This was a refreshing read.
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.
That’s the opening paragraph of Mystal’s Introduction, and if you’re not on board with that premise, you’re not going to enjoy the rest of his book, deliberately subtitled “A Black Guy’s Guide to the Constitution.”
White supremacy runs consistently through Mystal’s analysis, especially as he goes through the amendments in the Bill of Rights, and exposes everything that is wrong with them (and a little bit about what can be done to fix them).
Let’s take a look at some of the highlights.
Everything You Know About the Second Amendment Is Wrong
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.
Here’s a history that I have never seen so explicitly told.
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.
Although, overall, white Southerners outnumbered their enslaved populations, that numerical advantage did not hold in every region. In parts of Virginia, for instance, enslaved Black people outnumbered whites. Predictably, whites were worried about slave revolts because, you know, holding people in bondage against their will is not all that easy to do without numerical and military superiority. 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 new.
That will give you a sense of the tone Mystal uses throughout the book -- a strange combination of militant anger with his tongue held in his cheek. It’s not lost on me, at least, that the book’s title, Allow Me To Retort, almost certainly comes from that iconic scene in Pulp Fiction in which Jules brings his “vengeance down upon thee.”
But, back to the history:
But the slavers worried that the new Constitution put the power of raising militias with the federal government and not with the individual states. That would mean that the federal government, dominated by Northerners, could choose to not help the South should their population of oppressed humans demand freedom.
In a May 2018 New York Times article, Professor Carl Bogus of Roger Williams University School of Law explained the argument like this:
“During the debate in Richmond, Mason and Henry suggested that the new Constitution gave Congress the power to subvert the slave system by disarming the militias. ‘Slavery is detested,’ Henry reminded the audience. ‘The majority of Congress is to the North, and the slaves are to the South.’”
Henry and Mason argued that because the Constitution gave the federal government the power to arm militias, only the federal government could do so: “If they neglect or refuse to discipline or arm our militia, they will be useless: the states can do neither -- this power being exclusively given to Congress.” Why would the federal government “neglect” a Southern militia? Henry and Mason feared the Northerners who “detested” slavery would refuse to help the South in the event of a slave uprising.
Madison eventually gave in to the forces of slavery and included the Second Amendment, along with his larger Bill of Rights.
So that’s how the Second Amendment found its way into the Constitution. As usual, in my googling around, I could find lots of references to the “fact” that James Madison included it to “placate various fears regarding the military, the balance of power between the federal and state governments, and the use of standing armies,” but almost no mention that those “fears” were based on the need to maintain white supremacy in the South.
Mystal may go on to explain why.
In 2008, Antonin Scalia wrote the majority opinion in District of Columbia v. Heller, the case where the Supreme Court created an individual right to own a gun for self-defense, for the first time in American history. Pay close attention to how Scalia whitewashes the nature of Henry and Mason’s reasons for wanting the Second Amendment to exist in the first place, as part of Scalia’s effort to sanitize the Amendment from its slavers’ rationale:
“The Antifederalists feared that the Federal Government would disarm the people in order to disable this citizens’ militia, enabling a politicized standing army or a select militia to rule. The response was to deny Congress the power to abridge the ancient right of individuals to keep and bear arms, so that the ideal of a citizens’ militia would be preserved.”
The original public purpose for a citizens’ militia was not some theoretical worry about standing armies or an idealized right of citizens’ militias to resist federal power. Instead the original purpose was a practical concern that the antislavery North would leave the South vulnerable to slave revolts. Scalia omits that rationale. And of course he has to. Because grounding the case for “self-defense” that satisfies the NRA’s permissiveness of shooting Black children walking home with Skittles, in an amendment designed to help slavers keep people in bondage, would be a little too on the nose. If Scalia told the truth about the original purpose of the Second Amendment, people might realize that the Second Amendment is illegitimate, or that looking to the original intentions of the people who wanted it is monstrous, or both.
As Mystal deftly points out, this obscuring of the original intent is necessary if the Second Amendment is going to survive under an originalist’s interpretation of the Constitution.
Now, one can argue that the Second Amendment has evolved, past its purely evil original intent, to encompass a right to self-defense. I’d be willing to hear such an argument, because I don’t think the Constitution means only what slavers and colonizers wanted it to mean. But conservatives won’t make that argument. Here we see another example where making the intellectually stronger argument doesn’t take conservatives where they want to go. If they accept that the Second Amendment has evolved to protect a different right than was originally intended, then they’d have to admit that gun restrictions can also evolve to better protect our modern society.
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.
But conservatives don’t want the Second Amendment to evolve, because they don’t actually have a problem with the original slavers’ purpose of the thing. If you gave these people a truth serum, they’d tell you that the Second Amendment is working “as intended.”
