I Agree With Elie Mystal. The Constitution Is Trash.

Why should a document drafted by 30-something-year-old slavers influence policies and practices that govern the lives of Black people in this country today?

Photo of the book Allow Me to Retort: A Black Guy's Guide to the Constitution
Elie Mystal's recently released book urges us to believe that the Constitution allows us to be better than the founders of this country were. Imani Gandy/Rewire News Group

I’ve been a lawyer for over 20 years—and I’ve been Black for even longer than that—and thanks to Elie Mystal’s new book, Allow Me to Retort: A Black Guy’s Guide to the Constitution, for the first time in my life I feel I can say what I’ve wanted to say for so long: The Constitution is actually trash.

He said it first. On page one of Allow Me to Retort, Mystal, the Nation’s justice correspondent, refers to the Constitution as trash, and on page two, he disdainfully refers to the Bill of Rights as a “day one patch.”

“The Constitution is actually trash” is a wild thing to say, and yet when I read it, I thought to myself, “Wow. Dang. RIP your mentions.”

But he’s right. The Constitution was drafted by 30-something-year-old slavers. Why should that document have any influence whatsoever on the policies and practices that govern the lives of Black people in this country today? Whether it’s discussing the death penalty or gun rights, Mystal’s book challenges the dominant narrative that casts a ragtag group of white men as luminaries, the pronouncements of whom cannot be questioned. He urges us to believe that the Constitution allows us to be better than the founders of this country were. He argues passionately that he doesn’t care about the slavers’ founding document. Why should any of us?

Some people will see the title of Mystal’s book and think, “That book is not for me.” These people will likely be white. “It’s a Black guy’s guide to the Constitution,” they’ll say to themselves, “and I’m definitely not Black.”

Well, fear not, my white friends: This book is for you. In fact, I would argue that this book is more for you than it is for me, and this book was extremely my shit.

I spoke with Mystal about Allow Me to Retort. Here is a portion of that conversation. It has been edited for length and clarity.

Imani Gandy: White people are very mad at you about this book. Why do you think that is, besides the obvious reasons?

Elie Mystal: Because I’m challenging their assumptions, right? I’m challenging their worldview. I’m pointing out that the society that they enjoy—that we all enjoy at some level—is built on racism, misogyny, and lies. And that is difficult for a lot of people, white people in particular, to understand.

IG: No kidding.

EM: See, I feel like part of the benefits of being Black in this country—and I really do mean in terms of benefit—is that you’re gifted with clear eyes about what this place is: the good, the bad, and the ugly. You have to learn the true nature of this country much earlier than white people. Well, I would say white people never have to. And they certainly aren’t exposed to it as early as most Black Americans are.

We know what this country is, and it’s kind of crooked to the core. White people don’t always get that training. They don’t always get that knowledge. Even when they get it, they come to it later in life, when their views about the country are a little bit more ossified. So a person like me coming in and being like, “No, these are the lies you’ve been told,” essentially—that challenges their worldview and that challenges their comfort zone. Some white people don’t mind having their cages rattled a bit; some white people react really negatively to that, and those are the people who show up on my Twitter feeds, those are people who email me, those are people who call me out because I’m challenging them and they don’t like that.

IG: So, Elie, I do have a tiny bone to pick with you on your book. Just a tiny one. When you talk about Margaret Sanger, you called her “that inveterate racist, who sold birth control as part of a general eugenics plan to eliminate the Negro racist.” And I would qualify that to say that wasn’t her particular goal; that was the goal of some of the people she aligned herself with. I always push back on this prevailing narrative that Margaret Sanger founded Planned Parenthood because she wanted to abort her way through the Black community, which is obvious nonsense because a) she was anti-abortion, and b) Planned Parenthood didn’t start providing abortions until after she died.

But I just wanted to point out that she was actually fairly woke for a white woman of that time period and that her racism manifested primarily as disparagement of Southern Black folks and their ability to understand how to use contraception. At the time she was working closely with W.E.B. Du Bois who was also fairly disparaging of Southern Black folks. So I don’t think she was an inveterate racist. I don’t know why I’m lecturing you on this! [laughs]

EM: [laughs] But can I switch it back this way?

IG: Please.

