First Amendment guards against government, not "cancel culture."

Politicians, public figures, professors, writers, and media personalities often worry about cancel culture. This happens when someone loses a job or opportunity because of saying something racist, sexist, antisemitic, or homophobic. Then, they complain about censorship and claim that their "free speech" rights are being violated.

The First Amendment mainly shields folks from the government stopping them from speaking out or protesting about politics. But when actual First Amendment rights are under threat, those who complain about cancel culture often stay silent. For example,  in 2020, when Attorney General William Barr allowed peaceful protesters near the White House to be shut down, or when billionaire Peter Thiel sued Gawker, a news site until it closed. True First Amendment rights are in danger when people who disagree with protesters want the police to attack them, or when those offended by a news story flood websites with lawsuits.

The original Second Amendment lacked focus on personal protection.

The Second Amendment states that states must have a "well-regulated militia" for security, allowing people in each state to own weapons. Some who oppose stricter gun laws ignore the "well-regulated militia" part and argue that the right to own guns is about self-defense, even without facing real threats. Many conservatives believe owning guns is an absolute right, even military-grade ones that can lead to mass shootings.

The NRA popularized a view of the Second Amendment in the 1970s, which conservative judges now argue is its true meaning. Originally, the amendment was added to the Constitution because Southern slave owners wanted armed militias to quell potential uprisings of enslaved people. These militias, called "citizens' militias," were not for self-defense but to ensure the South could suppress revolts if the North took away their means to do so.

Less Fourth Amendment protection encourages racist policing.

In the 1968 case Terry v. Ohio, the Supreme Court ruled that police can stop and search someone if they have a "reasonable suspicion" of wrongdoing, even though the Fourth Amendment prohibits "unreasonable searches and seizures." 

In this case, Terry, a Black man, was stopped because he was acting suspiciously outside a store in Cleveland. The police thought he and two others were “ casing the joint”.  They searched the men and found hidden weapons. The Court decided that these "Terry stops" are constitutional because they help police deal with risky situations. The Court said these searches are only a minor inconvenience to the people being searched.

New York state's stop and frisk law, enacted in 1971, aimed to align with the Terry v. Ohio decision. Originally, officers could search someone if they believed the person was in danger or might be. However, Mayor Rudolph Giuliani and Police Commissioner William Bratton broadened the policy. This allowed officers to stop and search anyone they suspected of past or future crimes.

The vague nature of this standard allowed officers to unfairly target certain individuals, violating the Fourteenth Amendment. Some officers used this standard to justify actions based on racial bias. Courts should overturn Terry v. Ohio and similar laws that support New York's stop-and-frisk law.

Graham v. Connor: Police Accountability and Racism

In 2014, police in Ferguson, Missouri shot Michael Brown six times. His death sparked protests against police violence and led to the formation of Black Lives Matter. Despite this, no Ferguson police officers were charged with a crime.

This lack of accountability is tied to the 1989 Supreme Court ruling in Graham v. Connor. The case involved a Black officer, M.S. Connor, who followed a diabetic Black man, Dethorne Graham. Graham was pulled over and had his head bashed against a car hood by police officers.

Graham sued, alleging excessive force under a law that enforces the Fourteenth Amendment's ban on racial discrimination. However, Justice William Rehnquist, a conservative, removed the racial discrimination aspect and applied the Fourth Amendment. He concluded that the "reasonableness" of a police officer's use of force should be judged from the officer's perspective.

The Graham v. Connor decision makes it difficult for courts to address police brutality on a federal level. Without the ability to cite the Fourteenth Amendment, defendants struggle to prove police violence is racially motivated. While the Department of Justice can investigate police departments for racist practices, this is unlikely, especially under Republican administrations.

Courts should consider confessions to police and prosecutors unconstitutional.

