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Kindle Notes & Highlights
by
Elie Mystal
Read between
August 24 - August 27, 2022
Our Constitution is not good. It is a document designed to create a society of enduring white male dominance, hastily edited in the margins to allow for what basic political rights white men could be convinced to share.
Conservatives are out here acting like the Constitution was etched by divine flame upon stone tablets, when in reality it was scrawled out over a sweaty summer by people making deals with actual monsters who were trying to protect their rights to rape the humans they held in bondage.
Video gamers would call the Bill of Rights a “day one patch,” and they’re a good indication that the developers didn’t have enough time to work out all the kinks. And yet conservatives use these initial updates to justify modern bigotry against all sorts of people.
The Constitution is not gospel, it’s not magic, and it’s not even particularly successful if you count one civil war, one massive minority uprising for justice that kind of worked against tons that have been largely rebuffed, and one failed coup led by the actual president, as “demerits.” It was written by a collection of wealthy slavers, wealthy colonizers, and wealthy antislavery white men who were nonetheless willing to compromise and profit together with slavers and colonizers. At no point have people of color or women been given a real say in how it was written, interpreted, or amended.
What conservatives do and try to do through the Constitution and the law is disgusting. They use the law to humiliate people, to torture people, and to murder people, and tell you they’re just “following orders” from the Constitution. They frustrate legislation meant to help people, free people, or cure people, and they tell you it’s because of “doctrinal interpretative framework.” They use the very same legal arguments that have been used to justify slavery, segregation, and oppression for four hundred years on this continent and tell you it’s the only “objective” way of interpreting the law.
People are told that the law is an “objective” thing, almost like it’s a form of physics. But it’s not: the law is a collection of subjective decisions we—well, white people—have made over the years to protect people and activities they like, and to punish people and activities they don’t like. The law can be applied objectively, though it isn’t most of the time. But the notion that the law is a mathematical equation that can be fed into a supercomputer to produce “justice” is a total fallacy.
Democracies tend to elevate any person with enough wealth and charisma to stand out in a crowd. Democracies neither necessarily nor naturally reward merit. Nor do they punish incompetence. Democracies tend to go along with the popular will, and Socrates knew that the popular will could be easily manipulated into believing any odd thing.
There’s no constitutional right to, say, continued employment after supporting a failed insurrection. Free speech does not protect a Fox News employee’s right to a job any more than it protects a 7-Eleven employee who desperately needs to wear a racist hat while serving Slurpees.
Constitutional protections of speech are mainly concerned with the government’s attempts to silence or punish views the ruling party doesn’t like. The Constitution cares about people limiting the inquiry of a free press through lawsuits or the threat of lawsuits. It cares about armed agents of the state threatening or jailing citizens who dare to protest the actions of that state. In short, the First Amendment cares about the things Republicans do when they control the government. Protest against the government is at the heart of why the First Amendment exists in the first place. Political
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It’s easy to support the RFRA and a robust interpretation of the free exercise clause when you think about it as defending the rights of practitioners of minority religions who have requirements that put them at odds with mainstream Judeo-Christian laws and customs. But when members of the powerful majoritarian religion get ahold of it, something like the RFRA becomes a cudgel they can use to impose religious dogma upon the secular sphere.
Refusing to do your job because the person paying you to do it has different beliefs than you is not a religious objection, it’s plain and simple bigotry.
Free speech protects people with theocratic views, but it doesn’t give them the right to impose those views on things like the market economy and the health care system.
Alliance Defending Freedom, a nonprofit Christian legal defense group labeled as an “anti-LGBTQ hate group” by the Southern Poverty Law Center. In addition to taking cases, the group runs a nine-week seminar (called the Blackstone Legal Fellowship) where they teach people how to use the law to support evangelical causes. New Supreme Court justice Amy Coney Barrett has been an instructor at one of these seminars, to give you a sense of how integrated these people are into conservative politics and judicial interpretation.
The Republican argument for inviolable gun rights always comes back to the core fear of being unarmed or disarmed at the crucial moment when a gun could be used for self-defense, no matter how unlikely it is that such a moment will occur. These people are willing to suffer the ongoing national tragedies of mass shootings, they’re willing to ignore the epidemics of suicides and violence against women, they’re willing to sacrifice the lives of schoolchildren, all so that they might feel a little less afraid when something goes bump in the night. We live in the most violent industrialized nation
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Or they may make the “violent overthrow of the government” argument. Yeah, there are people who will argue with a straight face that their private arsenal is necessary to protect them from the most formidable military force in the history of the earth. A single Tomahawk missile has an operational range of one thousand five hundred miles and carries a thousand-pound payload of high explosives, but sure, your AR15 will totally protect you from the tyranny of the government. Buy two! The crew of the USS Ticonderoga is super concerned now.
