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

by Elie Mystal

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

They don’t have “problems.” They have an assortment of privileged complaints about the rapidity of their wish fulfillment.

Arguably, substantive due process flows from the Fifth and Fourteenth Amendments, which both say that no person shall be deprived of “life, liberty, or property, without due process of law.”

I think the least controversial definition of the thing is that substantive due process protects unenumerated rights. The Constitution explicitly protects some rights, but it must protect other rights in order for the protection of the explicit rights to make any sense. For instance, the Constitution protects freedom of speech, but it doesn’t explicitly protect freedom of sight. And yet, a government policy of gouging out the eyes of political dissidents would seem brazenly unconstitutional. The freedom of the press is not secured “because of Braille.” The government shouldn’t be able to say: “The First Amendment is not troubled, for we left them their tongues.” We don’t need an entire additional constitutional amendment to explicitly protect the right to have eyes. Forced blinding is substantively violative of the due process clause of the Constitution. The end.

That’s because substantive due process is really about fundamental fairness. The best way to understand substantive due process is to compare it to the other kind of process, “procedural due process.”

At the very least, arguing that I was afforded due process by the screen I can’t see would be a cruel joke that only Antonin Scalia would find funny.

Substantive due process demands actual fairness, not just technical fairness. Predictably, conservatives hate it. Conservatives reject a view of the law that guarantees fairness. And conservatives hate unenumerated rights, because unenumerated rights could be whatever I (or five justices on the Supreme Court) say they are. Today I claim an unenumerated right to have eyes. Tomorrow I might claim an unenumerated right to reasonable accommodations should my sight be taken from me. In the future, I might claim an unenumerated right to have Geordi’s visor from Star Trek made available to me, free of charge, from a universal health care provider. “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? Conservatives are always worried that protecting too many rights might one day lead to a society that’s fundamentally fair.

It’s a classic liberal mistake: conservatives used a tool for evil, so instead of using that same tool for good, let’s never use tools

I’ll stipulate that neither of these approaches is perfect, but what kind of sick bastard thinks conservatives have the better view of things? What kind of wounded soul thinks that the conservative version is the way things are supposed to work?

I’ll keep trying. I’ll keep trying to get them to think about rules substantively instead of procedurally. I’ll keep trying to make them into the kinds of people who are outraged at unfairness, instead of desensitized to the suffering of others. I’ll do whatever I can think of to make sure they grow up to be anything other than like Clarence Thomas.

Protecting children was just not something the framers thought the federal government had the power to do (put a pin in that thought).

So, tell me again why I should care which rights these vicious assholes happened to think women had. Tell me again why the failure of these fucking rapists and/or rape apologists to recognize any explicit right to bodily autonomy should matter one bit to the polity in which we now all live. Don’t you dare say “the rights of the unborn” to me. Don’t you dare fix your lying mouth to tell me that these people who condemned their own progeny to bondage and torment, for the sin of being conceived in the womb of a colored woman—a woman they would continue to work and rape while she was pregnant with their child—gave one damn about the health and safety of “the unborn.”

If we’re going to talk about the constitutional right to an abortion, we’re going to talk about it from first principles. And the first principle that the people who wrote the Constitution missed is that women are people. Full, equal, people. If you believe that, and I know a lot of men don’t, but if you believe that women are people, then the right to privacy and all the reproductive rights that flow from it is a fairly straightforward thing.

I just don’t get these people like Comstock, who we see again and again throughout human history. I don’t understand these people who look at two consenting adults fucking and think, “Oh no, something must be done about this!” Who are these people, and how are there always so many of them? No matter what society you live in, there are deep social, economic, and political problems that need to be addressed. And yet there are always some people in that society who are willing to ignore all of those problems and make it their life’s work to stop two people from getting busy in a Burger King bathroom. Of all the things to care about, some people invariably choose to care about recreational sex or the possibility thereof. Clothes were a fucking mistake. They send the wrong message.

So let me say once again, for the people in the back: I do not give one wet shit about the original intent of white folks. Their motives were horrible. Their intentions, barbaric. The public they allowed to have a voice well understood the horrible, barbaric meanings of their laws. And none of it should inform what rights we now have today, unless you are interested in bringing back the shitty, monstrous societies created by long dead white people.

The rights Sanger and others gained for women’s contraceptives paled in comparison to the rights men had

That’s why Griswold and Buxton were arrested after just ten days. It’s not because they were handing out contraceptives; it’s because they were handing out equality.

