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

by Elie Mystal

But make no mistake, the Reconstruction and Nineteenth Amendments offer a complete repudiation of white male supremacy, if legislatures and courts would only apply them to our republic.

Name me a structure of white supremacy, and I can show you how equal protection or substantive due process obliterates it. 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.

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. Instead of going higher, instead of looking at the ideals the Reconstruction Amendments represent, originalists again try to hobble them by limiting them to what dead white people may have thought.

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.

Equality and fairness must meet the standards of our modern definitions of those ideals, or else the entire American experiment is illegitimate.

There is no political or legal philosophy of democratic self-government that contemplates people living under the yoke of laws as they would have been interpreted by their captors.

The Fourteenth Amendment was ratified by the states on July 9, 1868. But its guarantee of rights was almost immediately undercut by the Supreme Court. Then, as now, when the Supreme Court is controlled by conservatives, even a constitutional amendment cannot stop it from denying equal rights and social justice to all.

The Slaughter-House Cases was the first case interpreting the Fourteenth Amendment, and the Court ruled that it only applied to Black people—”the slave race,” as the Court called us—and, regardless of race, the Fourteenth Amendment did not provide for equality of economic privileges for all people.

State governments, it ruled, were free to discriminate and deny those rights to their own citizens.

But the argument that the Fourteenth Amendment protects economic equality, in addition to political equality, never recovered from the Slaughter-House Cases. You don’t see poor white people suing for their rights under the Thirteenth or Fourteenth Amendment.

The Civil Rights Act of 1875 was a big, sweeping bit of legislation that promised to affirm the “equality of all men before the law.” The law banned discrimination in public accommodation and transportation.

Most importantly, the 1875 act allowed people to sue for their rights in federal court, as opposed to state courts, which in the South were controlled by former slavers.

In 1877, Rutherford B. Hayes was installed as president after a disputed election where the validity of the Electoral College was called into question. A special commission decided the election in favor of Hayes, a Republican, with the help of Southern Democrats, but there was a catch. Hayes had to agree to remove federal troops from the South, which he did, thereby marking the effective end of Reconstruction.

By 1883, the Supreme Court overturned much of the 1875 Civil Rights Act, including all of the protections against discrimination in public accommodations and transportation. The Supreme Court, in a case called the Civil Rights Cases, ruled that the Fourteenth Amendment could not prohibit “private” discrimination.

But, of course, states did pass laws discriminating against Black folks, because if there’s one thing about racists, it’s that they’re never satisfied with being ahead. They need total subjugation of Black people to make them feel good about themselves.

Damn near everybody passed anti-miscegenation laws. All of these laws involved state actions, not private businesses conduct. They all should have been unconstitutional, even under the precedent of the Civil Rights Cases.

It all came to a head in 1892. That’s when Homer Plessy bought a first-class ticket on the East Louisiana Railway for a trip from New Orleans to Covington, Louisiana.

The only reason Plessy was ejected from the train car was because he was one-eighth Black. To reject his claim—to argue that legislating different treatment based not on the “color” of one’s skin but on their racial classification was valid—would be to admit that the Fourteenth Amendment wasn’t worth the parchment it was written on. And the Supreme Court did just that. In a 7–1 decision the Court upheld the Louisiana law mandating segregated train cars.

Political rights are the rights to participate in the democracy: the right to vote, or hold elective office. Civil rights are the rights to participate in the economy: the right to own a home, or buy land. Social rights are the rights to participate in society: the right to get married, or throw a party. The Court here interprets the Reconstruction Amendments to protect only political rights.

The core logic of Plessy is that laws that are facially race-neutral are constitutional, even if they have a discriminatory effect.

The “equality” bit was always just a legal fiction: when white people see actual equality, they turn angry or violent. Come on. Twenty-first-century white people got so pissed of that a Black person got an equal employment opportunity as president that they turned to a vicious, bigoted, stupid person to save them, and stuck with him even as he helped get everybody sick.

Plessy was decided in 1896. Its logic of “separate but equal” was used as the legal justification for the entire Jim Crow era.

The mere existence of Plessy really puts modern originalists in a bind. Again, their goal is to limit the Reconstruction Amendments to the original intent and public meaning of their white male writers. But that becomes an untenable position if the original intent and public meaning of the Fourteenth Amendment allows for the kind of segregation and racism of the Jim Crow era.

The authors of the Reconstruction Amendments clearly envisioned the protection of political and civil rights as part of the package. For equal protection to mean anything, it had to mean the right for Black people to enter into contracts, civil or otherwise.

According to Congressman John Bingham—who, you’ll remember, is the guy who wrote the Fourteenth Amendment—Congress did not have the power to advance the 1866 Civil Rights Act until the states ratified the Fourteenth Amendment. This is evidence that the people who wrote the damn thing literally thought they were protecting the civil rights of African Americans, whether they lived in former slave states or not.

Because the original intent of the Fourteenth Amendment by the white supremacists who passed it was to confer a bare minimum of political and civil rights to Black people, but none of the social rights.

If you want to flummox an originalist, don’t ask them about Plessy v. Ferguson or Brown v. Board of Ed. The smart ones can square that circle. Instead, ask them about Loving v. Virginia. Ask them whether the Fourteenth Amendment protects “social” rights. Ask them if Black people have a constitutional right to be treated equally in society.

In 1967, Cohen and the Lovings had their day in front of the Supreme Court of the United States. There, the Commonwealth of Virginia made all of the usual arguments defending segregation. The state said that the law treated Blacks and white equally, insofar as they were equally prohibited from marrying each other.

