Elie Mystal: Our Constitution is "actually trash" -- but the Supreme Court can be fixed

[marmar]

Elie Mystal: Our Constitution is "actually trash" — but the Supreme Court can be fixed
Author and scholar Elie Mystal on our deeply flawed Constitution and the long, dark history of legal racism

By DEAN OBEIDALLAH
PUBLISHED MARCH 23, 2022 6:30AM


(Salon) Elie Mystal, attorney and author of the New York Times bestseller "Allow Me to Retort: A Black Guy's Guide to the Constitution," wanted actor Samuel L. Jackson to record the audio version of his book. Mystal's title, after all, is drawn from one of Jackson's famous lines in "Pulp Fiction." But if you've seen Mystal on cable news, you know he doesn't need Jackson to provide passion and emphatic delivery. Mystal gives you all that and more, as you will see first-hand in our recent "Salon Talks" conversation.

Mystal takes, shall we say, the controversial position that the U.S. Constitution is not only "not good," but that it's "actually trash." He notes that our founding document was drafted by men who owned slaves and enshrined that evil institution with the infamous Fugitive Slave Clause and the "three-fifths compromise." But Mystal's bigger point is that our Constitution is given too much deference: "We act like this thing was kind of etched in stone by the finger of God, when actually it was hotly contested and debated, scrawled out over a couple of weeks in the summer in Philadelphia in 1787, with a bunch of rich, white politicians making deals with each other."

Mystal also lays bare the myth that the motivation behind the Second Amendment was about self-defense or a check on the government. As he notes, George Mason — then the governor of Virginia and one of the drafters of the Constitution — flat-out said that the Second Amendment was meant to guarantee that Southern states could form a "well-regulated militia" to "fight slave revolts." Mason and other Southerners feared that the federal government wouldn't help them put down slave uprisings, and they needed to have guns close at hand.

....(snip)....

You were recently on "The View" talking about your book and created some controversy. The first line in "Let Me Retort" is "Our constitution is not good," followed up a few paragraphs later with "Our constitution is actually trash." You're obviously trying to challenge people. Tell people what your goal is there.

There are two things going on there. One, the veneration that this country has for the Constitution is simply weird. It's crazy. It's not what other countries do for their written documents. We act like this thing was etched in stone by the finger of God, when actually it was hotly contested and debated, scrawled out over a couple of weeks in the summer in Philadelphia in 1787, with a bunch of rich, white politicians making deals with each other, right? These politicians were white slavers, white colonizers and white abolitionists — who were nonetheless willing to make deals with slavers and colonists. No person of color was allowed into the convention. Their thoughts were not included. No women were allowed to have a voice or a vote in the drafting of the Constitution. And quite frankly, not even poor white people were allowed to have a voice or a thought in what the Constitution was. ......................(more)

https://www.salon.com/2022/03/23/elie-mystal-our-constitution-is-actually-trash--but-the-can-be-fixed/

[lagomorph777]

1. I agree with Elie. I expect he might agree with me though, that we can't touch it right now.

We'd be opening a real can of MAGATS. They'd make it 1000x worse.

I also agree that if we hurry, and keep the pressure on SineManchin, we can fix SCROTUS.

Hopefully Thomas croaks and improves our chances.

[musclecar6]

5. I always

Get a kick out of people thinking the Supreme Court has all very balanced brilliant educated lawyers/ judges etc. Yes some are, usually democrats who try to do good with their lives, but many of the republicans are political right wing hacks who wouldn’t know decency or fairness if it bit them in the ass.

Trying to make a case that the “holy” constitution or the “sacred” 2nd amendment has questionable origins with TFFG’s knuckle dragging base and the other republicans that can NEVER think beyond what’s best for THEIR wallet, will obviously go nowhere.

Oh well, we just have to keep on keepin’ on.

[Fiendish Thingy]

2. I don't know what Mystal proposes, but I have little hope that the Constitution can be rewritten

At least not rewritten towards fairness and equity, at least not until white people become a clear minority (say, 35% or less) in the US, and that’s going to take several decades at least.

[lagomorph777]

6. Yup, sadly.

But he's correct that we can work on fixing SCROTUS - if we HURRY.

[brush]

11. Not rewritten, but it can be improved incrementally by amendments, as it has been...

over the centuries. It's certainly not easy though as what we Dems see as flaws, conservatives see as sacrosanct clauses...because they benefit them.

