Elie Mystal thinks the US Constitution is trash. In Allow Me to Retort: A Black Guy’s Guide to the Constitution he makes a solid case.
Mystal is justice correspondent for The Nation and a graduate of Harvard Law School.
Allow Me to Retort:
A Black Guy’s Guide to the Constitution
By Elie Mystal
The New Press, New York, 2022
Allow Me to Retort is a well-researched and passionately argued book. But be forewarned, it’s also an irreverent, sarcastic, profanity-laced rant. If you’re white, many parts might make you uncomfortable, at least they did for me.
He gets off to a roaring start right from page 1:
“Conservatives are out here acting like the Constitution was etched by divine flame on 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?” [p. 1]
It shouldn’t surprise you that he doesn’t like conservatives. Or Republicans or the Supreme Court. He especially doesn’t like Republican-appointed conservative justices sitting on the Supreme Court. And he doesn’t like white politicians and white voters who help enable and perpetuate racism and inequality in America.
Mystal has harsh words for originalism, the idea that the Constitution should be interpreted according to how it would have been originally understood at the time it was adopted. It’s the theory of constitutional interpretation favored by conservatives and so it’s the dominant theory on the Supreme Court today. I think it’s total bullshit for many reasons, and I agree completely with Mystal when he says:
“A theory of constitutional interpretation and justice, supported by originalists, that requires them to look at and value the intents and purposes of unabashed, unrepentant white supremacists is obviously, irreparably racist. Originalists try to dress up their theories with a bunch of fancy words and legal jargon, because what they actually believe in plain terms is provably stupid. ‘Racial equality only means what white people, and white people only, some of whom actually owned slaves, thought it could mean a century and a half ago.’ Get the fuck out of my face with that nonsense.” [p. 143]
He favors radical Supreme Court reform because:
“There is no piece of legislation that conservatives on the Supreme Court cannot limit, frustrate, or outright overturn. There is no constitutional amendment that conservatives cannot functionally ignore. There is no principle that conservatives cannot ruin. Without commanding a single troop or passing a single bill, a conservative Supreme Court is not a check on the other branches of government, but a check on progress itself.” [p. 245]
They’ve done this countless times in the past, Mystal shows. They’re doing it today, and left unchecked they’ll keep doing it in future.
He says we need term limits for Supreme Court justices (I agree!) but that can’t be done without a constitutional amendment. There are other more complicated proposals for reform that would have the same effect, but Mystal thinks that current Supreme Court justices would probably strike down any law that limited their own power.
So he also favors court packing – appointing more justices to the Supreme Court. And not just the four or five new justices needed to outweigh the current conservative majority on the Court. No, go big or go home: Mystal suggests adding 20 new justices. It sounds crazy, and maybe it is crazy, but Mystal makes some good arguments for it.
Allow Me to Retort is just over 250 pages, but it covers a lot of ground. Each of its 21 chapters deals with a different controversial issue or article of the Constitution. Topics include cancel culture, gun control, police brutality, abortion, voting rights, and the structure of the Supreme Court. I couldn’t find any theme or pattern behind the sequencing of these topics, so for the most part you can read them in any order.
For each topic, Mystal explains the history, the relevant constitutional provisions and key Supreme Court decisions clearly and accessibly. Likewise for legal terminology such as “substantive due process” and “strict scrutiny.” There’s no mistaking his own views, yet I learned a lot from this book too.
My one complaint is that the book has no index. I know this is a pet peeve of mine that I’ve raised with other books, but there really is no excuse for not having an index since they’re so easy to produce.
The central message of Allow Me to Retort is this: The US Constitution, as originally ratified in 1788, was written to preserve the power of white, property-owning, slave-owning men, because that’s who wrote it. It’s a fundamentally racist and misogynist document. The 13th, 14th and 15th Amendments, known as the Reconstruction Amendments, and the 19th Amendment, giving women the right to vote, redeem the Constitution because they create the possibility of a far more equal and just American society. At least, they could redeem the Constitution were it not for conservative Supreme Court justices, and the conservative white politicians and voters who support them, who consistently narrow and undermine the rights that are supposedly guaranteed by those Amendments.
So, yes, Allow Me to Retort is a rant. But it’s a well-written, informative and, I think, totally justified rant. It presents a different, highly critical perspective on the Constitution, the Courts and US history that we don’t often get in schools or the media. It’s important to understand these issues from the viewpoint of Blacks, women and others who have suffered and continue to suffer racism, misogyny and inequality.
Allow Me to Retort is written by a Black guy but I think it’s for everyone.
The Supreme Court Took the Most Extreme Course Possible
Elie Mystal’s reaction to the Supreme Court’s decision overturning Roe v. Wade, in The Nation, June 24, 2022.
Allow Me to Retort
Interview with Elie Mystal on the Strict Scrutiny podcast, June 6, 2022.