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

by Elie Mystal

Our Constitution is not good. It is a document designed to create a society of enduring white male dominance, hastily edited in the margins to allow for what basic political rights white men could be convinced to share. The Constitution is an imperfect work that urgently and consistently needs to be modified and reimagined to make good on its unrealized promises of justice and equality for all. And yet you rarely see liberals make the point that the Constitution is actually trash. 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. Why would I give a fuck about the original public meaning of the words written by these men? Conservatives will tell you that the text of laws explicitly passed in response to growing political, social, or economic power of nonwhite minorities should be followed to their highest grammatical accuracy, and I’m supposed to agree the text of this bullshit is the valid starting point of the debate? Nah. As Rory Breaker says in the movie Lock, Stock and Two Smoking Barrels: “If the milk turns out to be sour, I ain’t the kind of pussy to drink it.” The Constitution was so flawed upon its release in 1787 that it came with immediate updates. The first ten amendments, the “Bill of Rights,” were demanded by some to ensure ratif...

If the Constitution were really the triumph of reason over darkness, as it is often treated, it probably wouldn’t have failed so miserably that a devastating civil war would break out less than one hundred years later. But that happened. And if the fixes applied to the Constitution after that war ended in 1865 were so redemptive, I imagine that my mother—born in 1950 in Mississippi—would have been allowed to go inside her ostensibly “public” library while she was growing up, which of course she was not.

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.

Minorities or women have never held a majority in either chamber of Congress, or on the Supreme Court, and there has been only one nonwhite president of the United States in American history. White people got so pissed off at that they replaced Barack Obama with a bigoted con man who questioned whether the Black president was even born in this country, and when their guy lost the next election, his people tried to start a coup.

Not even for a day just to see how it would feel. They’ve never been anything more than a cruel tease. Most of our written principles serve only as a mocking illustration that the white people running this place know the right thing to do but simply refuse, out of spite, to do it. The Constitution is the impassive villain pouring a bottle of water into the ground in front of you as you’re driven mad by thirst. And so I have written this book. 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

But I bring up my background in the law because hatred is a pretty big reason I’ve written this book. Not the healthiest emotion, I know, but for me it’s clarifying. 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.

Most legal stories and analysis scarcely acknowledge the dystopian, apartheid state that conservatives are trying to recapture through legal maneuvers. Most people take all the blood out of it. Most people assume the law is a function of “both sides, operating in good faith,” without wrestling with what the

In case you haven’t already guessed, I reject that form of legal analysis. A 5–4 ruling on the Supreme Court directly affects the likelihood of me getting shot to death by the police while driving to the store. It directly affects whether my kids can walk to the bus stop unmolested and unafraid of the cops driving by. I refuse to pretend to be intellectually dispassionate about such things. I refuse to act as if second-class status within my own country is one option among many. My “emotion chip” is fully operational.

Please feel free to use any of my arguments against any conservatives in your life. Free of charge (well, free of additional charge). Indeed, I’ve tried to use as little legal jargon as possible to explain why conservatives are almost always entirely full of shit (full of shit being a term of art derived from the Latin: Borkium shittialis).

Cancel culture, as defined by conservative thinkers and hot take aficionados, involves a person (usually a famous media person or college professor) losing a job, an endorsement, or some opportunity because of something they’ve said. Complaints about cancel culture are inextricably tied to complaints about “political correctness.” The people who think you should be able to spew racist, sexist, or homophobic slurs against others are the very same people who think that losing acting gigs or magazine columns because of their knuckle-dragging views is the greatest First Amendment issue of our time. The thing is, a publisher firing a media person for something they say involves no First Amendment issue at all. There’s no constitutional right to, say, continued employment after supporting a failed insurrection. Free speech does not protect a Fox News employee’s right to a job any more than it protects a 7-Eleven employee who desperately needs to wear a racist hat while serving Slurpees. Free speech also does not confer a constitutional right to tenure upon professors who feel the need to say the n-word in class. These people can say whatever they want, but the Constitution does not protect their right to employment. 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 ...