[brush]

3. Everybody, you must watch the video at the link.

Last edited Wed Mar 23, 2022, 03:18 PM - Edit history (1)

Once you do you won't think saying "the Constitution is trash" is blasphemous.

Most of us here know the document needs work, as witnessed by all the amendments over time. It's worst than we think though.

[robbob]

7. The very fact that you use the word "blasphemous"

indicates the depth of the problem. As indicated in the excerpt, some people treat it as if were etched by the very finger of God! Also goes with American exceptionalism and the whole notion that God blesses America to rule the world, etc. etc…

In practical terms, it means gun reform is perpetually stalled in congress by any opportunistic politician invoking the sacred 2nd amendment, as if any of the original framers of the constitution could have envisioned ordinary untrained citizens walking around armed to the teeth with semi-automatic large capacity killing machines.

[RussBLib]

22. all the amendments?

not that many for over 220 years. Many state constitutions have been amended hundreds of times, often for picky little shit.

interesting link: https://ballotpedia.org/Number_of_state_constitutional_amendments_in_each_state

[brush]

23. There have been quite a few, and it's not that unsual IMO.

After all, how could 18th century men ever anticipate automatic weapons that can fire at a rate of 900 rounds per minute when state of the art firearms of their time were muzzle loading muskets with a rate of fire of one round per a couple of minutes at best.

Of course I'm talking about the Second Amendment, which I'm sure most of us realize, it, an amendment itself, needs amending, as do other parts of the larger document.

Can you hear me Electoral College. Can you hear me the imperfect formula for Senate representation where the 600,000 plus citizens of the state of Wyoming have as much say as the 40,000,000 citizens of California.

I say let's bring the document up to the 21st century. It's not a holy writ from the finger of God. It can be updated.

[CrispyQ]

4. Excellent interview!

I like both these guys.

Thanks for posting.

[Hieronymus Phact]

8. An instructor once said

The History of the United States is a long running effort to make those words true.

My take is that our government trusts us with dangerous things: Free Speech and guns. Frequently that trust is misplaced, but i prefer it to the alternative.

[brush]

10. The founding document still needs work though. Especially....

when it comes to the 2nd Amendment, the electoral college, equal representation in the Senate for 40 million Californians v 600+ thousand Wyominians. And of course voters not voting directly for our president.

Not saying there's much chance of any of that happening any time soon with the republican party and conservative voters benefiting from these provisions.

[Hieronymus Phact]

13. I have to disagree about the senate

As much as it sucks, the point of the senate is minority rights. Small states have the same clout as big ones. if it was apportioned like you want it would crush that. It would be just like The House and it's not supposed to be like that. It gives Maine the same power as California. Failing to win elections is not a good enough reason to throw that all away. Republicans are the ones who always want to trash the system when it doesn't produce their desired results. I don't want to emulate them. Susan Collins was very beatable, the candidate sucked.

[brush]

14. It's not supposed to be like the House? Why not, because...

several 17th century, rich, white guys (no women, POCs or poor white guys had any input) scratched it out over two weeks long ago in a Philadelphia summer? You're making Elie Mystal's point.

It doesn't have to be that way just because they couldn't envision states being so unequal in population back in their time. 40 million people should have more representation than 600 thousand plus people, period.

That's just simple fairness and there's no way to argue that is fair. Adjustments to Senate representation are in order.

[Hieronymus Phact]

15. Why have a Senate at all then?

If its just like the House whats the point at all? The Senate is fair to small States, so a few populous states can't just swamp the rest like in the House? It's called checks and balances.
And you're wrong They very much did envision states being so unequal in population. Minority Rights was the whole point, funny you're against that when it's inconvenient for you. When Ron Johnson wins again don't blame the Senate, blame the people who can't make a good enough case against him to win a very winnable election.

[brush]

16. Why have the Senate indeed. If it doesn't give fair representation...

it's glaringly obvious that adjustments need to be made. But if you'd rather go with the outmoded opinions of 18th century slave masters, go right ahead.

It's like Elie Mystal says, the Constitution is not a holy object that can't be changed. Your argument sounds like it comes from a strict constructionist.

