Elie Mystal: Our Constitution is "actually trash" — but the Supreme Court can be fixed

Author and scholar Elie Mystal on our deeply flawed Constitution and the long, dark history of legal racism

Published March 23, 2022 6:30AM (EDT)

Supreme Court nominee Judge Ketanji Brown Jackson, photographed during her Senate Judiciary Committee confirmation hearing on Capitol Hill on Monday, Mar. 21, 2022 in Washington, DC. Judge Jackson was picked by President Biden to be the first Black woman in United States history to serve on the nation's highest court to succeed Supreme Court Associate Justice Stephen Breyer who is retiring. (Kent Nishimura / Los Angeles Times via Getty Images)
Supreme Court nominee Judge Ketanji Brown Jackson, photographed during her Senate Judiciary Committee confirmation hearing on Capitol Hill on Monday, Mar. 21, 2022 in Washington, DC. Judge Jackson was picked by President Biden to be the first Black woman in United States history to serve on the nation's highest court to succeed Supreme Court Associate Justice Stephen Breyer who is retiring. (Kent Nishimura / Los Angeles Times via Getty Images)

Elie Mystal, attorney and author of the New York Times bestseller "Allow Me to Retort: A Black Guy's Guide to the Constitution," wanted actor Samuel L. Jackson to record the audio version of his book. Mystal's title, after all, is drawn from one of Jackson's famous lines in "Pulp Fiction." But if you've seen Mystal on cable news, you know he doesn't need Jackson to provide passion and emphatic delivery. Mystal gives you all that and more, as you will see first-hand in our recent "Salon Talks" conversation.

Mystal takes, shall we say, the controversial position that the U.S. Constitution is not only "not good," but that it's "actually trash." He notes that our founding document was drafted by men who owned slaves and enshrined that evil institution with the infamous Fugitive Slave Clause and the "three-fifths compromise." But Mystal's bigger point is that our Constitution is given too much deference: "We act like this thing was kind of etched in stone by the finger of God, when actually it was hotly contested and debated, scrawled out over a couple of weeks in the summer in Philadelphia in 1787, with a bunch of rich, white politicians making deals with each other."

Mystal also lays bare the myth that the motivation behind the Second Amendment was about self-defense or a check on the government. As he notes, George Mason — then the governor of Virginia and one of the drafters of the Constitution — flat-out said that the Second Amendment was meant to guarantee that Southern states could form a "well-regulated militia" to "fight slave revolts." Mason and other Southerners feared that the federal government wouldn't help them put down slave uprisings, and they needed to have guns close at hand. 

Mystal also shared his views on the Supreme Court nomination of Judge Ketanji Brown Jackson and her ongoing confirmation hearings. As Mystal explains, the GOP has "nothing on her record that they can attack" and only has one card to play: racism.  "Because they can't find anything wrong, they go to all of these other kind of racist smear campaigns because, frankly, racism always works for them," Mystal said. 

This following transcript has been lightly edited for clarity and length.

You were recently on "The View" talking about your book and created some controversy. The first line in "Let Me Retort" is "Our constitution is not good," followed up a few paragraphs later with "Our constitution is actually trash." You're obviously trying to challenge people. Tell people what your goal is there.

There are two things going on there. One, the veneration that this country has for the Constitution is simply weird. It's crazy. It's not what other countries do for their written documents. We act like this thing was etched in stone by the finger of God, when actually it was hotly contested and debated, scrawled out over a couple of weeks in the summer in Philadelphia in 1787, with a bunch of rich, white politicians making deals with each other, right? These politicians were white slavers, white colonizers and white abolitionists — who were nonetheless willing to make deals with slavers and colonists. No person of color was allowed into the convention. Their thoughts were not included. No women were allowed to have a voice or a vote in the drafting of the Constitution. And quite frankly, not even poor white people were allowed to have a voice or a thought in what the Constitution was.

The thought that this document, made by one class of people, represents the best we can do in America is just ludicrous. Of course it's not very good. You only let one kind of person write it. So that's one aspect of it. The second aspect of this, and how we go from "not good" to "trash," is that structurally there are a lot of stupid things in the document. There are a lot of things that you just wouldn't think we should do if you were starting again from first principles. Like the idea that we don't elect our own president; that's pretty dumb.

Pretty dumb.

You wouldn't do it that way, right? The way that voting rights have been couched as "We will not abridge the right to vote," as opposed to "You have a positive right to vote," that's dumb. The federal system has 50 different election systems instead of one federal system, that makes us have literally 3,000 police systems — that's 3,000 sheriff's offices around the country, instead of one national police system. That's pretty stupid. If you just go structurally through the document, you see — it's not exactly bad-idea genes, but you see quite a lot of bad ideas throughout the document.

