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Allow Me to Retort
ADVANCE PRAISE FOR
“There’s something to learn on every page. . . . A reading of the Constitution that
all social justice advocates should study.” —Kirkus Reviews (starred review)
M MSNBC LEGAL COMMENTATOR ELIE MYSTAL
thinks that Republicans are wrong about the law
YE
“A pugnacious and entertaining critique of conservative interpretations of the
almost all of the time. Now, instead of talking
SL
Constitution.” —Publishers Weekly
about this on cable news, Mystal explains why
TI
AE in his first book.
“A tour de force from the Explainer-in-Chief of American law! Mystal’s sharp wit
Allow Me to Retort is an easily digestible
L
entertains and educates about some of the greatest misconceptions of constitu- argument about what rights we have, what rights
tional scholarship and travesties in American justice.” Republicans are trying to take away, and how
––Malcolm Nance, bestselling author of The Plot to Hack America to stop them. Mystal explains how to protect
the rights of women and people of color instead
A
“After reading Allow Me to Retort, I want Elie Mystal to explain everything I don’t of cowering to the absolutism of gun owners
ELIE MYSTALis The Nation’s justice correspon- understand—quantum astrophysics, the infield fly rule, why people think Bob l and bigots. He explains the legal way to stop
l
dent, an Alfred Knobler Fellow at the Type Media Dylan is a good singer . . .” ––Michael Harriot, The Root everything from police brutality to political
o
Center, and the legal editor of the More Perfect gerrymandering, just by changing a few judges
podcast on the Supreme Court for Radiolab. He “Essential reading for people who think that you need to go to law school to w A l l o w M e and justices. He strips out all of the fancy jar-
is a graduate of Harvard College and Harvard Law understand our founding documents, and the perfect guidebook for Americans gon conservatives like to hide behind and lays
School, the former executive editor of Above the who want to understand how our country is supposed to work.” M bare the truth of their project to keep America
Law, a former associate at Debevoise & Plimp- ––Zerlina Maxwell, MSNBC analyst and author of The End of White Politics forever tethered to its slaveholding past.
ton, and a frequent guest on MSNBC and Sirius Mystal brings his trademark humor, exper-
e
XM. He lives in New York. tise, and rhetorical flair to explain concepts
“I loved Allow Me to Retort. It’s a powerful and important book of brightly alive
t o R e t o r t
ideas. Mystal deconstructs tired arguments and failed positions with his signa- t like substantive due process and the right for
o the LGBTQ community to buy a cake, and to
ture intelligence, humor, grace, and extraordinary wit. His big brain, bright ideas,
arm readers with the knowledge to defend
and fierce advocacy for what is right are an antidote to the poison of our current
R themselves against conservatives who want
political system.”
everybody to live under the yoke of eighteenth-
––Don Winslow, bestselling author of The Border e
century white men. The same tactics Mystal uses
t A BLACK GUY’S GUIDE to defend the idea of a fair and equal society on
“Elie Mystal is the funniest lawyer in America. Allow Me to Retort is brisk and o
MSNBC and CNN are in this book, for anybody
brutal, sharply argued, full of both laugh-out-loud lines and righteous fury.”
r TO THE CONSTITUTION who wants to deploy them on social media.
––Matt Levine, “Money Stuff” columnist, Bloomberg Opinion
t You don’t need to be a legal scholar to
understand your own rights. You don’t need
www.thenewpress.com E l i e M y s t a l to accept the “whites only” theory of equality
pushed by conservative judges. You can read
JACKET PHOTOGRAPH
COURTESY OF THE AUTHOR this book to understand that the Constitution
JACKET DESIGN BY
is trash, but doesn’t have to be.