The Fifth Amendment of the Constitution says that “No person…shall be compelled in any criminal case to be a witness against himself…”. But sometimes, police and prosecutors pressure people into confessing to crimes without a lawyer present. This goes against the Fifth Amendment. The law always allows suspects to talk to a lawyer and only speak when the lawyer is there.

The idea of being forced to confess in the 18th century is very different from today's understanding. But when it comes to Fifth Amendment rights, the current details are just silly. How much the Fifth Amendment helps defendants depends partly on whether they have a lawyer's help and know about the Fifth Amendment. The Supreme Court's decision in Miranda v. Arizona says that police must tell suspects they have the right to stay silent and the right to have a lawyer.

The Fifth Amendment and Miranda rules are supposed to protect people's rights, but sometimes police find ways around them, especially harming Black people. The courts should interpret the Fifth Amendment more clearly. They should decide that any self-incrimination from talking to police or prosecutors is against the Constitution.

The jury trial system from the Sixth Amendment is unfair to Black people.

The Constitution's Sixth Amendment says that people accused of crimes should have a trial quickly. The trial should be fair, with a jury of unbiased people from â€œthe state and district wherein the crime shall have been committed.”

Jury trials have been around since ancient Greeks & Romans, even before the American Revolution. The idea that juries can be fair and deliver just outcomes is deeply ingrained in American society, particularly among Black Americans.

The American criminal justice system has historically favored white people and their perspectives. Prosecutors use "peremptory challenges" to keep juries all-white, often excluding Black jurors, especially in trials involving Black defendants.

In 1986, the Supreme Court made a big decision in Batson v. Kentucky to deal with this problem. The Court said that Black people can't be kept out of juries just because they're Black. Defendants can also object if Black jurors are excluded. But, using peremptory challenges can still mean the jury doesn't reflect the community well, denying Black defendants their right to a jury of their peers.

The Eighth Amendment loosely defines "cruel and unusual punishment."

America's capital punishment laws fail to protect innocent people from being wrongly convicted and executed. Courts handle similar crimes inconsistently, including those punishable by death. Some states allow capital punishment while others do not, leading to varying outcomes based on the state's laws. Black individuals are more likely to be executed in states that practice capital punishment compared to white individuals. While the Constitution mentions capital punishment in the Eighth Amendment, it lacks a clear and strict standard for its application.

The Constitution's important phrase about the death penalty is the ban on "cruel and unusual punishments." However, this phrase doesn't have a clear meaning and has been controversial in history. A modern view of the Eighth Amendment would get rid of capital punishment completely, just like what happened with the 1972 Supreme Court ruling in Furman v. Georgia.

Courts shouldn't dance around words like "cruel" and "unusual" to justify the state killing its citizens. The death penalty should be scrapped in the United States because it's always wrong when the government wrongly convicts someone. It's equally wrong to decide whether to execute based on where a crime happened or whether the person had a good lawyer is equally wrong.

Congress should change the US Supreme Court.

The North won the Civil War, keeping the United States together. Creating a new Constitution then could have been a good idea. The original Constitution, partly written by slave owners, didn't treat Black people as full humans. It didn't last. The Thirteenth, Fourteenth, and Fifteenth Amendments, known as the "Reconstruction Amendments," essentially made a new US Constitution.

The current conservative Supreme Court seems able to overturn any law and ignore parts of the Constitution. The United States now relies on the approval of nine unelected Supreme Court Justices, who serve for life. Changing this power structure would likely require a new Constitution. But for now, only Congress can reform the Supreme Court, as stated in Article III of the Constitution.

Improve  the Supreme Court

To limit how long federal judges serve, lawmakers could designate Supreme Court judges as "senior" after 18 years. This change would create more opportunities to appoint new justices without changing the Constitution. It would also make the Court less influenced by political changes in the White House or Senate.

Expanding the Supreme Court from nine to 29 justices could also reduce political tensions. For context, the Ninth Circuit Court of Appeals, which covers California and other Western states, has 29 judges. This expansion could make the appointment process less contentious.