The Judicial Crisis Network has been attacking you for your comments about this, tying it to the nomination of Judge Ketanji Brown Jackson. What are they saying? What did you say that they view as blasphemous in some way?

Again, here's another issue where there are two things going on. One, they have nothing on Ketanji Brown Jackson. There's nothing on her record that they can attack. They don't have a case. They don't have a law review note that she wrote. They don't have anything that she's actually done to attack her with, so they're trying to bank a shot against her off some of these other issues. And apparently, I'm one of the issues these idiot people think they can bank a shot off of, because these are the kinds of people who think that all Black people know each other — like we all go to the same barbecue and we talk about our plans for whitey and then we go out into our separate corners.

That's not how it works. I've never met Ketanji Brown Jackson. I've literally never been in the same room with her in my life. I have no idea. She probably hasn't read the book because she's busy. She's about to be a Supreme Court justice, right? I would imagine there are parts of my book that she doesn't agree with, and that's fine too. So that's part of what's going on.

The other thing that's happened is that there are people who take the Constitution as gospel without really examining what the document is — people who haven't actually read it, and even people who have read it but don't really understand what it's saying and what it's doing. So for instance, Dean — and you'll find this funny — there are people telling me the Constitution is not trash and is actually great because it's a living document that evolves with our times, which is an interesting thing for them to say because that's what I say. That's what liberals say the Constitution is.

It is the conservatives who say the Constitution is ossified in the original public meaning and intent of the slavers who wrote it. It is people like me who are like, "No, no, no, the document lives and breathes and evolves." So these idiot white people are literally trying to attack my position by restating my position, because they don't know any better, because they haven't actually read it or thought about it or understand it. And the big reason why I wrote the book is so more people could think about it, understand it. As we've talked about before on your show, I write in plain English so people can really get into what's happening and not be intimidated by the legal jargon. It's so you can understand why you'd want the constitution to live, breathe and evolve, for instance.

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Your book is written very accessibly. You don't have to be a lawyer, you don't have to know the Constitution, you don't have to be Black. I'm a lawyer and there are things I learned. For example, one thing I think is vitally important for Americans to know is the origin of the Second Amendment. Today they talk about the Second Amendment as something about defending your house, or when the black helicopters coming to chase you, that kind of stuff, or for deer hunting. Share a little bit about the true origins of our Second Amendment.

The Second Amendment was here to stop slave revolts. The "well-regulated militia," which is the first part of the Second Amendment, that was a thing was because in the South, the principal way of putting down revolting slaves was to bring out the well-regulated militia. It turns out it's kind of hard to hold Black people in bondage against their will, so occasionally you have to bring in the guys with the guns to do it. Well, in the original Constitution, without the amendments, it was unclear who had the authority to raise the militia. White Southerners thought that the Northerners would dominate the federal government, wouldn't raise the militia, and when Black people rose up for their freedom and rights, the South would be powerless to stop them militarily.

The Second Amendment is there to make it clear that everybody can be armed so they can raise this militia to go and fight slave revolts. That is not me theorizing or making things up. That is what George Mason, then governor of Virginia, said, when advocating for a Second Amendment. He literally made a speech where he said that, all right? People don't know that history, and part of the reason why people don't know that history is because Republicans have purposefully obscured it.

When you fast-forward 250 years, Antonin Scalia in D.C. v. Heller, invents a right to bear arms for personal self-defense that did not exist at the original founding of the constitution. Scalia quotes George Mason's speech, because at the beginning of the speech, a lot of it is about personal self-defense — again, personal self-defense from the slave revolts. Scalia leaves that part out and talks only about this right to personal self-defense, taking out the context. That's how Republicans be!

This is something that goes through all the way through my book. Originalists have this PR campaign that they're going back to the original definitions of the Constitution as understood by the founders, when really they're just making stuff up that's convenient for their current political agenda.

You also talk about how the right to vote gets abridged all the time. Tell people what's in the actual, original Constitution. What did the framers have in mind about for could vote in the early days of this country?

The framers did not think that the right to vote, or even citizenship in the country, flowed down from the federal government. They thought it flowed up from the states. Your right to be a citizen was to be a citizen of Georgia or New York or New Jersey. Your right to vote, therefore, was determined by Georgia or New York or New Jersey or Virginia. There was no federal right to vote because all voting was done at the state level, in the conception of the framers. They weren't worried about minority voting rights because they didn't think minorities were going to vote at all.

