President Joe Biden’s recent nomination of Judge Kentanji Brown Jackson to the U.S. Supreme Court is unprecedented. There has never before been a Black woman nominated to the nation’s highest court—a court that is the final arbiter of how the Constitution, the Bill of Rights, and the laws of the nation are applied. Yet Biden’s nomination is likely to make little difference in the larger balance of power on the court, given that the opinions of the six Conservative justices will still overwhelm the decisions of the three more Liberal justices.
In his newly released first book, Allow Me to Retort: A Black Guy’s Guide to the Constitution, legal scholar Elie Mystal, justice correspondent for The Nation, argues that the founders wrote the original Constitution narrowly and with such haste that they were forced to add on the Bill of Rights to remedy its gaping holes, rather like a “day-one patch” to a piece of prematurely released software.
It is precisely for this reason that the resultant legal framework needs constant updating in order to ensure full equality for all. “The law is not science; it’s jazz,” writes Mystal. “It’s a series of iterations based off a few consistent beats.”
With his signature razor-sharp wit and pithy prose, the legal scholar argues that Conservatives have so often successfully challenged the full application of equal rights because their opposition is “covered in jargon and discussed as if only an expensively educated lawyer could truly understand the nuance.”
But, “it’s like building a bike,” writes Mystal, who promises “to show how conservatives are building their white supremacist ride, and how liberals can throw a spanner in the works.”
Mystal spoke with YES! Racial Justice Editor Sonali Kolhatkar about his new book.
This interview has been edited for clarity and length.
Kolhatkar: Why did you decide to take on the U.S. Constitution and the Bill of Rights as the subject matter of your first book?
Mystal: The main reason is that we have been told a lot by Conservative White people what the Constitution means, what the law means, how it should be interpreted and why. And that, from my perspective, is just one option among many. The other options involve looking at the Constitution as a flawed document that needs to be perfected in order to achieve a level of fundamental fairness and equality that was, shall we say, missing from the initial draft of it, [a draft that was] written by slavers, colonists, and people willing to make deals with slavers and colonists.
So, I bring a perspective that is informed by the fact that [according to] the Constitution I wasn’t a person. And from that starting point, I look at that document a little bit differently.
It’s not a sacred text to me—it’s a flawed piece of political philosophy. And I think that perspective is valuable, especially in a moment that Conservatives are ascendant, and their views and their ideology of the Constitution is ascendant. I think it’s good to have a counterargument for what they’re trying to do.
Kolhatkar: You point out that Republicans and Conservatives treat the Constitution as if it was set in stone, a sacred document, and yet immediately after it was written, it required amendments. Just that fact itself should hint that this was a deeply flawed process, right?
Mystal: These were amendments that, remember, the people who wrote the Constitution didn’t think were necessary. They forced James Madison to write the Bill of Rights. Madison wrote The Federalist Papers with Alexander Hamilton and John Jay, arguing that the Constitution was fine as is and didn’t need updates or amendments for the Bill of Rights. Nothing shows you that the Constitution was a bit of a rushed work in progress than the “day-one patch” that is the Bill of Rights.
But I think it goes beyond that. One of the things that Conservatives like to hide behind is the amendment process, saying, “Oh, if there’s something wrong here, then we need a new amendment to fix it, not a new interpretation of the Constitution.”
There’s a lot of things that the Constitution doesn’t protect when it comes to the issue of women’s rights, because the Constitution did not treat women as full people.
I reject that for many reasons. One of the principal ones is that the Constitution doesn’t include fairness for all of us. And if you’re a Conservative, you’re saying that the way to fix that is with a new amendment to the Constitution. How is that the answer to fundamental unfairness? How about we just have fairness? How about we just have equality? We already have amendments that say “equal protection under the law shall not be denied,” “due process of laws should not be denied.” Why can’t we use those amendments we’ve already passed? Why do you want to make me pass another amendment, Mr. Conservative?
And the answer, of course, is that Conservatives don’t believe we should have fundamental fairness and equality in our laws and in our government. They like things the way they are. That’s why they don’t actually want amendments to happen, because they think that this racist country is working as intended. I think it’s not.
Kolhatkar: You point out that even though the Constitution and Bill of Rights are flawed documents, they do contain pretty decent arguments, and you want the spirit of those rights to be respected. How do Republicans use legal arguments to justify racism, sexism, homophobia, and the like in spite of this?
