Founders, Schmounders

Elie Mystal rakes constitutional originalism over the coals, in "A Black Guy's Guide to the Constitution".

I was raised to revere the founders and the elegant, almost scriptural document they constructed to rule our society. But suppose I was a black person, knowing that these founders were the rich white guys of their time, owners and abusers of slaves? I might think that while their aspirations were rhetorically high, their constitution was rather more utilitarian in its denial of true democracy to most people living in the colonies, its indirect and unjust approach to the democracy it did allow, and its euphemistically stated, but absolute, denial of freedom to "other persons". I would have experienced the US legal and cultural system as one of systematic oppression, dedicated to the proposition that while white, rich, men might be equal in some way and enjoy a rules-based system, the larger point of the system was to maintain power in their hands, and deny it to all others.

At least that is the sense one gets from Mystal's book, which, along with a lot of colorful language and wry jokes, assembles a trenchant rebuke of the American constitution, of conservatives, of Republicans, and especially of the originalist ideology of jurisprudence. Every hot button topic gets its due, and every amendment its contrarian interpretation. The second amendment is easy- it is about a regulated militia, after all, not about some commandment handed down from Charlton Heston to the ammosexuals of the nation to stock up on AR-15s and have a mass shooting if they are feeling a little antsy. 

Police brutality, prejudice, impunity, and immunity from accountabiliy is another easy, if painful, target. Mystal describes how he has been profiled and roughed up, for no other reason than being black. The legal system seems to have driven a semi through the fourth amendment against unreasonable searches when it comes to vehicles owned by black people, for one thing. And the fifth amendment comes into play as well- why do we allow police to play cat and mouse with suspects, trying to trip them up and get them to confess, cutting corners and playing games with their Miranda rights? Mystal makes a strong case for doing away with this whole theater of intimidation, with its slippery slope to fraud and torture, by barring police from eliciting or transmitting confessions at all, period. He notes that anyone with even a glancing acquaintance with the legal profession has learned to say nothing to police without a lawyer by her side.

Mystal's approach to abortion, however, is where this book really shines. Was Roe "wrongly decided"? Hardly. In the first place, Mystal provides an interesting discussion of "substantive" due process, (fifth amendment, and fourteenth), meaning that the rights and protections of the constitution are not to be taken merely literally or trifled with by twisting their meanings. They must be afforded by realistic means and set in a legal / civil system that supports their spirit. And that means that the right to privacy is a thing. While its poetic origin may be in the "penumbras" of the constitution, it is integral to the very idea of much of it- the concept unreasonable searches, of rights against self-incrimination, of any sort of rights of the individual vs the state. This is not to mention the ninth amendment, which asserts that just because the constitution and bill of rights mentions some rights explicitly, that others by their ommission are not covered. Privacy would, in general terms, clearly fall in this category.

But where else could a right to abortion be found? Plenty of places. One is the equal protection clause of the fourteenth amendment. Mystal, and many others, note that this should be taken as applying to women, making the whole equal rights amendment (ERA) unnecessary, given a modicum of enlightened interpretation. It could also be taken to afford men and women equal protections regarding reproduction, meaning that the penalty for a roll in the hay should not be grossly unequal, as it is when abortion is banned. Mystal goes on to suggest that the eighth amendment against cruel and unusual punishment could be invoked as well. If men were faced, as a penalty for sex, months of mental and physical torment, and then the excruciating labor of birth, one could be sure that no court would consider banning abortion for a nanosecond. And how much more cruel and vindictive is it be if that pregnancy arose from rape? There is also, after all, the thirteen amendment against involuntary servitude/labor.

Originalists brazenly throw their so-called principles out the window when it comes to abortion. Unenumerated rights? Never heard of them. Keeping the state out of the most sacred precincts of our private lives? No comment. Colonial attitudes towards abortion were very loose, nothing like the personhood-at-conception garbage we get today from the right/Catholic wing. It just goes to show that a little knowledge (here, of biology) can be a dangerous thing.

It is really originalism and conservatism, however, that is the overarching and corrosive topic Mystal takes on. The founders were people of their time, and that was a white supremacy kind of time. They wrote a constitution with hopeful ideals and judicious language which insulated it somewhat (though hardly enough!) from the prejudices of their day. To say that our current interpretation of their words should be confined to whatever psychoanalysis we can make of their meanings at the time would lock our whole political and legal system into those same prejudices that they were trying to overcome. To take the second amendment, Mystal argues (I am not sure how successfully) that its "militias" were most keenly understood to mean bands of Southern planters gathering together to prevent or put down slave revolts. Southerners did not want to be dependent on Federal sympathy and arms, and thus insisted that a right to raise their own militias for their own peculiar needs should be enshrined in the constitution. Well, if we were to restrict outselves to such an interpretation, that would have significant effects on our practice of the second amendment. Gun control would be allowed in the North, just not in the South, allowing guns to white males with certain property qualifications, perhaps, and certain mental proclivities.

