Allow Me to Retort: A Black Guy’s Guide to the Constitution

by Elie Mystal

Finalist, ABA Silver Gavel Award for Books
The New York Times bestseller that has cemented Elie Mystal’s reputation as one of our sharpest and most acerbic legal minds

“After reading Allow Me to Retort , I want Elie Mystal to explain everything I don’t understand—quantum astrophysics, the infield fly rule, why people think Bob Dylan is a good singer . . .” —Michael Harriot, The Root Allow Me to Retort is an easily digestible argument about what rights we have, what rights Republicans are trying to take away, and how to stop them. Mystal explains how to protect the rights of women and people of color instead of cowering to the absolutism of gun owners and bigots. He explains the legal way to stop everything from police brutality to political gerrymandering, just by changing a few judges and justices. He strips out all of the fancy jargon conservatives like to hide behind and lays bare the truth of their project to keep America forever tethered to its slaveholding past. Mystal brings his trademark humor, expertise, and rhetorical flair to explain concepts like substantive due process and the right for the LGBTQ community to buy a cake, and to arm readers with the knowledge to defend themselves against conservatives who want everybody to live under the yoke of eighteenth-century white men. The same tactics Mystal uses to defend the idea of a fair and equal society on MSNBC and CNN are in this book, for anybody who wants to deploy them on social media. You don’t need to be a legal scholar to understand your own rights. You don’t need to accept the “whites only” theory of equality pushed by conservative judges. You can read this book to understand that the Constitution is trash, but doesn’t have to be.

Genres: Nonfiction, Politics, History, Law, Race, Audiobook, Social Justice

288 pages, Paperback

First published March 1, 2022

Reviews

[Jenna ❤ ❀ ❤ · Rating 5 out of 5]

Witty and acerbic, Elie Mystal has written a bombshell of a book about the US Constitution.

He goes through it and the amendments, showing where it needs to be changed (much of it) and how Conservatives use it to uphold white supremacy, the patriarchy, and bigotry.

Mr. Mystal does not hold back. He calls out Conservatives - misogynists, white supremacists, and homophobes - on their bullshit ideas, demonstrating how they try to use (and often succeed in using) the Constitution to harm minorities.

This was a document written by a group of pro-slavery white dudes. Anyone wanna guess how many Republicans are going to use it to make and uphold laws that treat Black people fairly? If your answer is more than zero, you need to read this book.

Mr. Mystal, however, shows how the amendments can and should be used to create a fair and equal country for all. In case you're confused, all means everyone. Even minorities you might not like.

It was interesting to read what he has to say about abortion rights this week, when we see that Roe v. Wade is on the brink of being overturned and yesterday Louisiana advanced a bill that, if passed, will grant full constitutional rights to an egg from the moment of fertilization and make abortion homicide.

A fucking clump of cells. Homicide. Yep, you read that right.

I won't even get started or I'll go on for days. Suffice to say, it's not about morals, or pro-life, or anything decent. It's only about controlling women. These people aren't pro-life; they're anti-women and anti-progress. Period.

Back to the book -- it wins my Chapter Title of the Year award with: "BIGOTRY IS ILLEGAL EVEN IF YOU’VE BEEN ORDERED TO BY JESUS".

Thank you, Mr. Mystal. Thank you.

I loved this book. I learned from it. I got angry. And I busted out laughing many times.

Highly recommend, unless you're a conservative in which case you'll probably get your panties up in a bunch.

[Kevin · Rating 5 out of 5]

“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 making deals with actual monsters who were trying to protect their rights to rape the humans they held in bondage.” -Elie Mystal, 2022

One of the things that sets Mr. Mystal apart from other political commentators I’ve read recently is that he is legitimately further left than I am—which is rare. He gives me something to aspire to.

“The (U.S.) 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 . . . and one failed coup led by the actual president, as demerits.”

There, I’ve quoted this glorious bastard twice already and I am just barely up to page two of the goddamn introduction.

Separate but Unequal

Mystal acknowledges that the basic concepts of the constitution—the rights, rules and prohibitions—are fairly sound, but the designed intent and application of those concepts falls far, far short of anything remotely equitable and unbiased.

1st Amendment/Freedom of Speech

The next time you hear a conservative rail against “cancel culture,” feel free to name drop Desiree Fairooz, Juli Briskman, and/or Gawker.com. There is no quicker path to cancellation than chuckling during a conservative’s confirmation hearing (Fairooz), giving the middle finger to a conservative’s motorcade (Briskman), or hurting a billionaire conservative’s fragile feelings (Gawker.com). Make no mistake, when it comes to cancel culture there is no boundary to republican hypocrisy.

Ammosexuals and the Second Amendment

“[Republicans] are willing to suffer the ongoing national tragedies of mass shootings, they’re willing to ignore the epidemics of suicides and violence against women, they’re willing to sacrifice the lives of schoolchildren, all so that they might feel a little less afraid when something goes bump in the night. We live in the most violent industrialized nation on earth because too many dudes can’t admit they still need a night-light.”

Elie contends that the current conservative interpretation of the second amendment was birthed in the 1970s by the National Rifle Association at the behest of gun manufacturers. Before then (e.g. The 1960’s) gun control was actually a plank in the republican platform. In fact, the “Mulford Act” (1967), one of California’s toughest gun control laws at the time, was signed into law by then governor Ronald Reagan. Yep. Ronald. Freakin’. Reagan.

You see, in the 1960’s, when Black people started carrying guns (i.e. The Black Panther Party and Copwatching), republicans read the second amendment as:

“a WELL REGULATED militia…”

Then, in the 1970’s when the NRA became the mouthpiece for corporations and funneled millions of dollars into GOP campaign coffers, the Orwellian newspeak became:

“A mumble mumble mumble MILITIA…”

See how that works?

Stop & Frisk

“Despite what you may have heard on Fox News, being Black is not a constitutionally valid reason to suspect a person of a crime.”

This Is Me (reluctantly) Moving On…

As much as I enjoyed this book, at some point (e.g. now) I need to shut the hell up and pick up that next read. I’ve already rambled on for over six hundred words and I haven’t yet commented on police unions or Hobby Lobby or gerrymandering or jury trials or water boarding or mass incarceration or the Fifteenth Amendment or Loving v. Virginia, etc. etc. etc. Read this and then we’ll talk.

[Raymond · Rating 4 out of 5]

From the very beginning of this book, Elie Mystal comes out of the gate swinging by saying that the Constitution is not good and is trash, specifically because it has not always applied to everyone living in America (i.e. Black and Brown people). This book is his take on how the Constitution and its interpretation by the Supreme Court looks to him as Black man who also happens to be a lawyer by training.

Be prepared, Mystal is unapologetic about his opinions. He tells you straight up that he is not a fan of originalist/conservative interpretations of various constitutional amendments by the Supreme Court. Mystal does have a way with breaking down Supreme Court cases so that they are understandable to the average reader. His trial by jury chapter was very informative. In it he explains how the 14th Amendment has been used to remove outright bans of Blacks from serving on juries, but reveals that juries are still mostly white. Lawyers get away with it by using preemptory challenges and justify those challenges by using race "neutral" arguments. He argues that the 6th Amendment which guarantees a trial by an impartial jury should be used to guarantee racial equity on juries.