Mystal: One of the reasons why I’ve written this book is because Republicans seem to be so good at making these sorts of heavy legal jargon-laden arguments to the general public, and a lot of people who know Conservatives are wrong don’t know how to fight them. And you shouldn’t have to go to law school for three years and study this stuff every day in order to fight Conservatives’ really bad arguments. So, part of the book is just giving you the arguments that you can make against the Conservatives in your life, whether you see them online or at Thanksgiving dinner. I would hope that this book is useful for those who fight people who believe that rights only exist for White, cis-hetero males.
In terms of how they do it, there are lots of ways that I can point out. One good way is to see what Conservatives say about reproductive rights. They’ll tell you that the Constitution does not explicitly defend a woman’s right to choose. That’s true, there’s nothing in the Constitution that says “the right to an abortion shall not be infringed upon.”
Do you want to know why the Constitution doesn’t explicitly protect a woman’s right to choose? Because the Constitution did not explicitly protect a woman’s right to talk, or to own property, or to not be raped. There’s a lot of things that the Constitution doesn’t protect when it comes to the issue of women’s rights, because the Constitution did not treat women as full people.
Kolhatkar: And women were not involved in the writing of the Constitution.
Mystal: Not only were women not involved in the writing of the original Constitution, they also haven’t been involved in the writing of any of the amendments since then, including the amendment that gave women the right to vote!
Women were not writing the 19th Amendment, nor did women control any state legislature that had to ratify the 19th Amendment. And women have never held a majority of seats on the Supreme Court—although we might be getting close to that one day. So, at no point in American history has a body comprised of a majority of women been involved in adjudicating the rights of women, which is kind of weird when you think about it. The same goes for LGBTQ communities. The same goes for racial, ethnic, and religious minorities in this country.
Again, I come back to this point that if you’re going to tell me that this document is legitimate at all—which we can have a whole different debate about—then certainly it must evolve, it must breathe, it must live in a world where we understand the rights and responsibilities in this country a little bit more expansively than the exclusively White cis-hetero men that have been allowed to adjudicate those rights for most of our history.
Kolhatkar: Let’s talk about the First Amendment—this is a favorite one for Conservatives, and in recent times is most commonly invoked in terms of “cancel culture.” Conservatives love to talk about how Liberals and Leftists just want to cancel everybody and everything, but what does the First Amendment actually protect?
Mystal: The First Amendment protects, fundamentally, political speech. It protects, fundamentally, the freedom of the press. The people who wrote the First Amendment were fundamentally concerned with being able to talk smack to the government without catching a bullet. They wanted you to be able to say “George Washington is a poopy-head” without ending up in the brig. That was the goal of the First Amendment.
It is not attached to private speech or concerned about private speech. And, quite frankly, it would be ridiculous for it to be concerned about private speech. Why should the Constitution take judicial notice if a private company cares what you happen to say in the public square? Why would that work? So, the First Amendment somewhat clearly doesn’t deal with private speech, nor should it deal with private speech.
And thus, when Conservatives claim they’re being canceled, what they’re really complaining about is having private people enact consequences because they said something stupid.
Nobody’s canceling J.K. Rowling. I just don’t feel like buying the books of an out transphobe. That’s all. That’s a private decision, nothing bad is happening to her. I just don’t want to buy her dumb books now.
When we talk about Donald Trump being canceled, the man was president of the United States, and can stomp around Florida freely, apparently, despite his many crimes. No one’s canceling him. He got kicked off of a private web platform, a “bird app,” that’s what happened to Donald Trump. It is totally within the purview of that private company to say you can or cannot use our service.
Now, if you’re talking about the government chilling speech, that’s a whole different problem. When the Department of Justice chills speech, as [former Attorney General] Bill Barr did when they cleared the square in Washington, D.C., of protesters so Trump could have a photo op with a Bible—that is an issue of free speech that the founders would care about. That’s where the Constitution gets involved: when the government is chilling peaceful protest, and not before.
Kolhatkar: Let’s talk about police brutality. This is also something that Conservatives like to couch in legal jargon to continue justifying the use of lethal force by police on ordinary people. You started out one of your chapters in your book Allow Me to Retort asking the question, “Why can’t I punch a cop?” Take us through that argument.
Mystal: Imagine this situation: I’m sitting in my house, eating some ice cream. Somebody kicks down my door and comes at me with a gun. Why can’t I defend myself?
