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

by Elie Mystal

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.

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.

This is what originalists do when confronted with an area of law that was originally vague or open for interpretation: they make some shit up.

Instead of going higher, instead of looking at the ideals the Reconstruction Amendments represent, originalists again try to hobble them by limiting them to what dead white people may have thought.

Equality and fairness must meet the standards of our modern definitions of those ideals, or else the entire American experiment is illegitimate.

Thomas, and the rest of the conservatives, absolutely believe substantive due process exists; they just think the Fourteenth Amendment is hiding rights for businesses they think are people, instead of minorities they wish were not.

Of course reproductive rights are not textually enshrined in the Constitution. The white men who wrote the Constitution did not think women were people deserving of the same political, civil, and social rights as men.

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.

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.

Never accept the conservative interpretation of the Constitution. Never accept the conservative limitations placed on our political, civil, and social rights. They have literally always been wrong, and they are wrong now. Justice is not one constitutional option among many—it is a requirement of a free and equal society. Demand nothing less.