EM: This is why I don’t care about the original intent of the people who wrote whatever they wrote. Because if you go far back enough, and if you go deep enough, you’re always going to find something kind of icky and awful about the people of the past and what they believed. And that’s why I don’t see why any of that should matter, in the same way that people in the future might find things that we believe icky and ridiculous and use it to suggest that their laws cannot be expansive and awesome and beautiful. And I wouldn’t want them tied to our stupid beliefs. Just, you go on and do what’s best for your society.

So that’s kind of how I answer the question. I understand what you’re saying, that her willingness to make deals with these people maybe is not the same as her personally endorsing some of this crap, but that’s why I say screw it—

IG: Right. Fuck it, who cares?

EM: So, as a reproductive rights expert, what do you think of my abortion chapter?

IG: I really liked your abortion chapter, actually. You talk about three amendments that you think apply, right? The Eighth Amendment, which I thought was a really, really smart argument; the 14th Amendment, which is the obvious argument, although for some reason, we can’t get people to believe it; and the 13th Amendment.

I really loved your Eighth Amendment argument. I liked the methodical way that you went through and explained what it is that a pregnancy does to a person physically. And I also really loved the way you kept talking about “the state’s interest.” You argue that at some point, the person creates placenta so that nutrients can be leached from their bloodstream to feed “the state’s interest.” And at some point, “the state’s interest” is going to burst out of the pregnant person’s birth canal. I love that because you’re right.

The maternal mortality rate is really high, and if you break that down into Black and brown women, it’s even higher. And so this idea that a person is supposed to give up their life, potentially, or potentially have a long-term disability in order to carry a state’s potential interest in “life.” It’s truly outrageous. Can you just talk about that a little bit?

EM: And all against her will. From my perspective, as a man—that’s why I asked you the question of “what do you think,” because I was really concerned while I was writing that chapter of being humble to the fact that I am a man, and so this isn’t actually going to be something that I have to do.

But as a man, the concept that you could force somebody to do this against their will … It’s a miracle that you have any women willing to do this at all. Knowing what it is, it’s a miracle that anybody’s actually willing to do it. But to force somebody to do it who doesn’t want to do it, and to force them to do it for free, to force them to do it because some random sweaty Republican in North Carolina thinks that’s what Jesus wants?

IG: It’s unconscionable.

EM: Just, are you kidding me? That’s barbaric. That is barbaric. And as I say in this book, that is barbaric before we even get into the really difficult situations where a woman has been raped and forcibly impregnated, where bringing the child to term is a direct threat to her health. These are, as I say, I don’t even have a word for that. It’s horrific that somebody would even fix their mouths to say that was a legitimate use of state power. And so what I was trying to do with the abortion chapter was to really flip this argument on its head.

If you think about it, so much of my book is really … It’s about why Republicans are wrong, but it’s really about why Democrats need to get in the game. For so long, the Democrats have acted like the Republicans are fundamentally ripe on the moral issue. That abortion is a baby Holocaust, and it’s something awful and we shouldn’t really talk about [it], and we should do everything we can to minimize them in society.

IG: Right. “Safe, legal, and rare.”

EM: That’s been the Democrats’ line, and that’s bullcrap. Because when you flip it around just slightly, what you’re talking about is not a right to choose, but a completely illegitimate and barbaric use of state power that cannot be suffered in a free society.

You simply cannot ask a person to go through child labor against their will. And I note—and that’s even if you think that the fetus is a baby—if you look at our actual health-care laws, we don’t limit the health-care options of any man based on what they might do sexually or how that treatment might affect children in the society. Right?

IG: Right.

EM: We won’t tell a rapist that they can’t get Viagra. When a man goes in to get some medication to mask his herpes, they never say, like, “Oh, what is your partner going to think about that?” Never ask him that.

So this thought that we can limit people’s health-care options because of how that health-care option might affect somebody else is just not something we do in any other area of law.

IG: They don’t really care about the child. It’s an act.

EM: The right wing’s obsession with reproductive rights has nothing to do with the health, safety, and well-being of the child. They don’t give a crap about the child. What they care about is controlling women’s bodies. Because the minute that child can no longer be used to control a woman’s body, they do not care. They don’t care that the child is fed, they don’t care that the child is educated, they don’t care that the child gets medicine. They do not care about that child the minute it can no longer be used to control a woman. So really the whole argument is about controlling women, and a legitimate state government cannot do that.