If that’s a private citizen doing that, I would have the right to self-defense. In fact, Conservatives more than anybody would say that I have the right to pull out a gun and stand my ground and [invoke the] Castle doctrine, etc. The Conservatives—allegedly—would have my back if someone kicks down my door, unless it’s a cop.
If it’s a cop, I’m supposed to, what, die? I’m supposed to just genuflect and take it, and hope that that cop who is assaulting me, who has broken into my home, does the right thing? How is that reasonable?
Well, the only way it’s reasonable for me to not be able to defend myself against a cop trying to kill me is if [I] live in [a] society where the other cops are going to stop him. The rule of law, if it is to mean anything, must mean that it applies to those who are being lawless even under the cover of law. The reason why I can’t punch a cop is because other cops are supposed to punch him and stop him from violating my rights, stop him from brutalizing me.
The fact that we don’t have that system and don’t live in that world is the actual problem. That’s the problem that we have to fix. And until we get a majority of White people willing to fix it, it’s going to continue to be a problem.
When I say “a majority of White people,” people get angry with me sometimes. The reason why I say that a majority of White people want police to be brutal is because whenever we have a vote, a majority of White people vote for Republicans who then support police brutality.
The last time a Democrat running for president won the White vote was before the passage of the Civil Rights Act in 1964. In every presidential election since then, a majority of White folks have voted for the Republican, who has almost universally been a fan of aggressive policing and brutality.
In more recent times, a majority of White people, including a majority of White women, voted for Donald Trump, twice! He was only beaten the second time, over the objection of a majority of White folks. So, that’s what’s holding us back, from where I sit: It’s that a majority of White people want their police to be brutal. And when given the option to vote for candidates who will stop that, they do not support them.
Kolhatkar: If this country was formed on the basis of White supremacy, how does the original Constitution and the Bill of Rights, and how do Republicans and Conservatives who interpret them, preserve that White supremacy?
Mystal: Every time we have a new amendment or a new law, Conservatives work to limit the effectiveness of that new law or amendment to preserve the old structures of White supremacy. They do this even when that law is meant specifically to take those structures down.
Now, I say “Conservatives.” Whether or not those Conservatives call themselves Democrats, as they did after the Civil War, or Republicans, as they do today, matters to me less. Whatever they’re calling themselves this morning matters to me less. What they are, are Conservatives. And wherever you look throughout history, it has been the Conservative Party, whatever they call themselves, that has worked to limit the effectiveness of justice, equality, and fairness.
You need look no further than the 15th Amendment saying that “the right to vote shall not be abridged on account of race.” It’s a pretty simple idea. And immediately, Conservative legislatures in the South, in the former confederacy, just ignored it, just pretended that the 15th Amendment didn’t even exist and went right back to excluding Black people from voting. The only change was that they couldn’t overtly say “because you’re Black.” They had to use slightly different words to achieve the same effect. But from the moment of the end of Reconstruction, when Rutherford B. Hayes pulled troops out of the South until the Civil Rights era, the South functionally ignored the 15th Amendment, and the courts let them do it. Conservatives on the courts refused to enforce the 15th Amendment against the White supremacists who were ignoring it.
Fast-forward to the civil rights movement, when we pass the Voting Rights Act of 1965—which is my pick for the most important piece of legislation ever passed in American history. It’s worked. Forty years after the civil rights movement, we end up with the first Black president.
The White Conservative response to that was to eviscerate the power of the Voting Rights Act in 2013. [Supreme Court Chief Justice] John Roberts did that in Shelby County v. Holder in 2013 by a 5–4 vote. He took away the pre-clearance [provision], which was the main thing stopping the former Confederacy from enacting new voter restrictions and suppression aimed at Black folks.
The voter suppression that was then unleashed helped Donald Trump get elected in 2016. And now, after this new census, we see that Republicans are off the chain with their voter suppression tactics. All of that can be traced back to John Roberts in 2013.
So, when you look at the history of the 15th Amendment, we have about 100 years when White people pretended that it didn’t exist, about 20–30 years in the middle there when it was kind of a thing, and now we’re on to one decade of White people pretending the 15th Amendment doesn’t exist again. We’ll see how long this current eruption of racism lasts before somebody stops what John Roberts started.
