tv Elie Mystal Allow Me to Retort A Black Guys Guide to the Constitution CSPAN September 4, 2022 6:24pm-7:30pm EDT
good evening, everyone, and thank you so much for joining us. just the usual reminders to silence your cell phones and. refrain from flash photography. good evening and welcome to the free library of philadelphia. my name is andy kahan and i am honored to introduce our guests. the nation's legal analyst and justice correspondent and a frequent contributor to msn abc. elie mystal is, an alfred kobler fellow at the type media center and the legal editor. more perfect radio lab's podcast about the u.s. supreme court, a
harvard law school graduate and former litigator debevoise and plimpton. he was the executive editor of above the law, a news site sharing details and original commentary about the legal profession referred to by malcolm nance as a tour de force from the explainer in chief of american law. elie mostel's new book, allow me to retort a black guy's guide to the constitution is a series of arguments for the layman about how one of our founding documents should be interpreted in opposition to republican claims. this evening, he'll be joined in conversation with danielle m conway, dean and donald frisch, professor of law at penn state. dickinson law, the first law school established in 1834 in the commonwealth of pennsylvania, one of two separately accredited law schools at penn state university, established in 1834. dean conway is an expert in procurement law entrepreneur ownership, intellectual property law and licensing, intellectual
property. she is the author of numerous books, articles and essays and she was formerly the dean of the university of maine law and served on the faculties at several other law schools. please welcome elie mystal and danielle conway to the free library of philadelphia. thank you, everyone. and we are excited to be here with you. going to do a couple of adjustment. great. how are you doing? ali, i'm a giant person. it takes a while to get situated. all can you hear me? yes. so actually need mikes, but no, it's an honor to be here this evening at the free library of philadelphia an important site. we're knowledge is conveyed performative lee and
transformative lee through discourse, resistance, contestation and liberation to engage with the democratic process. elie so thank you for writing this book. allow me to retort a black guys to the constitution. i'd like you to introduce the theme of the book and what you hope the book will accomplish. yeah, well let's start here because it comes up quite a lot. it's called a black guy's guide to the constitution, not a guide to the constitution for black guys. right. and so that's an important distinction, right? because the goal of the book is to show what the law looks like, what our constitutional law looks like, certainly, but what our general kind of governmental structure looks like from the perspective of a person. that structure was designed to
ignore and in fact enslave, it and it looks different. right. just it hits, as the kids would say when you are reading a document that, you know, was purposefully designed to erect a western slave empire. whether or not that document is good, how we should interpret that document, what's going on in the kind of nether regions of that document, kind of become more important right like and then we, you know, we'll talk later about the amendments and all this kind of stuff. but and a fundamental level, what, you know, i like to make the analogy, it's like it's like the constitution is like a ford focus, right? and then after, you know, we had some wars, we had some idea, oh, we so we kind of stole the hubcaps off of cadillac. and it's like it's a cadillac now. no, it ain't. it's still a ford. i can still tell by the engine that it's a ford focus. now. it could get us to where we're going potentially. like it's not honestly, it's i'm not saying that it's a car that has no utility. but let's be honest about what
this thing is. right. and so that's really that's the perspective of the book to kind of have an honest look at the constitution from the perspective of somebody that it was designed to ignore. it's you know, it's labor is is the labor of it was really just trying to take a lot of thoughts and ideas that i've had throughout the process of myself becoming educated right throughout law school and my practice and my coverage of the law and try to distill that into its most essential forms because almost every chapter in this book kind of start with me saying like in law school, that's say what is that like what? what's how is the professor going? well, you know, we have to understand that what james madison was writing like. why do i care? and it's kind of distilling those kind of conversations and rejections into kind of book form. well, i love the idea that this is a constitutional law case book number one, that people buy
