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

by Elie Mystal

So, tell me again why I should care which rights these vicious assholes happened to think women had.

the first principle that the people who wrote the Constitution missed is that women are people. Full, equal, people.

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 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?

the Comstock Act made sexting illegal back when sexting required two weeks of delayed gratification and legible penmanship.

Margaret Sanger, the founder of Planned Parenthood, fought Comstock laws in court throughout the 1920s and ’30s, and won some rights for women to use “birth control,” a term she is largely responsible for coining.

Sanger was an inveterate racist who sometimes tried to sell birth control as part of a larger eugenics plan eventually to eliminate the “Negro race.” 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.

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.

Condoms, fundamentally, still give men a large amount of control over the decision to reproduce. But the pill shifts reproductive choice back to the woman.

The man doesn’t get a vote,

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 I had decided Griswold, it would have been maybe a three-sentence opinion:

This right flows from the Fourteenth Amendment’s guarantee of Equal Protection,

the white guys on the Supreme Court did their usual thing of acting like the Connecticut contraception ban was “facially neutral” even though it plainly was not in either force or effect.

Instead of equal protection, Justice William O. Douglas divined a right to privacy from the so-called penumbras of other constitutional amendments.

in 1965, substantive due process was still a dirty phrase, made guilty by its association with the Lochner era.

Many of the rights explicitly protected in the Constitution don’t make sense unless this unenumerated right to privacy is also protected.

Of course privacy is a thing. The Constitution scarcely makes sense without it.

The right to privacy is just a substantive function of the due process clause.

Justice Byron White

concurring opinion

this Connecticut law, as applied to married couples, deprives them of “liberty” without due process of law, as that concept is used in the Fourteenth Amendment.

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.

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.

Roe v. Wade recognized a constitutional right to abortion under the right to privacy and the due process clause of the Fourteenth Amendment.

The Republic of Gilead knows no bounds, I suppose.

we never, ever, limit a man’s access to medical care based on how it will impact any other person.

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.

Childbirth is still the ninth leading cause of death among women aged twenty to thirty-four in this country,

Humans are the only mammal that can’t regularly give live birth alone. Women need help to do it.

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.

Liberals consistently fail to articulate an equal protection argument for abortion rights.

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,

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.

“choice” is great. It’s a fine frame.

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

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

Maybe conservatives don’t want the Constitution fixed.

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.

my read of the Constitution tells me that the Equal Rights Amendment is redundant. Remember, I think that the equal protection and due process clauses of the Fourteenth Amendment do all the work.

the problem is that white guys have spent the last 150 years trying to undo it.

Schlafly had a neat little twist—arguing that social inequality benefited women instead of harming them—but even that is not new.

Shirley Chisholm, who in 1972 became the first Black woman to run for president, was not the beneficiary of the social privileges Schlafly was so worried about losing.

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,

A Pew Research Center report conducted in 2011 found that between 1973 and 2010, the number of active-duty enlisted women grew from 42,000 to 167,000. Over 30 percent of those women are Black. That’s despite Black women accounting for only about 13 percent of women in America as a whole.

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.

To quote TV president Josiah Bartlet: “Your indignation would be a lot more interesting to me if it wasn’t quite so covered in crap.”