Allow Me to Retort (2022)
Elie Mystal (1978)
270 pages
Conservatives are always worried that protecting too many rights might one day lead to a society that’s fundamentally fair. (170)
This pointed remark succinctly captures both the theme and the tone of Elie Mystal’s Allow Me to Retort. Subtitled A Black Guy’s Guide to the Constitution, the book consists of an interconnected series of essays through which Mystal explores many of the divisive social and political topics of our day – from cancel culture to gun control and abortion, police brutality to equitable juries and voting rights – in the context of the relevant portions of the US Constitution and its Amendments. Convincingly detailing how conservative groups have artfully manipulated the content and interpretation of the law to systematically block or reverse progress toward a fairer society and so preserve their hold on wealth and power, Mystal’s prose makes evident his anger and frustration at the resulting impact on the many who have been disenfranchised.
Mystal argues that the Constitution in fact originated as a deeply flawed document, with the explicit definition of a slave as counting three-fifths of a person only the most blatantly obvious piece of evidence for that. At the Constitutional Convention, the white, male property owners who drafted the document enshrined into it an Enlightenment view of the ideal society that definitively differentiated the U.S. system of government from that of European aristocracies, while also carefully establishing and reinforcing their own power.
As Pankaj Mishra argues in his book Age of Anger (my review linked to at right), for Enlightenment philosophers:
Liberty primarily meant freedom for social mobility for the man of talent [and] means. … Hierarchy would still mark the new society [they proposed]: the mass of the people would remain necessarily subordinate to the authentically enlightened at the top. (59, Age of Anger)
In that context, those who drafted the original Constitution and Bill of Rights created a system of government that would not threaten the status and power of the men of talent and means such as themselves. Mystal, with characteristic directness, summarizes the motivation for the Enlightenment society the founders created as: “rich people never have a problem with monarchy; they have a problem with hereditary monarchy.” (203)
Despite the Constitution’s questionable beginning, Mystal acknowledges that several subsequent Amendments made it better, as the general population gradually rose up to claim the rights they saw the elite enjoying. In particular, he points to the Thirteenth (abolishing slavery), Fourteenth (equal protection for all), Fifteenth (universal male suffrage), and Nineteenth (female suffrage), as
recast[ing] the entire document, destroying the slave state that the founders wrote into existence and replacing it with something new, something heterogenous, and something still flawed yet not utterly unredeemable. (128)
But, he goes on to note, “the entire conservative legal project, since ratification of those amendments during Reconstruction to the present-day, has been to limit the scope and effectiveness of this “new” Constitution.” (129)
Mystal’s analysis of and reaction to this conservative legal project, as well as the origins and focus of the original Constitution and Bill of Rights in the maintenance of slavery and the power of an elite few, forms the central thread running through the book.
Thus, for example, he describes the Second Amendment as arising out of the desire of Southern leaders at the Constitutional Convention “to guard against slave revolts.” They worried, he writes, “that the federal government, dominated by Northerners, would choose to not help the South should their population of oppressed humans demand freedom [and] that the new Constitution put the power of raising militias with the federal government and not with the individual states.” (37) With this historical understanding, the scope of their demand for the inclusion of the Second Amendment becomes clear, as does the wording of its opening clause, a well regulated Militia. And yet, he notes, in recent decades conservatives have invented and successfully promulgated a personal self-defense intent to the Second Amendment, an interpretation that didn’t exist before the 1970’s, but that has now become fully internalized among conservatives, including politicians and judges.
A graduate of Harvard College and Harvard Law School, Mystal brings a persuasive depth of legal theory and history to his analysis of the origins of the Constitution and Amendments, the present-day battles over their interpretation, and the implications for US society, while managing to keep his account readable. He brings in specific legal terms where necessary to explain how the courts operate, but clearly explains their meaning and significance.
His historical and legal understanding is applied to most devastating effect in his dismantling of the claims of constitutional originalists, whatever legal point they are trying to make. At its most clarifying, he points out the nonsense of even considering giving absolute priority to what the original intent was of a group of slaveholders who could write a constitution in which white-male property owners were give the exclusive right to participate in their own governance. For originalists, it’s as though society is not allowed to grow and learn, in terms of ethical and moral standards, beyond the situation when the Constitution and its Amendments were put in place.