Self-defense is a philosophical right, but that right was not grounded in the “original” meaning of the Second Amendment; self-defense is not mentioned once in the text of the Constitution. What Republicans think is their strongest and most ancient defense of gun rights is actually a mere advertising campaign from gun manufacturers.
Our current interpretation of the Second Amendment was invented by the National Rifle Association in the 1970s. You see, in the 1960s, Republicans were all about gun control, because in the 1960s Black people thought that they should start carrying guns. The Black Panthers figured out that white people were much less likely to mess with them if the Panthers were openly carrying loaded weapons around with them. It’s not as fun to shout the n-word at a Black guy who happens to be carrying a loaded rifle, I imagine. You could lose an eye trying to do something like that. Of course, Black people
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United States v. Miller, which was a case about the National Firearms Act of 1934. The NFA of 1934 was basically an “Al Capone Is Kind of an Asshole” law. It mandated the registration and allowed for the taxation of firearms, and attempted to create different classifications of guns in order to make certain kinds harder to get. (It’s worth pointing out here that Prohibition was repealed at the end of 1933. So, for those playing along at home, Franklin Delano Roosevelt’s entirely rational response to gang violence was to liberalize drug laws and restrict gun access. And it worked! The inability
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There was an original purpose to the Second Amendment, but it wasn’t to keep people safe. It was to preserve white supremacy and slavery. The Second Amendment is in the Constitution because Patrick Henry (Virginia’s governor at the time that the Constitution was being debated) and George Mason (the intellectual leader of the movement against the Constitution, the “anti-federalists”) won a debate against James Madison (the guy who wrote most of the Constitution and its original ten amendments). Henry and Mason wanted the Second Amendment in there to guard against slave revolts.
The principal way of quelling slave revolts was (wait for it): armed militias of white people. Gangs of white people roving around, imposing white supremacy, is nothing
The Founders didn’t know that guns would be used in over half of the nation’s suicides. We know. The Founders didn’t know that guns would be used in over half of domestic partner homicides. We know. If the Second Amendment has evolved to incorporate the right to self-defense, surely it’s evolved to allow us to make it harder for people to kill themselves or their spouses.
People think that the continued mass murder of innocent civilians will, one day, shake Republicans loose from the thrall of the NRA. That will not happen. Republicans will not make the killing stop, because they still think that near-unfettered access to guns is the only thing keeping them safe from Black people. As I said, the entire Republican argument on guns reduces down to the desire to shoot something that pisses them off. Until you can convince Republicans that shooting Black people is not okay, we will get nowhere. That’s the argument you have to be willing to have, when conservatives
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The problem is that when you set the bar for “crime” as low as Giuliani and Bratton did, then “reasonable suspicion” becomes a joke. What the hell is a “reasonable” suspicion that you are about to break a window?
We don’t have to change one system to address police brutality, or fifty; instead there are over three thousand county sheriffs and police commissioners in this country, and each one of them retains a level of autonomy to determine how much the cops are allowed to beat Black people. Whether you have the right to, say, know the disciplinary history of the officer who attacked you depends on which municipality you happened to be in when the beating started.
All I want is for the police to hesitate. I’ll live longer.
In 1651, Hobbes gave one of the best articulations for a government having a “monopoly of violence” over its subjects. 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.
Self-defense is what lawyers call an “affirmative defense” to a homicide charge. Most people are familiar with the concept of “innocent until proven guilty.” But in a self-defense case, the accused is clearly guilty of a homicide: I mean, for God’s sake, they killed someone. The burden of proof therefore shifts to the clearly guilty person to “justify” that homicide. The law will allow people to argue a number of justifications, but self-defense is the most basic.
The right to self-defense used to include a duty to retreat. That made sense: you can defend yourself from deadly force with deadly force, but if you can safely get away from deadly force, you should by all means do so. But I guess retreat isn’t performatively masculine enough for the assortment of weekend warriors and ammosexuals who get to make the rules in this country. Most state governments now specifically reject the duty to retreat, and the most deadly form of that rejection has been codified in “stand your ground” laws in many jurisdictions.
“Self-defense” is how white people get away with murder. It is a textbook example of a “race-neutral” concept that has been applied with deep prejudice against Black people. It doesn’t matter if the Black person was armed, unarmed, strong, weak, fast, slow, or just walking home with some Skittles. If a white person kills that Black person, they always have a chance to “get out of jail free” by claiming self-defense.
All qualified immunity does is protect an officer or agent from being personally sued for their constitutional infringements.
Qualified immunity also does not inoculate state actors from criminal charges. It does nothing to protect a cop from a murder charge, including in the line of duty. In fact, if cops were more reliably prosecuted and convicted for murder when they killed people, I’d bet very few people would still be worried about qualified immunity. And qualified immunity does not protect the state itself from liability arising from the misdeeds of its agents. It is actually quite common for a city to be sued and eventually reach a settlement with the victims of their murderous police forces.
