A long history of ignoring and undermining the Constitution

I finished the book Allow Me to Retort, a Black Guy’s Guide to the Constitution by Elie Mystal. This is a book I would love to delve into and write about every interesting thing I found, filling pages and pages. But that wouldn’t be fair to Mystal and his book (and its copyright). So I’ll reluctantly stick to summarizing the book rather than each page. In case that wasn’t clear, I highly recommend this book. I’ve encountered Mystal’s writing a few times and I’ve heard others praise his fine logic, his ability to get at the core of an argument, and doing so with wit. He went to Harvard Law School, but being a lawyer didn’t suit him. So he switched to law and justice commentary. He has appeared on CNN and MSNBC and helped the NPR show Radiolab with their series on the Supreme Court titled More Perfect. Yeah, he knows his stuff and he’s quite the justice warrior. The hardcover edition came out in 2022. When the paperback edition (the one I read) came out in 2023 he had to add another chapter as a preface, condemning the “originalism” used to overturn abortion rights. Of course, the Constitution, its amendments, and the commentary of the late 18th century don’t mention abortion! The Constitution was written by people who owned slaves! They were also highly misogynistic and restricted government participation to land owners like themselves. Mystal is okay with the body of the Constitution – well, most of it. It’s the amendments that cause all the problems. It isn’t that the amendments are bad, but that the white supremacists running the country have always been very good at ignoring and undermining the parts they don’t like. And, yes, for a great deal of our national history white supremacists have been in charge. Some examples. The Supreme Court, urged on by the NRA, reinterpreted the Second Amendment to mean a personal right to own and carry a gun (if one is white). Mystal gets into the original intent of the amendment – protection against slave uprisings – and the illogic of those who are fans of this interpretation. Our police brutality would wither away if courts actually enforced the Fourth Amendment. Mystal told his own harrowing story of a police encounter. Courts don’t enforce the Fourth because white people don’t want them to. If the Fifth Amendment says a person cannot be a witness against themselves why do police spend so much time trying to trick a suspect into confessing and why is that confession admitted into court proceedings? Yeah, we’re familiar with the Miranda rights from their use in police shows, but does a frightened teenage black kid facing hostile cop know what it really means? If we really believed the Eighth Amendment on cruel and unusual punishment no criminal would get the death penalty. Mystal was not a fan of the Constitution created by slavers. But then came the Thirteenth (banning slavery), Fourteenth (birthright citizenship, due process, and equal protection), Fifteenth (the right to vote), and Nineteenth (women voting) Amendments. These are great! They make the rest of the Constitution work! Except society and the courts find all sorts of reasons why they don’t apply in particular cases. See Jim Crow. Mystal has only two complaints about the main body of the Constitution. The first is the makeup of the Senate. It was designed to make sure slavers could stay in control. It is now justified by saying the needs of rural states should not be overrun by the needs of urban states. That doesn’t make sense to Illinois where Chicago dominates the rural areas of the same state. The second complaint is the Electoral College. An amendment would need to be passed to get rid of it, which isn’t going to happen. The National Popular Vote Compact is great – until someone is elected using it. That case will go to the Supreme Court, who will pick the president. A big problem in the US, as defined by this Constitution, is the Supreme Court. A body that can limit or overturn every law that comes out of Congress, even limit or ignore the Constitution is a threat to democracy. Perhaps we should prevent the Court from reviewing laws. That review is not in the Constitution. There is one thing worse than a Supreme Court full of conservatives that block progress. That worse thing is conservative politicians who are quicker to wield their supremacy. So to close the book Mystal discusses how to reform the Court. Reform could start by saying that a Justice may be appointed for life, but not necessarily on the Supreme Court. They can be given senior status and sent to lower courts, able to return when a sitting justice recuses themselves. Mystal suggests the right number of justices should be 29. Some circuit courts have this many. Perhaps the Supremes should reorganize to handle cases as a circuit court does with a randomly selected three-judge panel hearing a case and the full court getting involved only when other justices disagree with the original panel. There is a lot more to the book – it is over 250 pages – and all worth reading. Again, I highly recommend it.