If you’re an originalist, you can't claim people have the right to self-defense if you don’t believe the right to self-defense is in the Second Amendment. But here’s where Mystal really brings his perspective on this issue home.
Which brings us back to the ammosexual in your life, caterwauling about how they need their gun for “self-defense.” Gun rights are not about self-defense. They literally never have been. Gun rights are about menacing, intimidating, and killing racial minorities, if necessary. That’s why Reagan and company had no problem restricting gun rights when the Black Panthers started to use them; that’s why the NRA never speaks up when a “law-abiding gun-owner” who happens to be Black is executed in the streets by a cop. The Second Amendment could be rewritten to say: “White Supremacy, being necessary to the security of a free state, the right of white people to keep and bear Arms shall not be infringed,” without any appreciable difference to the laws and rights of gun ownership as currently experienced.
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.
Attack Dogs Are Not Reasonable
I also learned a lot from Mystal’s chapter on the Fourth Amendment -- which evidently shouldn’t be about the Fourth Amendment at all.
But when it comes to police violence against Black people, justice, civility, and basic common sense are thrown out the window. The police have a license to kill Black people, as long as police argue that they were so afraid they wet themselves. Police are the only people whose own cowardice and hysteria can be used to justify an objective misreading of the facts. When and how much force a police officer is entitled to use is left almost entirely to the discretion of the police officer, which means my constitutional rights and physical safety hinge on whether a guy like Darren Wilson [police officer who killed Michael Brown in Ferguson, MO] is afraid I’ll use my big lips to suck in his soul from ten yards away.
That rule comes directly from the Supreme Court, in a 1989 case called Graham v. Connor. There, the Court ruled that a police officer’s use of force must be judged from the perspective of an officer at the scene of the crime or altercation. Graham v. Connor is why police officers always claim they “feared for their life” after they shoot somebody to death. Graham v. Connor is why those claims, no matter how ridiculous, make it difficult for good prosecutors to bring indictments against police officers, and easy for corrupt prosecutors to let their law enforcement buddies walk free.
Graham v. Connor is an interesting case for lots of reasons, but the biggest might be the switcheroo the Court performed on it -- swapping the initial Fourteenth Amendment claim being alleged for a Fourth Amendment one.
Graham in Dethorne Graham, a black man brutalized by North Carolina police officer M. S. Connor in 1984.
Graham filed a lawsuit against the police for excessive use of force, under the 1871 Civil Rights Act. That’s not a typo. The 1871 Civil Rights Act is, more or less, the statutory provision that makes the Fourteenth Amendment prohibition against racial discrimination a law, in the same way that the Volstead Act is what made the Eighteenth Amendment’s prohibition on alcohol a thing.
But instead of applying the Fourteenth Amendment to the case, the way Graham asked, then chief justice and hard-core conservative William Rehnquist decided that the Fourth Amendment was the proper principle under which to assess police misconduct. The Fourth Amendment prohibits “unreasonable search and seizure,” and Rehnquist only asked if Connor’s treatment of Graham was “reasonable” under that amendment, as opposed to a violation of Graham’s civil rights under the Fourteenth.
Mystal makes the point that this is the entirely wrong question to ask -- did the police officer act as any reasonable police officer would in the same circumstances -- especially given the special powers that police officers have in the system.
Judging the reasonableness of violence from the perspective of the officer who committed the violence, or the officer who witnessed the violence but did nothing to help, or even the alleged “good” cop who knows damn well that one of his colleagues is a violent hothead but does nothing to stop him, is the entirely wrong way to go. Police officers are agents of the state. They are authorized to have a monopoly of force: they can hit you but you can’t hit them back. They can execute on the street -- I mean they can literally impose the death penalty upon you without a fair trial or a right to appeal -- if they feel you’re a danger to others. Holding them to a standard somewhat beyond what they themselves think is reasonable is not too much to ask.
The Fourth Amendment does not say: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated … unless the state employs hysterical racists and cowards who are afraid of Black people, in which case failure to immediately comply with their unconstitutional orders is a capital offense.” The Fourth Amendment does not say that “only other police officers” can determine what a reasonable or unreasonable search and seizure really means. One does not judge what is “food” based on whether or not a dog will eat it.
And what’s especially refreshing in this chapter is Mystal’s proposed solution -- something he himself understands would be called “extreme” by most.
I favor a straight-up objective standard for cops. Their actions should be reasonable with 20/20 hindsight. They should look reasonable on a camera phone. They should appear reasonable to a crowd gathering around asking what the cops are doing. If the cop believes a person has a weapon, that person better damn sure objectively have a weapon. “Oops” is not a good enough answer from agents of the state who shoot Black people armed with cell phones.
