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Brian Lehrer: It's The Brian Lehrer Show on WNYC. Good morning again, everyone. Back with us now, Elie Mystal, Justice Correspondent for The Nation magazine. Some of you remember he was the legal editor for the Radiolab series on the Supreme Court called More Perfect. Elie has a new book called Allow Me to Retort: A Black Guy’s Guide to the Constitution. This is a book that says among many other things, that the law is not science, it's more like jazz.

We'll see what's in the book, as well as talk about some of today's jazzy legal news, including the Ketanji Brown Jackson's Supreme Court nomination. The trouble the Trump real estate fraud investigation is reportedly in now in the Manhattan DEAs office, and maybe a few other things. Elie, always great to have you. Congratulations on the book.

Elie Mystal: Thanks for having me, Brian. How are you?

Brian Lehrer: Good. Thank you. There are many takes on the Constitution out there already. What was your central organizing principle in writing a book on your take?

Elie Mystal: It's bad because Constitution is a problem. [chuckles]

Brian Lehrer: A problem?

Elie Mystal: Look, this is a document that was written by slavers, colonists, and wealthy white people who were willing to make deals with slavers and colonists, and it has some really obvious flaws and problems. The law is not objective. It picks winners and losers. It can be applied objectively, that's a little bit different but in terms of what it actually says it's an argument, and right now, or at least historically speaking, the argument made by the slavers and colonists has been ascendant. My book is explaining how that is in plain English, and trying to get people motivated and excited to win the other side of the argument.

Brian Lehrer: Well, we'll get into some of the particulars, but on the large view, if the Constitution originally established white male dominance, allowing slavery and voting rights only for white male property owners and Black people to be counted as three-fifths of a human and the census and everything else, how far in your view, has that been remedied at least on paper, through all the constitutional amendments that added equal protections?

Elie Mystal: Yes. It would be great if those constitutional amendments were actually interpreted as useful by the conservatives who control the Supreme Court, but unfortunately, those amendments have not been. If you look at something like the 15th Amendment, ratified in the aftermath of civil war and then ignored for 100 years.

A big part of my book is trying to explain that when you allow conservatives, whatever they're calling themselves. After the Civil War, they called themselves Democrats, but before now they call themselves Republicans, I don't care what they call themselves in the morning. When you look at what conservatives have done to things like the 15th Amendment, they are completely able to ignore the amendments that are supposed to give justice and equality, and fairness to all people when you let them control the courts. That's what they did with the 15th amendment.

Then we have the 1965 Voting Rights Act, I would argue that the 1965 Voting Rights Act is the most important piece of legislation in American history, specifically, because it makes the 15th Amendment real, and you can't have a democracy without universal suffrage. You have the Voting Rights Act. The Voting Rights Act is so effective that within 40 or so years of taking the white oppressive foot off of our necks, we have a Black president. That's great. Conservatives like that so much that they replaced him with a bigoted conman, and in 2013 re-eviscerated the Voting Rights Act with John Roberts and Shelby County v. Holder.

Now we're back to a situation where we don't really have universal suffrage in this country. This is what conservatives do. When you talk to me about constitutional amendments, I'm going to talk to you about how conservatives have interpreted those amendments throughout history.

Brian Lehrer: Well, let's go to one of the particulars because you argue that there's a lot of hypocrisy. Of course, you just mentioned one of the big particulars the way the Supreme Court overturned the Voting Rights Act, which was passed by Congress, including a 98 to nothing vote in the Senate, which included obviously a lot of Republicans as well as Democrats, but the principle hypocrisy in the ways conservative justices and politicians interpret the Constitution that is improvise jazz on their political tax phones, I guess, while claiming to be a strict originalists when it comes to the progressive agenda.

You want to talk about that duality because I think that's really central to so much that we see come before the Supreme Court today.

Elie Mystal: Right. One of my chapters is on the Eighth Amendment. That's the amendment prohibiting cruel and unusual punishment. I like that because that to me is the cleanest divisiveness. The cleanest break between originalists and progressives. The Eighth Amendment says that we can't have cruel and unusual punishment. That phrase is itself vague. I think we all understand that the Constitution does not define what cruel is and does not define what unusual is. We have to go to the interpretive theories.

