Embark on a riveting journey through the corridors of justice as Elie Mystal takes a bold stand on constitutional amendments and the Supreme Court in ‘Allow Me to Retort.’ Brace yourself for an eye-opening exploration that challenges norms and ignites critical discourse.
Eager to unravel the untold stories behind constitutional amendments and Supreme Court dynamics? Don’t miss out – read on to discover the thought-provoking insights awaiting you in ‘Allow Me to Retort.’
‘Allow Me to Retort’ is a powerful exploration of constitutional amendments and the inner workings of the Supreme Court. Elie Mystal delves into the intricacies of legal discourse, offering readers a compelling analysis of historical contexts and contemporary challenges. With a blend of wit and insight, Mystal invites us to question, reflect, and engage with the complex tapestry of constitutional law.
Elie Mystal’s ‘Allow Me to Retort’ is a tour de force, challenging readers to reevaluate their understanding of constitutional principles and the Supreme Court’s role. Mystal’s writing is not only informative but also infused with a refreshing perspective that sparks critical thinking. A must-read for those passionate about the intersection of law, justice, and societal progress. Prepare to be enlightened and inspired.
Legal Commentary, Constitutional Law, Supreme Court Analysis, Political Discourse, Social Justice, Non-Fiction, Legal Reform, American Politics, Critical Thinking, Public Policy
The Nation’s justice correspondent Elie Mystal – embracing controversy, never equivocating – examines the US Constitution and finds that racism shaped how Americans interpret it. He includes judges who misread it in ways that harm Black people. In Mystal’s view, the courts’ application of the Constitution has never fully included women or people of color. Besides, he says, it hasn’t solved many problems, given the Jan. 6, 2021 attack on the US Capitol and recurring mass murders. Mystal advocates Supreme Court reform and a more positive, fair understanding of the Constitution. He’s provocative, but even if you disagree with him, his analysis – notably of systemic racism and the law – is enlightening.
- The First Amendment protects people from government repression, not from “cancel culture.”
- The Second Amendment didn’t originally address individual self-defense.
- Weakening Fourth Amendment protections enables excessive or racist police practices.
- Courts should rule that confessions to police officers and prosecutors are unconstitutional.
- The trial-by-jury system derived from the Sixth Amendment is unjust to Black people.
- The Eighth Amendment offers only a vague definition of “cruel and unusual punishment.”
- Congress should reform the US Supreme Court.
The First Amendment protects people from government repression, not from “cancel culture.”
Politicians, public intellectuals, university professors, writers and media personalities fret about cancel culture, particularly when someone says something racist, sexist, antisemitic or homophobic and ends up losing a magazine column, publishing contract, speaking engagement or professorship. Then, they decry censorship and argue that the culture violates their “free speech” rights.
“Free speech also does not confer a constitutional right to tenure on professors who feel the need to say the n-word in class. These people can say whatever they want, but the Constitution does not protect their right to employment.”
The First Amendment protects people principally against the government silencing political speech and protest. Those who protest against cancel culture seldom take action when real First Amendment rights are at issue. For example, they remained silent in 2020 when Attorney General William Barr allowed the suppression of an otherwise peaceful protest outside the White House or when billionaire Peter Thiel sued the independent news site Gawker into extinction. Authentic First Amendment rights are threatened when those who disagree with protestors demand that the police attack them or when those who find a news story distasteful bombard the relevant websites with lawsuits.
The Second Amendment didn’t originally address individual self-defense.
The Second Amendment says that states need a “well-regulated militia” for security reasons and, therefore, people in each state have a right to own weapons. Those who favor less regulation of guns tend to ignore the crucial “well-regulated militia” part of the Second Amendment and argue that the right to bear arms – the right to gun ownership – springs from people’s need to defend themselves even when they face no real risk.Many conservatives hold that the right to own a gun is absolute, including military-grade weapons, even when such guns enable mass shootings.
“What these people don’t understand is that the right to gun ownership for self-defense is an entirely new constitutional argument, made up whole-cloth by the gun lobby and only recently given the force of constitutional validity by Republicans on the Supreme Court.”
The National Rifle Association (NRA) created this interpretation of the Second Amendment in the 1970s, and it became integral to the ideology of conservative judges, who claim this view is part of the amendment’s original meaning. In fact, the Second Amendment ended up in the Constitution because Southern slave owners wanted armed militias to put down potential revolts of enslaved people. These “citizens’ militias” had nothing to do with self-defense; they derived from the South’s fear that the North would leave it with no means to defeat revolts.
