fiefoe | "Allow Me to Retort"

Elie Mystal expressed all my suspicion about Constitution originalists, but orders of magnitude more forcefully and more cogently.

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 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?
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.
The law is not science; it’s jazz. It’s a series of iterations based off a few consistent beats. I make my argument for why the notes that I like, people and activities I like, should be protected and promoted, and I’m not ashamed of it... When I’m wrong, it’s usually because I haven’t fully thought through how insidious and creative racists can be. <> What follows is my argument for what the Constitution is, versus what it should be and must be for us to live in a just society. I’ve focused almost exclusively on the Constitutional amendments. Most of the original Constitution focuses on the powers and structures of the government: there’s a Congress, there’s a president, it works like this, it can or cannot do that. Most of the amendments, by contrast, focus on citizens: you are a person, the government can’t make you do this, it must allow you to do that.
Socrates’s sophistry was mainly a front for antidemocratic, authoritarian views. He believed that only reasonable, logical, and competent people should be in charge. He believed that men of merit should be elevated into positions of power. <> The problem, which is more obvious to our modern eyes than it has been in decades, is that the idea of a meritocracy is almost in direct conflict with the idea of a democracy.
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 speech against the government, speaking truth to power, is the speech that is given the most robust legal protection.
In my current job, I’ve all but stopped writing about conservative individuals. I try to stick to conservative institutions and, occasionally, conservative politicians who would look bad and lose votes if they sued me. But even that is dangerous. Congressman Devin Nunes sued a cow on Twitter.
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. Again, Captain America is great when he’s fighting for “the little guy.” But when he’s used as a tool of powerful special interests, he’s villainous... The Supreme Court agreed. In a 5–4 ruling written by Justice Samuel Alito, the Court found that the RFRA, initially passed to protect the rights of people being denied government services because of their religious beliefs, actually also applied to corporations eager to deny health services to women. It took only twenty years for the RFRA to go from something that defended people who used drugs as part of religious ceremonies, to something that prevents women from accessing drugs for their own health.
Kennedy also wrote Citizens United, which essentially wrecked the ability of the government to regulate political campaign contributions from corporations on grounds of free speech. Kennedy is what I’d call a First Amendment extremist: where others see reasonable distinctions between types of speech and the level of protection each should be accorded, Kennedy thinks the Constitution is the First Amendment and a bunch of other suggestions nobody would have the right to complain about without the First Amendment.
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. <> This is why free speech is relatively useless to theocrats. Conservative lawyers who fight against LGBTQ equality would rather make the wrong legal argument and risk losing than make the correct legal argument and try to win. These people are not trying to claim protection under the law; they’re trying to change the laws so that they can discriminate against the LGBTQ community,
* 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.
Although, overall, white Southerners outnumbered their enslaved populations, that numerical advantage did not hold in every region... 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. <> But the slavers worried that the new Constitution put the power of raising militias with the federal government and not with the individual states.
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.
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. <> By converting Graham’s claim into a Fourth Amendment question, Rehnquist nullified the racial discrimination at the heart of his case... It should go without saying that, having invented an entirely different question, Rehnquist decided to answer it poorly. Rehnquist, citing Terry v. Ohio, wrote: “The ‘reasonableness’ of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.”
Without the Fourteenth Amendment protection that Rehnquist ripped away, there’s no longer a great way for individual victims of police brutality to bring racial discrimination claims against the police. Instead, that work now largely falls to the Department of Justice.
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.
Understand, the right to self-defense, as applied in this country, is one of the most provably racist functions of law that we have statistics for, and stand your ground just makes those racial disparities worse. One well-respected study by the Urban Institute’s Justice Policy Center found that white people who kill Black people are 250 percent more likely to have their homicides ruled as “justified” than when white people kill other white people. In stand your ground states, that number jumps to 354 percent... “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.
Honestly, how in the hell is “I didn’t know I was violating an established constitutional right” a defense to police misconduct? ... Harlow created a Kafkaesque loop where litigants can’t argue that cops violated “well established” principles until a court establishes those principles have been violated.