CHRISTOPHER BRIAN KING
AUTHOR PHOTOGRAPH BY
CHRISTINE NYEREYEGONA
ALLOW ME
TO RETORT
A BLACK GUY’S GUIDE TO
THE CONSTITUTION
ELIE MYSTAL
To my children, Claudius and Maximilian, in hopes that they
don’t have to fight some of these white supremacists in robes
CONTENTS
Introduction 1
1:Canceling Trash People Is Not a Constitutional Crisis 9
2:Bigotry Is Illegal Even If You’ve Been Ordered to
by Jesus 18
3:Everything You Know About the Second
Amendment Is Wrong 31
4:Stop Frisking Me 41
5:Attack Dogs Are Not Reasonable 51
6:Why You Can’t Punch a Cop 61
7:Stopping Police Brutality 72
8:It Says What It Says 76
9:The Taking of Black Land 88
10:A Jury of Your White Peers 100
11:It’s Not Unusual to Be Cruel 112
12:The Most Important Part 125
Contents
13:Conservative Kryptonite 136
14:Reverse Racism Is Not a Thing 155
15:The Rule That May or May Not Exist 166
16:The Abortion Chapter 175
17:You Know This Thing Can Be Amended, Right? 190
18:The Right to Vote Shall Be Abridged All the Damn
Time 202
19:What If Your Vote Actually Didn’t Matter? 214
20:Abolish the Electoral College 226
21:The Final Battle 236
Epilogue 245
Notes 259
INTRODUCTION
O
ur 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 imper-
fect work that urgently and consistently needs to be modified and
reimagined to make good on its unrealized promises of justice and
equality for all.
And yet you rarely see liberals make the point that the Consti-
tution is actually trash. Conservatives are out here acting like the
Constitution was etched by divine flame upon stone tablets, when
in reality it was scrawled out over a sweaty summer by people mak-
ing 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? 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
2 Introduction
highest grammatical accuracy, and I’m supposed to agree the text
of this bullshit is the valid starting point of the debate?
Nah. As Rory Breaker says in the movie Lock, Stock and Two
Smoking Barrels: “If the milk turns out to be sour, I ain’t the kind of
pussy to drink it.” The Constitution was so flawed upon its release
in 1787 that it came with immediate updates. The first ten amend-
ments, the “Bill of Rights,” were demanded by some to ensure rati-
fication of the rest of the document. All of them were written by
James Madison, who didn’t think they were actually necessary but
did it to placate political interests. Video gamers would call the Bill
of Rights a “day one patch,” and they’re a good indication that the
developers didn’t have enough time to work out all the kinks. And
yet conservatives use these initial updates to justify modern bigotry
against all sorts of people.
If the Constitution were really the triumph of reason over dark-
ness, as it is often treated, it probably wouldn’t have failed so mis-
erably that a devastating civil war would break out less than one
hundred years later. But that happened. And if the fixes applied to
the Constitution after that war ended in 1865 were so redemptive, I
imagine that my mother—born in 1950in M ississippi—would have
been allowed to go inside her ostensibly “public” library while she
was growing up, which of course she was not.
The Constitution is not gospel, it’s not magic, and it’s not even
particularly successful if you count one civil war, one massive
minority uprising for justice that kind of worked against tons that
have been largely rebuffed, and one failed coup led by the actual
president, as “demerits.” It was written by a collection of wealthy
slavers, wealthy colonizers, and wealthy antislavery white men who
were nonetheless willing to compromise and profit together with
slavers and colonizers. At no point have people of color or women
been given a real say in how it was written, interpreted, or amended.
Even the amendments that granted equal rights to minori-
Introduction 3
ties and women were written by white men. They were ratified by
all-white-male state legislatures. Nonwhites have, obviously, never
held majority power in this country (yet); women have only held a
majority of the seats in one state legislature, Nevada, and that didn’t
happen until 2018. Minorities or women have never held a major-
ity in either chamber of Congress, or on the Supreme Court, and
there has been only one nonwhite president of the United States in
American history.
White people got so pissed off at that they replaced Barack
Obama with a bigoted con man who questioned whether the Black
president was even born in this country, and when their guy lost the
next election, his people tried to start a coup.