Remember, qualified immunity doesn’t come into play when the reasonableness of a search is somehow in question.
Qualified immunity cases come down to whether state agents “violate[d] clearly established statutory or constitutional rights of which a reasonable person would have known.” That trash language comes from the 1982 Supreme Court case Harlow v. Fitzgerald. Honestly, how in the hell is “I didn’t know I was violating an established constitutional right” a defense to police misconduct? Why in the hell should I have to establish that a cop watched enough episodes of Law & Order to know that beating the snot out of me was wrong? How is it possible that courts are allowing cops to skate by on their
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Who is supposed to stop the state from using its power illegitimately? Well, “the law” is supposed to stop it. I’m not allowed to violently resist illegitimate state action, because the law is supposed to prohibit and punish such illegitimate uses of state power. If a police officer tries to pull me over illegitimately, I’m not supposed to rev my engine and lead the officer on a high-speed chase through town. I’m supposed to pull over, get the guy’s badge number, and then go to court and get the guy fired and be paid damages for my trouble. I’m not allowed to punch a cop who is trying to kill
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So while police brutality and violence only gets talked about as a “Black” issue, make no mistake: it’s a problem entirely created by and for the benefit of white people. I don’t hold personal enmity toward the police, any more than I’d hold a personal grudge against a pack of dogs sent to recapture me after I escaped from bondage. My issue is with their owner. My issue is with white people who refuse to keep their goddamn cops on a leash. There are no good cops or bad cops. There are just shitty white people.
The Fifth Amendment is a litmus test of whether you have enough education (from the books or from the streets) to know it exists. And that’s not how it’s supposed to be. Your constitutional rights aren’t supposed to change depending on whether you know they exist.
Miranda has been so popularized by television shows that people think it’s actually in the Constitution as opposed to something a bunch of liberals made up one day.
Chief Justice William Rehnquist said that Miranda was now “part of our national culture” and so shouldn’t be overturned, even though it represented a constitutional “invention” by Warren.
But we would probably call the land deal a “lease” not a “purchase.” In his book Law in American History, University of Virginia law professor G. Edward White makes the case that the native Lenape people were “not relinquishing the island, but simply welcoming the Dutch as additional occupants.” It was the colonizers who didn’t understand or respect the deal.
The Dutch didn’t really “own” Manhattan in 1626, because they couldn’t defend Manhattan in 1626. Indeed, “Wall Street” is so named because there used to be a defensive freaking wall there. The wall was built by slaves the Dutch also “bought” and brought with them to defend the settlement of New Amsterdam from attacks by the indigenous Americans, the British, or pirates.
The right to an impartial jury has never really applied to people who look like me: not at the founding of the country, not after the Civil War, not after the Civil Rights Movement, and not today. I don’t have a right to an “impartial” jury; I only have a right to a jury composed of white people who can answer the question “Are you racist? Yes/No” without shouting the n-word or firebombing a Black church.
Black people are and have always been regularly brought up on charges by a white prosecutor, in front of a white judge, to have their guilt or innocence judged by an all-white or predominately white jury. That’s not “impartial” justice; it’s white justice imposed on Black bodies by a system that treats white people and their experiences as the default.
I’ve had white people tell me with a straight face that I’m not even allowed to judge whether a white person has been racist to me personally. Like I’m the one who is too “biased” to adjudicate the situation impartially. If I could have one white superpower, it would be the fucking nerve of these people.
Unfortunately, we share the country with people who will not let us have nice things. These people are called originalists, and they will not allow our polity to function rationally. They think the Constitution can be only as good as the worldview of the small-minded slavers and colonists who wrote it,
It’s not complicated. If conservatives seem to excel at coming up with snappy names and bumper sticker slogans for their legal theories, it’s because their goals are banal and simplistic enough to fit on the back of a truck. 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.
Of course, conservative white men object to that. They don’t like sharing. I mean, have you met a conservative white man? They’re still flummoxed by the concept of letting a woman finish her sentence. You think sharing the wealth and power of a global hegemony is something they’d just roll over and accept?
Originalists try to lock the country into an eighteenth-century kind of understanding of racial equality, and when that fails, as it must in the face of the Reconstruction Amendments, they argue with a straight face that we should be locked into a nineteenth-century white man’s idea of racial justice. It’s fucking insulting.
Political rights are the rights to participate in the democracy: the right to vote, or hold elective office. Civil rights are the rights to participate in the economy: the right to own a home, or buy land. Social rights are the rights to participate in society: the right to get married, or throw a party. 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. No white man was bound to sell Black
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If you want to flummox an originalist, don’t ask them about Plessy v. Ferguson or Brown v. Board of Ed. The smart ones can square that circle. Instead, ask them about Loving v. Virginia. Ask them whether the Fourteenth Amendment protects “social” rights. Ask them if Black people have a constitutional right to be treated equally in society.
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.