* But the Supreme Court has functionally eviscerated my right to go to court and make the offending officers buy me a house. As I’ve mentioned, while Justice Alito is one of the most aggressively pro-police jurists in America, the two decisions I highlighted were unanimous opinions. Even liberal justices accept the premise that cops should be allowed to violate the Constitution, maim or murder civilians, and not pay for it.
The Constitution, arguably, already prohibits the use of compelling confessions against criminal defendants. The language is right there in the Fifth Amendment... Think about why the right against self-incrimination is included in the Fifth Amendment at all. It’s there, entirely obviously, to stop the government from beating confessions out of people.
* Once the police recite the Miranda warnings, they are free to go back to lying, intimidating, and coercing confessions. <> This takes us right back to the idea of Fifth Amendment rights being a litmus test for legal education, instead of inalienable rights given to all regardless of their knowledge of the law. The people who continue to answer police questions without a lawyer present are behaving irrationally, mostly because they don’t know any better.
Stop inventing canons of law rife with loopholes cops can use to smuggle in beatings or threats of beatings while trying to induce the “voluntary” admissions of guilt. Stop the good cop/bad cop routine and television veneration of “closers,” who can magically get people to confess to crimes without ever once asking to see their lawyer because the showrunner didn’t budget for the Constitution.
* By 1857, however, the entire area had been razed to the ground. The homes and churches were demolished, and the people were scattered... No, Seneca Village was destroyed because in 1853 New York passed a law allowing for the construction of Central Park.
But arguably eminent domain should also come into play when the government dictates how you are allowed to use your property. These are called “regulatory takings,” and they happen when, say, the government declares your private property a national historical site and thus prevents you from demolishing it and building a CVS. How much compensation is the government required to give out then? <> Another large area of contention happens when the government takes only part of your property.
* My issue with Kelo is that centering this issue on a white homeowner and the legal distinction between public “use” versus “purpose” ignores entire Black and brown communities that have been wiped off the damn map by the government’s use of eminent domain. Where’s the movie about Seneca Village? Where’s the movie about the Black and Latino renters who get crushed every time the local team wants a new stadium? Where’s the movie about all the people and communities who were destroyed by former New York City parks commissioner Robert Moses?
instead of displacing two white families who didn’t even use their land as their primary residence, the city went forward with a new plan that included displacing over two hundred Black people in Seneca Village who had built up an independent Black community on some of the only land they were allowed to purchase. All of the tricks that would later be deployed against Black communities in the twentieth century were used against the people of Seneca Village in the nineteenth century. The newspapers called their land a “swamp.” The media called the people living there “squatters”
The ancient Athenians had public jury trials. The Romans had them. English kings, perhaps as far back as Henry II, reintroduced some form of jury trial by the twelfth century. By the 1700s, William Blackstone (the OG of legal pundits) wrote in his Commentaries on the Laws of England that the jury trial was an indispensable barrier between the rights of the people and the whims of the king
There is scarcely a situation in American life where any white person this side of Eminem is subjected to the final judgment of Black people, but Black people are subjected to the final judgment of white people all the damn time. <> It would be one thing if Black people faced naturally occurring, predominantly white juries. If the only Black guy in town had to stand trial in front of his all-white neighbors, so be it. But predominately white juries are not the natural result of population dynamics mixed with “bad luck.” Instead, those juries are the manufactured result of the criminal justice system purposefully excluding Black people from the jury pool.
This assemblage of eligible jurors is called the venire, or jury pool. If any cases need juries that day, the court selects people from that jury pool to sit on the jury (sometimes called a petit jury of twelve people used for trials, to distinguish it from a grand jury used for indictments to determine who needs to go to a trial). But, unlike the larger jury pool, getting onto a trial jury is not done by random lot... During voir dire, potential jurors can be rejected for any reason, or for no reason at all. When a lawyer rejects a juror without having to state the reason for the rejection, it’s called a peremptory challenge.
that’s the way things were for about a hundred years after Strauder. Black people would show up for jury duty only to be rejected via peremptory challenge in criminal cases, especially cases involving a Black defendant. These challenges allowed the system to discriminate against Black people who wanted to sit on juries and discriminate against Black people accused of crime. They allowed prosecutors to render the Sixth and Fourteenth Amendments inoperative for Black people,
* That case is called Batson v. Kentucky. Just so people don’t lose sight of how recent this decision is: the Challenger space shuttle blew up on live television before Black people had a tool to avoid being excluded from criminal juries in America. Barack Obama, the first Black president, was twenty-four years old before Black people had a reasonable chance of getting on a jury.