it when you. it is an exciting political takedown. it really is. it really is. but you do it with such conciseness as in brevity. but i sat with the title of the book a bit. i really did. and i'm glad you mentioned that. as i read it, i got the distinct sense that you are guiding the reader through what are often convoluted provisions of and elided meanings of the united states constitution. and i quickly understood you to be centering black voices minoritized voices subordinated and oppressed voices. you provide in this work compelling example, many example of how the u.s. constitution as a founding document is by design exclusive and oppressive. please critique the u.s. constitution and for us tonight. yeah so as you might have heard me so you might know me from
saying on television that the constitution is kind of trash because it's kind of like where the first line the book is, the constitution is not good. the last line of the book, i'll save you the i'll save you the trouble. the last line of the book is the constant tution is trash. it's conservatives who say it always has to be right. so like the the very frame of the book is that this document is not good. why? well, i don't know. it seems to me that he a deal made by white slavers, white colonists and rich white abolitionists who weren't. no, no who are still willing to deal with slavers and colonists. just maybe. doesn't represent the best that we can do as a society. maybe that's what our highest. right. i think that's a fairly obvious point. right. the constitution is is a deal making document. right. and what the deal was supposed to do was. yes, set up a republican form of government where you had essentially local control and
weren't ruled by a king across the sea. that was a big part of it, but it was also to set up an economic empire based on slave labor that couldn't never be undone. and so a key thing that happens and you see this a lot in conservative media where they now try to gaslight people and act as if the very slavers who wrote the constitution put in a poison pill, put it in some kind of secret deal to eventually unpack slavery under you. no, no. they put in various that would make it almost impossible to ever unpack slavery. and you know how i can prove that we had a war like the constitution was so broken upon release that not only did it need a day, one patch, not only did it need the bill of rights that we know is the first ten amendments to just fix things that were obviously wrong with it and its initial inception. it was so broken that we could not come to a peaceable solution to the slavery question. we had to literally fight a
civil war. and then after we fought that raw, it was still so broken. after we amended it. and whatever that people able white people were able to ignore those amendments for about 100 years. and then we had to have another civil uprising to fix to to to make good on the promises that we had a war to so that i count that a strike, too. that's the constitution. right then. then. okay, fine. we have the civil rights movement. we have the voting rights act. things seem to go better. we have about 40 years of, like, pretty good progress arc of history, bending towards, you know, in 40 years you go from like an oppressed people to the first black president. that's a pretty good, pretty good thing, right? and how white people react to that. they are so mad of that. they kicked the black president out, replaced them with a bigoted orange con man. and when that con man lost, he launched a coup. mm hmm. that's our constitution. that strike three. as far as you summed it up. but i'm going to roll back. okay? i want to roll back. so let's roll back to those reconstruction amendments.
yeah. and look, good ones like let's go with the second founding. less insert in there the role of the united states supreme court in actually limited to the 14th amendment. so if i want to say two things about the reconstruction amendments, three things. number one, great, great. should have done in the first place. those are real good. you know, no slavery and equality for all and voting rights for men. not matt, but not women. just just men. because even at the time, they were still sexist --. and that's that. and that's the point, right? because even in them, after a war that you fight over a quality the people who get to write the amendments granting freedom to the formerly enslaved race are still white guys. they still, even at that moment, did not go and ask the formerly enslaved people or the free black people. they didn't ask. i mean, think about it this way. they didn't ask frederick douglass what the amendment should read that gave people freedom. why wouldn't you ask him?