Phillips decided to discriminate against Craig and Mullins because they were gay, and that was a point-and-click violation of the Colorado Anti-Discrimination Act (CADA). Craig and Mullins (after securing a different cake) sued Phillips under the CADA and, in a reasonable world, Phillips would have paid a fine and agreed to stop discriminating against people based on their sexual orientation. But, against this normal operation of a normal antidiscrimination law, Phillips raised an objection under the First Amendment’s free exercise clause. The so-called religious objection to same-sex marriage is always taken at face-value, and it shouldn’t be. Craig and Mullins were not asking Phillips to get married to a man. They weren’t attempting to pay Phillips in sexual favors. They did not want Phillips to put himself inside the cake and jump out and scream “I love gay people” at an opportune moment. They simply wanted Phillips to accept payment for services he started an entire business to render. 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. The Colorado

Amendment. Masterpiece Cakeshop therefore pitted two of Kennedy’s pet projects against themselves: his defense of LGBTQ rights versus his vision of a First Amendment injected with Captain America’s super soldier serum. The First Amendment was never going to lose this battle on Kennedy’s desk. But the way Kennedy decided to make it win solved nothing. Kennedy refused to decide whether Phillips had a constitutional right to bigotry under the free exercise clause. Instead, he ruled that the Colorado Civil Rights Commission, which punished Phillips under the CADA, was insufficiently respectful of Phillips’s religious objections. That’s right: Kennedy wouldn’t call Phillips illegally bigoted against gay couples; instead he called the Colorado board illegally bigoted against religious people. It was a punk move, done by a man who was sick of history having its eyes on him. Kennedy peaced out less than two months later and gave Brett Kavanaugh his job. But it was still a victory for the religious right, who get to continue pressing the argument that their exercise of religion should allow them to strike down or ignore antidiscrimination laws. You can tell the right wingers are in it for the bigotry and not the protection of private freedoms. That’s because if they actually wanted to win the argument, they’d be making an entirely different First Amendment argument. If a person like Phillips is allowed to be bigoted toward people who enter his business, it would be under the First ...

We live in the most violent industrialized nation on earth because too many dudes can’t admit they still need a night-light. When you ask these people why they think the Constitution protects gun rights, it won’t take long for them to make the “self-defense” argument. Oh, they might take a detour through hunting. They might try to convince you that their constitutional right to sit in a tree, covered in deer piss, for five hours until a defenseless animal wanders in range of their military-grade sniper rifle shall not be infringed! Or they may make the “violent overthrow of the government” argument. Yeah, there are people who will argue with a straight face that their private arsenal is necessary to protect them from the most formidable military force in the history of the earth. A single Tomahawk missile has an operational range of one thousand five hundred miles and carries a thousand-pound payload of high explosives, but sure, your AR15 will totally protect you from the tyranny of the government. Buy two! The crew of the USS Ticonderoga is super concerned now. In fact, the events of January 6, 2021, showed definitively how useless guns are, even to violent insurrectionists trying to overthrow the government. Some of the people who stormed the Capitol that day were armed, but you’ll remember that those people didn’t actually use their firearms. If they had, they likely would have been met with a hail of gunfire from Capitol police. (If the mob had been predominately Blac...

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. (It’s worth pointing out here that Prohibition was repealed at the end of 1933. So, for those playing along at home, Franklin Delano Roosevelt’s entirely rational response to gang violence was to liberalize drug laws and restrict gun access. And it worked! The inability of modern Republicans to figure out how to stop street violence is truly beyond me.) The plaintiffs in United States v. Miller complained that the Firearms Act treated sawed-off shotguns differently from regular shotguns. The Supreme Court easily dispensed with that argument: The Court cannot take judicial notice that a shotgun having a barrel less than 18 inches long has today any reasonable relation to the preservation or efficiency of a well regulated militia, and therefore cannot say that the Second Amendment guarantees to the citizen the right to keep and bear such a weapon. You see what they did there? They asked if the gun law had any impact at all on the necessity of keeping a well regulated militia. Finding the answer to be no, the Court kindly escorted 1930s-era Duke Nukem out of the courtroom. This basic, obvious ...

There’s a reason why the ruling in Terry v. Ohio was 8–1 and the opinion was written by Earl Warren and joined by Thurgood Marshall. The opinion starts off with a long recitation of fundamental principles of the Fourth Amendment, but then acknowledges that those principles have to be balanced with practical realities of “rapidly unfolding” and potentially dangerous situations the police routinely face. The court then justifies a stop and frisk as a “minor inconvenience and petty indignity” that can be imposed on citizens by police officers who have a reasonable suspicion. The frisk is meant to protect the officers’ safety, and there is a strong state interest to make sure police officers are not harmed. I should point out that Terry v. Ohio was the first Supreme Court case in history argued by two Black attorneys. Both prosecutor Reuben Payne and defense attorney Louis Stokes were Black and were able to argue their positions in front of the first Black Supreme Court justice in history. 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. The Supreme Court took p...