Weakening Fourth Amendment protections enables racist or excessive police practices.
In the 1968 Supreme Court case Terry v. Ohio, the court concluded that if police had a “reasonable suspicion” of wrongdoing, their practice of stopping and searching people was allowed despite the Fourth Amendment’s prohibition of “unreasonable searches and seizures.”
The “Terry” in this case was a Black man who had been pacing back and forth in front of a store in Cleveland, Ohio. The police believed he and two others were “casing the joint.” The police searched the men and found concealed weapons. The Supreme Court ruled that such “Terry stops” were constitutional because, while the Fourth Amendment is fundamental, the Court had to consider the common, sometimes risky, situations police face. The Court asserted that such searches were at most a small annoyance to the people the police searched.
“I do not think the Supreme Court intended for Terry stops to metastasize into what stop and frisk turned into.”
New York state’s stop and frisk law, passed in 1971, was intended to reflect what Terry v. Ohio made constitutional. In the statute’s initial understanding, an officer could search someone only if the officer credibly thought that he or she was at risk or, at least, might be at risk. But then-Mayor Rudolph Giuliani and then-police commissioner William Bratton expanded search policies, so officers could stop and search anyone they suspected had committed crimes or might soon commit crimes.
This standard’s broad vagueness gave officers license and justification to target specific people, which is patently unconstitutional under the Fourteenth Amendment. Some police officers and officials cited this standard to justify acting on their racial biases. Courts should overrule Terry v. Ohio and any other statutes that justify New York’s stop and frisk law.
In 2014, police in Ferguson, Missouri shot Michael Brown six times. The death of this unarmed Black man gave rise to protests against police violence and the formation of the Black Lives Matter organization. Even so, prosecutors never charged any Ferguson police officers with a crime.
“When it comes to police violence against Black people, justice, civility and basic common sense are thrown out the window.”
This lack of prosecution derives from the 1989 Supreme Court ruling in Graham v. Connor. The case stemmed from an incident in which a Black officer, M.S. Connor, followed a diabetic Black man, Dethorne Graham. Police officers pulled him over and bashed his head against the hood of their car.
Graham filed suit charging excessive use of force under an act that codifies the Fourteenth Amendment’s proscription of racial discrimination. When the case reached the Supreme Court, conservative justice William Rehnquist eliminated its racial discrimination aspect, applied the Fourth Amendment and concluded the “reasonableness” of a police officer’s use of force should be understood from the officer’s point of view.
The Graham v. Connor ruling impedes the courts from dealing with police brutality at a federal level. If defendants cannot invoke the Fourteenth Amendment, they face difficulty attributing police violence to racism. The Department of Justice can initiate an investigation into whether a police department engages in racist practices, but such a course remains highly unlikely, particularly under Republican administrations.
Courts should rule that confessions to police officers and prosecutors are unconstitutional.
The Constitution’s Fifth Amendment holds that “No person…shall be compelled in any criminal case to be witness against himself…” Yet police and prosecutors do pressure and manipulate people into confessing to crimes without an attorney’s present. This practice is obviously inconsistent with the Fifth Amendment. Under the law, suspects always have the option of consulting with a lawyer and speaking only with a lawyer present.
“Think about why the right against self-incrimination is included in the Fifth Amendment at all. It’s there, entirely obviously, to stop the government from beating confessions out of people.”
What constituted a compelled or coerced confession in the 18th century differs greatly from today’s definition. Yet regarding something as important as Fifth Amendment rights, the attendant contemporary hair-splitting is absurd. The degree to which the Fifth Amendment protects defendants depends in part on whether they have a lawyer’s advice and know that the Fifth Amendment exists at all. The Supreme Court ruling in Miranda v. Arizona, which requires the police to inform suspects of their right to not incriminate themselves and their right to have a lawyer, was intended to resolve this issue.
However, the Fifth Amendment and the Miranda provisions still leave space for the police to circumvent their intent, and that behavior continues in ways that predominantly affect Black people. The courts should understand the Fifth Amendment in a more straightforward way. They should find that any self-incrimination caused by confessing to the police or prosecutors is unconstitutional.
