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

by Elie Mystal

Speaking just for me, I’m prejudiced against dumb people. Not uneducated people, who I feel simply haven’t been given the chance at education and knowledge, but dumb people, who have had all the education and knowledge thrown at them, only to see it bounce off their information-resistant brains. Like Republicans, for instance. If you go to a good school and have access to good professors and good books and you come out as a Republican, I’m prejudiced against you. I assume you’re defective, in some way. I wouldn’t want you to marry into my family. Like, I can’t look at Yale Law School graduate and U.S. senator Josh Hawley without assuming he’s at least one-eighth fucking idiot, you know.

Under strict scrutiny review, the state has to show a “compelling governmental interest.” And then the state must prove its law is “narrowly tailored to achieve that interest.” Note the word changes! Courts need a compelling interest instead of merely a legitimate one, and now they need the law to be narrowly tailored instead of simply rationally related to the interest at hand.

Obergefell was one of the biggest missed opportunities in modern constitutional history. This was no Loving. Kennedy’s opinions leave the LGBTQ community exposed to less tolerant conservatives who can simply claim—as Roberts does, as Scalia always did—that the state has a legitimate interest in discriminating against gay people, and that legitimate interest is all they need.

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. Sometimes, I swear, it can seem like liberals spend all their time inventing ways to get their asses kicked.

Basically, conservatives treat the due process clause as if it’s an evil djinn. It technically has to grant you three wishes—life, liberty, and property—but it hates you and is constantly trying to interpret your request in the most literal, least generous way so it can deny you the benefits of the very thing you asked it for. “You asked for the right to marry, you didn’t say anything about the right to start a family: request for adoption denied, gay people. Mwahahaha.” Meanwhile, liberals treat the due process clause like it’s the genie from Aladdin. Not only will it grant you your wishes of life, liberty, and property, it’ll grant you whatever you need to make those things actually work. The genie wants to be your friend and wants to help you live your best life.

The Court asked if state abortion restrictions created an “undue burden” on women seeking the procedure prior to viability. It defined undue burden as a “substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability.” The majority (which included a woman on the Supreme Court for the first time in history, Justice Sandra Day O’Connor) determined that all but the husband notification passed this new test. Everything else—the informed consent, the waiting period, treating women like they’re hysterical children who are about to cut their own hair without fully appreciating what they’re doing—all of that stood.

The conclusion of Planned Parenthood is impossible to reach if you start from the principle that women are people and thus entitled to the same people rights as men. I say that even to those who think that the fetus is a person entitled to some rights. 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. You could be a fucking rapist and still get treated for erectile dysfunction. They never say, “I won’t help you mask your genital herpes until I receive a signed consent form from your sexual partners.” John Wilkes Booth broke his leg while (wait for it) shooting the goddamn president, and a doctor (rightly) set his leg so he could hobble on with his escape.

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.

Don’t get me wrong, “choice” is great. It’s a fine frame. It’s a language designed to appeal to people who have a genuinely held religious belief about when life begins, and even the word choice should remind those adherents that not everybody shares their choice of God either, and yet we co-exist. But the better legal frame is “Forced birth is some evil shit that can never be compelled by a legitimate government. The end.”

Maybe conservatives don’t want the Constitution fixed. Maybe conservatives aren’t being entirely intellectually honest when they claim to prefer new amendments to secure rights. 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?

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.

The founders didn’t want poor, uneducated white men to vote, because they pretty much anticipated that poor, uneducated white men would elect a person like Donald Trump. If only they had fully empowered women and minorities, and especially minority women, to counteract their “economically aggrieved” brethren, the country they founded might be less of a mess today.

Voting Rights Act. Ruth Bader Ginsburg, may her memory be a blessing, in probably her best dissent of her many outstanding ones, put Roberts’s willful ignorance on blast. She wrote: “Throwing out preclearance when it has worked and is continuing to work to stop discriminatory changes is like throwing away your umbrella in a rainstorm because you are not getting wet.”

Everybody knows that the Supreme Court made George W. Bush president in 2000 with its ruling in Bush v. Gore. But most people don’t realize the Court made Donald Trump president in 2016 with its ruling in Shelby County. The voter suppression unleashed by that decision is what made it possible for Trump to eke out his narrow electoral college victory in that election. Never forget, Black people are not evenly distributed throughout the country. Most Black people still live in the states where their ancestors were enslaved. The state with the highest population of Black people, per capita, is Mississippi. (It would be the District of Columbia, if DC were a state, but white people, in their infinite self-interest, have declined to extend statehood to a territory that is nearly 50 percent Black. I wonder why.) After that it’s Louisiana, followed by Georgia, Maryland, South Carolina, and Alabama. Do you know how different this country would look if the Black voters in those states enjoyed frictionless access to the ballot?

Unfortunately, the process of drawing districts that lead to a fair representation of the voters in a legislature is the exact same process as the one used for drawing districts that lead to the effective disenfranchisement of voters. Gerrymandering is like fire: it’s just a tool that can cook dinner or burn the house down. The real trick is to keep it contained.

Nobody ever writes “This is a negative racial gerrymander” or “This map is necessary to keep uppity Negroes in their place” in the margins on their map. White supremacist mapmakers are not stupid. In fact, a lot of negative racial gerrymanders can be sold as positive racial gerrymanders. Creating one super-majority-minority district is actually a great way to keep minorities out of all the other districts. In many cases, the difference between a positive and negative racial gerrymander comes down to the good faith of the politicians involved. People like my dad and Rick Lazio were trying to enhance representation for underrepresented people.

Tying representation to the land as opposed to the people living on it is, among other things, fucking stupid. North and South Dakota (combined population of about 1.6 million people) have four senators in total, while New York City has 8 million people and gets, like, a large say in the two senators that the 19.4 million people living in New York State are allotted. Queens (population 2.2 million) should have four senators if the Dakotas do.