Another part of this book that was fascinating was Mystal's examination of the writers and interpreters of the 14th Amendment. He reveals that alot of those writers held racist views even as they wrote and interpreted an amendment that would guarantee "equal protection" under the laws. Obviously this should not be surprising, you know, because of "history" but this may be the first time that some readers see the racist part of Justice Harlan's dissent in Plessy v. Ferguson and not just the antiracist part.

Mystal is also critical of liberals who in his mind do not counteract conservatives judicial playbook.

The remainder of his book covers abortion rights (presents a creative use of how abortion bans run counter to the 13th Amendment), voting rights, gerrymandering, and the 9th/10th Amendments.

Finally Mystal, argues for Supreme Court reform, by instituting term limits and adding more justices to the bench, all with the intention of the Court becoming more mainstream than it is now.

If you are looking for an interesting, serious and sarcastic take on the Constitution look no further than Mystal's Allow Me to Retort.

Thanks to The New Press and Elie Mystal for a free ARC copy in exchange for an honest review.

[David Wineberg · Rating 4 out of 5]

“Conservatives don’t take constitutional amendments as a denouncement of their racism; they take them as challenge to become more creative in their bigotry.” –Elie Mystal

Trying to walk a mile in someone else’s shoes is about the best description of Elie Mystal’s Allow Me to Retort. In it, he examines all the amendments of the Bill of Rights, and shows with unprecedented clarity and power, exactly how they affirm and support white supremacy. He does it with history, with analysis, with humor and with sarcasm. And a lot of four letter words. Basically, the fix is in and Blacks are the losers. By law. This is how America works, if you’re Black.

The founding documents were of course written by wealthy white slaveowners, with a view to maintaining their own status and keeping democracy in check. Mystal sees this reflected in seemingly every clause. Worse (and the object of most of his attacks), conservatives focus on the clauses that hurt Blacks and ignore the clauses that would promote fairness. Between the ulterior motives of the documents and the overt supremacy of conservatives, there’s plenty to expose and complain about. And Mystal has made a career of it.

Mystal is a non-practicing lawyer, so he reads court decisions with a different, and often more cynical eye. And it doesn’t take much to match up the events of the day with laws that entrap, the laws that get abused, and the laws that get ignored. He spends a lot of time pleading for consideration of the 14th amendment (along with the ninth and the nineteenth), which all by themselves could level the playing field, he says. But Supreme Court decisions routinely ignore them, as the Federalist Society plants more and more of its conservative lawyers on the bench in lifetime appointments, specifically to interpret the constitution the way white supremacists want. You would think the Constitution is in no way an à la carte menu, where you get to pick which amendments are activated and which get bypassed. But that’s what Mystal sees in America.

This also puts conservatives in a bind of self-contradictions: “If you don’t agree with me – if you don’t think that the Fourteenth Amendment provided for the full political, civil and social equality of women – then how in hell are you against the ERA? How can you possibly think that women don’t already have equal rights because of your limited originalist interpretation of the Constitution, but also don’t think the Constitution should be changed to right this clear wrong that you interpretation has created? Unless, at core, you don’t think women should have equal rights at all.”

He takes no guff from anyone: “What kind of white nonsense system leaves cops free to racially discriminate if a ‘reasonable’ cop didn’t know their particular method of discrimination was unconstitutional?” This is the kind contradiction that centuries of abusive decisions have tortured the constitution into its present disgrace. It’s not the constitution’s fault. Mystal still believes in it totally. But what the courts have done to it is criminal in itself. And this comes out again and again as he goes through the amendments, what they intended, how they were first analyzed and how the courts have changed their meaning, sometimes into something completely unrecognizable, or not even considered at all.

As for policing, he wants cops to stop frisking Blacks, and stop badgering them to confess to crimes they did not commit (as they do all too often, to be exonerated 40 years later if they’re lucky). In talking about Miranda Rights and cops pressuring suspects to confess or at least self-incriminate anyway, Mystal says: “If the Fifth Amendment recognizes the right against self-incrimination, then we should stop asking people to incriminate themselves. Why is that hard to understand?” Or: “My issue is with white people who refuse to keep their goddamn cops on a leash. There are no good cops or bad cops. There are just s----y white people.”

But there’s more to it that he doesn’t acknowledge. For example, police might be much more human if the forces didn’t seek to hire highly trained ex-military, who miss killing people at will. That the federal government has been busy militarizing local police forces with old materiel. That 20% of police are addicted to steroids in an unending race to be the beefiest on the force. This is behind a lot of the gratuitous police violence we now see daily. So it’s just not as simple as Mystal makes it.

Similarly, the whole Constitution suffers from being the law of the land. The next time, Americans should enshrine principles, not laws. For one thing, this will prevent the whole idiotic and hypocritical originalist argument from ever tainting the law again. It would also allow laws based on the constitution to be updated as needed (instead of the essentially impossible constitutional amendments process), so the business of state militias and the right to bear arms would find their proper place in the scheme of things. But again, for what we have today, Mystal is as direct, clearheaded and piercing as anyone can be or has been.

He says he believes the amendments “could redeem this whole bigoted and misogynist enterprise. But white people won’t let them. It really is that simple. I say the Fifteenth Amendment must mean that the votes of Black people cannot be suppressed by Voter ID laws, and white people tell me no.
“I say that Black political power cannot be gerrymandered away by racist white legislatures, and white people tell me no.
“I say that the Fourteenth Amendment’s grant of equal protection of laws must protect me from racial harassment by the cops, and entitles me to equal pay for my talents, and promises me that my peaceful protest will be treated with the same permissiveness that cops accord to a mob of white insurrectionists storming the nation’s Capitol, and white people tell me no, no, no.
“These amendments are a tonic white people refuse to drink. They can cure the Constitution of its addiction to white male supremacy, if white people would just take the medicine.”

It affects the day to day lives of Blacks far more than it does whites, often making life impossible, which is presumably the warped intent: “As a Black man in this country, I am prey, and the cops are my predators. My country and the courts have authorized these people to hunt me. My country and the courts refuse to place restraints on them to make them less likely to murder me. My country and the courts have left me in a Hobbesian state of nature, but in this jungle the police are far more powerful and terrifying than I will ever be. Like a gazelle running from a lion, once the hunter catches up with me I’ve functionally already lost my battle for survival and existence is at their mercy. There is no point in kicking at them, because kicking them only pisses them off.” This is a tiny part of The Rules that every Black child must learn in order to survive out in the open. It’s no way to live.

The chapters of Allow me to Retort are life lessons, fully developed right in their titles:
-Canceling Trash people is not a constitutional crisis
-Bigotry is illegal even if you’ve been ordered to by Jesus
-It’s not unusual to be cruel
-Reverse racism is not a thing
-You know this thing can be amended, right?
-The right to vote shall be abridged all the damn time

It’s a straight to the point, non-legalese portrait of the weaknesses the founding documents provide as I have ever read, and that is far more than my rightful share. And it packs the added punch of slamming the feckless arguments of conservatives at every turn, from the hypocrisy of Supreme Court justices to the cop on the beat.