The originalist conservatives will say that to understand what cruel and unusual punishment means, we have to look back to the men who wrote it. Now, as I pointed out, those men were slavers and colonists. Why would I, a Black man in 2022 give one hoots about what slavers thought cruel and unusual should mean? Can we not agree that their moral capacity to understand cruelty was maybe stunted? How is what they thought what punishments could be used, how is that relevant to our lives in 2022?

I say it is not, but that is the break, conservatives want to always hold us back, not bring us back, hold us back to a 19th-century, 18th-century view of human rights and equality and I want to bring us forward.

Brian Lehrer: The book mentions citing the constitution to weaken labor laws and environmental laws based on what you call unenumerated rights. Is that something you can discuss including why the phrase unenumerated rights is important?

Elie Mystal: Yes. James Madison did not think that the Bill of Rights was necessary. Like all the guys who wrote the-- like Madison, Jefferson, Hamilton, and Jay, all the people who wrote the Federalist Papers, they thought the Constitution was fine as is. It was other people in the States political people who demanded a Bill of Rights.

Madison's worry about writing the Bill of Rights, which he eventually he caved, he did what they wanted, Madison's worry about writing the Bill of Rights was that in the future, some fool would think that the only rights that we had were the ones enumerated on his list, and Madison knew that he couldn't possibly write down every single right a person might have or might have in the future. Madison gave himself an out. It's called the Ninth Amendment.

The Ninth Amendment says specifically, that the rights listed in the Constitution are not a conclusive list of all possible rights, that they are unenumerated rights that have not been listed in Madison's Bill of Rights. Now that Ninth Amendment that is again, Madison's out clause, for the thing that he was forced to do is the one amendment that conservatives want to pretend never happened. Literally, conservatives will walk around talking about like, wow, the Ninth Amendment is an inkblot, and who can know what it really means. I'll tell you what it really means. It means that we have more rights than are in the Constitution. The Constitution says so.

Brian Lehrer: Your analogy that the law is not science, it's more like jazz. Why that?

Elie Mystal: Because like I said, it's iterations on a theme. Look, our legal system is adversarial in nature. There are other legal systems in other parts of the world that are not like that. We chose to have this adversarial system, which means there's always an argument. When people think that the law is objective, they think that some head disembodied voice from on high is going to tell them what the law is. No, that's not how it works. The law is an argument, from my perspective, between forces of good and forces of evil. Too often, the forces of good don't take the field to argue for their version of freedom, equality, and justice.

My book is trying to inspire people to take the field and to take up the fight because I honestly believe, Brian, and you know this from many conversations that we've had before, I believe that if more people understood the law, then more people would be outraged by what Republicans do to it and be committed to changing it. The law is complicated, but it is not beyond the grasp of most literate people. You just have to explain it without all the jargon and all the legalese and all the boringness frankly, and I try to do that to get people to see what's really happening. Because I really think that if people understood what was happening, they would care more about fixing it.

Brian Lehrer: Listeners, if you're just joining us, our guest is Elie Mystal, Justice Correspondent for The Nation magazine. Again, some of you may remember he was a legal editor for the Radiolab series on the Supreme Court called More Perfect in WNYC and he's got a new book called Allow Me to Retort: A Black Guy’s Guide to the Constitution. If anybody wants to retort to Elie's retorts or just ask him a question, 212- 433-WNYC, 212-433-9692, or tweet @BrianLehrer.

Would it be digressing too much to ask you to talk about critical race theory because a lot of the media discussion at least points out that banning it in K through 12 education is a dog whistle for something else because critical race theory isn't taught in K through 12, it's a legal theory taught in law school. Well, you went to a pretty good law school there in Cambridge, Massachusetts, was critical race theory in the curriculum.

Elie Mystal: It was an elective. I actually didn't take it. I missed the critical race theory, a boat when I was in law school because it's one interpretive idea among many. That's what people don't understand. Again, we have to interpret things because there is vagueness. People always want to believe this is why OI said the jazz thing.

