were stopped by police, according to the New York Civil Liberties Union. Not surprisingly, 87 percent of those people were Black or Latino, despite Blacks and Latinos making up only 25 and 29
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A federal court in Floyd v. City of New York eventually ruled that the city was engaged in unconstitutional racial profiling. Which is nice, I guess. Racial profiling was already unconstitutional, but since so many white people think that racial profiling should be constitutional, it’s always nice when a court reminds them that it’s not.
Terry v. Ohio should be overruled because the “minor inconvenience and petty indignity” of stop and frisk will always disproportionately fall on Black and brown citizens. There is no regime of “reasonable suspicion” that can be divorced from the implicit or explicit biases of police officers.
Police are the only people whose own cowardice and hysteria can be used to justify an objective misreading of the facts. When and how much force a police officer is entitled to use is left almost entirely to the discretion of the police officer, which means my constitutional rights and physical safety hinge on whether a guy like Darren Wilson is afraid I’ll use my big lips to suck in his soul from ten yards away.
Graham v. Connor is why police officers always claim they “feared for their life” after they shoot somebody to death. Graham v. Connor is why those claims, no matter how ridiculous, make it difficult for good prosecutors to bring indictments against police officers,
Graham filed a lawsuit against the police for excessive use of force, under the 1871 Civil Rights Act. That’s not a typo. The 1871 Civil Rights Act is, more or less, the statutory provision that makes the Fourteenth Amendment prohibition against racial discrimination a law, in the same way that the Volstead Act is what made the Eighteenth Amendment’s prohibition on alcohol a thing.
But instead of applying the Fourteenth Amendment to the case, the way Graham asked, then chief justice and hard-core conservative William Rehnquist decided that the Fourth Amendment was the proper principle under which to assess police misconduct.
By converting Graham’s claim into a Fourth Amendment question, Rehnquist nullified the racial discrimination at the heart of his case.
Without the Fourteenth Amendment protection that Rehnquist ripped away, there’s no longer a great way for individual victims of police brutality to bring racial discrimination claims against the police. Instead, that work now largely falls to the Department of Justice. The DOJ can launch what’s called “pattern and practice” investigations to see if a law enforcement entity, like a local police department, is engaged in racially discriminatory behavior—
But state and local governments are just as reluctant to hold police to an objective standard as the Supreme Court is when it comes to use of force. That’s because of the incredible power of police unions, especially in municipal politics. Most (white) people have a positive view of the police, and so when one of the union bosses starts screaming about how their officers need to be able to choke the life out of unarmed Black people just to keep white people safe, there are a lot of white people who are inclined to believe them.
I cannot think of one person who will be saved in California because police ask “Is it necessary to shoot this Black person?” as opposed to “Is it reasonable to shoot this Black person?” Deep-blue California succeeded only in changing which words the police have to use in their justifications for murder.
Bringing the police to heel will require us to stop letting them substitute their judgment for our constitutional protections. It’s time to stop asking the foxes for their opinions on the security of the henhouse.
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.
The area a government controls through a monopoly of violence is, according to German sociologist Max Weber, the very definition of a state’s territory.
And yet even Hobbes called the right to self-defense “inalienable.” Even he said that a person had the right to resist agents of the sovereign sent to do them harm.
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.
Self-defense is what lawyers call an “affirmative defense” to a homicide charge.
The right to self-defense used to include a duty to retreat. That made sense: you can defend yourself from deadly force with deadly force, but if you can safely get away from deadly force, you should by all means do so. But I guess retreat isn’t performatively masculine enough for the assortment of weekend warriors and ammosexuals who get to make the rules in this country.
In stand your ground states, that number jumps to 354 percent—it is 354 percent more likely that white people will be ruled as justified in their killings of Black people.*
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.
Until recently, the Ninth Circuit Court of Appeals (which is the federal court overseeing California, Hawaii, Oregon, and Washington) recognized a “provocation” rule. The rule meant that if the cops, through their violation of constitutional rights, cause a violent confrontation, then the cops are responsible for all damages resulting from that confrontation. The rule didn’t exactly allow people to shoot at the police, but it did put the cops on the hook financially for any destruction or medical bills caused by police violating constitutional rights.
The Supreme Court dismissed the jury verdict and overturned the Ninth Circuit’s provocation rule.
