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by
Elie Mystal
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July 18 - August 6, 2022
when white people want your shit, they will take it, and Black people will rarely be justly compensated
Robert Caro’s seminal book The Power Broker: Robert Moses and the Fall of New York.
eminent domain is what allowed that asshole to be racist at an industrial scale.
As Yoda might say, “Mudhole? Slimy? My home, this is.”
The right to an impartial jury has never really applied to people who look like me:
For Black people, the Sixth Amendment is a cruel joke.
predominately white juries are not the natural result of population dynamics mixed with “bad luck.” Instead, those juries are the manufactured result of the criminal justice system purposefully excluding Black people from the jury pool.
the Court ruled the legal exclusion of Black jurors as a violation of the Fourteenth Amendment’s grant of equal protection, not the Sixth Amendment’s promise of an impartial jury.
The tool prosecutors used, and still use, to ensure all-white (and almost always all-male) juries is the peremptory challenge.
During voir dire, potential jurors can be rejected for any reason, or for no reason at all. When a lawyer rejects a juror without having to state the reason for the rejection, it’s called a peremptory challenge.
A constitutional right that people have no way of accessing through litigation is just, like, a suggestion.
The next old white Republican who wants to talk to me about “law and order” can kiss my black ass.
the way to attack peremptory challenges is not through the equal protection clause, but through the Sixth Amendment itself.
if Black people were being judged by a fair representation of their community, everybody could live with it.
But courts have interpreted the Sixth Amendment
requirement of a fair cross section on the venire is a means of assuring, not a representative jury (which the Constitution does not demand), but an impartial one (which it does).”
What the fuck does that mean?
Antonin Scalia, and the case I’m quoting him from is 1990’s Holland v. Illinois.
Thurgood Marshall dissented: The Court decides today that a prosecutor’s racially motivated exclusion of Afro-Americans from the petit jury does not violate the fair-cross-section requirement of the Sixth Amendment.
At the dark heart of making the Sixth Amendment meaningful in any way for Black people lies an argument that white people, even white liberals, are reluctant to make: white jurors cannot sit in impartial judgment of Black people.
the result of failing to provide for a fair cross section of the community at trial, is that Black people are denied the constitutional entitlement to a jury of their peers.
It’s entirely rational to believe that the death penalty is theoretically legal, but whatever the hell we’re doing is not.
the Eighth Amendment, in full: Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
Well, that’s not really helpful.
A standard as vague and subjective as “cruel and unusual” is one begging future generations to figure things out for themselves.
The Eighth Amendment is a little bit of a “living constitution” written into the old parchment. It’s a facially subjective standard that can be applied to our own situation as we see fit.
originalists,
think the Constitution can be only as good as the worldview of the small-minded slavers and colonists who wrote
we are the ones who have the option of making cruel punishments, like solitary confinement, unconstitutional. To not do so
It’s the promulgation of evil hiding behind the banality of cowardice.
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.
I’ve been trying to explain why originalists are wrong, on their ground and on their terms, on the things they claim to care about.
But my understanding of the Constitution does not have to be limited to the document as originally written,
That original Constitution,
is dead. It was shot at Bull Run. It burned in the Battle of the Wilderness. It bled the ground red at Gettysburg.
The Union survived the Civil War, but its slavers’ Constitution did not.
the founders knew damn well that slavery was wrong and didn’t give a shit.
the slave states put a bunch of antidemocratic loopholes in their Constitution,
we have a “constitutional crisis” every time a Republican president figures out a new way to commit crimes.
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
the entire conservative legal project,
has been to limit the scope and effectiveness of this “new” Constitution.
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.
Name me a structure of white supremacy, and I can show you how equal protection or substantive due process obliterates it.
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.
I believe the Reconstruction and Nineteenth Amendments could redeem this whole bigoted and misogynist enterprise.
But white people won’t let them.
The Fourteenth Amendment was ratified by the states on July 9, 1868. But its guarantee of rights was almost immediately undercut by the Supreme Court.
The amendment could have been a tool to stop all kinds of white-owned monopolies that crowd out Black-owned businesses. It could have been used to bring about increased economic opportunity for all. But it never turned out that way.
The Civil Rights Act of 1875