In a civilized country, an officer’s inability to tell the difference between an eighteen-year-old Black kid and a demonic giant on steroids would be grounds for immediate dismissal from the force. In a just world, an officer who shot and killed an eighteen-year-old unarmed kid and then admitted in sworn testimony that he briefly thought he was fighting Hellboy would be tried and convicted of manslaughter. But when it comes to police violence against Black people, justice, civility, and basic common sense are thrown out the window. The police have a license to kill Black people, as long as police argue that they were so afraid they wet themselves. 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. That rule comes directly from the Supreme Court, in a 1989 case called Graham v. Connor. There, the Court ruled that a police officer’s use of force must be judged from the perspective of an officer at the scene of the crime or altercation. 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, m...

A recent battle in California shows how hard it is to get meaningful police reform passed at the state level, even in a “liberal” state. In 2019, the California legislature proposed a new law amending the language about when police could use deadly force. The old standard said police had to “reasonably” believe deadly force was necessary, which is the same standard set by Graham v. Connor. The proposed legislation changed that standard to “no reasonable alternatives.” That language would have been an improvement, though it’s still not the best. I favor a straight-up objective standard for cops. Their actions should be reasonable with 20/20 hindsight. They should look reasonable on a camera phone. They should appear reasonable to a crowd gathering around asking what the cops are doing. If the cop believes a person has a weapon, that person better damn sure objectively have a weapon. “Oops” is not a good enough answer from agents of the state who shoot Black people armed with cell phones. And if the cop is objectively wrong or unreasonable, they should be prosecuted. We have a sliding scale of homicides and all other types of crimes, and there’s no reason we can’t apply such a thing to various levels of police violence. Maybe a cop who shoots “Hulk Hogan” after a fight catches a manslaughter charge, while a cop who shoots an unarmed man seven times in the back, as a Wisconsin police officer did to Jacob Blake, gets charged with attempted murder? Or maybe a cop who uses his g...

Why can’t I punch a cop? Why can’t I punch a cop who is punching me? Why can’t I punch a cop who has broken into my home? Why do I, a grown-ass man writing my own damn book, feel compelled to use the word punch as a substitute for legitimate self-defense against armed agents of the state, whom this country will not stop from killing me because of the color of my skin? If the law will not protect me from the police, why can’t I protect myself? 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. Hobbes is not wrong. It’s nearly impossible to imagine a functioning society where the state does not have a monopoly over the legitimate use of force. Indeed, our definition of a “failed state” is one where the nominal ruling government no longer has a monopoly on violence. If a local group or gang can maraud across a region, taking what they want and killing who they will, and the state cannot stop them even if it wants to, then that state no longer deserves or is owed any allegiance from its people. The area a government contr...

An officer who violates constitutional rights should be punished in some way, even if that violation doesn’t rise to the level of a criminal act. At the very least, the officer should be worried that he’ll be punished in some way. The people who defend qualified immunity are, once again, the people who claim to be worried that a cop will hesitate before taking action. But if the threat of financial punishment makes a cop think twice before violating the Constitution, I say good. Any tool available to make police think differently before violating the laws is a tool that should be put to use. Courts have turned qualified immunity into a license for cops to act on their racial prejudices with impunity. Qualified immunity cases come down to whether state agents “violate[d] clearly established statutory or constitutional rights of which a reasonable person would have known.” That trash language comes from the 1982 Supreme Court case Harlow v. Fitzgerald. Honestly, how in the hell is “I didn’t know I was violating an established constitutional right” a defense to police misconduct? Why in the hell should I have to establish that a cop watched enough episodes of Law & Order to know that beating the snot out of me was wrong? How is it possible that courts are allowing cops to skate by on their constitutional violations under the theory that the courts themselves haven’t done a good enough job of articulating what constitutional rights exist? What kind of white nonsense system lea...

