Allow Me to Retort

If you're familiar with Elie Mystal's previous work (writer for The Nation, previously editor for Above the Law, Twitter gadfly, and occasional talking head on news commentary programs), you'll have a good idea what to expect from this book: pointed liberal commentary, frequently developing into rants once he works up a head of steam. The subtitle of A Black Guy's Guide to the Constitution tells you that the topic is US constitutional law, which is very on brand. You're going to get succinct and uncompromising opinions at the intersection of law and politics. If you agree with them, you'll probably find them funny; if you disagree with them, you'll probably find them infuriating.

In other words, Elie Mystal is the sort of writer one reads less for "huh, I disagreed with you but that's a good argument" and more for "yeah, you tell 'em, Elie!" I will be very surprised if this book changes anyone's mind about a significant political debate. I'm not sure if people who disagree are even in the intended audience.

I'm leery of this sort of book. Usually its function is to feed confirmation bias with some witty rejoinders and put-downs that only sound persuasive to people who already agree with them. If I want that, I can just read Twitter (and you will be unsurprised to know that Mystal has nearly 500,000 Twitter followers). This style can also be boring at book length if the author is repeating variations on a theme.

There is indeed a lot of that here, particularly in the first part of this book. If you don't generally agree with Mystal already, save yourself the annoyance and avoid this like the plague. It's just going to make you mad, and I don't think you're going to get anything useful out of it. But as I got deeper into this book, I think Mystal has another, more interesting purpose that's aimed at people who do largely agree. He's trying to undermine a very common US attitude (even on the left) about the US constitution.

I don't know if most people from the US (particularly if they're white and male) realize quite how insufferably smug we tend to be about the US constitution. When you grow up here, the paeans to the constitution and the Founding Fathers (always capitalized like deities) are so ubiquitous and unremarked that it's difficult not to absorb them at a subconscious level. There is a national mythology about the greatness of our charter of government that crosses most political divides. In its modern form, this comes with some acknowledgment that some of its original provisions (the notorious three-fifths of a person clause, for instance) were bad, but we subsequently fixed them and everything is good now. Nearly everyone gets taught this in school, and it's almost never challenged. Even the edifices of the US left, such as the ACLU and the NAACP, tend to wrap themselves in the constitution.

It's an enlightening experience to watch someone from the US corner a European with a discussion of the US constitution and watch the European plan escape routes while their soul attempts to leave their body. And I think it's telling that having that experience, as rare as it might be given how oblivious we can be, is still more common than a white person having a frank conversation with a black person in the US about the merits of the constitution as written. For various reasons, mostly because this is not very safe for the black person, this rarely happens.

This book is primarily Mystal giving his opinion on various current controversies in constitutional law, but the underlying refrain is that the constitution is a trash document written by awful people that sets up a bad political system. That system has been aggressively defended by reactionary Supreme Courts, which along with the designed difficulty of the amendment process has prevented fixing many obviously broken parts. This in turn has led to numerous informal workarounds and elaborate "interpretations" to attempt to make the system vaguely functional.

In other words, Mystal is trying to tell the US reader to stop being so precious about this specific document, and is using its truly egregious treatment of black people as the main fulcrum for his argument. Along the way, he gives an abbreviated tour of the highlights of constitutional law, but if you're at all interested in politics you've probably heard most of that before. The main point, I think, is to dig up any reverence left over from a US education, haul it out into the light of day, and compare it to the obvious failures of the constitution as a body of law and the moral failings of its authors. Mystal then asks exactly why we should care about original intent or be so reluctant to change the resulting system of government.

(Did I mention you should not bother with this book if you don't agree with Mystal politically? Seriously, don't do that to yourself.)

Readers of my reviews will know that I'm fairly far to the left politically, particularly by US standards, and yet I found it fascinating how much lingering reverence Mystal managed to dig out of me while reading this book. I found myself getting defensive in places, which is absurd because I didn't write this document. But I grew up surrounded by nigh-universal social signaling that the US constitution was the greatest political document ever, and in a religious tradition that often argued that it was divinely inspired. If one is exposed to enough of this, it becomes part of your background understanding of the world. Sometimes it takes someone being deliberately provocative to haul it back up to the surface where it can be examined.

This book is not solely a psychological intervention in national mythology. Mystal gets into detailed legal arguments as well. I thought the most interesting was the argument that the bizarre and unconvincing "penumbras" and "emanations" reasoning in Griswold v. Connecticut (which later served as the basis of Roe v. Wade) was in part because the Lochner era Supreme Court had, in the course of trying to strike down all worker protection laws, abused the concept of substantive due process so badly that Douglas was unwilling to use it in the majority opinion and instead made up entirely new law. Mystal argues that the Supreme Court should have instead tackled the true meaning of substantive due process head-on and decided Griswold on 14th Amendment equal protection and substantive due process grounds. This is probably a well-known argument in legal circles, but I'd not run into it before (and Mystal makes it far more interesting and entertaining than my summary).

Mystal also joins the tradition of thinking of the Reconstruction Amendments (the 13th, 14th, and 15th amendments passed after the Civil War) as a second revolution and an attempt to write a substantially new constitution on different legal principles, an attempt that subsequently failed in the face of concerted and deadly reactionary backlash. I first encountered this perspective via Jamelle Bouie, and it added a lot to my understanding of Reconstruction to see it as a political fight about the foundational principles of US government in addition to a fight over continuing racism in the US south. Maybe I was unusually ignorant of it (I know I need to read W.E.B. DuBois), but I think this line of reasoning doesn't get enough attention in popular media. Mystal provides a good introduction.

But, that being said, Allow Me to Retort is more of a vibes book than an argument. As in his other writing, Mystal focuses on what he sees as the core of a controversy and doesn't sweat the details too much. I felt like he was less trying to convince me and more trying to model a different way of thinking and talking about constitutional law that isn't deferential to ideas that are not worthy of deference. He presents his own legal analysis and possible solutions to current US political challenges, but I don't think the specific policy proposals are the strong part of this book. The point, instead, is to embrace a vigorous politics based on a modern understanding of equality, democracy, and human rights, without a lingering reverence for people who mostly didn't believe in any of those things. The role of the constitution in that politics is a flawed tool rather than a sacred text.

I think this book is best thought of as an internal argument in the US left. That argument is entirely within the frame of the US legal tradition, so if you're not in the US, it will be of academic interest at best (and probably not even that). If you're on the US right, Mystal offers lots of provocative pull quotes to enjoy getting outraged over, but he provides that service on Twitter for free.

But if you are on the US left, I think Allow Me to Retort is worth more consideration than I'd originally given it. There's something here about how we engage with our legal history, and while Mystal's approach is messy, maybe that's the only way you can get at something that's more emotion than logic. In some places it degenerates into a Twitter rant, but Mystal is usually entertaining even when he's ranting. I'm not sorry I read it.

Rating: 7 out of 10

Reviewed: 2023-03-18