The 6-year term of the Senate makes it different from the House in not just that way, but in the way that the longer term means that it's members get more seasoning that comes with age, life experience and analytical reasoning to vote wisely. All of that doesn't come from unequal representation of larger states. Wise decisions come from that. Wise decisions benefit large and small states. And small state senators can certainly form alliances with other states' senators to achieve their goals. Nothing wrong with that.

And it can all be done without filibusters, outmoded Constitutional clauses and super majorities of 60 votes being needed.

Come up from the 18tn century to the 21st.

[Hieronymus Phact]

17. You're right screw minority rights, screw checks and balances.

There were Founding Fathers That didn't own slaves, so nice way to screw them too.
You're looking for alternate solutions for losing elections. Try doing better winning them. You don't seem to want to respond to that though.
There are approaches to fixing the Senate situation that are far more doable, but screw any practical solutions too. Just Destroy things that are in your way. Cheers and Good luck with that.

on edit: the filibuster is an artificial construct used as a tool to defeat majority votes within the Senate, getting rid of it does not require getting rid of the Senate.

And i have to say its rich how you want to trample on minority rights while insinuating that I'm throwin' it in with the slaveholders. Nice. but if you don't give a shit about minority rights in this instance how can you be trusted to look out for them in any other?

[brush]

18. Are you on the right site? You sound like a republican.

I see from your low post count you probably are.

I've wasted my time, but have a nice visit here on DU.

[Hieronymus Phact]

19. Wow

First you associate me with slaveholders, then you accuse me of probably being a republican.
Because I'm advocating for the minority rights of small states like Rhode Island.
All without addressing a single point i made.
Whatever.

[brush]

20. Like I said. I've wasted my time.

[marie999]

25. You are totally wrong about the Senate.

HP is correct on why we have a Senate with 2 senators from each state. And you are also wrong in your writing things about a person you do not know.

[brush]

26. What's right with the California's 40 million people having only...

the same representation as Wyoming's 600,000 some thousand? That's right to you?

[marie999]

27. They don't have the same representation they have greater representation in the House.

The Senate can not pass legislation without the House.

[brush]

30. Aren't we talking about the Senate? And as far as the House...

it's 435 seats have been set at that number since 1911. Do ya think California's population has stayed the same since 1911?

Also, see post 28. Maybe you'll understand better.

[dpibel]

28. Help me understand

The only minority I know of that the Senate was designed to protect was the minority of white men in a minority of states who thought it was God's will that they own human beings.

Can you give me some examples of how the Senate has otherwise protected low-population states from oppression by large population ones?

As matters sit, we are projected in a few years to have a supermajority of the Senate elected by less than half the population. At that point, the low-population states can (even more effectively than they do now) veto any legislation.

Do you honestly believe this is a situation that the framers envisioned?

[marie999]

31. I do not think they envisioned or could have envisioned what this country would be like now.

That is one reason for being able to amend the Constitution. I'm not a scholar on the Constitution but I think the only supermajority in it pertains to amendments where the Senate and the House need a 2/3 vote and to override a presidential veto. And as far as the Senate protecting small states, that is way above my ability to answer.

[dpibel]

21. The inalienable rights of real estate?

Last edited Fri Mar 25, 2022, 04:38 PM - Edit history (1)

Are you seriously arguing that, as the union is presently constituted, there's a real risk that California is going to oppress Wyoming?

Apparently you are.

But the question is: Why do we have a legislative body in which political power is determined by arbitrary state lines drawn centuries ago?

You cannot, I trust, argue against the proposition that Wyoming residents have far more per capita power in the Senate than Californians do.

But that's not because they're some sort of protectable minority, as you're arguing.

It's because they are among the few people cantankerous enough to live in a pretty godforsaken wilderness.

But it escapes me why that gives them the right to undemocratic power.

And no. I don't think there's anything wrong with having two legislative bodies that are actually democratic.

As for actually protecting the rights of actual minorities (i.e., people disfavored due to immutable characteristics, one of which is not "lives in North Dakota" ), that's the job of the Bill of Rights and other amendments, if only they were actually enforced.

[brush]

24. Thank you. Very well said.

[Solly Mack]

9. K&R

[czarjak]

12. Long slogs will be made longer and sloggier by The Party of the Rich. He's right about the start.

[marie999]

29. As for the Senate, we do not live in a democracy.

This country was not set up to be a democracy. I think the best term to use is constitutional democratic republic.