On equality before the law: “Of course, states did pass laws discriminating against Black folks, because if there’s one thing about racists, it’s that they’re never satisfied with being ahead. They need total subjugation of Black people to make them feel good about themselves.”

On cruel and unusual punishment: “Determining that since slavers used to shove fireworks up the backsides of misbehaving slaves and light them, that such a punishment is neither cruel nor unusual. But, this is what passes for intellectualism in the modern conservative movement.”

On liberals missing the forest for the trees: “It’s a classic liberal mistake: conservatives used a tool for evil, so instead of using that same tool for good, let’s never use tools. Sometimes, I swear, it can seem like liberals spend all their time inventing ways to get their asses kicked.” (Mystal’s italics)

But his fattest target remains conservatives:
-“I know too well what courts can do to a freaking amendment they don’t like. I am too aware that an amendment that the president refuses to enforce, or one that Congress refuses to flesh out with legislation, is not a solution – it’s merely a suggestion. Amendments are just as useless in the face of dedicated white supremacy as anything else.”

-“When the Supreme Court is controlled by conservatives, even a constitutional amendment cannot stop it from denying equal rights and social justice to all. Nothing decent can overcome a conservative court. That’s something that modern liberals and progressives should always remember.”

-Conservatives “do not allow a free and fair election on their actual platform. They use the judiciary, the least transparent and least responsive branch of government, to push through their antebellum values, and rely on ignorance to mask their true agenda.”

That’s what America looks like if you’re Black.

If there’s anything to complain about in Allow me to Retort, it is Elie Mystal’s choice of words. He is a potty mouth. His language is, shall we say, presidential. Why he would lower himself to the level of Donald Trump in a highly thought through analysis of constitutional issues is puzzling. He would do much more damage avoiding the race to the bottom. I could have offered readers many more cut-to-the-point quips, but they are so laced with four-letter words as to be irredeemable.

I know where it comes from; he inherited this from his father, a county level civil servant whose career seems to have been dedicated to preventing gerrymandering, and where he was the only Black man of any power and position at all. He needed to speak up and out, forcefully and shockingly. This is honest, but no excuse. Mystal has the credentials and the credibility. He has chosen to be a mass media pundit rather than a constitutional lawyer because it suits him and his cause. He would be even more effective if he could restrict himself to intellectual arguments and tone down the colorful but unhelpful four letter words on nearly every page. Yes, the book is hugely entertaining. But yes, I think it would have more impact without all the references to bodily functions amidst constitutional ethics.

So where is Mystal going with all this? For his two boys, “I’ll keep trying. I’ll keep trying to get them to think about rules substantively instead of procedurally. I’ll keep trying to make them into the kinds of people who are outraged by unfairness, instead of desensitized to the suffering of others. I’ll do whatever I can think of to make sure they grow up to be anything other than like Clarence Thomas.”

David Wineberg


If you liked this review, I invite you to read my book The Straight Dope. It’s an essay collection based on my first thousand reviews and what I learned, including chapters on the Constitution and racism. Right now it’s FREE for Prime members, otherwise — cheap! Reputed to be fascinating and a superfast read. https://www.amazon.com/Straight-Dope-...

[Tim · Rating 5 out of 5]

Must #audiobook this for the full impact.

At the very least, read the epilogue.

More excellent, interesting and dare I say, exciting than expected and being a long time follower of Mystal as a blogger, my expectations were high. It was through Mystal that I probably had my first “a-ha” moment as a white person on how different the black experience is from the white experience in this country. And then started really listening to the reasons why the Black American experience, even today, is different than what I, being white, experience.

Mystal is an excellent educator of constitutional law which is what makes this book so readable for a layperson such as myself. He goes into the weeds of legal theory only where necessary to shed light on how laws written into the constitution and bill of rights are applied in practice, but even those excursions into the briar patch were not too intellectually intimidating with the map Mystal lays out. He doesn't pontificate which frankly is surprising for a lawyer (sorry, not sorry to my lawyer friends.)

He gives readers a lot to think about, too much for me to recap here. One thought bubble that's stayed with me - if you are white and you were on trial in front of a jury of your peers and all the jurors were black, how would you feel? Let's say it's a criminal trial where you were wrongly accused of financial crimes? Would you feel confident of getting a fair trial by an all black jury? Why or why not? Would having one white person on the jury help? Yet that is similar to what nearly every black person in America will face whether they are in court on a criminal matter or civil. Just something to think about as one thinks about what comprises fairness, impartiality, and equality - ideals that we Americans are striving for.

I reluctantly consider myself a traditionalist, and sadly, a conformist. It's just my nature - I was never part of the artsy crowd, the rule-breakers, the anti-authoritarian rabble rousers. But that position has not always served my country well, this country of America whose ideal I believe in so strongly and so deeply. Sometimes a more forceful, definitive move in a new direction and not a small course correction is what would most benefit the people of this country.

Listening to the epilogue where Mystal breaks down the argument for increasing the number of seats on the Supreme Court is the forceful, definitive move we the people need and should demand of our representatives. It's not such a non-traditional, radical idea after all. The number of justices has changed before in American history and there's current precedent (in the 9th circuit) that shows how a large number of active judgeships can work and work well. Yes, from a political perspective there are risks (for both Republicans and Democrats) but to my mind those are outweighed by the potential benefits (for both Republicans and Democrats).

All in all, Allow Me to Retort is a stimulating book that I highly recommend you read (or better yet listen to) whomever you are.

[Wick Welker · Rating 5 out of 5]

The US Constitution is not sacred.

This book written by a Black American lawyer is a must read. Mystal is absolutely ruthless as he not only shreds the constitution but any originalist argument that flows from it. His main thesis is that the constitution is fundamentally flawed from its inception and was written by straight up aristocratic, slaver white supremecists. Of course, this is irrefutable because it is 100% accurate. You often get the clap back argument “yeah well it was inspired for its time ect.” and Mystal’s answer is: I don’t care it’s still a trash racist document that subjugates Black people from its inception and up to today. Again, you can’t really argue this. The US Constitution, while revolutionary for its time, is an incredibly flawed document that was clearly written with the intent of maintaining white powerful men in their seats of power. And when you consider white supremacy as its intent, the constitution has really been quite successful.

Let’s be clear: this book is a polemic against conservative originalists. Mystal HATES conservatives and with good reason: almost everything conservative politicians have done since reconstruction is to stop Black people from having voting rights, be free from police brutality and be able to go into a store that white people can go into. But as a polemic, it’s extremely well argued by someone who clearly knows what he’s talking about. This is a very good book to read to learn all the ammunition needed to counteract original constitutionalists who are very much active and in control. The thing about originalists' arguments is it’s fundamentally indefensible. Originalism is not only morally indefensible and also intellectually as Mystal tears apart every cherry picked originalist argument. One thing Mystal makes clear: there is no intellectual or moral high road from which conservative originalists speak. They understand all the bugs in the constitution and amendments and they constantly contort the law to maintain a de facto apartheid state, police brutality, forced birth, voting restriction, electoral college, the Senate, the filibuster and a host of other things.