The trial by jury system derived from the Sixth Amendment is unjust to Black people.
The Constitution’s Sixth Amendment requires that criminal defendants receive a timely trial adjudicated by an unbiased jury of people from “the state and district wherein the crime shall have been committed.” Jury trials date back to the ancient Greeks and Romans, and the founders wrote them into the constitutions of America’s original colonies before the American Revolution. Americans show remarkable faith in the idea that juries can be impartial and can produce just results – and that is especially the case with Black people.
“For Black people, the Sixth Amendment is a cruel joke. The point of a trial by jury, if there is one, is to be judged by a community of your peers. But Black people have always been regularly brought up on charges by a white prosecutor, in front of a white judge, to have their guilt or innocence judged by an all-white or predominantly white jury.”
Historically, the American criminal justice system prioritizes white people and their viewpoints. Prosecutors keep juries all-white by using the “peremptory challenge” to disqualify prospective jurors. Lawyers can keep a person off a jury without stating any explicit justification, and they more often than not reject potential Black jurors – especially when the trial involves a Black defendant.
In 1986, in Batson v. Kentucky, the Supreme Court took a step toward mitigating this tendency. The Court ruled that prospective jurors can’t be excluded because they are Black, and that defendants can challenge the exclusion of Black jurors. Nonetheless, peremptory challenges, when they keep juries from representing the appropriate community, can exclude Black defendants from their right to a jury of their peers.
The Eighth Amendment offers only a vague definition of “cruel and unusual punishment.”
America’s capital punishment provisions don’t protect innocent people from regularly suffering conviction and execution. The courts do not punish closely related crimes in parallel ways, and that inconsistency extends to capital punishment. Some states permit it and others do not, so the decision about whether a state will execute a defendant is contingent on which state is in charge. States that practice capital punishment are more likely to execute Black people than white people. The Constitution seems to allude to capital punishment in the Eighth Amendment, but it doesn’t set a rigorous standard for its application.
“Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” (US Constitution, Eighth Amendment)
Regarding the death penalty, the Constitution’s crucial phrase is the ban on “cruel and unusual punishments,” but it lacks a precise definition and proves historically sensitive. A truly contemporary understanding of the Eighth Amendment would banish capital punishment altogether, as happened with the since-overturned 1972 Supreme Court ruling in Furman v. Georgia.
Courts cannot legitimize the state killing its own citizens by splitting hairs over the meaning of “cruel” and “unusual” or inventing supposedly less repulsive means of executing people. The United States should abolish the death penalty because it’s always abhorrent when the state wrongly convicts someone. A system that decides whether the state will execute people due to where they committed a crime or whether they had a skilled lawyer is equally abhorrent.
Congress should reform the US Supreme Court.
The North won the Civil War, and the United States survived as a country. Writing an entirely new Constitution right then might have been a good idea. The original Constitution, written partly by slave owners, didn’t count Black people as full human beings – but it didn’t survive over time. The Thirteenth, Fourteenth and Fifteenth Amendments – the “Reconstruction Amendments” – effectively created an entirely new US Constitution.
“As a matter of interpretation, 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.”
Apparently, there is no law the current conservative Supreme Court can’t overturn and nothing in the Constitution it can’t overlook or distort. The United States can move forward only with the approval of nine, unelected Supreme Court Justices, appointed for life. Other than starting over – perhaps by writing a Constitution in which the Supreme Court is less powerful – only Congress can reform the Supreme Court. According to Article III of the Constitution, such reform is a Congressional responsibility.
One possible option is to impose term limits on federal judges. This may run afoul of Article III, but lawmakers can work around that by shifting Supreme Court judges to “senior status” after 18 years. They would still hear cases, but this change in their standing would – over time – regularly raise opportunities to appoint new people to the Supreme Court.
This course would bring the added benefit of making Supreme Court members less dependent on whoever is in the White House and whichever party holds the Senate majority. Congress could dramatically expand the Supreme Court from nine to 29 justices, which could make the appointment process less politically contentious. To better understand why 29 justices, note that the Ninth Circuit Court of Appeals, which handles California and other Western states, has exactly 29 judges.
About the Author
The Nation’s justice correspondent Elie Mystal is the Alfred Knobler Fellow at the Type Media Center, an MSNBC commentator, and the legal editor at the More Perfect podcast.