We the People, But Not All People: On the Shaky Foundations of Our Constitution
Elie Mystal: “The Constitution is not gospel, it’s not magic.”
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. The Constitution is an imperfect work that urgently and consistently needs to be modified and reimagined to make good on its unrealized promises of justice and equality for all.
And yet you rarely see liberals make the point that the Constitution is actually trash. 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.
Why would I give a fuck about the original public meaning of the words written by these men? Conservatives will tell you that the text of laws explicitly passed in response to growing political, social, or economic power of nonwhite minorities should be followed to their highest grammatical accuracy, and I’m supposed to agree the text of this bullshit is the valid starting point of the debate?
Nah. As Rory Breaker says in the movie Lock, Stock and Two Smoking Barrels: “If the milk turns out to be sour, I ain’t the kind of pussy to drink it.” The Constitution was so flawed upon its release in 1787 that it came with immediate updates. The first ten amendments, the “Bill of Rights,” were demanded by some to ensure ratification of the rest of the document. All of them were written by James Madison, who didn’t think they were actually necessary but did it to placate political interests. 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.
If the Constitution were really the triumph of reason over darkness, as it is often treated, it probably wouldn’t have failed so miserably that a devastating civil war would break out less than one hundred years later. But that happened. And if the fixes applied to the Constitution after that war ended in 1865 were so redemptive, I imagine that my mother—born in 1950 in Mississippi—would have been allowed to go inside her ostensibly “public” library while she was growing up, which of course she was not.
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.
Even the amendments that granted equal rights to minorities and women were written by white men. They were ratified by all-white-male state legislatures. Nonwhites have, obviously, never held majority power in this country (yet); women have only held a majority of the seats in one state legislature, Nevada, and that didn’t happen until 2018. Minorities or women have never held a majority in either chamber of Congress, or on the Supreme Court, and there has been only one nonwhite president of the United States in American history.
White people got so pissed off at that they replaced Barack Obama with a bigoted con man who questioned whether the Black president was even born in this country, and when their guy lost the next election, his people tried to start a coup.
And yet people still act like the Constitution is our most hallowed ground. I get it from Republicans; white supremacist governments aren’t a deal breaker for them. And I’ll admit that the Constitution is not without its charms. That stuff about banning cruel and unusual punishment, for instance? Fantastic. Everybody should ban it. I wish I could like that amendment twice.
Too bad we actually don’t.
That’s the thing about the Constitution: many of the rules, rights, prohibitions, and concepts are actually pretty decent. The problem is they’ve never been applied to all of the people living here. Not even for a day just to see how it would feel. They’ve never been anything more than a cruel tease. Most of our written principles serve only as a mocking illustration that the white people running this place know the right thing to do but simply refuse, out of spite, to do it. The Constitution is the impassive villain pouring a bottle of water into the ground in front of you as you’re driven mad by thirst.
And so I have written this book. My goal is to expose what the Constitution looks like from the vantage of a person it was designed to ignore. My goal is to illustrate how the interpretation of the Constitution that conservatives want people to accept is little more than an intellectual front for continued white male hegemony. And my goal is to help people understand the key role the courts play in interpreting the Constitution and to arm additional people with the knowledge, information, and resolve to fight conservatives for control over the third branch of government in every election, and over every nomination. Everybody has seen the gleaming, air-brushed face of the Constitution. I’m going to tell you what this motherfucker looks like after it has had its foot on your neck for almost 250 years. The perspective is a little different. I believe more people would try to fix it if more people saw it for what it truly is.
If this is your first time reading me, welcome. My name is Elie, and as I write this I am the justice correspondent for The Nation magazine. Prior to that, I was for a very long time a writer and editor at Above the Law, the most-read legal-industry news site in the country. Sometimes I appear on television and radio programs where I talk about the law and scream about Republicans. I was the legal editor of More Perfect, an excellent (dare I say) podcast about the Supreme Court that was produced by the same people who make Radiolab. I’ve been covering this space for over ten years now, as a journalist.
I used to be a lawyer, though not technically a “barred attorney-at-law.” After I graduated from Harvard Law School in 2003, I worked as an associate attorney at Debevoise & Plimpton, one of the hundred or so most profitable law firms in the country. I passed the bar, but I never completed the rest of my bar application, mainly because I hated my job (no offense to Debevoise, which is a fantastic law firm, if you like being a corporate attorney), hated the practice of law, and wanted to get out almost as soon as I got in.
Being barred wasn’t really necessary at a gigantic law firm where I was too junior ever to be the “named” attorney for any client anyway, and I felt like not being able to fall back on a law license would motivate me to get out there and figure out what I really wanted to do. Things have worked out, and I have many nights of hunting mice in my old, crappy apartment to prove that I probably would have given up trying to become a writer had I maintained a reasonable escape route back to corporate law wealth.
But I bring up my background in the law because hatred is a pretty big reason I’ve written this book. Not the healthiest emotion, I know, but for me it’s clarifying. 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.The Constitution is the impassive villain pouring a bottle of water into the ground in front of you as you’re driven mad by thirst.
Most legal stories and analysis scarcely acknowledge the dystopian, apartheid state that conservatives are trying to recapture through legal maneuvers. Most people take all the blood out of it. Most people assume the law is a function of “both sides, operating in good faith,” without wrestling with what the polity would look like if conservatives actually got their way.
Part of that is because lawyers are trained to be “dispassionate” when analyzing the law, almost robotic, as if the best lawyer would present like Data from Star Trek, the android programmed to self-improve.
In case you haven’t already guessed, I reject that form of legal analysis. A 5–4 ruling on the Supreme Court directly affects the likelihood of me getting shot to death by the police while driving to the store. It directly affects whether my kids can walk to the bus stop unmolested and unafraid of the cops driving by. I refuse to pretend to be intellectually dispassionate about such things. I refuse to act as if second-class status within my own country is one option among many. My “emotion chip” is fully operational.
I treat the law as an argument. 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.
The law is not science; it’s jazz. It’s a series of iterations based off a few consistent beats. I think that if we interpret laws to protect the people and activities I like, and then apply those laws objectively to all people, everybody will come out ahead. Except racists. Who can kiss my ass, as far as I’m concerned.
Featured image by Junius Brutus Steams. Courtesy of the Virginia Museum of Fine Arts.
Excerpted from Allow Me to Retort: A Black Guy’s Guide to the Constitution by Elie Mystal. Copyright © 2022. Reprinted by permission of The New Press.