This book is basically awesome if you’re someone who already thinks the way the author does. He’s unapologetic, fierce and incredibly intelligent. Also, as far as I can tell, he’s totally right. Did I mention he’s hilarious? I would read this right away.

[Becky · Rating 5 out of 5]

I'm currently NINE BOOKS DEEP on my currently reading shelf because I have this stupid need to review them before I can mark them read. But it's getting to be a bit much these days and I just don't have the time to do it. So I might start rating and not reviewing, or just writing a short something. I'm not sure, but it's getting to be anxiety-inducing thinking about having to go back and review all of these books. Sigh. So here we go. A quickie to get it off the shelf.

I borrowed this from the library way back in July and promptly sucked at reading it. I managed to make it almost halfway before my loan expired. It wasn't the book though, it was me. I just have not been READING books lately. If they aren't on audio, and can't be listened to while I'm doing 50 other things, they just get pushed to the back burner.

Once I got this on Audible though, it was smooth sailing. I started over, and enjoyed listening to Mystal's perspective on the Constitution, and on "Originalist" interpretation of it. Which basically amounts to "Slave-holding white guys make a country-guiding document with only land-owning white guys in mind as the beneficiaries and participants, and then 200+ years later other racist white guys interpret modern laws by that lens."

He's far more of an expert than I am, obviously, but I agree with his take.

[Sahitya · Rating 4 out of 5]

I’ve only been following the author’s interviews and social media for a couple of years now but he has always impressed me with his wit as well as knowledge. So when I saw this book on netgalley, I had to get the advance copy immediately. And I’m so glad I did.

As an outsider who has only lived in America for about a decade, anything I know about it’s constitution, politics or law is recently learnt, mostly through books or TV. But I have to say, I’ve never read anything law related that is so accessible to common public like this book before. Elie uses his usual humor and candidness to elaborate not just how each of the amendments in the constitution should be interpreted and what their original intents might have been, he also elucidates the various ways in which conservatives and white supremacists and racists have misinterpreted and misused the same amendments and laws to get what they want, discriminate who they want to without fear, cement racism and police brutality against Black people as the norm of the land, and continue to dilute the effectiveness of any constructive law left right now with the help of their conservative majority on the Supreme Court. He is absolutely right when he says that any law even when passed in good faith can and will be misused because a significant population of the country have been made to believe that they can only survive if they can discriminate against all marginalized groups with impunity and enforce their fake morality on everybody.

The book does present a bleak picture. Despite whatever progress has been made over the decades, its seems obvious these days that things are not going in the right direction anymore. And that helplessness and anger does reflect in the author’s writing. He doesn’t mince his words when he questions even the moral standing of a constitution written by a “collection of slavers and colonizers”. And he understands that they were great men of their times, but it doesn’t mean that we cling to an eighteenth century racist, sexist and bigoted originalist reading of the document. He clearly believes that an honest interpretation of the constitution and its rightful enforcement can still bring about a progressive change to the country, but whether that is a possibility or a pipe dream is something we all have to wait to see.

In the meantime, if you know someone who uses some magical words from the constitution to justify their bigoted and discriminatory beliefs, do use the points made in this book to question them right back and challenge their worldview.

[Anissa · Rating 4 out of 5]

Took a fiction break and this is one of the books I read. I don't really do reviews on my non-fiction reads or even list them on Goodreads but it's 2022 so I'm throwing in a few.

I follow Mystal on Twitter partly for the timely hot takes and also the snippets of parent life. Also, my husband who was the one who let me know this book was out and said, "I don't always agree with him but I never find my time wasted listening to him lay out his arguments. He's also got great delivery." I very much enjoyed this. It's always good to learn a new thing or three and be entertained at the same time. A very strong perspective and I'm very glad I read it.

[Gyalten Lekden · Rating 4 out of 5]

This, this is great. Mystal very clearly knows what he is talking about, he makes persuasive arguments, and he does it all while being accessible and funny. It is hard to write about not just systemic racism and violence but the systemic racism and violence that has been the cornerstone for the American project and to still manage levity and hope, but he manages it.

What I really appreciate is the honesty. This book tackles the US Constitution, but more specifically the Bill of Rights, the first ten amendments that were written and codified at the same time as the Constitution. It is so easy for anything in the legal realm to be filled with convoluted language and to feel despairingly obtuse, but Mystal shows that it doesn’t have to be that way at all. He goes into esoteric detail when needed, and explains the vagaries and specificities of legal jargon as needed, as well, but he never leaves the reader feeling like the meaning (or the law) is some vaulted elite chamber they have no right to occupy. He is explicitly clear about his political leanings and positioning but also gives (grudging) acknowledgment when conservatives judges make decisions that he agrees with. He is never hiding his partisanship, but he isn’t demonizing the other side or ignoring the faults of his own side for the sake of convenience. It is clear he cares about equality, and more importantly about the people that deserve that equality.

While the overarching thesis of this book is “the Constitution is trash and it would be great if we could burn it down and start over, this time with a diverse group made up of people other than white, misogynist slaveholders,” it is clear that Mystal cares about this country. He cares about the as yet unrealized potential of this country to actually care about its citizenry, to live up to the lofty promises and stories it tells about itself. This earnestness is what makes his arguments all the more powerful, and it carries the book. It is definitely worth reading for anyone interested not only in Constitutional Law but anyone who wants a better understanding of the Bill of Rights, why is was written in the first place, and the many ways it has been interpreted, ignored, and twisted to serve the white ruling elites instead of serving the country as a whole.

As an added note, I listened to the audiobook production of this book, and it is performed by Elie Mystal, and it is just really fun to listen to him. His performance is infused with righteous indignation and humor and frustration, theatrical and yet dignified. It definitely elevated the experience.

[ancientreader · Rating 5 out of 5]

Don't be afraid of this book if you're not a lawyer. On the other hand, if you are a lawyer, you're still likely to look back on your Con Law class(es) and think, "Why the hell couldn't we have had Elie Mystal teaching us?"

On the third hand, if you're a Rethuglican or any other flavor of white supremacist, go gnash your teeth in outer darkness.

Allow Me to Retort is a lot of things: A lay person's guide to Constitutional history. A manual for smacking down conservative and originalist interpretations of the Constitution. A bitterly hilarious disquisition on how not just the Three Fifths Clause but the whole damn document is permeated with the criminal ideology of slavers.

I want to stress that phrase "bitterly hilarious," because Mystal had me horror-laughing through much of his analysis. For me personally, in the aftermath of the Supreme Court's decision in Dobbs v. Jackson Women's Health Organization, the enraged, impeccable logic of his chapter on abortion rights is is especially painful.