I point, specifically, to Amy Cooper—”Central Park Karen,” as she’s come to be known. Amy Cooper got into an argument with bird-watcher Chris Cooper (no relation), because Chris asked her to leash her dog, as Central Park rules require. Chris Cooper happens to be Black, while Amy Cooper is white. Amy threatened to call the cops on Chris, and then she did just that, alleging in a fauxhysterical voice that a “BLACK” man was “ATTACKING” her in the park. In that moment, Amy Cooper was asking the cops to show up and enforce the supremacy of her whiteness. She was in the wrong. Who the hell calls the cops when they are the ones in violation of a city ordinance? A white person does. A white person who knows that the cops are there to protect her privilege, not enforce the law and keep the peace. Most white people

I don’t hold personal enmity toward the police, any more than I’d hold a personal grudge against a pack of dogs sent to recapture me after I escaped from bondage. My issue is with their owner. My issue is with white people who refuse to keep their goddamn cops on a leash. There are no good cops or bad cops. There are just shitty white people. 8 IT SAYS WHAT IT SAYS

Most people aren’t Black. Most people have never been Black children. Most people cannot conceive of the intense and terrifying pressure that can be brought to bear on unrepresented and unprotected Black youths, and how that can make a person willing to tell the white man whatever they want to hear. Most people think what happened to the Central Park Five was wrong but have not thought critically about how to prevent it from ever happening again.

In 1825, John and Elizabeth Whitehead divided their Manhattan, New York, farmland into two hundred lots and began selling it off. I know it’s hard to imagine Manhattan as ever having farmland, but “the city” remained densely clustered on the southern tip of the island well into the nineteenth century. The first three lots of the Whiteheads’ land were bought for $125 by a shoeshiner named Andrew Williams. Williams was a Black man, and the Whiteheads were among the very few white landowners who would sell to Black people back then. Williams was a member of the New York African Society for Mutual Relief. The group sought to help Black people buy real estate and was moderately successful at helping the Black middle class gain a foothold in New York. Other Black families began buying land from the Whiteheads in the area around Williams’s new plot. A Black store clerk named Epiphany Davis bought twelve lots for $578. The African Methodist Episcopal Zion Church bought six lots, and the village became even more desirable to Black middle-class families. Irish immigrants, another group of “undesirables” the Whiteheads were willing to sell to, bought many of the other lots. The Whiteheads ended up selling half of their plots to Black people. The little enclave they made was known as Seneca Village. According to census data in 1855, Seneca Village had 264 residents, three churches, three cemeteries, and two schools. Seneca Village was a home of political power for Black people, as wel...

SENECA VILLAGD

By 1857, however, the entire area had been razed to the ground. The homes and churches were demolished, and the people were scattered. Seneca Village did not fall to some natural disaster, or even the ubiquitous mob of angry whites that show up, again and again, throughout American history to lynch Black people who seem to be getting ahead. No, Seneca Village was destroyed because in 1853 New York passed a law allowing for the construction of Central Park. Seneca Village was located in what is now thought of as the west side of Central Park.

So the families sued New York State to block the state’s taking of their land. Did I mention the Joneses and Schermerhorns were white? They were white. And since they were white, all of the stuff I said earlier about the foundational principles of state sovereignty that eminent domain rest on, all of the stuff I said about how, legally speaking, the concept of eminent domain is so ingrained into the very conception of property that you scarcely need constitutional language acknowledging it, all of that stuff comes with the caveat of unless you are wealthy and white.

And so, instead of displacing two white families who didn’t even use their land as their primary residence, the city went forward with a new plan that included displacing over two hundred Black people in Seneca Village who had built up an independent Black community on some of the only land they were allowed to purchase. All of the tricks that would later be deployed against Black communities in the twentieth century were used against the people of Seneca Village in the nineteenth century. The newspapers called their land a “swamp.” The media called the people living there “squatters” (even though, again, 20 percent of the Black homeowners in all of New York City lived there), and, of course, the papers referred to their community as a “n***er village.”

The Court decides today that a prosecutor’s racially motivated exclusion of Afro-Americans from the petit jury does not violate the fair-cross-section requirement of the Sixth Amendment. To reach this startling result, the majority misrepresents the values underlying the fair-cross-section requirement, overstates the difficulties associated with the elimination of racial discrimination in jury selection, and ignores the clear import of well-grounded precedents. I dissent. Marshall would retire only a year and a half after this dissent. And the increasingly conservative court has never again come as close to rejecting peremptory challenges.

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.