People always want to believe that the law is obvious. Anybody can just read it and understand what it means and that's just not true. That's just not how it actually works. We have to use interpretive structures to understand the law. I would argue that conservatives have been the OGs of critical race theory because they only want to look at the law through the eyes of the white males who got to wrote it in the 18th century.

That's critically using the race of the people who wrote it to understand your documents. Critical race theorists, Derrick Bell, for instance, a law professor, who's credited with founding this discipline, has a different interpretive method. That's all critical race theory is. It's a different way to understand the laws and structures that bind us. I wouldn't call myself a critical race theorist because you have to, I don't know, write law review articles or something to be that. I understand the Constitution from the perspective of a person, the Constitution was designed to enslave. If you don't think that affects my interpretation of some of these amendments and rules and restrictions, then you're crazy. Of course, I understand.

Of course, I look at something like the apportionment of congressional seats which initially was set to 30,000 people and those people were 30,000 white people, plus three-fifths of all non-white people, of all people held in bondage. Of course, I'm going to interpret how we apportion our Congress a little bit differently given that history. That's all critical race theory is trying to do is trying to look at a different way of interpreting these legal structures.

Brian Lehrer: Well, let me get to what we do about all of this because maybe you know there's an exhibit at the Queens Museum. We had people from it on that basically ask if the Constitution, because of its racist class of sexist origin is even salvageable, or if we need to have a constitutional convention and start from scratch. Do you ask existential questions like that with respect to the constitutional path to more equal rights?

Elie Mystal: I point this out in the book. Let's look at South Africa. When Nelson Mandela was freed and elected president and they tried to overcome their apartheid past, what did they do? Did they just stick some amendments on their Africaans Apartheid Constitution? Be like, "Okay, now we're good. Here's a new paint job where everything's?" No, South Africa took the racist Constitution, burned it, threw in the trash and started again. They had a whole new constitutional convention with citizens brought from all walks of South African life.

They took two years and now today, and this is going to shock many Americans, but now today it is the South African Constitution that is largely held up internationally as one of the best pro-democracy, pro-human rights written Constitutions in the world, not the American one, not our old broke Constitution, because what did we do after the civil war, when we had the opportunity to overcome the apartheid state that was antebellum pre-Civil war America? Well, we just stuck some amendments on it.

Well, who got to write those amendments, Brian? Oh, was it white men again? Yes, it was. It is white men who wrote the amendments that allegedly gave Black people freedom in this country. It is white men who wrote the amendments, who allegedly gave women the right to vote in this country. It is white male legislatures that ratify those amendments. Even the amendments that give people freedom and justice and equality were fundamentally couched in whiteness where non-white people, minorities, and women did not have a say in the laws that we are governed by.

Brian Lehrer: Although somebody might push back and say, when you look at the content of those amendments, 14th Amendment, 15th Amendment, all the way up, that they're really good on paper and what they need is a good interpretation.

Elie Mystal: Right. That's the counterargument. If we're not going to completely throw out the Constitution and just start again, then what we need to do is to interpret the amendments made after the civil war and the amendments granting justice and equality to everybody as very robust and basically amendments that fix the Constitution. That's why I say I am not a Black radical. I want to believe that the 14th Amendment actually worked. People are always, "Oh, originalists, they have such an easy bumper sticker for their constitutional theory." I've got one too. I'm a 14th Amendment estologist person.

Brian Lehrer: There's the sound bite.

Elie Mystal: From where I sit, every single law in this country has to be strained through the lens of equal protection for all and substantive due process for all. To me, the Constitution is the 14th Amendment and a bunch of suggestions. That is the way forward if we're going to say that our slaverous Constitution was overcome by the Reconstruction Amendments and the 19th Amendment.

Brian Lehrer: Certainly in this political environment and probably anyone that we can foresee in the near future to throw out the Constitution and start from scratch with a new constitutional convention, it would probably wind up more aggressive than the one we have now, or do you disagree?

Elie Mystal: I think that's because who would get to choose the delegates. If you actually chose the delegates as just a cross-section of American humans, I think the Constitution will work out a lot better, but unfortunately, we've got pro insurrectionists who would be overrepresented in the delegation. We'd have the same problem where land would have more of a say in the delegation than people.