Mystal begins by remarking that no right to abortion appears in the Constitution. Then, after describing the social and political condition of white women and white girl-children at the time the Constitution was written -- hint: they had no rights to speak of -- he points out that those women were the ones the framers liked. He goes on to detail the conditions to which enslaved women and their children were subjected. Then, of Constitutional "originalists" like Samuel Alito and Antonin Scalia, who hang their hats on the framers' intentions,* he says this:

"So, tell me again why I should care which rights these vicious assholes happened to think women had. Tell me again why the failure of these fucking rapists and/or rape apologists to recognize any explicit right to bodily autonomy should matter one bit to the polity in which we now all live. Don't you dare say 'the rights of the unborn' to me. Don't you dare fix your lying mouth to tell me that these people who condemned their own progeny to bondage and torment ... gave one damn about the health and safety of 'the unborn.'"

Yowza.

There's more. There's a lot more. But what I want to get across in this review, more than anything, is how readable Allow Me to Retort is. I could hardly put it down, no kidding. If you're even the slightest bit interested in how the radically right-wing Supreme Court -- and federal judiciary in general -- is going about dismantling whatever gains people of color, women, and queers have managed to make, whenever we manage to make them, this book is an essential guide.

Actually, I recommend checking the book out even if you think you're not interested. I swear all the horror-laughing made me smarter.



*To the extent these are knowable -- but that's another kettle of fish.

[Tonya Johnson · Rating 5 out of 5]

I listened to ALLOW ME TO RETORT on Audible. I enjoyed Elie Mystal as he explains the constitution in a witty and understandable way.

[Bonnie G. · Rating 5 out of 5]

(Originally reviewed in 2/2023)
I have been an Elie Mystal fangirl since he started writing for Above the Law back in 2008 or 2009 -- it was during the recession and I was an attorney recruiter watching the last vestiges of respect for non-monetizable excellence in private legal practice crumble. When I started practicing law in 1989 it was not unusual for partners to say things like "law is not just a business, it is a calling." in 2008 people stopped saying that. At the request of several client firms I started doing outplacement work for laid off lawyers (there had never been lawyer layoffs before) and every day I was an agent structuring and perpetuating the stealth layoff. It was a difficult time for me (and much more difficult for the people fired, obviously) and Elie Mystal stepped up with the keenest of minds, the finest of educations, a sense of humor sharper than a Ginsu knife, and an honest sense of decency in an indecent world. Every day Elie kept me sane. (The way he dealt with racist ATL commenters alone was grounds for reverence.) Many years later when I moved back to New York I was at a professional event hosted by Breaking Media, and he was there and when I met him I was so excited I almost started crying. (In later encounters I did much better, and I have always hoped he did not remember that first meeting.) A couple years after we first met Elie left to be a legal commentator for The Nation. I stopped running into him at events and I followed his work at the Nation only sporadically. Though he was no longer a regular part of my intake, I followed him more than most pundits and continued to think him one of the smartest legal journalists working. So I went into this book with high expectations, and Elie did not disappoint.

Allow me to Retort is an amendment-by-amendment takedown of the Constitution, both as written and as interpreted, and a frontal attack on the "intent of the framers" crowd. As Mystal points out the document was drafted by slaveholding misogynists who intended to keep down everyone not a landholding straight man of European descent. If you interpret the document based on the intent of the framers, women, the LGBT+ community, and people of color remain powerless, because that was the framers' intent. Mystal's legal and Constitutional knowledge is prodigious, and so he is able to show how the courts have consistently applied the law not in the right way, but in the way that most effectively keeps power in the hands of white men, and he provides solutions for how to patch the problems until we can just get rid of the Constitution. This was smart and challenging and a real pleasure both to argue with and to incorporate into my own thinking. I disagree with a number of Elie's points, and unlike him I love the Constitution and many of the amendments. The Constitution is an elegant document, and one written to be able to be applied in new ways as the country modernized. If the framers had wanted specific rules on how things would be done forever and ever we would have a code-based system as do most countries. The advantage of a Constitution is that it is adaptable and so these racist asshole strict constructionists are actually defying the framers' intent every time they choose not to interpret the guidelines in accord with the needs of the country as it is, rather than as it was (that is my opinion, not Elie Mystal's btw.) My point is that Elie and I disagree on elements of Constitutional interpretation, on the worth of the foundational document, and on many points he makes about what he believes would be best for America (his court-packing argument for instance, while moving, also fails to consider the downsides of a bloated court and is, IMO, wrong.) I don't read though to get the perspectives of people whom I agree with. I read to get the perspectives of people smarter, better informed, and more articulate than I. I got that here. I feel better informed, more equipped to argue for certain types of change, and also I came out of this shifting my opinions on a number of things. Go in knowing that this has a point of view, that this tract is written to persuade. It is not even-handed in the least, but it is also not rant -- it is a factually-supported position piece in a time where our doom will come, ironically, from the fact that facts are missing from most political discussion.

One note, I started this in audio and quickly changed to Kindle. Elie is a shouter. I did not like being shouted at by Bernie Sanders or Donald Trump, I do not watch CNN or MNBC in part because I don't like all the shouters, and I don't like being shouted at by Elie Mystal. I greatly preferred the print, but YMMV.

[Jennifer Landry (on Storygraph Exclusively Now!) · Rating 5 out of 5]

This was just great. I have followed Elie for years and I just knew I would love this book. As he says in the beginning, this isn't a book of legalese, this is a book of things you can tell those people in your life who like to throw around the constitution as why they can do a variety of horrible things. Our constitution has been misconstrued and misinterpreted for a very long time. Even worse, it has been waved in the air to rationalize bad behavior. This quote is a great peek at the approach Elie takes to evaluating each piece of the Constitution, especially the amendments:

"The other difference one will notice about this book is that I treat the law as an argument. People are told that the law is an "objective" thing, almost like it's a form of physics. But it's not: the law is a collection of subjective decisions we have made over the years to protect people and activities they like, and to punish people and activities they don't like."

Thank you to Net Galley for an advanced copy in exchange for an honest review.

[Bookish_B · Rating 5 out of 5]

I absolutely loved this book, I started out reading then switched to Audible and so happy I did. Ellie reads the book and it is not to be missed.

[Mackenzie White · Rating 5 out of 5]

Spectacular. I have no words for this book. It is THAT good!

[Sarah-Hope · Rating 4 out of 5]

I found Elie Mystal's Allow Me to Retort a laugh riot of blended outrage and humor. That, of course, means I generally agree with him—about our Constitution's weaknesses and the way in which court rulings on constitutionality are not so much exercises in justice as they are opportunities used to maintain the status quo.

At the beginning, Mystal describes the Constitution as "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" and its content as being "scrawled out over a sweaty summer by people making deals with actual monsters who were trying to protect their rights to rape the humans held in bondage." He points out that "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." The writing is brilliant, the reasoning razor-edged.

I appreciate Allow Me to Retort because it echoes things I already believe, shows me new ways to understand the things I believe, and pushes me to think beyond my beliefs. This isn't a book that will change the thinking of those already settled in a different set of beliefs. But it sure feels good to have an indignation and outrage I share described with such precision. And to be able to laugh along with raging and weeping.