And yet people still act like the Constitution is our most hal-
lowed ground. I get it from Republicans; white supremacist gov-
ernments aren’t a deal breaker for them. And I’ll admit that the
Constitution is not without its charms. That stuff about banning
cruel and unusual punishment, for instance? Fantastic. Everybody
should ban it. I wish I could like that amendment twice.
Too bad we actually don’t.
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 any-
thing 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.
And so I have written this book. My goal is to expose what the
Constitution looks like from the vantage of a person it was designed
to ignore. My goal is to illustrate how the interpretation of the Con-
stitution that conservatives want people to accept is little more than
4 Introduction
an intellectual front for continued white male hegemony. And my
goal is to help people understand the key role the courts play in
interpreting the Constitution and to arm additional people with the
knowledge, information, and resolve to fight conservatives for con-
trol over the third branch of government in every election, and over
every nomination.
Everybody has seen the gleaming, air-brushed face of the Consti-
tution. I’m going to tell you what this motherfucker looks like after
it has had its foot on your neck for almost 250years. The perspec-
tive is a little different. I believe more people would try to fix it if
more people saw it for what it truly is.
If this is your first time reading me, welcome. My name is Elie,
and as I write this I am the justice correspondent for The Nation
magazine. Prior to that, I was for a very long time a writer and edi-
tor at Above the Law, the most-read legal-industry news site in the
country. Sometimes I appear on television and radio programs
where I talk about the law and scream about Republicans. I was
the legal editor of More Perfect, an excellent (dare I say) podcast
about the Supreme Court that was produced by the same people
who make Radiolab. I’ve been covering this space for over ten years
now, as a journalist.
I used to be a lawyer, though not technically a “barred attorney-
at-law.” After I graduated from Harvard Law School in 2003, I
worked as an associate attorney at Debevoise & Plimpton, one of
the hundred or so most profitable law firms in the country. I passed
the bar, but I never completed the rest of my bar application, mainly
because I hated my job (no offense to Debevoise, which is a fantastic
law firm, if you like being a corporate attorney), hated the practice
of law, and wanted to get out almost as soon as I got in.
Being barred wasn’t really necessary at a gigantic law firm where
I was too junior ever to be the “named” attorney for any client any-
way, and I felt like not being able to fall back on a law license would
Introduction 5
motivate me to get out there and figure out what I really wanted
to do. Things have worked out, and I have many nights of hunting
mice in my old, crappy apartment to prove that I probably would
have given up trying to become a writer had I maintained a reason-
able escape route back to corporate law wealth.
But I bring up my background in the law because hatred is a pret-
ty big reason I’ve written this book. Not the healthiest emotion, I
know, but for me it’s clarifying. What conservatives do and try to
do through the Constitution and the law is disgusting. They use the
law to humiliate people, to torture people, and to murder people,
and tell you they’re just “following orders” from the Constitution.
They frustrate legislation meant to help people, free people, or cure
people, and they tell you it’s because of “doctrinal interpretative
framework.” They use the very same legal arguments that have been
used to justify slavery, segregation, and oppression for four hun-
dred years on this continent and tell you it’s the only “objective”
way of interpreting the law.
Most legal stories and analysis scarcely acknowledge the dys-
topian, apartheid state that conservatives are trying to recapture
through legal maneuvers. Most people take all the blood out of it.
Most people assume the law is a function of “both sides, operating
in good faith,” without wrestling with what the polity would look
like if conservatives actually got their way.
Part of that is because lawyers are trained to be “dispassionate”
when analyzing the law, almost robotic, as if the best lawyer would
present like Data from Star Trek, the android programmed to
self-improve.
In case you haven’t already guessed, I reject that form of legal
analysis. A 5–4 ruling on the Supreme Court directly affects the
likelihood of me getting shot to death by the police while driving
to the store. It directly affects whether my kids can walk to the bus
stop unmolested and unafraid of the cops driving by. I refuse to
