Abstract

Excerpted From: Brandon Hasbrouck, Allow Me to Transform: A Black Guy's Guide to a New Constitution, 121 Michigan Law Review 883 (April 2023) (Footnotes) (Full Document) 

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.

What happens to a dream deferred? --Langston Hughes

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.

Elie Mystal's Allow Me to Retort: A Black Guy's Guide to the Constitution 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, while others have provided an introduction to constitutional law as a field. 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. 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. 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. 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. 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.

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Those who are racially marginalized are like the miner's canary: their distress is the first sign of a danger that threatens us all. --Lani Guinier & Gerald Torres

Allow Me to Retort is a must-read synopsis of constitutional law, humorously presented in succinct and accessible overviews of some of the most important topics in the field. While educating the reader, it questions the legitimacy of the Constitution to guide a modern, egalitarian democracy. The failure to include large portions of society--women, people of color, Indigenous Americans, poor people--in the creation of the Constitution has led to a document that repeatedly fails those excluded groups. For many such Americans, the Constitution's promises of defense, welfare, and liberty have been a dream deferred. In their place, injustice persists as an open sore, fragrant with the rotten stench of bad-faith conservative doctrines. Retort analyzes the tensions brought on by deferring dreams of justice, which now grow ripe to explode.

Associate Professor of Law, Washington and Lee University School of Law. J.D., Washington and Lee University School of Law.