I received a free electronic review copy of this title from the publisher via NetGalley; the opinions are my own.

[Kat · Rating 5 out of 5]

I want to preface my review by stating that this will not be a book for everyone.

However, that being said... I think this is absolutely a book that all of America should read. I think this should be required reading for all high school civics classes. (Oh how I wish that civics classes were still taught!)

I read this book twice and in the second read through, I noted things I did not the first time through. And yes, I am contemplating reading it a third time!

The writing is compelling, frank, and yes, Elie speaks plainly - even bluntly - from his unbelievable well of knowledge.

Elie shares things that I did not know. Things I was never, ever taught in school (and I am old enough that I had a Civics class!) He made me see our constitution in a new light... and I am in agreement with him, that if we just applied the constitution equally for ALL people, life would be better for those who today, find that it means everyone but them.

I highly recommend this book!

I would like to thank Netgalley and The New Press for this ARC.

[Jane · Rating 5 out of 5]

I will be rereading this book. Why? Because it articulates arguments I need to have at the tip of my tongue when people defend legal decisions that clearly ensure not everyone is equally protected under our laws, that assume the Constitution is a perfect document instead of one that needs continuous amending, that creat or perpetuate a caste system. If you think the right people are on our Supreme Court right now, you’ll find this book offensive. If you prefer polite language, you may also be offended. But keep reading through each chapter, seeing if you can really argue with the arguments being made about where interpretation has gone wrong.

Thanks, NetGalley, for an advance copy in exchange for an unbiased review

[David Anderson · Rating 5 out of 5]

I've been following Elie Mystal in the Nation for some time and he's one of my favorite columnists. His Allow Me to Retort is Mystal at his best. His brand of satire is almost Twain-like, except that it's pretty thoroughly laced with obscenities (and who knows, if Twain were with us today, maybe he wouldn't be above dropping an indignant F-bomb or two). Mystal's passionate rage is appropriate as he demonstrates how our constitution is deeply flawed and how conservatives work to hamstring and distort the application of the amendments that were intended to reform it. As enlightening and entertaining read as you are likely to find (assuming you are, at least, liberal, if not left). HIghly recommended; 5/5 stars.

[Crystal Palmisano-Dillard · Rating 4 out of 5]

I am ignorant when it comes to the in and outs of law. This book was an education for me in more ways than one, but it was never dry or dull.

I appreciate the author's candor and personality he injected into the writing.

Overall it's frustrating to see just how much the constitution (or laws in general) can be manipulated so easily.

[SarahJessica · Rating 5 out of 5]

I wish I could write such incisive powerful arguments as Mystal does here. Who the hell writes a book about con law and manages to make it an actual page turner? SO FRICKING GOOD. Must read if we are to reset this experiment we call the U.S. of A.

[Doug · Rating 5 out of 5]

Elie Mystal retorts very well. The book is a blend of legal analysis, plain English, sarcasm, and some salty language. I loved it.

[James · Rating 4 out of 5]

Salty, erudite, astute analysis of the Constitution from my favorite voice on Twitter (with the possible exception of Jason Isbell). While he was promoting Allow Me to Retort on various tv shows and podcasts, Mystal liked to say that the Constitution is trash, which is the sort of bold thesis that I find hard to resist.

I was an American history obsessive when I was a little boy. We drove cross-country in the summer to see relatives in those days and I'm hard-pressed to think of a battlefield or "living history museum" or tomb or mansion to which I failed to drag my indulgent family. A subsequent lifetime of disappointment and lefty politics notwithstanding, I remained, until fairly recently, deeply invested in the civic religion, the sort of simp who would get all misty-eyed with reverence for the Constitution, despite the fact that it enshrines the wishes of men that Mystal is correct to call a bunch of slavers and colonizers. I heard him use the analogy of a cake with a turd on one corner. No matter how good the rest of the cake might be, the "three fifths of all other persons" turd makes it all tainted, all trash. "As a Black person, he writes, "I do not even acknowledge the legitimacy of the original Constitution, much less think our modern rights and responsibilities can be understood only through its lens."

That trash was partially reclaimed, Mystal maintains, by the Thirteenth, Fourteenth, Fifteenth, and Nineteenth amendments, which recast the "violent piece of shit" comprising the original document as "something still flawed yet not utterly unredeemable." Until the "Reconstruction amendments," the protections of the Constitution only extended to a very limited group of property-owning white men.

The conservative project for my entire voting life has been to reimpose those strict limits on the exercise of political will. I've always found conservatives a little mean-spirited and, likely, a little racist. It has only been in the last few years that I've understood how basic those qualities are to right wing values. I grew up in a weird Warren Court bubble and it gave me some very distorted ideas about fundamental American values and the role of the Court and the Constitution and about the arc of history bending toward justice and all that. Allow Me to Retort is an unapologetic polemic, but I think the anger is more than merited. An originalist document without the extension of substantive due process is a turd cake.

[Sandra The Old Woman in a Van · Rating 5 out of 5]

10 stars! I needed this book. I've been so pissed off lately and I found this wonderful and well-informed rant by Elie Mystal to be just what I need. I learned some things, and a few times I laughed out loud (spew your coffee kind of laugh). Yes, it's all serious stuff, but if I don't laugh I'll roll up in a ball and cry myself into a stupor. Thanks for giving me some good talking points Elie Mystal!

I listened to the audiobook version and the narration was fantastic.

[Emilie · Rating 5 out of 5]

The hosts of the podcast "Boom! Lawyered" recommended this book at an event I went to right after the U.S. Supreme Court overturned Roe v. Wade.

Do yourself a favor and read it, too, if you also support giving "gay people and Black people and women-people equal rights" and want to better understand what the hold-up is. (Spoiler alert: It's Republicans.)

Skip it if you're going to be offended by chapter titles like, "Bigotry Is Illegal Even If You've Been Ordered to by Jesus."

[Mindy McGrath · Rating 5 out of 5]

If only every legislator and every voter would read this and take it to heart. Mystal is not only an incredibly astute legal mind. He also just “gets it” while simultaneously being hysterically funny and never pulling a punch. If you care about equality, about dismantling white supremacy and the patriarchy, then read this book. And then go out and hold your legislators accountable to its ideals.

[Megan Stroup Tristao]

If you want a guide to the constitution that will make you simultaneously laugh out loud and want to punch a window, this is your guide. The audiobook narrated by the author is the way to go, IMHO! I knew I had to listen to this after hearing Elie interviewed on Strict Scrutiny.

[Erikka · Rating 5 out of 5]

An educated and clear takedown of our Supreme Court and how it does not reflect the needs of our current society. Not only does he offer concise repudiations of laws and amendments that are outdated and racist, but he offers reasonable and well laid out solutions for said problems. One thing I’ve noticed that I hate about non-fiction books complaining about our society is how often people write them just to complain. If you’re going to complain, at least suggest something to ameliorate the problem. Even if it’s just your opinion. Suggest something. I was especially impressed with his abortion chapter and his suggestions at the end about how to get rid of judicial review and increase the court.