* We now call these hearings “Batson challenges.” And Batson’s logic has been extended to include women as well, from the 1994 case J.E.B. v. Alabama ex rel. T.B. (That decision was 6–3. So, to recap: until 1994 it was technically legal to use peremptory challenges against women because they are women. And, in J.E.B., both Justice Sandra Day O’Connor and Justice Ruth Bader Ginsburg had to sit there and listen to arguments about why they could be summarily excluded from common criminal juries solely on the basis of their gender.
Frankly, you have to be a piss-poor attorney not to be able to come up with some “race-neutral” reason to get rid of Black people. There are literally training videos on YouTube you can find that teach lawyers how to get around Batson challenges. Batson is both one of the most important modern civil rights victories and a complete fucking joke all at the same time.
Thurgood Marshall saw all of this coming from a mile away... 'That goal can be accomplished only by eliminating peremptory challenges entirely.'
Again, killing is kind of what people do, so most religious traditions go on to create enough exceptions to the “no killing” rule to drive a genocide, but arguably the law has been against killing people since the invention of laws.
* By the seventh century BCE, the Athenian code made all crimes, literally all of them, punishable by death. They called it the Draconian Code of Athens and the name was not in error.
They’ll tell me that the Eighth Amendment, which specifically prohibits cruel and unusual punishments, could not possibly have been referring to capital punishment, ... 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 into 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.
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. <> A modern understanding of the Eighth Amendment would read it to outlaw the death penalty.
Marshall argued that the death penalty was an anachronistic holdover from our barbaric past, but the current argument against the death penalty doesn’t take Marshall’s “maturing society” position. Instead, the modern way of fighting the death penalty is to argue that each individual punishment is unnecessarily cruel in some specific way, without arguing that killing people is the thing that is cruel. <> It’s worked, after a fashion.
* But Gorsuch is wrong about the Eighth Amendment, not just the theory of what it should and shouldn’t permit, but in terms of how it was practically applied at the time it was adopted. People don’t notice he’s wrong, because he’s wrong in the way that originalists almost always are when describing the fairy tale they’ve invented around the founding of America. He forgot about the slaves... But that’s a lie. All of those methods, and more, were used to kill Black people, and would have been readily identified as acceptable methods to kill Black people to most of the white people reading the Eighth Amendment at the time of its ratification. These punishments were not “long disused” by the time of the founding. They were used all the time, and would continue to be used all the time, against Black people. Don’t even get me started on the eighteenthcentury punishments thought to be normal and acceptable to inflict on Black people when the white people wanted to keep them alive.
* To counteract the places with the most people, the slave states put a bunch of antidemocratic loopholes in their Constitution, while also trying to inflate their own numbers by counting slaves who—by their own evil logic— had no right to representation. But they couldn’t just say that slaves should be counted as full people, because then why are they holding people in bondage? So they counted slaves as three-fifths of a person to give their captors more congressional representation.
* As a matter of interpretation, analyzing any constitutional clause without straining it through the Fourteenth Amendment’s guarantee of equal protection and due process, or the Fifteenth Amendment’s distribution of the voting franchise, is an exercise of intellectual apartheid. The 13th, 14th, 15th, 19th recast the entire document, destroying the slave state that the founders wrote into existence and replacing it with something new, something heterogenous, and something still flawed yet not utterly unredeemable. <> Which is why the entire conservative legal project, since ratification of those amendments during Reconstruction to the present day, has been to limit the scope and effectiveness of this “new” Constitution.
the Reconstruction and Nineteenth Amendments offer a complete repudiation of white male supremacy, if legislatures and courts would only apply them to our republic. Hell, I could make a case that the only amendments I need in order to run a free and fair society are the Fourteenth and the First.
