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

by Elie Mystal

it’s written into the U.S. Constitution itself, in the form of the Sixth Amendment, which guarantees “the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed.”

The right to an impartial jury has never really applied to people who look like me: not at the founding of the country, not after the Civil War, not after the Civil Rights Movement, and not today. I don’t have a right to an “impartial” jury; I only have a right to a jury composed of white people who can answer the question “Are you racist? Yes/No” without shouting the n-word or firebombing a Black church.

But predominately white juries are not the natural result of population dynamics mixed with “bad luck.” Instead, those juries are the manufactured result of the criminal justice system purposefully excluding Black people from the jury pool.

In 1880, the Supreme Court decided a case called Strauder v. West Virginia, which held that laws making Black people ineligible to serve on juries violated the Constitution. It’s important to note here that the Court ruled the legal exclusion of Black jurors as a violation of the Fourteenth Amendment’s grant of equal protection, not the Sixth Amendment’s promise of an impartial jury.

The tool prosecutors used, and still use, to ensure all-white (and almost always all-male) juries is the peremptory challenge.

The Supreme Court kind of tried to address this problem in 1965, in a case called Swain v. Alabama. But Swain focused on the exclusion of Black people from the jury pool, not on exclusion from the actual jury. All the Court really did in Swain was acknowledge that the systemic exclusion of Black people through peremptory challenges could be a violation of the equal protection clause, without giving defendants who were convicted by actual all-white juries any real way to object to how the jury was selected.

A constitutional right that people have no way of accessing through litigation is just, like, a suggestion.

Finally, in 1986, the Supreme Court decided to put some teeth behind the super cool thought experiment that maybe Black people should not be summarily excluded from j...

Black people were brought to these lands in 1619, and Janet Jackson released Nasty before randomly excluding Black people from the jury process—an institution that’s been around since Athens—was ruled unconstitutional in any meaningful way.

The prosecutor in the case, Joe Gutmann, decided to retry the case. This time, Gutmann used his peremptory challenges to exclude all four of the Black jurors who showed up in the jury pool. Batson was actually present at the voir dire when the potential jurors were being questioned. He told his lawyer to object to Gutmann’s discriminatory use of his challenges. The lawyer said there was nothing he could do, and Batson, famously, told him to “object anyway.”

On appeal, a white public defender named David Niehaus became interested in how it could possibly be constitutional for prosecutors to so brazenly reject Black jurors from being empaneled on petit juries. Niehaus moved to have the entire jury discharged as a violation of the Sixth and Fourteenth Amendments. It was Niehaus, a random public defender from Kentucky, who ended up arguing this seminal case in front of the Supreme Court. Niehaus and Batson won.

Just as importantly, the Court ruled that defendants have a right to object to exclusion of Black jurors, and if they do, the burden shifts to the prosecution to provide a race-neutral reason for the exclusion of Black jurors.

Batson challenges became the first real tool to examine a lawyer’s potentially discriminatory use of peremptory challenges, and force lawyers to come up with some reason for excluding jurors other than race or sex.

Batson is both one of the most important modern civil rights victories and a complete fucking joke all at the same time.

The majority opinion in Batson assumes that lawyers acting in bad faith will be distinguishable from those acting in good faith. Marshall assumes white people gonna white. Marshall was right.

The Supreme Court has said: “The Sixth Amendment requirement of a fair cross section on the venire is a means of assuring, not a representative jury (which the Constitution does not demand), but an impartial one (which it does).”

How in the hell does a fair cross section of my community in the jury pool “assure” me of an impartial jury at trial, if that fair representation does not make it onto the actual trial jury?

Antonin Scalia, and the case I’m quoting him from is 1990’s Holland v. Illinois. Holland was the test case designed to attack the constitutionality of peremptory challenges to exclude Black jurors, regardless of the race-neutral reason invented by the prosecution. But Scalia rejected the argument in a 5–4 opinion.

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

The result of allowing peremptory challenges, the result of failing to provide for a fair cross section of the community at trial, is that Black people are denied the constitutional entitlement to a jury of their peers. We don’t have it under the Sixth Amendment or any other provision of law.

To oppose the death penalty on moral grounds is to deny two of the most fundamental human emotions: fear and revenge. We kill criminals as punishment for all the harm they’ve caused to society, or out of fear that they will escape and cause additional harm in the future. Those are entirely natural human concerns.

Compared to the moral argument that will leave you searching for a philosopher’s stone, the legal argument against the death penalty is easy and straightforward. First of all, it’s against the law. It’s against one of the first laws, if you come from and believe in the Judeo-Christian tradition. Moses was the first lawgiver, and one of his first ten rules (some would call them commandments) he claims God told him is “Thou shalt not kill.” Again, killing is kind of what people do, so most religious traditions go on to create enough exceptions to the “no killing” rule to drive a genocide, but arguably the law has been against killing people since the invention of laws.

Of course, that’s just a story we tell each other. The first historically verifiable lawgiver was all about killing people: King Hammurabi of Babylon codified twenty-five different crimes that were punishable by death.