I would love to see our Constitution overhauled from the ancient crumbling creation of colonizing slaveowners. The amendment process is great, but most countries rehash their constitutions occasionally. We’re tied to the thing like it’s a raft in the ocean. It’s OK to redo your constitution and make it reflect a more diverse society that doesn’t own people or think that women Are second class. It’s ok to revamp an aging system that doesn’t suit the needs of 300 million people as well as it did a few hundred thousand.

[Joshua Glasgow · Rating 5 out of 5]

Author William Cooper added me as a friend on Goodreads some time ago and then offered me a free copy of his short primer on the U.S. Constitution, HOW AMERICA WORKS… AND WHY IT DOESN’T, to boost the number of ratings/reviews for the book on Goodreads. I found the book hugely disingenuous in its quest to equate the “bad” acts of Democrats with the evil acts of Republicans and its hagiographic treatment of the U.S. Constitution itself was hard to stomach. Despite acknowledging some of the Constitution’s flaws, Cooper gives it, and the United States, limitless benefit of the doubt and even goes so far as to announce that slavery and racism “does not permeate and define every dimension of America and its history” and insists that “nations should not be categorically defined by their worst acts”. After reading Elie Mystal’s ALLOW ME TO RETORT: A BLACK GUY’S GUIDE TO THE CONSTITUTION, it seems to me more than ever that Cooper’s book could rightly be subtitled A WHITE GUY’S GUIDE TO THE CONSTITUTION. Mystal’s book feels like a direct repudiation of everything Cooper’s book stood for. Mystal’s writing is powerful, direct, and tells a truthful story about American government rather than submitting to the myth of a “perfect” union.

There are three overall theses Mystal makes over and over throughout this book. First: “The Constitution is not gospel, it is 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 wealthy white slavers and colonizers and “at no point have people of color or women been given a real say in how it was written, interpreted, or amended.” In short, he proceeds from the position that the Founders’ opinions should mean jack shit to us today. The fact that this country’s Founders enabled, engaged in, and defended chattel slavery, contrary to Cooper’s version of history, DOES disqualify them from having any say in how the country is governed today. The Constitution 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?”

To that end, Mystal’s second point is: the Constitution is a living document and should be interpreted according to modern needs. Well, ideally it should be thrown out and rewritten from scratch. Because the slave states put in a host of antidemocratic loopholes—like the very existence of the Senate, as one example, and the “three-fifths” clause, which was an attempt to

”inflate their own numbers by counting slaves who— by their own evil logic— had no right to representation. But they couldn’t just say that slaves should be counted as full people, because then why are they holding people in bondage? So they counted slaves as three-fifths of a person to give their captors more congressional representation. A document that flawed, animated by such evil . . . should have been thrown out with the bathwater. That’s what they did in South Africa. In South Africa, they didn’t just track changes and strike through the old apartheid constitution. You can’t make Freddy Krueger friendly by giving him a new hat. Instead, they wrote an entirely new document, in a constitutional convention that represented all of the people, and they took two years to do it. Adopted in 1996, the South African Constitution now stands as a model for the world, while we have a ‘constitutional crisis’ every time a Republican president figures out a new way to commit crimes.”

Failing a complete rewrite, however, we can at least reject the right-wing’s pet theory of constitutional interpretation, “originalism”, which is merely a justification for a predetermined political outcome of hobbling or rescinding rights. Highlighting Samuel Alito’s majority opinion in Dobbs, the case in which the sham Supreme Court gutted abortion rights, Mystal notes that Alito justified the ruling partly on the basis that abortion was not written in the Constitution and was not known as a right until the late 20th century. No shit, Mystal says: “Does anybody really wonder why the white men who wrote the Constitution and claimed exclusive authority to amend and interpret it for nearly two hundred years didn’t include provisions relating to the bodily autonomy of people who didn’t happen to be white men?” Women—especially non-white women—didn’t functionally HAVE the right to vote until the mid-20th century. Alito is therefore fully aware of why abortion wasn’t addressed in American law until women gained political power; he “knows that treating women and pregnant people as fully human people who don’t lose their status as autonomous beings from the moment of conception is a relatively ‘new’ concept in this country, which is why he grounds his opinion in the past.” Alito and so-called conservatives like him insist on originalism “because it provides a subjective answer to all of life’s legal questions that favors the needs of the white male patriarchy (and those with access to that ruling class) over the needs of everybody else”. He and other purported originalists “never want people to ask why the old white dead enslavers they worship believed what they believed. They don’t use the original public meaning as the starting point for an inquiry, they use it as an end point to dispense with all further discussion.”

And that leads to Mystal’s third and probably most crucial point: “Conservatives are irredeemable assholes who consistently act in bad faith to uphold white supremacy and patriarchy over the objection of most minorities, women, and decent people.” Most legal analysis fails to acknowledge the “dystopian, apartheid state” they are trying to remake, wrongfully assuming that both sides are operating in good faith, when in fact conservatives are in it for the bigotry itself, not for ‘private freedoms’. They believe that some people just don’t deserve rights and are terrified we might one day have a society that’s fundamentally fair. Conservatives consistently 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 use the very same legal arguments that have been used to justify slavery, segregation, and oppression for four hundred years on this continent and tell you it’s the only ‘objective’ way of interpreting the law.” Mystal runs through most of the Constitution’s amendments to show how right-wingers have managed to twist or dismiss every protection supposedly afforded by the document, primarily through stealing control of the Supreme Court and turning the Constitution into little more than “a mocking illustration that the white people running this place know the right thing to do but simply refuse” to do it.

Take the 1st Amendment as a start. Its free speech clause relates to government attempts to silence or punish views the ruling party doesn’t like by use of armed agents of the state threatening or jailing those who protest its actions. “In short, the First Amendment cares about the things Republicans do when they control the government.” Conservatives have been pointedly silent in the face of law enforcement using tear gas, rubber bullets, and other forms of police brutality to clear streets of peaceful protestors in response to high-profile extrajudicial killings by police—or more often, they cheer the militarized response. They were silent when then-AG Jeff Sessions tried to prosecute Desiree Fairooz, who laughed during his confirmation hearing, or when Juli Brinkman lost her job after flipping off Donald Trump’s motorcade. The same people who “squeal the loudest every time Nike pulls a shoe contract from an athlete who gets caught on a hot mic using a homophobic slur” have no reaction to this except possibly glee. Even more than the free speech clause, though, is the way the establishment clause has been weaponized by conservatives with the help of the euphemistically named Religious Freedom Restoration Act (RFRA). One of the major cases tried under this theory of the establishment clause is Masterpiece Cakeshop, in which the fake SCOTUS Justices ruled in favor of a baker who refused to bake a cake for a gay couple. “The so-called religious objection to same-sex marriage is always taken at face value, and it shouldn’t be,” Mystal writes. The couple “were not asking Phillips to get married to a man. They weren’t attempting to pay Phillips in sexual favors. They did not want Phillips to put himself inside the cake and jump out and scream ‘I love gay people’ at an opportune moment. They simply wanted Phillips to accept payment for services he started an entire business to render. Phillips’s claim that his religious freedom would be compromised by being forced to engage in his own business is ludicrous on its face. Refusing to do your job because the person paying you to do it has different beliefs than you is not a religious objection, it’s plain and simply bigotry.” Yet the Court ruled in favor of Phillips, 7-2. Mystal notes that the stronger constitutional argument in Phillips’ favor would have been a free speech argument rather than a religious freedom argument—i.e. that his cakes amounted to a form of speech that could not be compelled. But free speech doesn’t help Kim Davis, who refused to issue marriage licenses to gay couples, or to Hobby Lobby when it refused to cover birth control as part of its healthcare plan. “These people are not trying to claim protection under the law; they’re trying to change the laws so that they can discriminate against the LGBTQ community.”

