A Black Guy Wrote a Guide to the Constitution

Elie Mystal is a lawyer and activist who is often asked for his expertise on the Supreme Court and other Constitutional issues. He is the legal analyst and justice correspondent for The Nation, an MSNBC legal commentator, and the legal editor of the “More Perfect” podcast on the Supreme Court for Radiolab. In 2022, he published his first book, “Allow Me to Retort: A Black Guy’s Guide to the Constitution.”

Mystal has written a book that deals seriously with the complex history and interpretation of the Constitution in a way that is easy to understand. His bottom line is that the Constitution could be used to establish a nation with equal protection under the law. Yet, he writes: “The structure of our Constitution pits the Ninth and Tenth Amendments against each other … The Ninth contemplates robust protection of individual rights that defends minority interests against the excess of the majority. The Tenth contemplates a society where the states are free to do what they want against minority populations in their state …” (pg. 242).

His analysis is not just about the role of the Supreme Court in forcing a repressive system on Americans. He has a strong critique of the role of Christians in providing justification for bigotry and a foundation for the persecution of the LGBTQ community and other minority identity groups.

But his strongest arguments are for a progressive interpretation of the Bill of Rights. For example, in response to the observation that conservatives claim “that the very most the Eighth Amendment prohibits is torture, not executions,” Mystal retorts, “I say: I don’t give a shit. To my mind, the Eighth Amendment is the cleanest battle to be had with originalists. … I will stipulate that the 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 until death. But so what? The Constitution does not require me, or my country, to be forever hobbled by their sociopathy” (pg. 116).

Mystal believes that the problem with America is that the public continues to allow the conservatives to use the Constitution. He concludes that “redeeming our failed Constitution from its bigoted and sexist sins does not require new amendments … It requires the emerging majority in this country to reject the conservative interpretation of what the Constitution says and adopt a morally defensible view of what our country means” (pg. 243).

The critique of the way, from its beginning to today, that the Constitution has been applied to organize American society so that it ignores the needs and interests of all minorities is powerfully presented. It is impossible to read Mystal and miss the point that we have a problem. It is an important reminder that the idea of a constitution is to institutionalize the values of society into a structure that organizes power. Today the remnant of those who wrote the Constitution are able to continue using the Constitution to retain power. The values that the Constitution is based on are antithetical to the values of a nation that is multicultural with all identity groups participating fully in the cultural, economic, and political life of the nation, and where no individual experiences greater barriers to achieving their aspirations than any other person.

Mystal’s proposal that the American people need to reject the politics of the conservatives and use the Constitution to accomplish the goals of an America for all makes sense. As he says, we don’t need a Constitutional amendment to fix government restrictions on women’s rights, or limits on access to voting, or equal protection under the law.

But, there are some ways that the founders built in their values that will require Constitutional amendments, as Mystal notes. For example, the makeup of the Senate and the power that it has to make or prevent laws will require Constitutional modifications.

So, let’s use the tools the Constitution gives us to create a society based on the values of a multicultural society while we also identify and amend structures in our government that make it impossible to be a nation based on values relevant to today.