If you proceed from the premise that “women are people,” the idea that women-people have a constitutionally protected right to control their own reproductive system is entirely obvious. Men-people get to do it. Even beyond the obvious point that biological men can engage in any sex act they like without risking having to pass a bowling ball through their penis nine months later, the facts on the ground show that men can get access to more or less reliable contraceptives even when laws ostensibly prohibit them. If a soldier could get a pack of condoms before whoring his way through Paris in 1945, denying his wife a birth control pill in 1960 seems like a point-and-click violation of the equal protection clause of the Fourteenth Amendment.

If I had decided Griswold, it would have been maybe a three-sentence opinion: Women, being people, have a right to control their reproductive system, as men-people do, through the use of contraceptives, which men-people seem to always be able to get their hands on when they really need to fuck a prostitute while on shore leave. This right flows from the Fourteenth Amendment’s guarantee of Equal Protection, which we now recognize includes the right to have sexual intercourse without internal reproductive consequences. We note that men-people have technically e...

penumbras

Many of the rights explicitly protected in the Constitution don’t make sense unless this unenumerated right to privacy is also protected. What good is a protection from unreasonable searches if there is no protection from being unreasonably monitored? What good is the right to form an association, if the FBI can just wiretap any meeting it doesn’t like? What freedom do we really have if the government can shove a camera up your hooha to see if there’s any funny business going on?

None of the justices adopts my equal protection framework. Because, you know, once you start giving women equal protection of laws, the whole damn patriarchy starts to crumble. You’ll note that Griswold applied to married women; it took a while for the court to extend its logic to unmarried women, but that extension would have happened immediately under an equal protection framework. God forbid they gave women suspect class status, triggering strict scrutiny of discriminatory laws and practices. Then they might even have to start paying women equally.

At issue were a host of abortion restrictions legislated by the state of Pennsylvania in the late ‘80s. They included “informed consent” before having an abortion (which mainly just involves some asshole trying to talk the woman out of her decision), waiting twenty-four hours before getting the procedure (again, just making people feel bad about it), obtaining parental consent if the patient is a minor (because, you know, anytime you can make teenage pregnancy harder, why not), and requiring married women to notify their husband before having the procedure (I already explained what anti-contraception laws are really about).

That’s because we never, ever, limit a man’s access to medical care based on how it will impact any other person. No man is ever denied medical care because of how that care might affect somebody else.

Most women won’t know they’re carrying the state’s legitimate interest for the first couple of weeks, but once the state’s interest disrupts their menstrual cycle, a simple home test can detect the invasion of the state. By six weeks or so, the woman might start becoming violently ill. As the state’s interest grows, a woman’s bones will soften and her joints will stop functioning properly. By the end of the first trimester, she’ll have created an entirely new organ, the placenta, which will start leaching nutrients from her bloodstream and feeding it to the state’s interest. To compensate, the woman will start producing up to 50 percent more blood to transport oxygen around the body. Some of that extra blood can pool in weird places and be uncomfortable.

By the third trimester, when the state’s interest has developed from “legitimate” to “compelling,” the woman who bears it will have trouble traveling, working, or just moving around easily. Given her burdens, one might expect the state to take a more active role in providing care and money to the woman so that its compelling interest may have its best chance at success. But the state does not. Many women continue to work so that they may provide for the state’s compelling interest out of their own pockets. Many countries encourage women to take time off from work at this point, but in America we provide no federally mandated financial assistance to women bearing the state’s interest to term.

Hell, I even stayed “north of the border” for the birth of my two kids. But, from what I’ve heard, it sounds bad. It sounds like the kind of thing a legitimate government could never even ask a person to do, much less force a fully human person to do if they were unwilling. If somebody ever got me pregnant, I’d punch him right in the fucking mouth and demand an abortion under my Eighth Amendment rights against cruel and unusual punishment.

Planned Parenthood’s framework doesn’t even make sense if you assume that women are people and thus deserving of equal protection. There is no framework that justifies denying them medical care, or balancing their access to care, because of the “state interest” in forcing them to engage in unwanted labor. No other operation of law forces a person to painfully change their body and reconfigure their organs because of a state interest in the results of that transformation.