How about the 2nd Amendment? Ask a Republican why the Constitution protects gun rights and eventually they’ll say it’s for self-defense, even though this is an entirely new justification created by the gun lobby and never spoken of in law until 2008. The alleged ‘textualists’ and ‘originalists’ completely ignore the phrase “well-regulated militia”, substituting it with their invented “self-defense” purpose. Mystal provides actual historical context: the 2nd Amendment exists because Patrick Henry and George Mason wanted to guard against slave revolts. Slavers worried the Constitution put the power to raise militias with the federal government, and Northerners could choose not to help the South in the event of widespread revolt. In his majority opinion in Heller, Scalia intentionally obscures this history because “[i]f Scalia told the truth about the original purpose of the Second Amendment, people might realize that the Second Amendment is illegitimate, or that looking to the original intentions of the people who wanted it is monstrous, or both.” Mystal notes that gun rights have never been about self-defense, as illustrated by the NRA’s complete silence every time a Black ‘law-abiding gun owner’ is executed in the streets by police. “People think that the continued mass murder of innocent civilians will, one day, shake Republicans loose from the thrall of the NRA. That will not happen. Republicans will not make the killing stop, because they still think that near-unfettered access to guns is the only thing keeping them safe from Black people . . . Until you can convince Republicans that shooting Black people is not okay, we will get nowhere.”

Incidentally, on the subject of extrajudicial police killings of Black Americans, Mystal points out that the 4th Amendment doesn’t guarantee “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures… unless the state employs hysterical racists and cowards who are afraid of Black people, in which case failure to immediately comply with their unconstitutional orders is a capital offense.” He therefore favors an objective standard when it comes to police violence: their actions should be reasonable with 20/20 hindsight. “They should look reasonable on a camera phone. They should appear reasonable to a crowd gathering around asking what the cops are doing. If the cop believes a person has a weapon, that person better damn sure objectively have a weapon. ‘Oops’ is not a good enough answer from agents of the state who shoot Black people armed with cell phones.” Bringing an end to the epidemic of police violence requires nothing more than no longer letting them substitute their judgment for our constitutional protections. The 4th Amendment is already sufficient to stop the violence: “Make stopping people because they’re Black an ‘unreasonable search’. Make shooting people because they’re Black an ‘unreasonable seizure’. Make ‘shall not be violated’ include actually prosecuting cops and holding them personally accountable when they violate these principles. The way to fix the police was written into our Constitution before there were even police in need of fixing.” Of course, Mystal has no illusions about whether these changes will be enacted. The fact is that too many white people WANT the police to act this way. “So while police brutality and violence only gets talked about as a ‘Black’ issue, make no mistake: it’s a problem entirely created by and for the benefit of white people.”

Next: the 5th Amendment. Straight to the point—confessions should be unconstitutional. The text is clear. “If anything, you have to get willfully obtuse to arrive at the opposite conclusion: that a confession can be somehow sanitized to the point where it is not ‘compelled’ by the government, but given freely and voluntarily by well-meaning criminals who don’t want to put the state through the trouble of finding them guilty.” If we believe a person should not be compelled to incriminate himself, “then there’s no good reason to try to parse legitimate ways to force a person into confessing. This shouldn’t be a game where the government tries to trick a person into ceding their constitutional rights.” He concludes: “If the Fifth Amendment recognizes the right against self-incrimination, then we should stop asking people to incriminate themselves. Why is that hard to understand?”

On to the 6th Amendment guarantee of an impartial jury, “a cruel joke” since Black people are “regularly brought up on charges by a white prosecutor, in front of a white judge, to have their guilt or innocence judged by an all-white or predominantly white jury. That’s not ‘impartial’ justice; it’s white justice put upon Black bodies by a system that treats white people and their experiences as the default.” The result, Mystal says, is that Black people are denied the constitutional right to a jury of their peers. “We are just entitled to the same lynch mob of white people that has always shown up throughout history and claimed the authority to take our lives away.” This isn’t a natural phenomenon, either, but partly a result of juror exclusion based on race. This was supposedly prohibited in 1986 in Batson v. Kentucky. (“Just so people don’t lose sight of how recent this decision is: the Challenger space shuttle blew up on live television before Black people had a tool to avoid being excluded from criminal juries in America.”) However, white courts will accept almost any allegedly ‘race-neutral’ reason for excluding Black jurors, and Mystal cites a number of cases where the allegedly ‘race-neutral’ reason was that the juror “looked like” the defendant.

At the dark heart of making the Sixth Amendment meaningful in any way for Black people lies an argument that white people, even white liberals, are reluctant to make: white jurors cannot sit in impartial judgment of Black people . . . I know white people understand this argument because, again, there is not a time in this country where white people let twelve Black people judge them for anything. You won’t see a goddamn boxing match where the panel of ringside judges are all Black if one of the combatants in the ring is white. White people reject implicitly the notion that their actions or, God forbid, crimes can be judged exclusively by a community of Black people. I’ve had white people tell me with a straight face that I’m not even allowed to judge whether a white person has been racist to me personally. Like I’m the one who is too ‘biased’ to adjudicate the situation impartially.

The 8th Amendment: it’s intentionally vague, the amendment most clearly indicating an expectation that the Constitution would be a living document. As a result, when ‘originalists’ argue that the Framers didn’t intend for executions to be within the definition of cruel and unusual, “I don’t give a shit . . . [T]he people who wrote the Constitution had a sense of humanity that was so underdeveloped they could eat sandwiches while watching a man being hung from the neck. But so what? The Constitution does not require me, or my country, to be forever hobbled by their sociopathy.” Why should James Madison’s understanding of what torture meant matter now? We know that something like solitary confinement constitutes torture. To not make this unconstitutional “because some old dead white people didn’t have the knowledge or decency to do the same is not an alternative theory of legal interpretation. It’s the promulgation of evil hiding behind the banality of cowardice.” Mystal identifies “Justice” Neil Gorsuch’s majority ruling from 2019’s Buckley v. Precythe as “the most needlessly fucking sadistic ruling” from the Court in this realm. In that case, Gorsuch wrote...

I've hit the max word count for a Goodreads review, something that's only happened to me a handful of times before. There's still a lot left, though. Read the rest in the comments below.