All of this analysis Mystal delivers with a healthy dose of something between snark and vitriol. Though he acknowledges the complexity of finding a neat solution to some issues, and often finds those on the left too timid, he makes clear that liberals at least strive for increased fairness, while conservatives fight tooth and nail to hold back such progress.
Mystal’s fundamental philosophy about conservatives, and the direct language (in this particular case without obscenities) with which he delivers it, is evident in the following paragraph from his discussion of a critical turning point toward a more fair, multicultural society:
The Reconstruction and Nineteenth Amendments say that white men have to share that political and economic power with everybody else. And not merely as a theoretical proposition either; those amendments demand that power is actually shared among our multicultural society, or else the government ceases to be legitimate.
Of course, conservative white men object to that. They don’t like sharing. I mean, have you met a conservative white man? They’re still flummoxed by the concept of letting a woman finish her sentence. You think sharing the wealth and power of a global hegemony is something they’d just roll over and accept? The only time conservative white men have agreed to share power is when other white men make them do it at the point of a gun. And whenever those more enlightened whites lose the will and the nerve to keep stuffing equality and fairness down the throats of their objecting brothers and cousins, conservative forces retrench, recalibrate, and reemerge with new strategies to violently reassert white male dominance, and new legal theories to justify their supremacy. (129-130)
No equivocation, then, in his view of where the threat lies in the struggle for justice.
Presenting his arguments with such conviction and certainty can run the risk of undermining them. One example where it does, perhaps, is in his chapter on cancel culture, with which he, interestingly, chose to open the book. He categorically dismisses the conservative argument that cancel culture exists on the left, basically arguing that those impacted are “losing acting gigs or magazine columns because of their knuckle-dragging views,” (11) and that “the real cancel culture is the one practiced by conservatives.” (17) One can agree with the latter as the greater threat, given its impact on social and political progress, while still finding the extreme left too often going overboard in its cancellation of figures who seem to have had a slip of the tongue or been in some way misunderstood.
For most if not all of the rest of the essays, however, Mystal remains on firmer ground in terms of the historical and legal analysis and arguments he presents, as well as his conclusions.
In the Epilogue, Mystal provides potential solutions to overcome the conservative push to slow, undermine, and reverse steps toward a fairer society for all. After exploring the challenges and weaknesses of several possible options, he declares that his “preferred solutions focus on restructuring and reforming the Supreme Court.” (247)
Citing Congress’ broad Constitutional ability to define the structure of the Supreme Court, he proposes first that some version of term limits for the Justices be put in place, and he reviews several approaches to implementing such a change. Acknowledging that the current Supreme Court would likely find this unconstitutional, he proposes first expanding the court, placing justices on it who would position the court with sufficient votes to find term limits constitutional. Noting that the historical variability in the number of justices justifies such a change, he argues that a larger number of justices, with term limits in place, would be more difficult to seed with a majority from the far-right, by ensuring turnover and spreading out the nomination of new justices.
In Allow Me to Retort, Mystal provides a valuable analysis of key elements of the Constitution and its Amendments, and their relation to the culture wars that continue to rage around so many social and political issues. He details how profoundly influenced the original Constitution and Bill of Rights was by its drafters’ goals of maintaining a stranglehold on power for those like themselves – slave holding, white male property owners. And he makes clear the myriad machinations of conservatives, especially since the Reconstruction era, to limit the scope of Amendments designed to shift our country to fairer social, political, and economic systems.
Some readers will surely be turned off by the aggressiveness of his language in attacking conservatives, either because they feel personally attacked or because, while they broadly agree with his arguments, they dislike his tone. But those who read through to the end will arrive at a deeper understanding of the fight currently underway over the interpretation and application of Constitutional law. And, they will most likely come away with some sympathy for the evident depth of Mystal’s frustration.
Other notes and information:
Have you read this book, others by this author, or even similar ones by other authors? I’d enjoy hearing your thoughts.
Other of my book reviews: FICTION Bookshelf and NON-FICTION Bookshelf
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