But the argument that the Fourteenth Amendment protects economic equality, in addition to political equality, never recovered from the Slaughter-House Cases.
In a 7–1 decision the Court upheld the Louisiana law mandating segregated train cars... What’s going on here is the interplay between three competing spheres of rights: political rights, civil rights, and social rights. 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.
* The core logic of Plessy is that laws that are facially race-neutral are constitutional, even if they have a discriminatory effect. So a law prohibiting Black baseball teams from playing with white baseball teams is “facially race-neutral” because arguably it restricts white teams as much as Black teams. This is a logic that conservatives will come back to, again and again... Its logic of “separate but equal” was used as the legal justification for the entire Jim Crow era.
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. <> Because social equality is what Loving is all about.
Scalia’s dissent rests on the fallacy that discriminating on the basis of race is wrong but discriminating on the basis of sexual orientation is okay. And his argument that some discrimination is okay is literally the same logic used by the court in Plessy, and the same logic advanced by the Commonwealth of Virginia in Loving... And Tyron Garner is Black, by the way. Indeed, it is unlikely Lawrence would have gotten into any trouble at all had he been caught that night having sex with a white man. Loving and Lawrence are functionally the same case; they are logical twins.
But laws can discriminate against classes of people, and laws do discriminate against classes of people all the time. Indeed, there are only a few classes of people who cannot be discriminated against. We call them “suspect” or “protected” classes.
But sometimes courts empower themselves to look at the government’s rules more skeptically, with less deference to the wisdom of legislatures. This level of judicial review is called strict scrutiny. 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. <> Again, all of this is kind of made up. One court said: “We’re going to review this with heightened scrutiny,” and another court said, “Ooh, I like that, let’s do that also, but can we change the adjective to strict?” and so on, until we have this entire canon of common law defining wildly different standards for when the court can use the power it gave to itself. There’s nothing in the Constitution that requires courts to have different modalities for judicial review, and there’s certainly nothing requiring courts to define those different standards the way they have.
As if all of that weren’t random enough, courts have also created something called quasi-suspect classes, which are entitled to (wait for it) “intermediate scrutiny.” The Supreme Court first applied this new scrutiny to laws that discriminate due to gender in a case called Craig v. Boren. There the Court held that while gender does not create a suspect class, laws discriminating between the gender classifications are “disfavored.” The Court has also extended quasi-suspect class status to bastards (like, literal bastards,
All of this is bullshit. It’s bullshit so the courts can argue that they have some objective, doctrinal reason for their decisions, because judges and justices don’t like to admit that they are being “outcome determinative” in their rulings. “Oh, no, it’s not that I hate women, I just think that their quasi-suspect class status does not entitle them to strict scrutiny when they bitch and nag.
I can prove that. Because the first time the Supreme Court articulated strict scrutiny review was in the 1944 case Korematsu v. United States—the World War II Japanese internment case. The Court ruled that Franklin Delano Roosevelt’s Executive Order 9066—which provided for the forced “relocation” of Japanese Americans living on the West Coast—should be reviewed under strict scrutiny, but concluded that the government passed the strict scrutiny test because of the government’s national security interest.
Kennedy never went the last yard to give the LGBTQ community protected class status. He thus never fully protected the community within the equal protection clause. In fact, at times he struggled to make a cogent argument for why the LGBTQ community should have equal protection under the Fourteenth Amendment at all... in terms of the fight still to come, 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... as I’ve said, the entire conservative project has been to limit the scope and effectiveness of the Fourteenth Amendment since the moment it was ratified. That’s why Kennedy did what he did in these cases.
the Fifth and Fourteenth Amendments, which both say that no person shall be deprived of “life, liberty, or property, without due process of law.”... I think the least controversial definition of the thing is that substantive due process protects unenumerated rights. The Constitution explicitly protects some rights, but it must protect other rights in order for the protection of the explicit rights to make any sense. For instance, the Constitution protects freedom of speech, but it doesn’t explicitly protect freedom of sight...
substantive due process is really about fundamental fairness. The best way to understand substantive due process is to compare it to the other kind of process, “procedural due process.” ... Procedural due process concerns itself only with whether the process is fair according to its own rules... Substantive due process demands actual fairness, not just technical fairness. Predictably, conservatives hate it.