If you have a Constitutional Convention and you've got like 10 delegates from New York, how many should you have from Wyoming? Statistically like 0.2 of a person. You should have a two-year-old essentially should be your rep. It wouldn't work out that way. The unequalness that we have baked into our society, unfortunately, I believe, would show itself again at a new constitutional convention, which is why I'm not in favor of a new constitutional convention.

Brian Lehrer: Yes, because of the Senate, which is part of the Constitution and that's whole show in itself, many shows.

Elie Mystal: Did you know Brian that the Senate is the one thing that cannot be amended through the amendment process? Literally in the Constitution, it says that the equal suffrage in the Senate is the one thing that can't be amended through the normal amendment process. Tell me that these people didn't know what they were doing when they were making their slave state.

Brian Lehrer: Viola in Kew Gardens, you're on WNYC with Elie Mystal. Hi, Viola.

Viola: Hi. I have a quick question. It's a very fascinating conversation. I think that maybe perhaps the difficulty for a lot of people with understanding the law and the Constitution is that the nature of what justice is and the relationship between justice equity, fairness, it's not clear. It's just like, we talk about people following the law. There's the law and then there's the spirit of the law.

If people understood what the spirit of the law is, they want to look for loopholes in written laws to break and say that I'm not breaking the law because everyone wants to think about the spirit of the law. My question is to you, what is the relationship philosophically, but also pragmatically between justice, the nature of justice, and fairness and equity. I'll take my answer off the air. Thank you very much.

Brian Lehrer: Thank you. It's a wonderful question. You have three hours to answer Viola's question.

Elie Mystal: Thanks for your question, Viola. Look, I always go back to who's doing the interpreting of the law. That's where the rubber meets the road, Viola. Let's look at something like the Fourth Amendment. Fourth Amendment prohibits unreasonable searches and seizures. Well, what's unreasonable? Who gets to decide unreasonable?

According to the current conservative interpretation of the Constitution, the cop gets to decide whether his use of force was reasonable or not against me. That's who gets-- the reasonableness has to be judged by an average cop on the scene. What the heck is that? How is that our law? I would say that an objective non-cop should be the person to decide whether a use of force was reasonable or unreasonable.

Often, Viola, it comes down, not to the spirit versus the text, because I think that there is broad agreement that we should pay attention to the text. There is broad agreement that we should interpret the text generously, as opposed to pedantically. The real question becomes, who gets to do the interpreting? Historically, if you let conservatives do the interpreting, they will always interpret it against freedom, against equality, and against fairness and justice.

Brian Lehrer: Just on your cop example, maybe a little pushback, wouldn't a proper way to scrutinize the behavior of anybody in their situation to look at what a reasonable course of action would be for someone in their situation?

Elie Mystal: Well, that's the standard. That you judge the cop based on what another cop should do, but the problem with that, Brian, is that, what if the cops are unreasonable? [laughs]. Just straight up, what if the cops are unreasonable? Then you have a huge problem. Instead of judging whether or not the Constitution applies to my situation, based on the view of the cop, why wouldn't we judge it based on the view of the victim? Why wouldn't we judge it based on the view of a person who had no skin in that conflict? Why wouldn't we judge it based on science, or something like that? There are lots of different ways we could judge it. Deciding to judge it from the perspective of the officer it's why we're here. It's why we have this problem.

Brian Lehrer: One more call. Neil in Brooklyn, you're on WNYC with Elie Mystal. Hi, Neil.

Neil: Hi, Brian. Hi, Elie. I've listened to some of your conversations before. They're wonderful and amazing and they're clarifying. My question is about Article II, Section 1 of the Constitution which I had some basic education, I'm not an attorney. It talks about the state legislatures getting to choose the electors, for the president, any way they want. Only until the 2020 election, where now legislators across the country are superseding the right to vote of citizens and putting the state legislators in charge, including overriding the election professionals, who even Republican election professionals have, for the most part, been professionals and counted votes honestly. We look at Georgia. The Constitution seems to give this loophole that legislators can do whatever they want, and that's very frightening. Please help me not be so frightened.