They weren't worried about women voting rights because they didn't think women were going to vote at all. They were only concerned with making sure that the states had the power to decide for themselves who could and could not vote. So even when you go forward to things like the 15th Amendment, which says that you can't abridge voting on the context of race, color or creed; when you go to the 19th Amendment, which says that you can't abridge voting because of gender, which of course did not mean Black women at the time the 19th amendment was ratified.

All these amendments did, technically, was to say that the states could not restrict voting based on racial or gender grounds. And let's not forget that the states looked at the 15th Amendment and thought, "That's a very nice try," put it in a drawer and ignored it for 100 years. The states restricted voting on the basis of race all the time after the 15th Amendment because courts wouldn't enforce it. So the Constitution is silent on the right to vote because our election system is dumb. And it's based on, like I said, at this point 50 state electoral systems — at the founding, 13 state electoral systems — as opposed to one unified, rational, intelligent federal election system, which is what they have in all the other democracies, by the way. Let's not forget that we're the outlier here; other advanced Western democracies have a federal election system, not province by province.

You make a very compelling point that four of the 17 amendments ratified after the Bill of Rights have to do with voting. That was nearly 25 percent of the updates to the Constitution, because the framers didn't give it much thought. Later in life, the Constitution evolved and people were like, "Let's do something about it." What does that say to you?

One, it says that no matter what you try to do with your written document, it can't survive bad-faith conservatives. The reason we've had to have four different voting amendments, and probably are going to need a fifth one at some point in our future, is because at every point conservatives have tried to restrict the rights of everybody to vote. And to be clear, I'm saying "conservatives" because I don't care what conservatives call themselves in the morning. After the Civil War, conservatives called themselves Democrats. Now, they call themselves Republicans. In the future, they might call themselves Whigs. I don't care. Doesn't matter. The conservative party, however they define themselves, has opposed the idea of universal suffrage at every point, and that continues today. 

The reason why you have to have so many updates is because every time you try to extend the vote, conservatives come up with some new, crazy reason to restrict the vote. One lreally small way of, I think, pointing this out is that the 26th Amendment says that basically everybody over 18 can vote. Simple, straightforward amendment: If you're over 18, you can vote. The thought being, if you can go to war, you can vote on whether or not we have a war. Makes sense, right?

So what happens if you turn 18 after the election in November, but before the end of the year? The election happens in your 18th year, but you don't actually turn 18. Let's say you have a Christmas birthday, essentially. Now, the constitutional amendment is silent about that. So conservatives step in and say, "Nope, you have to be 18 by the time the..." Why? They just made that up. That's just an arbitrary cut-off. Why wouldn't you make the arbitrary cut off the end of the year, as opposed to the end of the election? It makes no sense.

Do we really think that the difference in the intellectual quality of a 17-year-old in November changes radically when he hits his 18th birthday at Christmas? Who thinks that? Liberals are like, "We should just vote if you're..." So this is what I'm saying: Conservatives, at every point, even in really small ways, try to restrict the right to vote.

You have a chapter called "Reverse Racism Doesn't Exist," meaning of course racism against white people. But how do you square that with the Pew poll that found Republicans are likely to believe that white people face more discrimination than Black people and Hispanic people or Asian Americans do? You've got a whole group of Americans out there who think they're suffering discrimination and ask why our legal system doesn't protect white people, even though they are technically the majority.

They're technically the majority. That's exactly why. I explain protected-class status as understood by our constitutional interpretation. I'm just the messenger, don't shoot me. Constitutionally speaking, white people are not, and pretty much cannot be, a protected class, because the way that we define protected class, you have to be a minority or somebody singled out for a special historical kind of torment. So again, I'm a liberal: I think poor people should be a protected class. I think that. It is conservatives who won't let me do that. I think poor white people should be part of the impoverished protected class, but conservative white people won't let me do that.

Instead, they want to say all white people are a protected class, which just doesn't make sense based on our protected-class jurisprudence. So yes, from a legal definition, reverse racism doesn't exist. And I would say that also, from that legal basis, that extends through any kind of understanding of our social power structure.

Here's the problem when you tell white people that they've experienced privilege. There are white people who are the beneficiaries of white privilege who still have crappy lives. And they think that because I say that they have privilege, then that privilege means that they shouldn't have a crappy life. No, that's not what white privilege is. White privilege is that if you take a white person with a crappy starting position and a Black person with a crappy starting position and kind of play out the string, what we'll see is that the Black person will have the same crappy life as the white person, only a little worse. It's the whole thing of whenever white America catches a cold, Black America catches the flu. 