Between 1905 and 1937, courts used Lochner logic to invalidate over two hundred regulations on the grounds of violated economic rights. This sad historical period is known as the Lochner era, and, had it persisted, the New Deal would never have been a thing. But in 1937, Franklin Delano Roosevelt announced his plan to pack the Supreme Court with justices more amenable to his New Deal, worker-protecting regulations...
The revulsion to Lochner was such that one could argue that the Warren Court during the civil rights era went out of its way to avoid mentioning Lochner, or using the phrase substantive due process, while issuing rulings that fit squarely in the framework of protecting rights not specifically enumerated in the Constitution. Lochner is sometimes called “anti-canon.” <> 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. <> Conservatives, on the other hand, are shameless. They say that Lochner is bad and that substantive due process does not exist, but they will absolutely use Lochner-era logic to come to the Lochnerera conclusion that the only “people” who have rights in this country are corporations.
Thomas, and the rest of the conservatives, absolutely believe substantive due process exists; they just think the Fourteenth Amendment is hiding rights for businesses they think are people, instead of minorities they wish were not... 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.
White slavers regularly treated their own bastards as slaves. White neo-Confederates love to point out that “slavery” was practiced throughout much of the world, throughout much of human history, but this idea that slavery was a condition you could inherit from birth was not common in ancient slave-loving Rome or other slave-based societies. That idea was market-tested and industrialized in the New World.
remember that the generation that passed the Comstock laws was the same generation that passed the Reconstruction Amendments. One of the clear failures of the Reconstructionists is that they remained unreconstructed sexists.
But the actual Court, by a vote of 7–2, took the scenic route to get to the right result in Griswold. Instead of deciding the case on equal protection grounds, 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.
But I explained substantive due process before I started talking about the right to privacy for exactly this reason. Remember, in 1965, substantive due process was still a dirty phrase, made guilty by its association with the Lochner era. What Douglas is doing here is applying substantive due process logic in a place where it is entirely appropriate. Many of the rights explicitly protected in the Constitution don’t make sense unless this unenumerated right to privacy is also protected. What good is a protection from unreasonable searches if there is no protection from being unreasonably monitored? .. The right to privacy is just a substantive function of the due process clause. Douglas is just calling it something else because he doesn’t want to use that phrase.
tearing through her vaginal cavity in an experience so painful that the woman’s brain will actually release drugs into her neural system in hopes that she doesn’t fully remember the severity of what she experienced once it’s over.
That’s why abortion rights are under constant attack. It’s not because the attacks are legally any better than what conservatives usually do. 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.
** But the better legal frame is “Forced birth is some evil shit that can never be compelled by a legitimate government. The end.”
The denial of equal rights was what motivated the anti-ERA movement. Schlafly’s organization, called STOP, an acronym for “Stop Taking Our Privileges,” argued that the ERA would end the gender privileges “enjoyed” by women: like “dependent” wife status for social security benefits, women’s restrooms, and exemption from the draft. <> Schlafly employed the same two tactics that conservatives always do when attacking equal rights. She reduced equal treatment to “same” treatment and fought most desperately over social equality instead of political or civil equality. This is what conservatives do. This is what they always do. Schlafly had a neat little twist—arguing that social inequality benefited women instead of harming them— but even that is not new. Conservatives love arguing that the people they oppress are well taken care of by the oppressors.
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.
the legal argument that a fetus has a legal status on par with the woman to whom it is literally attached is illogical trash sprinkled with bad faith and misogyny.
From the founders’ perspective, voting rights didn’t flow from the federal government; citizenship, and the rights and responsibilities thereof, flowed from the states. So a person—well, a white man—wasn’t a citizen of the United States of America so much as a citizen of Georgia or Connecticut or whatever. It made sense to the founders that voting rights would be left up to the states... One way to tell the story of America is as a two-and-a-halfcentury, ongoing struggle to fix their error. The Fifteenth, Nineteenth, Twenty-Fourth, and Twenty-Sixth Amendments all either directly expand the voting franchise or remove restrictions to voting on new classes of people.
