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

by Elie Mystal

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.

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. That goes beyond the death penalty. For instance, some form of solitary confinement has been viewed as a fairly standard and appropriate punishment since forever. But now, with our modern understanding of, you know, human psychology, studies suggest that solitary confinement is especially cruel. It’s torture for your brain. James Madison did not understand this and likely wouldn’t have cared if he did. Why in the hell should that matter now? We know. We are the ones who know. And we are the ones who have the option of making cruel punishments, like solitary confinement, unconstitutional. To not do so because some old dead white people didn’t have the knowledge or decency to do the same is not an alternative theory of legal interpretation. It’s the promulgation of evil hiding behind the banality of cowardice.

the cruel and unusual language “must draw its meaning from the evolving standard of decency that mark the progress of a maturing society.” Thus, a penalty that was permissible at one time in our Nation’s history is not necessarily permissible today.

Gregg was a 7–2 case, with only Brennan and Marshall dissenting. But Furman and Gregg have basically set the stage for the last forty years of death penalty fights at the Supreme Court.

Instead, the modern way of fighting the death penalty is to argue that each individual punishment is unnecessarily cruel in some specific way, without arguing that killing people is the thing that is cruel.

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.

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.

But that’s a lie. 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.

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.

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.

As a Black person, I do not even acknowledge the legitimacy of the original Constitution, much less think our modern rights and responsibilities can be understood only through its lens.

A document that flawed, one animated by such evil, and one that so spectacularly failed that the country fought a live-ammo Civil War less than a hundred years after its conception, should have been thrown out with the bathwater. That’s what they did in South Africa. In South Africa, they didn’t just track changes and strike through the old apartheid constitution. You can’t make Freddy Krueger friendly by giving him a new hat. Instead, they wrote an entirely new document, in a constitutional convention that represented all of the people, and they took two years to do it. Adopted in 1996, the South African Constitution now stands as a model for the world, while we have a “constitutional crisis” every time a Republican president figures out a new way to commit crimes.

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.

They want the right to vote to be limited to the people who agree with them. They want to exclude fairness from the question of due process. And they want equal protection to be one input among many, as opposed to a required outcome of just laws.

It’s pretty easy to dress up “whites win always” with legalese and sell it back to an audience of white people, especially when Thomas Jefferson and James Madison have already done most of the work.

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. Hell, I could make a case that the only amendments I need in order to run a free and fair society are the Fourteenth and the First. Seriously, try me:

want to buy some slaves. Sorry, that’s a violation of equal protection of the laws and substantive due process. I didn’t say Black slaves, I said any old slaves. Yeah, still. There’s no fair process by which you could acquire people as chattel. Okay, fine, well I don’t want to let everybody vote. That sounds like a violation of equal protection to me. Fine, they can vote but they can’t live next to me. And that’s a violation of substantive due process in home buying. Shut up! Dude, First Amendment. What if I wanted to take everybody’s guns? I bet you’ll say that’s a violation of substantive due process too. No, that’s cool. Go right ahead.

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

I cannot make people less racist. I cannot change hearts and minds. But I can make damn sure that racists and misogynists don’t have the protection of law while they’re doing their racism and misogyny in the name of the government.

All citizens have the same rights. Those include economic rights, contractual rights, and speech rights. And those rights cannot be taken away just because they live in a crappy state. nor shall any state deprive any person of life, liberty, or property, without due process of law.

And again, Grant was a great white man for his time—the Emancipation Proclamation and the Thirteenth Amendment were probably no more than unenforceable thought bubbles without Grant. 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. I mean that without hyperbole.

Understand, Black people did not get a vote in the drafting, adoption, or ratification of the Constitution in 1787. We did not get a vote in the drafting, adoption, or ratification of the Reconstruction Amendments. We did not consent, tacitly or otherwise, to this slave state. And we were systematically denied political power in this country until roughly 1964 (and I’m being generous to this country by starting the clock in ‘64 with the passage of the Civil Rights Act, as ...

