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

by Elie Mystal

The Constitution was so flawed upon its release in 1787 that it came with immediate updates.

Gawker was killed because it wrote a story a conservative man didn’t like in 2007.

Understand, Peter Thiel could have spent a billion dollars constructing a space laser and melted Gawker’s servers and five surrounding city blocks from orbit, and done less damage to free speech in America.

calling clear parody accounts making fun of him defamatory is utter Devin Nunes’ Horseshit.

I’m not worried about getting ratioed on Twitter or getting fired from my job if I write a bad column. I’m worried about the Department of Justice forcing me to drink a cup of hemlock because I wrote a good one.

(which means that enough congresspeople literally shouted “yea” that there was no need to force the House to call each individual to vote, like winning a rap battle).

A reasonable person might say: “Wait, you can be denied unemployment benefits because you get high? What kind of uptight Victorian-Jesus bullshit is that?”

Here’s one of my little rules for constitutional interpretation: if Republicans agree with me, I need to think again about how what I’m saying can be used to hurt women, people of color, or people who are LGBTQ.

It’s so easy for right-wingers and even some moderates to say, “Well, just go to another bakery.” It’s so easy for people to overlook the humanity of those who suffer from this kind of bigotry.

Being an asshole is not a protected class, which is lucky because I discriminate against them all the time.

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.

Free speech does nothing for Kim Davis, the Kentucky clerk who refused to do her job of issuing marriage licenses because she had “religious” objections to same-sex marriage. Free speech doesn’t help the co-op board who refuses to rent to a gay couple, or the employer who refuses to cover birth control as part of their employee health plan. 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.

We live in the most violent industrialized nation on earth because too many dudes can’t admit they still need a night-light.

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.

(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!

Gun rights are not about self-defense. They literally never have been.

The Fifth Amendment is a litmus test of whether you have enough education (from the books or from the streets) to know it exists. And that’s not how it’s supposed to be. Your constitutional rights aren’t supposed to change depending on whether you know they exist.

The lead character, Olivia Benson, on the popular television show Law & Order: Special Victims Unit, is inspired by Fairstein. I must have missed the episodes where Benson charges five Black kids with a crime they didn’t commit in violation of their constitutional rights.

If the Fifth Amendment recognizes the right against self-incrimination, then we should stop asking people to incriminate themselves. Why is that hard to understand?

would be too glib and easy to say that the indigenous peoples who sold him the land didn’t understand private property. As Arizona State law professor Robert Miller makes clear, the people likely did have a fully functional concept of property “exclusivity.” But we would probably call the land deal a “lease” not a “purchase.” In his book Law in American History, University of Virginia law professor G. Edward White makes the case that the native Lenape people were “not relinquishing the island, but simply welcoming the Dutch as additional occupants.” It was the colonizers who didn’t understand or respect the deal.

If you know anything about Republicans, you understand why the right-wingers get up for this fight, and you can see why liberals are generally on the side of the government when it comes to eminent domain. We need things like wind turbines and historical sites much more than we need libertarians bitching and moaning about whether they received enough of a vig from the government for their troubles.

I cannot reliably get a random sampling of twelve people to read a whole article before calling me an asshole based on my headline. But I’m supposed to trust twelve randos pulled off the street to figure out if I murdered somebody?

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.

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 juries.

Just so people don’t lose sight of how recent this decision is: the Challenger space shuttle blew up on live television before Black people had a tool to avoid being excluded from criminal juries in America. Barack Obama, the first Black president, was twenty-four years old before Black people had a reasonable chance of getting on a jury. 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 next old white Republican who wants to talk to me about “law and order” can kiss my black ass.

If I could have one white superpower, it would be the fucking nerve of these people.

The withholding of death drugs by the people who make them is one of the best stories about corporate responsibility we have in the modern era. It’s one of the best examples of the market taking steps to correct a failure in government.

to execute them. 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.

I point that out just because I find it comforting, sometimes, to remember that racists are also extremely dumb. Like, look at this fool. Riddle me this: if God wanted the races kept on separate continents, and only human free will flummoxes that divine segregation, then why do the continents move?. Why did “God” shove the “Malay continent” right up the ass of the “Yellow continent” as evidenced by the existence of the Himalayas? Bet you didn’t think of that. I bet you don’t even know why mountains exist in the first place, you ignorant, racist fuck.

The current Supreme Court has more in common with the court in Plessy than the court in Loving. The only real difference between conservatives in 1896 and the ones we have today is that the Federalist Society teaches them how to edit out their bigoted slurs.

If you go to a good school and have access to good professors and good books and you come out as a Republican, I’m prejudiced against you. I assume you’re defective, in some way. I wouldn’t want you to marry into my family. Like, I can’t look at Yale Law School graduate and U.S. senator Josh Hawley without assuming he’s at least one-eighth fucking idiot, you know.

Federal courts, comprised as they are of unelected old people who are appointed for life and are thus unaccountable to the people, are supposed to assume that most legislative acts are constitutional.

I never want my kids to get comfortable acquiescing to arbitrary power from authority figures. That way lies middle management.

As Voltaire might say: “If substantive due process did not exist, it would be necessary to invent it.”

“Where does it end?” asks the conservative jurist. What’s the point of winning the birth lottery if the government is just going to step in and level the playing field?

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.

“Oh, it’s not that I think the state should invade a person’s home, drag them out of bed, and subject them to humiliation and jail because they engaged in a consensual sex act with a person of the same sex. Goodness, no! It’s just that pesky Constitution that doesn’t prohibit the state from doing that. It’s a shame, really. If only there were some amendment that allowed me to put a stop to it.”

If they really thought that the organizing document of American self-government didn’t, on its face, protect gay people having sex in their own home, or protect Black people from driving without police harassment, or protect women who get a prescription from their doctor, then wouldn’t they spend nearly their whole life trying to change such an obviously flawed document? 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?

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 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 here “illegally” as babies. These hypocrites want to make rights attach at conception, but not citizenship and representation in the census. These would-be moralists can fuck all the way off.