That’s amazing, especially when you consider that without the right to vote there is no way to participate in the passage and ratification of these amendments that expand the franchise. People have had to use persuasion to secure their rights, because they were excluded from actually participating in the votes on whether they would be allowed to vote.
The truth is that the expansion of the franchise has been resisted and undercut by the judicial branch and conservative politicians at nearly every turn.
* In 1982, the Voting Rights Act was amended to prohibit not just discriminatory intent, but also discriminatory effect. That means that the old conservative trick of passing facially “race neutral” laws that deny equality under the cover of “sameness” is not something conservatives can do when it comes to voting. And it doesn’t just prohibit voter “denial” on the basis of race; it bans voter “dilution.” The Voting Rights Act makes it illegal to gerrymander away the voting power of Black communities by submerging their votes within majoritarian white districts.... Which is why it no longer exists. Conservative judges will find a way to do racism.
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.
Political gerrymanders: always okay. The Court has a long history of trying to look the other way when maps are drawn purely to benefit one party over the other, even when those maps are demonstrably unfair. A 2019 Supreme Court decision fully unleashed legislatures dominated by one party to do their absolute worst with the maps.
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... Only six Black people in American history just went out and won a U.S. Senate seat via popular vote
The Senate is a lost cause. There are some things we can do at the margins: admitting DC as a state is not even a Senate reform so much as a moral imperative of representative government, and adding a place with the highest percentage of Black people by population (compared to the current fifty states) would at least be something. But at core, the Senate cannot be fixed. It was erected as a bulwark of white power,.. The best we can do is limit the antidemocratic destructiveness of the Senate, which is how we come to eliminating the Electoral College. 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.
* In 1982, the Voting Rights Act was amended to prohibit not just discriminatory intent, but also discriminatory effect. That means that the old conservative trick of passing facially “race neutral” laws that deny equality under the cover of “sameness” is not something conservatives can do when it comes to voting. And it doesn’t just prohibit voter “denial” on the basis of race; it bans voter “dilution.” The Voting Rights Act makes it illegal to gerrymander away the voting power of Black communities by submerging their votes within majoritarian white districts.... Which is why it no longer exists. Conservative judges will find a way to do racism.
*Bork pretended that the Ninth Amendment was inscrutable, as if he were Mariah Carey saying, “I don’t know her.”...
Here we have two men who allegedly dedicated their careers in service to the vision of America as articulated by the authors of the Constitution, and yet they regulate an essential provision, made to redeem the document from the parochial political interests of its authors, as an inkblot that they can’t even be bothered to think about.
There’s a reason that Scalia, Bork, and other conservatives deny the existence of the Ninth Amendment: it’s because the Ninth Amendment blows their whole little project apart. A theory of constitutional interpretation that restricts the rights of humans to a finite list agreed to by eighteenth-century slavers cannot survive a provision from one of those slavers that explicitly says their list is not exhaustive of all rights. 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.
* 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? <> Originalists will always point to an enumerated right when they want the federal government to do something in violation of the Tenth Amendment and the principle of federalism. But that is why they work so hard to deny the existence of unenumerated rights. There’s no objective reason that the Ninth Amendment should be applied to the states any less robustly than the Second Amendment. The only difference is that the rights and privileges that the Ninth Amendment protects weren’t on the original white supremacist, noninclusive list.
* 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. <> This is the conflict at the core of our Constitution. Conservatives almost always resolve this conflict for the benefit of white people.
Other advanced democracies, from Canada to South Africa, do not have high courts that are nearly as powerful as ours. In most other countries, high courts resolve disputes between laws, not whether laws are valid. Maybe we need to do the work the founders never did and amend Article III to define and limit what the Supreme Court can, and cannot, do.
Meanwhile, rotating through nine justices on eighteen-year term limits would create an opening on the Supreme Court every two years... I therefore favor adding additional justices to the Supreme Court, often derisively called “court packing,” as the appropriate constitutional solution to the problem of generational overrepresentation of conservatives on the Court.