It's snappy and to the point and I want everyone to read it. I usually take a while to read nonfiction books, but not this one — and not only because it seems shorter than its 257 pages.
He does a great job of confirming my priors, of course, but it's grounded in his reality as a Black man. As we all know, the Constitution and the first 12 amendments were all written before Black people were acknowledged to be fully human, and there's a list of others of us who were excluded from participating in its writing and amending as well.
The ideas of originalism or textualism are ridiculous and Mystal makes this clear in multiple ways throughout the book.
The chapter called "Stop Frisking Me" contains his own harrowing stories of Driving While Black, in addition to the legal background in what's called the Terry stop, which is one I had not heard about before (from Terry v. Ohio, 1968). The Supreme Court vote on Terry was 8–1, and while in the facts of that specificc case it may have been reasonable for the cop to stop Terry for questioning, it was supposed to be based on a "reasonable suspicion," not a hunch (like Philando Castile's wide nose, and not a made-up suspicion like saying a cop thinks he smells marijuana).
New York passed a stop and frisk law three years after Terry that gave cops the right to stop and question people if the cop "reasonably suspects" they are "about to commit" a crime. As Republicans are fond of saying, that is a loophole big enough to drive a Mack truck through:
Instead of reasonable suspicion, cops act on their unreasonable implicit (and often explicit) biases. That's why arguably constitutional stop and frisks became nothing more than a Trojan horse for the unconstitutional scheme of racial profiling (page 49).
The SCOTUS opinion in Terry v. Ohio said the violation of the Fourth Amendment was okay because the "minor inconvenience and petty indignity" it caused was balanced by keeping the cop safe. But as we know from 50 years of implementation since then, it's not a minor inconvenience, and it has a clear disproportionate impact on Black and brown people. Mystal ends the chapter by calling for overturning the decision.
The next chapter references the Dethorne Graham case, which I have discussed before. This is where we get the "reasonable officer" standard, instead of the "reasonable person" standard when police kill or injure someone. Mystal crystalizes it this way:
The Fourth Amendment does not say: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated...unless the state employs hysterical racists and cowards who are afraid of Black people, in which case failure to immediately comply with their unconstitutional orders is a capital offense." The Fourth Amendment does not say that "only other police officers" can determine what a reasonable or unreasonable search seizure really means" (page 56).
Not surprisingly, Mystal also advocates eliminating peremptory challenges in jury selection, getting rid of confessions (since coercion is built into the system), and, of course, the death penalty.
And that was all just about the Bill of Rights. Then he gets to the Civil War-era amendments.
He believes a new Constitution should have been written, as was done in South Africa after apartheid. But since it wasn't, what we need to do is come to a clear conclusion on what the Thirteenth, Fourteenth, and Fifteenth Amendments are about. Did they fundamentally change the Constitution, or not? Conservatives don't think so, Mystal says, while the rest of us see them as a Second Founding, which is the title of a book by historian Eric Foner. They were meant to herald the first biracial (now multiracial) democracy. Mystal's take on this:
...analyzing any constitutional clause without straining it through the Fourteenth Amendment's guarantee of equal protection and due process, or the Fifteenth Amendment's distribution of the voting franchise, is an exercise of intellectual apartheid. Without the Thirteenth, Fourteenth, and Fifteenth Amendments (and the Nineteenth Amendment, which finally acknowledged women's fundamental right to vote), the Constitution is a violent piece of shit that can be used to justify or allow the legalized supremacy of white men over all others. Those four amendments do not perfect the original Constitution; they're not the final pieces of the puzzle that complete a picture.... Instead, they recast the entire document, destroying the slave state that the founders wrote...and replacing it with something new...still flawed yet not utterly unredeemable (page 128).
And in response, from conservatives, we get "originalism" and "textualism" to pretend none of that is real, because white supremacy is what they want to maintain:
It's pretty easy to dress up "whites win always" with legalese and sell it back to an audience of white people, especially when Thomas Jefferson and James Madison have already done most of the work (page 129).
There is no political or legal philosophy of democratic self-government that contemplates people living under the yoke of laws as they would have been interpreted by their captors (page 135).
After that, there are chapters on voting rights, gerrymandering, the Senate, and the Electoral College. While Mystal has sympathy for the National Popular Vote law idea to make the Electoral College irrelevant without eliminating it, he doubts it would hold up to a Republican challenge in front of our current 6–3 Supreme Court, if a Republican candidate lost the election under the NPV rules. A September 2020 Gallup poll showed 61% of people favor eliminating the Electoral College. He advocates going for an actual constitutional amendment to abolish it, working the disenfranchisement angle (i.e., there were more Trump voters in California than any other state, but their votes were meaningless).
The epilogue of the book is Mystal's recommendation on court expansion. Up until now, I have favored the idea of expanding to 13 justices to mirror the number of federal appellate courts, which was how the current number nine was fixed in 1869. But Mystal is in the go-big-or-go-home camp: justices would go into senior status after 18 years, with new justices added at that point. And he would change the court to the same format used for Courts of Appeals, particularly the Ninth Circuit, which has 29 judges who hear cases in three-judge panels, chosen at random. If a case is more controversial, the full court can vote to rehear the case "en banc" for a vote of the full court.
This plan would depoliticize both the court and the nomination process, as well as allowing the possibility that the court could be more representative of the country as a whole, just through its sheer number of positions.
I hope I haven't given too much away. There's a lot more in these 257 pages that I haven't mentioned. If you want to be prepared to argue with your favorite right-wing federalist, you can't do better than this book.
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