Even the civil war amendments would be infected with originalism, since very few people at that time envisioned the full social equality of black citizens. It is remarkable to consider the flurry of anti-miscegenation laws passed during the Jim Crow era, after the Southern slave owners had spent a century or two conducting forced miscegenation. Whence the squeemishness? Anyhow, consistent originalism would never have struck down such laws, or abetted the civil rights movement for blacks, let alone gays. Mystal imagines the nettlesome questioning of a prospective conservative justice going like: "Do you believe that Loving v. Virgina was rightly decided?" This case was about the social system of the South, which Mystal tries to separate from the legal and political aspects, and clearly on originalist principles could not be decided as it was. And much more so on Obergefell, which draws on the fourteenth amendment's due process concept to free personal choices (of gay people) from government intrusion, again doubtless totally in contradiction to the social vision and intention of any of its authors.

Instead of fixating on the past so much, in constitutional interpretation, we might think about the future more.

So originalism, for all its rhetorical seductiveness, (after one has been properly indoctrinated in the divine virtues of the founding fathers), is an absurdity for a country with even the tiniest ambition towards social progress, or change of any kind. It amounts to extreme conservatism, pure and simple. Mystal is relentlessly dismissive of the conservative mindset, tied as it is (ever more explicitly in our polarized moment) to regressive, even violent, racial anti-minority politics. 

What is the deal with conservatives? I think there is another unenumerated right that undergirds all these tensions, which is the right to win, and win by inheriting what our forebears wrought- physically, monetarily, politically, socially. America is a highly competitive country- we compete in making money, in politics, in sports, in war. In any society there is an inherent tension between the cohesiveness required to build common structures, like a constitution, or a military, and the the competitiveness that, if channeled properly, can also build great things, but if let loose, can tear down everything. The right to succeed in business, and to bequeath those gains to one's children- that is a widely shared dream. Our founders saw that there had to be limits to this dream, however. The creaky aristocracies of Europe fed on centuries of priviledge and inheritance. America was fundamentally opposed to noble privileges, but in their slaveholding and other businesses, the founders were far from averse to hereditary privileges in general.

It was the whites who won all this- won the American continent from its native inhabitants, won the slaves from their native hearths, invented the technologies like the cotton gin, devised the capitalist system, etc., etc. Who has a right to inherit all these winnings? Conservatives subscribe to a fundamentally competitive system. That is why Trump won the hearts of a rabid base. Lying isn't a bug, it is a feature, an intrinsic part of winning in a duplicitous cultural competition- and winning is everything. To conservatives, social justice is a fundamental affront. Who said the world was fair? Not us! Constitutional originalism is way of expressing this denial of social progress and justice in concrete, and superficially palatable, terms. For as Mystal reiterates, the justices are not calling balls and strikes- constitutional interpretation runs rather freely, as we can see from second amendment jurisprudence. That is why capture of the supreme court has been such a existential project of the right for decades.

Counterpoised to the conservative conception of (lack of) justice in America is that of the left, perhaps best exemplified by the California Reparations task force. If one looks back and considers the losses of enslaved and oppressed Americans, one quickly reaches astronomical levels of reparations that would be required in a just world. How to make up for death and torture? How to make up for the bulldozing of entire communities? How to make up for centuries of economic, social, political, and legal disadvantage? There is simply no way to make up what has been lost, and to do so would open up many other claims, especially by Native Americans, all inhabitants of Vietnam, Iraq, and Afghanistan, not to mention countless other victims of historical processes going back centuries and ranging world-wide. Justice is a massive can of worms, if looking back in time. But how about something simple, like affirmative action, giving formerly oppressed people a small leg up in the current system? Conservatives can't stand that either, and cry anti-white racism. 

It frankly boggles the mind, how greedy some people can be. But I think the problem of inheritance remains a central touchstone. In each generation, does everyone share equally in the inheritances from the past, or does one race inherit more, do children of the rich inherit more, do the well-connected send their children into the halls of power? The only way to insure a fresh and fair start for each generation is to, not only demolish the idea of inherited nobility as our founders did, (and which we are edging back toward with extreme economic inequality), but go a little beyond that to end other forms of inheritance ... of money and power. The meritocratic systems of higher education did a great deal in the twentieth century to advance this ideal, allowing students from all backgrounds to aspire to, and achieve, all kinds of success. This made the US incredibly powerful and the envy of the world. Liberals should continue this tradition by attacking all forms of entrenched and inherited power, from private schools to the shameful lack of inheritance taxation. The better way to make reparations is to pay it forward, with more just future world.

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