i would have i would have let him write the -- thing and and just and lest you think that this is a non important issue. imagine the kinds of rights the 14th, 13th, 14th, the 15th amendment might have conferred had they actually axed the slave boys, the former slaves, what they thought. full and equal rights looked like they might have added not just equal protection under the law and an equal right to vote. they might have had an equal rights, a housing that might have been a thing they have added economic rights. so not just the right to work their land, but the right to be paid fairly for the work they'd done. equal work for equal pay. and obviously, had they asked women at that time, which none of them did, they might have said like, oh, i'd like to finish my -- sentence. that's i just want in the constitution. women can finish short sentences that, you know, that could have been the 16th amendment right. so in these amendments that like things better, it was still fundamentally a rich white male
version of freedom and whatever. and then we get to the supreme court's role in it, which has been to limit the effectiveness of those reconstruction amendments at every turn. and again, this is an important lesson for liberals there. even an amendment, even something as momentous as a constitutional amendment, it cannot survive. conservatives on the supreme court. and we have proof of that right. we have proof of the supreme court. just just ignoring the 14th amendment's equal protection clause. when it came to segregation, just straight up, just didn't care. completely ignoring the 15th amendment right to vote. just putting it in a drawer again for 100 years after an amendment that was, you know, five, six, seven, eight, nine guys, white guys. again on the supreme court who did that? four hundreds of years in the face of an amendment. the very first case. the very first supreme court case. i talk about this in the book after the passage of the reconstruction amendment, we're called the slaughterhouse cases. it was white people, white
people arguing for their rights under the 13th and 14th amendments because they had been they were like literally slaughterhouse workers. and the government granted a monopoly to some rich white guy slaughterhouse. and the poor white guys were like, that seems like indentured servitude. that seems like a lack of equal protection. and look, supreme court was like, shut up. so right there out of the gate for white people, they would not think expansively about what these amendments could do. and that's the that's the constant struggle that we have in this country. the best law the best amendment, the best ideas at every point could be overturn it by five white people on the supreme court. excellent. so here's a question and we'll shift gears. anyone who knows me knows i'm a big fan of profanity, so i really like that. especially when strategically
deployed. so i think it breaks tension. i think it brings humor to the conversation. but i really want to know what you think. why are profanity and snarky humor critical to this discussion? well, for a couple of reasons. one, i'm talking about law. and, you know, i need people to wake up, right. like that's just like if you talk about law and i'm on its own voice, people will start to address and you got to like shock them out of there. just, you know, complacency. i understand when i'm whether i'm writing an article from the nation or from writing a book, i understand that it's a huge ask, right? you people have like lives and like stuff to do it, you know, bills to pay. and i'm like, time out. i have a thought, i have a thought. everybody stop. i have a thought. you should read these thoughts because they're good thought like. so that's a huge ask. so like, if i'm not giving some entertainment value while i'm making that huge ask, that's just like bad job by me, right? so that's number one. just, just trying to get people into the stories that i'm trying to tell.
but the second point is that, you know, again, one of the reasons why i think there is such a asymmetry and fighting about the law is that the conservatives are always willing to put their legal theories in the most simplest, basic terms. so if you think about like a conservative, a base conservative voter, i don't think a base maga person is any smarter than a base liberal person. i just you're not going to make me believe that. i just don't think that right. but the conservative leaders do. they 1 to 1 connection. so they tell their maga people, you know, if you don't like those men kissing on each other, you got to have the supreme court, you know, if you want to have your guns, you can shoot -- that show up in your town. you got to have the supreme court. and they're all i got to have the right. they all know they're know civics. you know, anything more than the other any other average people. but the conservatives have made a 1 to 1 connection. right. we the liberals do not make that one connection. we don't make that one 1 to 1 connection up. do you want anything to ever
happen with the environment like anything, then you have to have the supreme court. do you want anything to happen with gun regulation? what ain't going to happen with police reform? then you have to have the supreme court. we don't make that 1 to 1 connection and we don't put it in ways that people can understand the law is complicated, sure, but it is not rocket science. it is not heart surgery. my wife is a structuring products lawyer. her job is complicated. my job is not write the problems that lawyers tend to use a lot of jargon. they use a lot of inside baseball terminology to kind of make themselves sound smart and sound like an expert. and i really know what's good right now, and i'm trying to like, just put it where everybody can understand it, not dumb it down, because that doesn't help anybody but put it in ways that people can understand and appreciate these concept. because i honestly believe that everybody understood it and i would fight for it because it's awful what they do right. you know, i'm going to ask you now to actually read chapter seven of your book on the heels of that response about