It's the defensiveness of white Americans who are struggling who go, "Where's my privilege?" I understand. Maybe the term — it's not literal in that way, but they take it literally. "Where's my privilege? Where are my happy days?" I get it. It's actually a minority burden, versus someone white who is just living a normal life, where you're not judged by the worst in your society and the worst in your community, and politicians don't demonize you for that and don't pass laws based on this mythical caricature that they've created about your community. The list goes on and on.

White people will look at me right now and be like, "Well, I'm not doing as well as that Black guy, so how am I having white privilege?" And it's like, because if I was white I would be the attorney goddamned general. That's how you know. That's the difference.

That brings us perfectly to the nomination of Judge Ketanji Brown Jackson. You had sitting senators, including Roger Wicker of Mississippi, call it a "quota hire," literally affirmative action. Ted Cruz called it offensive and said, "I guess if you're a white man or a white woman, you've got no shot at this." You're going to have one Black woman in the history of this nation and that's one too many for them, because they feel this is a zero-sum game.

There have been 115 Supreme Court justices in American history, and 108 of them have been white males. And Ted Cruz fixes his mouth to say, "I guess if you're a white man, you have no shot." It's an idiot statement, designed to play into the grievances of his idiot base, but also to be horribly offensive to everybody else because Ted Cruz doesn't care about being horribly offensive to everybody else. Again, all these attacks come because they have nothing that they can use against her. I have read her cases. They haven't maybe read her cases. She's been on the bench for nine years. That is more than four current Supreme Court justices had combined when they were elevated to the Supreme Court.

She has a deep legal record that these people could pick through and find something wrong. They picked through it, they haven't found anything wrong. Because they can't find anything wrong, they go to all these other racist smear campaigns because, frankly, racism always works for them. Show me, in the last 10 or 15 years, the white politician who got drummed out of office because they were too racist. I mean, Steve King in Iowa, maybe, after just doing some straight-up Nazi rhetoric, but that's about it, right? Ted Cruz knows that he's not going to lose a primary because he is too racist to the Black woman Supreme Court nominee, so he's just going to double down in that field. It's all he's got.

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You make a compelling case for reform. Having Judge Ketanji Brown Jackson, if she's confirmed, that's not enough of a reform to make the Supreme Court what it should be. We can pass voting rights legislation right now, and this Supreme Court, with a 6-3 conservative majority, might just strike it down after all the work. What do you think fundamentally has to be done to change that institution?

It's court expansion or bust. You expand the court or you cede the next 30 years of American law to six conservative justices. And as I try to explain throughout the book, nothing survives 30 years of six conservative justices. There's nothing. Anything you want, doesn't happen. John Roberts eviscerated the Voting Rights Act in 2013, as you mentioned, in Shelby County v. Holder. Roberts and Alito ganged up on Section 2 of the Voting Rights Act in 2021 in Brnovich v. Arizona. What makes anybody think the John Lewis Voting Rights Act is going to be upheld by this Supreme Court? Has John Roberts gone somewhere? Is he on vacation? No, he's still right there, and he'll knock it down just like he's knocked down everything else.

As long as you have six conservative justices, you get nothing on voting rights, you get nothing on gun rights, you get nothing on climate change, you get nothing on police brutality, you get nothing on health care, you get nothing. So you expand the court and take your chances there, or you resign yourself to getting nothing. And people will say, "Oh, well, if we expand the court, Republicans will just expand it right back." So what? How is that worse than where we are now? I would argue that if we expand the court, it makes it harder for Republicans to expand it back because it makes it harder for Republicans to control all of government, because when everybody votes, Republicans lose.

So I say, let's go. I'm on record, I think, in the book for plus-20 judges. I think there are other reform ideas. A greatly expanded court does a lot of nonpartisan reforms. It leaves the Supreme Court as powerful as it is, but it makes each individual Supreme Court justice less powerful. That makes confirmation hearings less go-to-the-mattresses kind of situations. So there are lots of reasons why I get all the way to 20, but more, at this point, is the only way to stop the next 30 years of conservative takeover.

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By Dean Obeidallah

Dean Obeidallah hosts the daily national SiriusXM radio program, "The Dean Obeidallah Show" on the network's progressive political channel. He is also a columnist for The Daily Beast and contributor to Opinion. He co-directed the comedy documentary "The Muslims Are Coming!" and is co-creator of the annual New York Arab American Comedy Festival. Follow him on Twitter @DeanObeidallah and Facebook @DeanofRadio

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Authors Books Constitution Elie Mystal Ketanji Brown Jackson Law Salon Talks Supreme Court