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

I’m not a Black Nationalist, because I believe the Reconstruction and Nineteenth Amendments could redeem this whole bigoted and misogynist enterprise. But white people won’t let them. It really is that simple.

Nothing decent can overcome a conservative court. That’s something that modern liberals and progressives should always remember.

Without troops left in the South to protect Black people who were trying to exercise their rights, without states willing to write laws prohibiting discrimination in their own territories, and without a federal cause of action so that Black people could object to the discrimination they were facing, the Jim Crow era was off and running.

The object of the amendment was undoubtedly to enforce the absolute equality of the two races before the law, but, in the nature of things, it could not have been intended to abolish distinctions based upon color, or to enforce social, as distinguished from political, equality, or a commingling of the two races upon terms unsatisfactory to either. Laws permitting, and even requiring, their separation in places where they are liable to be brought into contact do not necessarily imply the inferiority of either race to the other, and have been generally, if not universally, recognized as within the competency of the state legislatures in the exercise of their police power.

The Court here interprets the Reconstruction Amendments to protect only political rights. According to the logic of this Court, Black people had the right to participate: they could vote or have a trial or travel on trains. But they had no civil rights.

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

Twenty-first-century white people got so pissed off 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. But you want to tell me that nineteenth-century white people really thought they were just in favor of “separate but equal” accommodations on a train? Or in a school? Please.

A theory of constitutional interpretation and justice, supported by originalists, that requires them to look to and value the intents and purposes of unabashed, unrepentant white supremacists is obviously, irreparably racist. Originalists try to dress up their theories with a bunch of fancy words and legal jargon, because what they actually believe in plain terms is provably stupid. “Racial equality only means what white people, and white people only, some of whom actually owned slaves, thought it could mean a century and a half ago.” Get the fuck out of my face with that nonsense.

The thing is, the originalist judges who struggle with Brown v. Board of Ed., the ones who can’t seem to decide if the case overturning one of the most racist decisions in U.S. history was “rightly decided,” those people are the dumb ones. They’re the stupid originalists who downloaded the white supremacy widget that is originalism but didn’t watch the YouTube video on how to make it work.

For equal protection to mean anything, it had to mean the right for Black people to enter into contracts, civil or otherwise.

Sorry, Bazile is dead and presumably can’t hear me over the sound of his own torments.

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.

The right to participate in society with equality and dignity is also protected by the Fourteenth Amendment, and that is what Loving stands for.

I could make an argument that the Fourteenth Amendment wouldn’t have even been ratified if the white men supporting it thought it meant their daughters could marry Black people.

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.

Like Republicans, for instance. 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.

Sadly, for me, a law that said “Nobody named Josh Hawley can be a U.S. senator” would be unconstitutional on its face.

Lots of white people like to act like they are the “default” people in this country and, well, the law treats them as such.

There is, however, a catch. 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 religious affiliation enshrined in the First Amendment.

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.

If you ask me, the LGBTQ community is clearly a suspect class. Members of that community have been historically singled out for discrimination, have an immutable characteristic (any “conversion therapy” acolytes reading can kiss my ass), and are members of a distinct minority.

Kennedy, who for all intents and purposes is a tolerance hero for his tie-breaking decisions recognizing gay rights (striking down anti-sodomy laws in Lawrence v. Texas, invalidating the Defense of Marriage Act in United States v. Windsor, striking down laws banning same-sex marriage in Obergefell v. Hodges) never went the last yard to give the LGBTQ community protected class status. He thus never fully protected the community within the equal protection clause.

Kennedy’s opinions leave the LGBTQ community exposed to less tolerant conservatives who can simply claim—as Roberts does, as Scalia always did—that the state has a legitimate interest in discriminating against gay people, and that legitimate interest is all they need.

That’s why Kennedy did what he did in these cases. He was able to stamp out a couple of specific examples of discrimination against the LGBTQ community without empowering the Fourteenth Amendment to do even more.