accessibility of language and constitution, you know, provisions. and the reason i want you to read chapter seven, not because it is concise, which is what you're getting at, but it spoke to me when i read it as the black mother of a black son who is ten years old and who i guard with every fiber in my being. all right. well, it's the shortest chapter, so there's that. so there are theories that. all right, stopping police brutality. there's a scene from the first austin powers movie. mike myers, doctor evil character is executing his elaborate plot to kill austin powers. it's a spoof of the movie trope where the bad guy makes an unnecessary, complicated contraption to for killing the hero, which the hero predictably escapes doctor evil son scott played hilariously by seth green. answer questions the he could
get away. i have a gun in my room you give me 5 seconds i'll get it i'll come back here. boom. i'll blow his brains out. of course, doctor evil ignores him. you just don't get it, do you, scott? and that's the joke, right? so make the movie work. it can never be that simple. script writers of action movies have to devise convoluted plans of villainy so that it seems plausible for the protagonist to escape. i hope people can see that we could stop police brutality in 5 seconds if we wanted to. it's really not that complicated. the last three chapters of the book, which you'll have to read for yourselves, point the way through the constitution as already written to end the scourge of police violence against black people. the fourth amendment does all the work. here is the text. the right, the people to be secure in their persons, houses, papers and effects against
unreasonable searches and seizures shall not be violated. and no warrants shall issue. but upon probable cause supported by oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized. booth may make stopping people because they're black and only reasonable search make shooting people because they're black and unreasonable bolts seizure make shall not be violated include actually prosecuting cops and holding them personally accountable when they violate these principles. the way to fix the police was written in our constitution and before there were even police in need of fixing people. you have to remember the police are a relatively recent invention in american history. the unnecessary destruction of black lives would stop not all at once, but over time, as cops learn to play by the rules that have always been there, they'd adjust their behavior at the margins. sure, there still be some close cases, situations where the
suspect really did have a weapon and really was threatening the police or others. there would still be times when reasonable, unbiased people disagreed about whether the police tried to de-escalate the situation and those close cases would and those tough cases would still be resolved in favor of the police officer. but applying the fourth amendment, as i suggest, would make the police officers think twice before killing black children. it would make officers hesitate before brutalizing unarmed black teens who pose no credible threat to the officer would make the police liable for shooting black people in the back. cops who continue to be racist would risk jail or poverty. and that risk that threat of accountability is what is needed. black lives can only matter if there is a punishment for the people who take them. there. i've solved it. i saw police brutality in america. please tell me where i can
arrive in oslo to accept my nobel peace prize. of course we won't be implementing the fourth amendment. as i suggest, and i won't be getting my $1,145,000. i looked it up just, you know, just in case. but because white people want the police to act this way, they want them violent and unshackled from constitutional restraint. maybe not all white people all the time, but enough of them, most of the time. i can't stop police brutality, not because it's difficult to, but because. but because too many white people, americans, white people in america want the police to be brutal. i point specifically to amy cooper, the central park, karen, as she's come to be known, amy cooper got into an argument with birdwatcher chris cooper. no relation because chris asked her to leash her dog as central park rules require. chris cooper happens to be black while amy cooper is white. amy threatened to call the cops on chris and then she did just
that, alleging in a faux hysterical voice how black man was attacking me in the park in that moment, amy cooper was asking the cops to show up and force the of her whiteness. she was in the wrong who the hell calls the cops when they're the ones in violation of a city ordinance? a white person does that. a white person who knows that the cops are there to protect her privilege, not enforce the law, and keep the peace. most white people i know like to think of themselves as better than amy cooper. most of them tell me they were disgusted by her actions and would never call the cops like she did or any number of so-called karens have been shown to do in this era of the camera phone, but most of them are lying. most of them are reacting negatively to amy cooper's application of her privilege and not the underly earning concept on which it rests. most white people want there to be somebody to call when they
feel threatened by blackness. sure, many will use that power more judiciously than amy cooper, but they want the power nonetheless. and frankly, many of those who don't want the police to be at their beck and call to deal with perceived threats from black people are the ones who are concealing firearms to handle any threats to themselves in the name of self-defense. as i've explained in a previous chapter, even the way that we apply the legal concept of self-defense in this country is inextricably linked with white violence done onto black people. so while police brutality and violence only gets talked about as a black issue, make no mistake, it's a problem entirely created by and for the benefit of white people. i don't hold personal enmity towards the cops towards the police any more than i hold a personal grudge against a pack of dogs sent to recapture me after i escaped from bondage. my issue is with their owner. my issue is with white people who refuse to keep their -- cops on a leash. there are no good or bad cops.
