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.

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 ratification of the rest of the document. All of them were written by James Madison, who didn’t think they were actually necessary but did it to placate political interests. Video gamers would call the Bill of Rights a “day one patch,” and they’re a good indication that the developers didn’t have enough time to work out all the kinks. And yet conservatives use these initial updates to justify modern bigotry against all sorts of people.

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.

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.

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.

That’s the thing about the Constitution: many of the rules, rights, prohibitions, and concepts are actually pretty decent. The problem is they’ve never been applied to all of the people living here. 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.

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 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.

Everybody has seen the gleaming, air-brushed face of the Constitution. I’m going to tell you what this motherfucker looks like after it has had its foot on your neck for almost 250 years. The perspective is a little different. I believe more people would try to fix it if more people saw it for what it truly is.

I felt like not being able to fall back on a law license would motivate me to get out there and figure out what I really wanted to do.

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 polity would look like if conservatives actually got their way.

The other difference one will notice about this book is that I treat the law as an argument. People are told that the law is an “objective” thing, almost like it’s a form of physics. But it’s not: the law is a collection of subjective decisions we—well, white people—have made over the years to protect people and activities they like, and to punish people and activities they don’t like.

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. Except racists. Who can kiss my ass, as far as I’m concerned. When I’m wrong, it’s usually because I haven’t fully thought through how insidious and creative racists can be.

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)

But it’s harder to spot the bad conservative legal arguments, because they’re so often covered in jargon and discussed as if only an expensively educated lawyer could truly understand the nuance.

CANCELING TRASH PEOPLE IS NOT A CONSTITUTIONAL CRISIS

Despite the fact that Socrates was already seventy years old at the time of his conviction—which is pretty old for a person living in a pre-Robitussin society—the philosopher was sentenced to death.

but based on what we know of him from his former students (like Plato) or classical plays, I imagine Socrates to be the greatest internet troll of all time.

I imagine he’d have been an annoying little shit to argue with. He was a walking “whataboutism” walrus meme in a toga, exasperating people who were just trying to run a practical society without catching a lightning bolt from a fickle and horny Zeus.

Democracies tend to elevate any person with enough wealth and charisma to stand out in a crowd. Democracies neither necessarily nor naturally reward merit. Nor do they punish incompetence. Democracies tend to go along with the popular will, and Socrates knew that the popular will could be easily manipulated into believing any odd thing.

At least 251 Athenian men sat around, thought about it, and concluded their society would be better off if a seventy-year-old social gadfly who held no political or military power was poisoned to death for transmitting ideas he didn’t even bother to write down. Socrates was canceled.

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 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...

Protest against the government is at the heart of why the First Amendment exists in the first place. Political speech against the government, speaking truth to power, is the speech that is given the most robust legal protection. But the people who make a living decrying cancel culture rarely lift a pen or hashtag when Republicans use the powers of the state to chill political protests. In fact, they do the opposite: those who claim to care about cancel culture treat political protest as the thing that threa...

Thiel is a billionaire venture capitalist who co-founded PayPal and founded a hedge fund and did, I don’t know, whatever it is one does to make a billion dollars in a country that can’t be bothered to address poverty and food insecurity.

But you also won’t get any serious debate from anybody who has spent more than five minutes in a constitutional law class on whether reporting on the private sex lives of billionaires and public figures is squarely within the protection of the First Amendment.

Thiel’s plan, which I imagine he hatched in a lair carved into a volcano, was to attack Gawker through a series of retaliatory lawsuits.

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.

Nunes is a public person; calling clear parody accounts making fun of him defamatory is utter Devin Nunes’ Horseshit. It’s funny, but I’m not the one who had to lawyer up to defend myself.

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.

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.

But if you just want to live your life with the dignity of your own thoughts and your own beliefs, Captain First Amendment is your hero.

The First Amendment is being weaponized. It’s being turned into a thing that bullies schoolchildren in homerooms and bathrooms. It’s being used to strike at women who want health care, but won’t protect condemned men on death row who want a spiritual advisor. It’s being corrupted into a constitutional justification for bigotry and injustice.

Lawyers call this “distinguishing”: if I’m a judge and I don’t like the conclusion a test leads me to, I can just create a “distinction” (often without a difference). If your test applies to a burning bush and I don’t like it, I can just call the bush a “tree” and be done with you.

Again, Captain America is great when he’s fighting for “the little guy.” But when he’s used as a tool of powerful special interests, he’s villainous.

If Republicans are for it, chances are there’s something about my law that can be weaponized against vulnerable communities, otherwise I wouldn’t be getting conservative support.

The name of Phillips’s store was neither ironic nor misleading. This was not a Dollar Tree that sells no saplings or a Popeyes that sells no spinach. Masterpiece Cakeshop sold cakes, and Craig and Mullins visited the store, whose products were well reviewed, in search of a cake for their celebration.

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.

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 Amendment’s free speech clause, not free exercise.

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 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.

Our entire, intricate system of representative self-government carefully balanced with countervailing, overlapping spheres of power and protection of interests gets reduced, in the Republican mind, to the ironclad right to shoot something that pisses them off.

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.

These people are willing to suffer the ongoing national tragedies of mass shootings, they’re willing to ignore the epidemics of suicides and violence against women, they’re willing to sacrifice the lives of schoolchildren, all so that they might feel a little less afraid when something goes bump in the night.

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

It turns out, you don’t need guns to overthrow the government: you just need to be white and enjoy the permissiveness of people like Josh Hawley and Ted Cruz, and a little bit of better luck while trying to find the leaders you intend to kidnap or assassinate.

What Republicans think is their strongest and most ancient defense of gun rights is actually a mere advertising campaign from gun manufacturers.

Our current interpretation of the Second Amendment was invented by the National Rifle Association in the 1970s. You see, in the 1960s, Republicans were all about gun control, because in the 1960s Black people thought that they should start carrying guns.