ALLOW ME TO TRANSFORM: A BLACK GUY'S GUIDE TO A NEW CONSTITUTION.

• Author: Hasbrouck, Brandon

ALLOW ME TO RETORT: A BLACK GUY'S GUIDE TO THE CONSTITUTION. By Elie Mystal. New York: The New Press. 2022. Pp. 270. Cloth, $25.10; paper, $17.66.

INTRODUCTION

What happens to a dream deferred?

--Langston Hughes (1)

Constitutional law seeps into our daily lives in America. Whether it's a state legislature taking another shot at undermining civil rights or a police car that just pulled up behind you, the Constitution matters for how you will--or, if you're Black, more likely won't--enjoy meaningful recourse to the law. Unsurprisingly, both the function and malfunction of the Constitution have generated numerous volumes of commentary, some aimed at specialists and some at the general public. (2)

Elie Mystal's Allow Me to Retort: A Black Guy's Guide to the Constitution (3) works within the tradition of lay synopses of constitutional law, filling a gap among those that came before. Some works have provided nonlawyers with an explicitly Black perspective on major issues in modern civil rights, (4) while others have provided an introduction to constitutional law as a field. (5) Mystal broadens the focus and audience, illuminating constitutional issues with his trademark humor and his life experience as a Black man in America. He creates a comprehensive overview for lay readers, emphasizing the experiences and needs of Black men. The result is a guidebook to recognizing, applying, and navigating the Constitution in its intersections with our daily lives.

While the Constitution's engagement with substantive rights might be the most obvious topic for a practical, lay guide, Retort also explores constitutional structures. This examination proceeds with an impulse toward remedy and repair, either by changing the Constitution or its interpretation. There's no question that the Constitution fails--perhaps intentionally--to serve large portions of American society. (6) Retort consequently takes right-wing, results-oriented originalism to task for its disingenuous methodology of choosing "original" meanings to exalt and its inaptness in choosing appropriate rules for an egalitarian, multiracial society. (7) Plenty of people involved in the drafting and later interpretation of the Constitution favored a social order dominated by white men (p. 129). But the preferences of the dead hardly form a reasonable basis for organizing our society today. (8) By exploring both the structural and rights-oriented dimensions of constitutional law, Retort can fully engage with racism--past and present--in the field.

Part I explores how Retort works as a guide to the Constitution. Because the relationship between Retort, the Constitution, and the reader alternately progresses through different practical approaches, Part I explores in turn the roles of field, user's, and survival guides. While the first two formats should be entirely familiar to the general reader, the third is easily the most pertinent to a Black man in America. Some of the user's-guide material is geared toward survival, too--particularly the passages oriented toward altering the structure of our government. Retort succeeds in being a guide to the institutions and injustices of American constitutional law.

There's more to constitutional law than just identifying its injustices, though. Retort is rather brief in its attention to the abolitionist potential of the Constitution and the ways we might improve upon this document drafted by slavers, colonizers, and their comrades. While I can't help but agree with Mystal that any novel interpretive frame or beneficial amendment is dead on arrival with the current Supreme Court, that hardly justifies excluding them from the discussion. Mystal does say he'd prefer a new constitution (pp. 237-38)--and has doubled down on this in his recent media appearances. (9) But he spends very few pages, relatively speaking, on what a better constitution would look like. Part II connects the dots between the problems in current constitutional law and their solutions in abolition constitutionalism. Part III goes further, expanding on the few constitutional reforms suggested in Retort to build a more complete vision of what a new constitution would look like for America.

1. A GUIDE TO OUR APARTHEID CONSTITUTION

   Does it dry up

   like a raisin in the sun?

   Or fester like a sore--

   And then run?

   Does it stink like rotten meat?

   Or crust and sugar over--

   like a syrupy sweet?