But the law’s historical bloodlust is still overcome by the very point of law itself: to have rules that can be relied upon as opposed to whims that are applied in an arbitrary and capricious fashion by a despot. 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, most importantly, it’s not just or fair: the death penalty is carried out more frequently against poor defendants and even more frequently against Black and brown defendants.

It’s entirely rational to believe that the death penalty is theoretically legal, but whatever the hell we’re doing is not.

A standard as vague and subjective as “cruel and unusual” is one begging future generations to figure things out for themselves.

The Eighth Amendment is a little bit of a “living constitution” written into the old parchment. It’s a facially subjective standard that can be applied to our own situation as we see fit.

To my mind, the Eighth Amendment is the cleanest battle to be had with originalists. It’s the easiest place to drop out all of the legalistic claptrap and doctrinal fencing to get down into the guts of the thing. The framers wrote something down. That something is vague. Originalists say that we can understand what they really meant by looking at what they did. I say I don’t give a fuck about what those depraved assholes actually did. 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. But so what? The Constitution does not require me, or my country, to be forever hobbled by their sociopathy.

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.

A modern understanding of the Eighth Amendment would read it to outlaw the death penalty. That point is so obvious it has literally been done before. In 1972, in a case called Furman v. Georgia, the Supreme Court decided the death penalty statute in Georgia violated the Eighth Amendment mainly because it was applied in an arbitrary and capricious manner.

It shouldn’t surprise anyone that Furman was but a temporary pause on the death penalty. Capital punishment was reinstated just a few years later, in 1976, in a case called Gregg v. Georgia. The Supreme Court reversed itself on the very thin logic that Georgia’s new death penalty statute included enough procedural protections to make it okay for Georgia (and Texas, and Florida, which soon followed suit) to start killing people again.

Marshall argued that the death penalty was an anachronistic holdover from our barbaric past, but the current argument against the death penalty doesn’t take Marshall’s “maturing society” position. Instead, the modern way of fighting the death penalty is to argue that each individual punishment is unnecessarily cruel in some speciic way, without arguing that killing people is the thing that is cruel. It’s worked, after a fashion.

Conservative courts are annoyed that condemned men and women keep coming to the court asking for mercy, and that annoyance has manifested itself in a series of increasingly harsh decisions from the Republican majority on the Supreme Court. The most cruel, the most needlessly fucking sadistic ruling, came from Justice Neil Gorsuch in 2019’s Bucklew v. Precythe.

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. Here, Gorsuch decides that to qualify as “cruel and unusual,” pain has to be “superadded” on top of however the state decides to kill you.

But Gorsuch is wrong about the Eighth Amendment, not just the theory of what it should and shouldn’t permit, but in terms of how it was practically applied at the time it was adopted. 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.

All of those methods, and more, were used to kill Black people, and would have been readily identified as acceptable methods to kill Black people to most of the white people reading the Eighth Amendment at the time of its ratification. These punishments were not “long disused” by the time of the founding. They were used all the time, and would continue to be used all the time, against Black people. Don’t even get me started on the eighteenth-century punishments thought to be normal and acceptable to inflict on Black people when the white people wanted to keep them alive. You’d take being burned at the stake any day over what some of these slavers could come up with when they still wanted to protect their investment.

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.

A 2019 Gallup poll found that 60 percent of Americans favored life in prison over the death penalty. 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.

Of course a system that is more likely to kill you if you are Black or brown, or merely poor and cannot afford the best legal representation, fails to pass the basic standards from which law derives its power and authority.

Come on. I struggle accepting that originalists even believe the bullshit that comes out of their own mouths. “Oh, the Constitution totally requires us to distinguish between superadded terror and regular old terror when figuring out whether we can inject a drug into your bloodstream that will cut off oxygen to your cells and thus effectively suffocate you from the inside out. That’s because the same people who would whip, mutilate, rape, and let dogs dismember enslaved humans only prohibited punishments that added unnecessary terror, pain, or disgrace.”

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.

If 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). I’ve got nothing for you there.

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.

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.

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: They forged a new constitutional relationship between individual Americans and the national state and were crucial in creating the world’s first biracial democracy, in which people only a few years removed from slavery exercised significant political power…

As a matter of interpretation, analyzing any constitutional clause without straining it through the Fourteenth Amendment’s guarantee of equal protection and due process, or the Fifteenth Amendment’s distribution of the voting franchise, is an exercise of intellectual apartheid.

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.

It doesn’t matter if the conservatives call themselves Democrats (as they did after the Civil War) or Republicans (as they have since the New Deal or so). It doesn’t matter if the conservative legal theorists say they’re in favor of federalism or judicial restraint or originalism and textualism. Their goals are and have been the same no matter what they are calling themselves this morning. They want the right to vote to be limited to the people who agree with them.

But the Reconstruction and Nineteenth Amendments say that white men have to share that political and economic power with everybody else. And not merely as a theoretical proposition either; those amendments demand that power is actually shared among our multicultural society, or else the government ceases to be legitimate.

Of course, conservative white men object to that. They don’t like sharing. I mean, have you met a conservative white man?