The Court rejected these arguments, unanimously. There can be no question but that Virginia’s miscegenation statutes rest solely upon distinctions drawn according to race. The statutes proscribe generally accepted conduct if engaged in by members of different races. Over the years, this Court has consistently repudiated “[d]istinctions between citizens solely because of their ancestry” as being “odious to a free people whose institutions are founded upon the doctrine of equality.”

Still, Loving is one of the most important decisions in the history of the country. It aligned the Fourteenth Amendment not just with the protection of civil rights, which the Court did in Brown v. Board of Ed., but with the protection of social rights as well.

Which is why the case is kryptonite for originalist logic. Because if there’s one thing most nineteenth-century white men who wrote, debated, and adopted the Fourteenth Amendment were dead set against, it was the social equality of the races.

But that’s a line I pulled from Scalia’s dissent in Lawrence v. Texas. That 2003 case dealt with Texas’s “anti-sodomy” law.

Scalia’s dissent rests on the fallacy that discriminating on the basis of race is wrong but discriminating on the basis of sexual orientation is okay.

Scalia can’t use literally the same logic as the majority in Plessy, and then have anybody credible believe that he actually would have voted with the lone dissenter in that case. And he can’t ignore the views of the white people who ratified the Fourteenth Amendment—views that were specifically opposed to interracial marriages—in Loving, and then suddenly tell me that their views are critical when trying to make a case for bigotry against gay people in Lawrence.

The operative difference between Loving being decided 9–0 and Lawrence being decided 6–3 is that conservatives have successfully adopted a new language to couch their bigotry. That language is now called originalism.

One way to think about our equal protection laws are as a long-running argument about what kinds of discrimination our society will allow, and who we can discriminate against. The government can never discriminate against an individual person. That is directly in the Constitution, Article 1, Section 9: “No Bill of Attainder … shall be passed.” A “bill of attainder” is a law directed at a specific person.

Indeed, there are only a few classes of people who cannot be discriminated against. We call them “suspect” or “protected” classes.

The equal protection clause still gives the government wide latitude to pass laws that discriminate against most classes of people, but only a limited and highly controversial ability to discriminate against suspect classes. I’d like to give you a clean definition of what constitutes a suspect class, and, given the importance of that distinction in the law, you’d think there would be one. But there’s not.

In general, suspect classes (which can also be called protected classes, because, again, this is an area where courts have decided, “Let’s wing it”) are groups that can be labeled by their race, religion, national origin, or immigration status. Some argue that being “historically singled out for discrimination” is key to the classification. Some argue that people of a “discrete and insular minority” should be considered members of a suspect class. Others think that the classification should be given to people based only on “immutable characteristics.”

But the thing that pisses off some white people is that I won’t make an argument that whiteness is the thing that is suspect (as opposed to poverty, for instance). Because whiteness is not suspect. Not in this country. Not ever.

It turns out: not all laws are created equal. Laws, rules, and ordinances that target suspect classes trigger “strict scrutiny” review by courts. State actions that don’t involve suspect classes are given what’s called “rational basis” analysis by courts.

The Supreme Court claimed the power of judicial review—which is the power to invalidate laws—in the 1803 case known as Marbury v. Madison. In that case, Chief Justice John Marshall just announced that the Supreme Court could declare a law or order unconstitutional, even though that’s not technically written in the Constitution.

This level of judicial review is called rational basis. If the government has the authority to pass a law, and that law has a “legitimate state interest,” and the law passed is “rationally related to that interest,” the law should be upheld.

Under strict scrutiny review, the state has to show a “compelling governmental interest.” And then the state must prove its law is “narrowly tailored to achieve that interest.” Note the word changes! Courts need a compelling interest instead of merely a legitimate one, and now they need the law to be narrowly tailored instead of simply rationally related to the interest at hand.

Courts really apply strict scrutiny review to only two areas of law: laws that might violate the Fourteenth Amendment, and laws affecting the freedoms of speech, association, and

As if all of that weren’t random enough, courts have also created something called quasi-suspect classes, which are entitled to (wait for it) “intermediate scrutiny.” The Supreme Court first applied this new scrutiny to laws that discriminate due to gender in a case called Craig v. Boren.

Get it? Suspect class triggers strict scrutiny, which requires compelling government interest with laws narrowly tailored to meet those goals. Quasi-suspect class triggers intermediate scrutiny, which requires important government interests with laws substantially related to those goals. And nonsuspect classes get rational basis, which requires legitimate government interests with laws rationally related to those goals. All of this is bullshit.

In reality, judges and courts are being subjectively outcome determinative all the time. If courts like the outcome the law produces, the law will magically survive even strict scrutiny review. And if judges or justices don’t like the law’s outcome, well, then, they can make the laws fail even under a rational basis standard.

Because the first time the Supreme Court articulated strict scrutiny review was in the 1944 case Korematsu v. United States—the World War II Japanese internment case. The Court ruled that Franklin Delano Roosevelt’s Executive Order 9066—which provided for the forced “relocation” of Japanese Americans living on the West Coast—should be reviewed under strict scrutiny, but concluded that the government passed the strict scrutiny test because of the government’s national security interest.

Chief Justice John Roberts even explicitly overruled Korematsu, in Trump v. Hawaii, a case where the Supreme Court used Korematsu’s exact logic to uphold Donald Trump’s Muslim ban. The Supreme Court excels at using new jargon to smuggle in the same old bigotry.