And if the cop is objectively wrong or unreasonable, they should be prosecuted. We have a sliding scale of homicides and all other types of crimes, and there’s no reason we can’t apply such a thing to various levels of police violence. Maybe a cop who shoots “Hulk Hogan” after a fight catches a manslaughter charge, while a cop who shoots an unarmed man seven times in the back, as a Wisconsin police officer did to Jacob Blake, gets charged with attempted murder? Or maybe a cop who uses his gun to kill somebody gets murder, whereas one who merely chokes the life out of an unarmed Black man in broad daylight gets a reckless homicide charge? I can be reasonable about how long these violent police officers need to spend in jail. I am anti-carceral, after all. But the idea that a cop who kills or attacks somebody should walk away without punishment because other cops are just as violent and depraved is not a constitutional principle I accept.
This point of view may be extreme, but perhaps it is only more so when viewed from the place of fear that Graham v. Connor evidently enshrined in our society.
It’s Not Unusual to Be Cruel
Another eye-opener was the chapter on the Eighth Amendment -- the one against cruel and unusual punishments. In it, Mystal asks one of the most crucial questions about how it -- and the entire Constitution -- should be interpreted.
A standard as vague and subjective as “cruel and unusual” is one begging future generations to figure things out from themselves. In 1787 it was normal and appropriate to beat children with tree branches and condemn people for witchcraft. Now, we’re not supposed to do those things. Times change. Standards and practices change. 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.
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, and because of that they insist the death penalty must be constitutional.
This seems absolutely crucial to interpreting the Constitution. Does it mean what the people who wrote it think it means? Or does it mean what we, today, think it means? And what about the parts, like the Eighth Amendment, that seem to invite a contemporary interpretation?
To my mind, the Eighth Amendment is the cleanest battle to be had with originalists. It’s the easiest place to drop out all of the legalistic claptrap and doctrinal fencing to get down to the guts of the thing. The framers wrote something down. That something is vague. Originalists say that we can understand what they really meant by looking at what they did. I say I don’t give a fuck about what those depraved assholes actually did. I will stipulate that the people who wrote the Constitution had a sense of humanity that was so underdeveloped they could eat sandwiches while watching a man being hung from the neck until death. But so what? The Constitution does not require me, or my country, to be forever hobbled by their sociopathy.
And Mystal’s argument is supported by the many things we do in the world of crime and punishment that do not align with the thinking of these “depraved assholes” from the late eighteenth century.
Indeed, we are not hobbled by eighteenth-century thought bubbles when it comes to what we define as capital crimes. There’s no great accounting of how many crimes were punishable by death in America at the time the Constitution was ratified, because for the most part putting people to death was squarely in the purview of state law. But, at the time of the founding there were well over two hundred crimes punishable by death in England, including crimes as common as stealing and as nonserious as cutting down someone else’s tree. Over time, here in America, the states have been able to cull the number of offenses that could get a person executed, without the need of an entire constitutional amendment.
It makes no sense that we’ve been able to remove ourselves from an eighteenth-century view of who gets punished but remain locked in an eighteenth-century view of how to punish people. That goes beyond the death penalty. For instance, some form of solitary confinement has been viewed as a fairly standard and appropriate punishment since forever. But now, with our modern understanding of, you know, human psychology, studies suggest that solitary confinement is especially cruel. It’s torture for your brain. James Madison did not understand this and likely wouldn’t have cared if he did. Why in the hell should that matter now? We know. We are the ones who know. And we are the ones who have the option of making cruel punishments, like solitary confinement, unconstitutional. To not do so because some old dead white people didn’t have the knowledge or decency to do the same is not an alternative theory of legal interpretation. It's the promulgation of evil hiding behind the banality of cowardice.
It really opens the head on the meaning of the words in the Constitution. We do know cruelty in a different way than the framers of the Constitution did. Does that make what we know as cruelty not cruelty?
The Framers Weren’t Always Wrong
Let me end with this thought.
Beyond the obvious and purely evil reasons for denying the right to vote to women, Blacks, and indigenous Americans, the founders had theoretical concerns about extending suffrage even to all white men. Some of those concerns were legitimate and even prescient. The founders were worried about the uneducated masses voting for idiots and con men more interested in the accrual of power than the functioning of government. They were worried about these demagogues inflaming the passions of the majority and using it to trample minority rights.
Anybody want to tell them they were wrong? 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.
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This post first appeared on Eric Lanke's blog, an association executive and author. You can contact him at eric.lanke@gmail.com.
