Review: Allow Me to Retort, by Elie Mystal

Russ Allbery eagle at
Sat Mar 18 21:00:19 PDT 2023

Allow Me to Retort
by Elie Mystal

Publisher: The New Press
Copyright: 2022
ISBN:      1-62097-690-0
Format:    Kindle
Pages:     257

If you're familiar with Elie Mystal's previous work (writer for The
Nation, previously editor for Above the Law, Twitter gadfly, and
occasional talking head on news commentary programs), you'll have a
good idea what to expect from this book: pointed liberal commentary,
frequently developing into rants once he works up a head of steam. The
subtitle of A Black Guy's Guide to the Constitution tells you that the
topic is US constitutional law, which is very on brand. You're going to
get succinct and uncompromising opinions at the intersection of law and
politics. If you agree with them, you'll probably find them funny; if
you disagree with them, you'll probably find them infuriating.

In other words, Elie Mystal is the sort of writer one reads less for
"huh, I disagreed with you but that's a good argument" and more for
"yeah, you tell 'em, Elie!" I will be very surprised if this book
changes anyone's mind about a significant political debate. I'm not
sure if people who disagree are even in the intended audience.

I'm leery of this sort of book. Usually its function is to feed
confirmation bias with some witty rejoinders and put-downs that only
sound persuasive to people who already agree with them. If I want that,
I can just read Twitter (and you will be unsurprised to know that
Mystal has nearly 500,000 Twitter followers). This style can also be
boring at book length if the author is repeating variations on a theme.

There is indeed a lot of that here, particularly in the first part of
this book. If you don't generally agree with Mystal already, save
yourself the annoyance and avoid this like the plague. It's just going
to make you mad, and I don't think you're going to get anything useful
out of it. But as I got deeper into this book, I think Mystal has
another, more interesting purpose that's aimed at people who do largely
agree. He's trying to undermine a very common US attitude (even on the
left) about the US constitution.

I don't know if most people from the US (particularly if they're white
and male) realize quite how insufferably smug we tend to be about the
US constitution. When you grow up here, the paeans to the constitution
and the Founding Fathers (always capitalized like deities) are so
ubiquitous and unremarked that it's difficult not to absorb them at a
subconscious level. There is a national mythology about the greatness
of our charter of government that crosses most political divides. In
its modern form, this comes with some acknowledgment that some of its
original provisions (the notorious three-fifths of a person clause, for
instance) were bad, but we subsequently fixed them and everything is
good now. Nearly everyone gets taught this in school, and it's almost
never challenged. Even the edifices of the US left, such as the ACLU
and the NAACP, tend to wrap themselves in the constitution.

It's an enlightening experience to watch someone from the US corner a
European with a discussion of the US constitution and watch the
European plan escape routes while their soul attempts to leave their
body. And I think it's telling that having that experience, as rare as
it might be given how oblivious we can be, is still more common than a
white person having a frank conversation with a black person in the US
about the merits of the constitution as written. For various reasons,
mostly because this is not very safe for the black person, this rarely

This book is primarily Mystal giving his opinion on various current
controversies in constitutional law, but the underlying refrain is that
the constitution is a trash document written by awful people that sets
up a bad political system. That system has been aggressively defended
by reactionary Supreme Courts, which along with the designed difficulty
of the amendment process has prevented fixing many obviously broken
parts. This in turn has led to numerous informal workarounds and
elaborate "interpretations" to attempt to make the system vaguely

In other words, Mystal is trying to tell the US reader to stop being so
precious about this specific document, and is using its truly egregious
treatment of black people as the main fulcrum for his argument. Along
the way, he gives an abbreviated tour of the highlights of
constitutional law, but if you're at all interested in politics you've
probably heard most of that before. The main point, I think, is to dig
up any reverence left over from a US education, haul it out into the
light of day, and compare it to the obvious failures of the
constitution as a body of law and the moral failings of its authors.
Mystal then asks exactly why we should care about original intent or be
so reluctant to change the resulting system of government.

(Did I mention you should not bother with this book if you don't agree
with Mystal politically? Seriously, don't do that to yourself.)

Readers of my reviews will know that I'm fairly far to the left
politically, particularly by US standards, and yet I found it
fascinating how much lingering reverence Mystal managed to dig out of
me while reading this book. I found myself getting defensive in places,
which is absurd because I didn't write this document. But I grew up
surrounded by nigh-universal social signaling that the US constitution
was the greatest political document ever, and in a religious tradition
that often argued that it was divinely inspired. If one is exposed to
enough of this, it becomes part of your background understanding of the
world. Sometimes it takes someone being deliberately provocative to
haul it back up to the surface where it can be examined.

This book is not solely a psychological intervention in national
mythology. Mystal gets into detailed legal arguments as well. I thought
the most interesting was the argument that the bizarre and unconvincing
"penumbras" and "emanations" reasoning in Griswold v. Connecticut
(which later served as the basis of Roe v. Wade) was in part because
the Lochner era Supreme Court had, in the course of trying to strike
down all worker protection laws, abused the concept of substantive due
process so badly that Douglas was unwilling to use it in the majority
opinion and instead made up entirely new law. Mystal argues that the
Supreme Court should have instead tackled the true meaning of
substantive due process head-on and decided Griswold on 14th Amendment
equal protection and substantive due process grounds. This is probably
a well-known argument in legal circles, but I'd not run into it before
(and Mystal makes it far more interesting and entertaining than my

Mystal also joins the tradition of thinking of the Reconstruction
Amendments (the 13th, 14th, and 15th amendments passed after the Civil
War) as a second revolution and an attempt to write a substantially new
constitution on different legal principles, an attempt that
subsequently failed in the face of concerted and deadly reactionary
backlash. I first encountered this perspective via Jamelle Bouie, and
it added a lot to my understanding of Reconstruction to see it as a
political fight about the foundational principles of US government in
addition to a fight over continuing racism in the US south. Maybe I was
unusually ignorant of it (I know I need to read W.E.B. DuBois), but I
think this line of reasoning doesn't get enough attention in popular
media. Mystal provides a good introduction.

But, that being said, Allow Me to Retort is more of a vibes book than
an argument. As in his other writing, Mystal focuses on what he sees as
the core of an controversy and doesn't sweat the details too much. I
felt like he was less trying to convince me and more trying to model a
different way of thinking and talking about constitutional law that
isn't deferential to ideas that are not worthy of deference. He
presents his own legal analysis and possible solutions to current US
political challenges, but I don't think the specific policy proposals
are the strong part of this book. The point, instead, is to embrace a
vigorous politics based on a modern understanding of equality,
democracy, and human rights, without a lingering reverence for people
who mostly didn't believe in any of those things. The role of the
constitution in that politics is a flawed tool rather than a sacred

I think this book is best thought of as an internal argument in the US
left. That argument is entirely within the frame of the US legal
tradition, so if you're not in the US, it will be of academic interest
at best (and probably not even that). If you're on the US right, Mystal
offers lots of provocative pull quotes to enjoy getting outraged over,
but he provides that service on Twitter for free.

But if you are on the US left, I think Allow Me to Retort is worth more
consideration than I'd originally given it. There's something here
about how we engage with our legal history, and while Mystal's approach
is messy, maybe that's the only way you can get at something that's
more emotion than logic. In some places it degenerates into a Twitter
rant, but Mystal is usually entertaining even when he's ranting. I'm
not sorry I read it.

Rating: 7 out of 10

Reviewed: 2023-03-18


Russ Allbery (eagle at             <>

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