   --Langston Hughes (10)

   Constitutions are not always static, living on and on in a kind of institutional inertia. Occasionally, constitutional governments have experienced a moment of profound rupture--the kind of rupture that prompts a wholesale reappraisal of the foundations of government. South Africa is instructive on this point. The transition from South Africa's colonial, racially exclusionary constitution to its fully representative constitution proceeded in stages. First, a series of conventions and forums attempted to foster multiparty negotiations on a constitutional transition. (11) These negotiations eventually produced an interim constitution, principles to guide the development of a permanent constitution, and a democratically elected body to draft the new constitution. (12) While the initial negotiating groups were not democratically elected, their commitment to broad, democratic participation in the final process helped ensure the constitution's legitimacy. (13)

   The United States is currently facing the kind of disruptive moment that should prompt reappraisal of the basic foundations of our government. Our government is deeply unpopular (14) and faced with a series of crises that threaten our society. (15) Despite over a year of public protests and commentary, we have done little to meaningfully address racial inequality (16)--and a political solution may be impossible under our current system. (17) Retort comes to the Constitution with an awareness of this moment and of how the Constitution shaped and was shaped by previous disruptions.

   Mystal argues that--unlike South Africa--when the United States first faced a reckoning for its racist original sins, we left our apartheid constitution in place and hoped a few Band-Aids would fix it (p. 127). Thanks to the modern efforts of bad-faith conservatives and their bad-faith legal philosophy of originalism, (18) that failure to start the whole thing over from scratch perpetuates a litany of injustices, old and new. With so many participants in the system arguing in bad faith, the already technical field of constitutional law gets a bit more obscure. (19)

   Thankfully, Retort serves as a guide to the Constitution on many levels. It functions as a field guide, helping readers identify the role of constitutional law in their daily lives. It also functions as a user's guide, pointing out practical areas of constitutional law that Americans might actually redress and reform through political processes. Finally, it functions as a survival guide for Black men. In this respect, it makes clear that for some Americans, merely understanding the Constitution at both the surface and granular levels will not suffice. Indeed, the Constitution itself may cultivate the conditions that render America unsafe for certain constituencies. With this insight in mind, Retort is a survival guide for Black men in America, providing them with practical information for interacting with--and surviving--the various encounters with the law that the Constitution underwrites. Overall, these approaches combine to make Retort a useful and entertaining lay guide to the Constitution, even if its proposed solutions leave something to be desired.

   1. Field Guide

      Retort acts as a field guide--a genre more typically found guiding readers through plants, animals, and minerals in the natural world--by pointing out the various ways that our Constitution intersects with our mundane lives. The Constitution not only governs our relationship with our government, it also comes up constantly in the myriad bad-faith arguments conservatives casually throw around. They'll distort the Constitution, claiming that their liberty rights mean you have to make special allowances for them but that the Constitution doesn't really protect equality in any meaningful way. Retort aims to help the lay reader recognize such bad-faith individual rights arguments. In matters of criminal procedure, many of those bad-faith arguments have crystalized into bad doctrines thanks to conservative courts, and Retort serves as a field guide to these, too. Although this is an area where Retort does little new in the realm of lay constitutional law guides, Mystal's biting insight and humorous treatment of the Constitution land admirably, making Retort a worthy choice among a crowded field.

      Retort opens its discussion of the Constitution with three chapters about some of the rights we most often encounter in bad-faith conservative arguments: free speech, freedom of religion, and the right to bear arms. Bad-faith freedom-of-speech arguments mostly stem from conflating the ideal of free speech with the protection from government interference with speech (pp. 11-12). Retort aims to help readers recognize when freedom of speech protects the very things that conservatives complain are infringing upon their "rights" (p. 12). Yet these very conservatives often seek to weaponize the law against free speech--whether it's Peter Thiel and company suing Gawker out of existence, Devin Nunes going after a parody Twitter account claiming to be his cow, or police beating and gassing people for protesting police brutality (pp. 16-17). Similarly, conservative arguments on freedom of religion have a tremendous propensity to reduce to a defense of the right to persecute others in the name of religion (p. 29). By contrast, conservative bad-faith arguments about gun rights hide the ball by ignoring the intensely racist original intent behind the Second Amendment--which was added entirely to ensure the ability of white...