Kolhatkar: You point out that your book is meant to be a handbook for arguments that laypeople can use against legal jargon justifying Conservative policies. But in practical terms, it’s the Supreme Court justices that interpret our Constitution and our Bill of Rights. And as you were just pointing out, that makes all the difference, and today, we have a situation with a 6–3 Conservative majority on the court. Isn’t there an important argument to be made for expanding the court?
Mystal: Ah, so you got to the end of my book! I end the whole thing, as you know, with an argument for court expansion, because that’s the only thing that will work. That’s the only thing that can stop Conservatives from having generational control over American law and policy. People need to understand that there is nothing that I can pass as a Democrat that a 6–3 court cannot strike down. There is nothing to stop them. The third branch of government—the courts—have a veto power over the other two. And until Democrats start understanding that and playing by those rules, and fighting for the third branch of government, we will always be behind.
This is where there are a lot of asymmetries involved, and this is one of the reasons why I decided to write this book. Because base Republican voters understand how important the Supreme Court is. They might not understand all the legal jargon—I’m not saying all the Republican voters are smarter than Democratic voters, or more civically aware than Democratic voters—but they know, because they’ve been told by their leaders that if there is something that they want, they must control the Supreme Court to get it. So, if you’re a Republican, you know that if you don’t like gay people, well then, you’ve got to [control] the court.
Whereas if you’re a Democrat, you don’t seem to know that if you want anything to happen with climate change over the next 30 years, then you’re going to need Liberals on the Supreme Court who will interpret the federal government having the authority to bring the fossil fuel industry to heel. You get nothing on climate if you don’t control the Supreme Court. You get nothing on voting [rights] if you don’t control the Supreme Court. You get nothing on guns if you don’t control the Supreme Court.
Name me an issue you, Liberal, care about, and I will tell you exactly how the Supreme Court will take that away from you if you do not stack it with like-minded Liberals. And Democrats generally don’t understand that. But Republicans do.
That is why we lose. That is why we fight an uphill, asymmetrical battle where Republicans have single-issue voters. You can go to a tabernacle in Utah and find some person who’s like, “Well, I don’t really like Donald Trump … but abortion … so I have to vote Republican for the Supreme Court.” You can find those people everywhere across the country in Republican pockets.
It is very hard to find single-issue Democratic Supreme Court voters, and, quite frankly, if we had more single-issue Democratic Supreme Court voters, Hillary Clinton probably would have won in 2016.
Kolhatkar: Where do you think that cycle can be broken into? In order to push Democrats, you need more people voting for Democrats, but the Supreme Court is curtailing voting rights. It feels like a vicious cycle, and where to break into it is an important question, right?
Mystal: Unfortunately, I kind of fear or worry that things are going to have to get worse before they get better. Republican policies are massively unpopular. One of the reasons why Republicans prefer to do certain things through the Supreme Court is that they can’t actually get them done at the ballot box, because they’re unpopular. People support women’s rights. People, now, support gay rights. Taking those away politically is difficult. That’s why they want the courts to do it.
So, my only hope is that—it’s a strange hope, hope is probably not the right word; my worry, perhaps—is that when you have states like Texas taking away abortion rights and bullying trans kids, when things get bad enough, many people will say, “Wait a minute, I don’t want this country to be this way. Why does it gotta be this way?” And maybe then they’ll start understanding who their enemies have been this entire time and take the courts a little bit more seriously.
But it starts with Democrats taking the courts more seriously, right? I’ll say this as my last thing: You cannot win the Republican nomination for president without being strong on the Supreme Court. If you think back to 2016, Donald Trump was running against all these establishment Republicans, and he was wiping the floor with them. But the one concession Trump had to make to the establishment Republicans was the Supreme Court. They had to give him that list, remember? It was a list of Federalist Society-approved Supreme Court justices, because without that list, he couldn’t have won that nomination. That’s how important the Supreme Court is to Republicans.
Meanwhile, fast-forward to 2020, [when] 18,000 Democrats and their mothers are all running for the presidential primary. Joe Biden is one of the most anti-court-expansion candidates in the field, one of the most reluctant to reform the Supreme Court or aggressively change how it operates. And it doesn’t cost him a vote in a primary. That’s the asymmetry. And until that asymmetry is corrected by base Democratic voters, the Democratic Party will continue to not elevate the courts to their rightful importance, and thus they will continue to lose the battle of the courts to Republicans.