The Senate functionally ignores rural voters in high-population states with dense city populations. The Senate doesn’t even really empower rural voters in low-population states. It mainly empowers city voters lucky enough to live in low-population rural states. Again, land doesn’t vote. If white people in Des Moines and Dubuque voted like white people in Portland, and Salem, and Eugene, Iowa would be every bit as blue as Oregon.

There is a real urban versus rural divide in this country, but the Senate isn’t designed to favor rural voters. It’s designed to favor white people. As the country rushes toward becoming a majority-minority nation, the Senate acts as the ultimate refuge for white power. That’s because people of color are not evenly spread throughout the country, and because the Senate is, by its nature, a “winner take all” system. As long as white people make up a plurality of voters in a state, and as long as white people stick together in that state, white people get to control both of the state’s allotted senators.

Hiram Revels, Blanche K. Bruce, Edward Brooke, Carol Moseley Braun, Barack Obama, Roland W. Burris, Tim Scott, William “Mo” Cowan, Cory A. Booker, Kamala D. Harris, Raphael Warnock: that is the full and complete list of African Americans to serve in the United States Senate in the history of this country. That’s eleven people.

To amend the structure of the Senate the people who most benefit from its bigotry have to first agree to give up their advantage. Tell me this document wasn’t written by slavers and colonists who knew exactly the kind of white supremacist society they were trying to write into existence.

The Electoral College grants power to the states to elect the president (who then is allowed to appoint Supreme Court justices upon advice and consent of the Senate) based on their number of House members, plus their two senators. This system therefore takes the white supremacist structure of the legislature and ports it over to the executive branch and the judicial branch. But the Electoral College is not protected by Article V shenanigans.

That’s the right way to think about it. Instead of “one person, one vote,” it’s actually “white people in Wyoming get fifty-seven votes.” I can make an argument that this kind of “vote dilution” violates the Fifteenth Amendment, or the equal protection clause of the Fourteenth Amendment, but both of those are tough cases since Wyoming (and other low-population states) are not required to be mostly white. If there are any liberal billionaires reading: finding half a million Black people willing to take a free townhouse, and building them one in Wyoming, would be a better way to influence democracy than running a useless presidential campaign.

they thought a bill of enumerated rights could be dangerous. They worried that if they specified a few rights, some fools in the future would conclude that their list of rights were the only rights people had or should have. They worried that the federal government would grow to take power over everything but the few special carve-outs they bothered to enumerate. They had a good point. If you open a restaurant and put up a sign saying “No shirt, no shoes, no service,” best believe that somebody is going to show up with no pants. Some people take a list of rules as a challenge. Some jokers just want to see the world burn.

Madison put the Ninth Amendment in to counteract what he knew small-minded people would do to the rest of the document, and so small-minded conservatives have to pretend it’s not even there in order to achieve their goals of retarding progress. We have more rights than those that are explicitly conferred in the Constitution. The Constitution says so!

Originalists use the Tenth Amendment as their ultimate moral absolution from the practical consequences of their actions. They don’t want to “ban” abortion, you see; they just want to “leave it up to the states” as the Constitution intended. They don’t want to be bigoted toward the LGBTQ community; they just want the states, not the federal government, to determine the appropriate level of gay bashing that’s right for them.

Conservatives are happy to ignore the Tenth Amendment when they want to obliterate state laws that serve goals they don’t think are important. Conservatives never talk about the Tenth Amendment when they’re striking down state regulations on the sale and purchase of firearms. It never stays their hand when it comes time to strike down state environmental regulations. In 2020, we saw the federal Supreme Court telling states that they couldn’t mandate certain public health and safety restrictions to combat the deadly coronavirus. Where was the Tenth Amendment when conservative justices were telling the governor of New York that he couldn’t take certain measures to protect the most densely packed island in the nation from disease?

The structure of our Constitution pits the Ninth and Tenth Amendments against each other, locking them in an existential battle for our nation’s soul. The Ninth contemplates robust protection of individual rights that defends minority interests against the excesses of the majority. The Tenth contemplates a society where the states are free to do what they want against minority populations in their state, but are themselves protected from the majority views of the nation.

In a free and fair election, there are just enough white people who reject their white supremacist arguments. When those white people can be linked up with the emerging majority of nonwhite people in this steadily browning country, conservatives lose. And so, conservatives do not put it up for a vote. They do not allow a free and fair election on their actual platform. They use the judiciary, the least transparent and least responsive branch of government, to push through their antebellum values, and rely on ignorance to mask their true agenda.

But if a Democratic president can expand the Court, can’t a Republican president do the same if that party controls all of government again? And won’t that lead to an endless tit for tat, where the Supreme Court is an endlessly increasing body that turns into a “super legislature” that changes control based on the party in power? Yes. And I don’t care. I don’t care because the Supreme Court is already a super legislature that works to frustrate and disrupt law passed by democratically elected representatives. I don’t care because, absent a couple of decades in the middle of the twentieth century, that super legislature almost always works against the interests of minorities and women. I don’t care because telling people that we have to wait until Neil Gorsuch (appointed after Mitch McConnell refused to even hold a hearing on Barack Obama’s nominee, Merrick Garland) and Brett Kavanaugh (appointed despite credible accusations of attempted rape) and Amy Coney Barrett (appointed after an election had already started to replace the twice-impeached man who nominated her) literally have to drop dead before we can advance urgent legislation needed to combat climate change, is unacceptable. The country cannot be held hostage by four years’ worth of Trump judges for the next fifty years. I don’t care about what Republicans will do if they ever control all of government again, because a Supreme Court willing to protect voting rights and take the Fifteenth Amendment out of cryostasis ...