Elie Mystal: It's not a loophole. It's the Constitution working as intended. The Constitution did not want everybody to vote until everybody had a voice. The Constitution was horribly restrictive in who it gave the rights to vote. Remember, initially, people couldn't even choose their senators. That was done through the state legislatures, that had to be amended out. The electoral college is a system designed to remove the president from popular election. We should change it. [laughs]. I don't know what else to say.

There're so much of our laws that are based on the presumption of good faith. When I say it's a Black guy's guide to the Constitution, this is what I'm talking about. It's an assumption of good faith that I believe you can only make if you've been white for your whole life because if you've been Black for your whole life, you won't assume that white people will always be acting in good faith.

You're certainly wouldn't build a government around the concept of white people acting in good faith, because sometimes they don't, and so you would write a document that had some protections against white people acting in bad faith. That's what our Constitution doesn't have. Our Constitution assumes good faith at various points where it shouldn't.

Brian Lehrer: Neil, thank you for your call. We're almost out of time. I was planning to spend more time on some current legal news. Then it turns out that we have the time because the stuff from your book is so interesting but maybe we can do a lightning round version on a couple of things. The nomination of Ketanji Brown Jackson to the Supreme Court, I saw a conservative column in The Hill that argued Michelle Childs who Congressman Jim Clyburn was promoting would have been a better pick for conservatives because he has more moderate Constitutional views on a number of things. I wonder if you could do a soundbite version of putting Judge Brown Jackson somewhere on the spectrum of constitutional thought.

Elie Mystal: First of all, if conservatives like Michelle Childs so much they should nominate her when they have the opportunity to. I would welcome that. I will not pigeonhole Ketanji Brown Jackson but I will say that her decisions have been extremely mainstream. She clerked for Briar, who himself was a very mainstream centrist judge. Her decisions have been straight down the center, mainstream. However, I would not worry about her progressive bonafides, if that's something that you're concerned about because when you look at her personal history, she has worked as a federal public defender.

If confirmed, she will come to the Supreme Court with more public defense experience than any justice since Thurgood Marshall and she's also worked on the US Sentencing Commission, which is a huge issue of disparate justice. I think she both has conservative bonafides while also making extremely normal mainstream decisions. I do not think that anybody should have anything to worry about with her.

Brian Lehrer: Last thing, the Trump real estate fraud case. I saw you comment on that on the local station, New York 1. Do you get what's happening there? Reportedly two prosecutors working on the case have resigned because the new Manhattan DA has doubts but the State Attorney General, Letitia James, is pressing forward with her own investigation, I think on the same facts. What the heck is going on here?

Elie Mystal: Well, there's a little bit of a difference between Letitia James pushing forward on civil charges whereas Bragg, the DA, was supposed to go forward on criminal charges. Look, I think Bragg has a lot to answer for here. He can't just say, "Well, it's a hard case to make." Yes, we understand it was a hard case to make. You brought in Mark Pomerance, who is a professional RICO lawyer to make that hard case. You have Dan who has been there for a long time and making that hard case and they obviously thought they still had a case to make.

Bragg needs to explain, not just why he thought it was a hard case to make, but why he overruled the non-political appointee prosecutors in his own office against that case. He has to explain how that's any different than Cy Vance, in the before times, overruling the prosecutors in his own office and refusing to go after the Trump Organization in 2015, 2012 in the previous times. Bragg could answer that question, but he needs to come out here and answer the question because right now it looks pretty bad.

Brian Lehrer: All right, unresolved. There we leave it with Elie Mystal, Justice Correspondent for The Nation. His new book is called Allow Me to Retort: A Black Guy's Guide to the Constitution. The problem when you come on, Elie, it's always so boring.

Elie Mystal: [laughs]

Brian Lehrer: I see people's eyes drooping behind the wheels of their cars everything. [laughs].

Elie Mystal: The law, man. You got to slap people awake with that stuff. [laughs].

Brian Lehrer: Thanks, Elie. We will talk.

Elie Mystal: Thanks so much.

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