It is wrong to force a woman to give birth to a baby she doesn’t want. And I say that assuming that she consented to have sex in the first place, and that giving birth wouldn’t actually kill her. It’s barbaric to force a woman who had consensual sex to carry an unwanted pregnancy to term, even if she can carry that fetus to term safely. I don’t even have a word for what it is to force a rape victim t...

Conservatives talk about abortion like they’re on a righteous crusade to stop a baby holocaust, while male liberals talk about it like they’re embarrassed and sorry somebody knocked up the cheerleader, but now here we are.

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.

No, what makes abortion difficult is not some fancy lawyering from the right, but the near refusal to defend it from the left. The hard sell is almost always left to women and “abortion activists,” while men...

But the better legal frame is “Forced birth is some evil shit that can never be compelled by a legitimate government. The end.”

Hell, if you don’t like my Eighth or Fourteenth Amendment arguments in defense of abortion rights, I could give some Thirteenth Amendment arguments. Because the same amendment that prohibited slavery surely prohibits the state from renting out women’s bodies, for free, for nine months, to further its interests. Forced labor is already unconstitutional.

The astute reader will have noticed that a central theme of this book is that conservatives are irredeemable assholes who consistently act in bad faith to uphold white supremacy and patriarchy over the objection of most minorities, women, and decent people.

Because the people who believe in the most shallow and vindictive version of the Constitution are never at the vanguard of amending 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?

But we don’t see them doing that, do we? We don’t see conservative justices demanding a better, more fair Constitution than the one they claim we’re stuck with. Instead we see these justices regularly giving talks at fundraising dinners of the Federalist Society, praising the limitations and cruelty of the current Constitution, promising to rule for more of the same, and vowing to defeat the “liberals” who imagine the country as something better than it is. We see the conservative politicians who appoint and confirm conservative judges constantly argue against the amendments that would bring fairness and equality to the document their judges have decided doesn’t already include it. And we see conservative jurists, throughout American history, work to limit the scope and effectiveness of what amendments have been passed to make us a more perfect union.

Maybe they just don’t believe that some people deserve rights at all. Maybe conservatives limit the amendments that should give gay people and Black people and women-people equal rights, because conservatives don’t want them to have equal rights. How many times does the hunter have to shoot Bambi’s mom before we stop blaming the deer that got in the way and turn our attention to the person who pulled the trigger?

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.

How can you possibly think that women don’t already have equal rights because of your limited, originalist interpretation of the Constitution, but also don’t think the Constitution should be changed to right this clear wrong that your interpretation has created? Unless, at core, you don’t think women should have equal rights at all.

Schlafly employed the same two tactics that conservatives always do when attacking equal rights. She reduced equal treatment to “same” treatment and fought most desperately over social equality instead of political or civil equality. This is what conservatives do. This is what they always do.

Putting aside the issue that an actual draft which fairly called upon all citizens and didn’t exempt rich white boys with bone spurs might be the only thing that could arrest this country’s habitual global warmongering, the fact is that women and Black women in particular have long broken the infantilizing social mores against women in service.

The world that Phyllis Schlafly despaired for white women already exists for Black women. All that’s missing is explicit legal protection for their health and economic rights. Help Black women or get out of their goddamn way.

Some of the very same people who would deny a woman equal protection under an Equal Rights Amendment would like to grant those rights to the fetus she carries.

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.

No, what the conservatives want is forced incubation of fetuses by women who are unwilling to perform the work.

As I’ve said, the right to an abortion is not even controversial as long as we proceed from the premise that women-people are people. Fetal personhood laws cannot overcome the Thirteenth Amendment’s prohibition on involuntary servitude, if we accept that a woman is a person who cannot be forced to labor.

Seeing as the state can’t even find enough willing parents to take care of all of its born wards (especially if those wards happen to be Black), I doubt it can find enough willing wombs to make unborn personhood anything more than involuntary servitude, though I suppose it’s welcome to try. But forcing a woman to undergo nine months of incubation and labor is a rather obvious violation of her Thirteenth Amendment protections.

If I seem flippant about the whole thing, it is because the legal argument that a fetus has a legal status on par with the woman to whom it is literally attached is illogical trash sprinkled with bad faith and misogyny. Fetal personhood amendments are the state writing a check it cannot cash, then forcing women to cover the bill against their will. It cannot be done in a “free” society. The Thirteenth Amendment flatly prohibits forced labor, and it doesn’t have an exception for labor that white men won’t do themselves but think is really important for others to do for society.