there are just -- white people. man, that was harsh? yeah. and know riff off of that a little bit because we often think that sister mc problems are individual racial problems. but these systemic problems are the ones that keep black in danger. so there are two things that i want to expound here, right? one is this concept of some white people, but not all white people. a lot of white people get -- when i say that and the reason why i say most white is because i can see how they vote. the democratic candidate for president has lost the popular the white popular vote in every presidential election since the passage of the civil rights act. folks, that's not a phase, right? that's not randomness, because. oh, i didn't. that candidate by barack obama
lost the white vote. all right, hillary lost the white vote. sorry. whoever against nixon that i'm forgetting right now. humphrey lost the white because of like 18 people who were trying. and humphrey lost the white vote. like everyone says, the patriots patches, the civil rights act has lost the white vote. why? why? and that's what so i say a majority of white people i'm talking about those majority of white voters that show up again and again and again and again. yes, we have a minority of white people with us. great. welcome to the party. right. being a minority in my whole, i welcome you. i think that's awesome. but you have to understand where the real pushback is coming from. right. so the other thing that's worth it. so that's, you know, one kind of big thing that i always get pushback on and i am happy to have a chance to play a little bit more. the other kind of big that i that i get we have to talk about when we talk about cops is that like the term looking for anything we were talking about the abolish yeah like the i
would not consider myself a police abolitionist right which is weird i think for people tend to paint me as a particularly radical be disposed person i'm not a police abolitionist not because i cops are good or because cops have been appropriately or whatever, but because we haven't tried holding them accountable. it's just it's just never been done before. now, the abolitionists will say to me, it's never been because it can't be done. and i say, that's an interesting point. if we have been tried, but it hasn't been tried. so at least let's let's at least try once. let's at least try. we have never lived a day in this country where or cops were prosecuted by an independent third party as opposed to the dea that they are buddies with to stop other crime. we've just never tried it right. we never tried taking away qualified immunity from cops. right, right. that just opens them up to private lawsuits. but like like i say in the book, like, let me say, you threaten a white person being poor when
maybe, maybe we women, we hesitate a little bit more. maybe, maybe, maybe the decision to gun down an unarmed youth hits little bit differently if they know that if they screw up, they could be sued in their private. right. and then the third thing is, is my idea about having objective use of force like right now all has to say is i think you had a gun. don't you actually have to have a gun? it could be a cell phone. it could be a pick, it could be. right. so i just say make the standard objective. if you shoot somebody because you think they have a gun, they better have a gun. and if they don't have a gun, you go to jail, not. oh, i thought i thought it could have been. no, we hold them to a higher standard. if you're going to shoot to death, because you they have a gun, you best be. sure. because if you're not, you go to jail because that's what would happen to anybody else. right? i can't come home and see a person, you know, like rummaging through my trash and shoot them in the back of the head. i'd be, oh, i thought it was a gun when it was actually a light saber, like, i can't do that, so
why wouldn't you hold the police to the same high standard we tried that. and so that's why i am not a police abolitionist, because i think that we actually tried holding these people accountable. that's why i'm using the least analogy in the book. we have it tried putting these people on a leash, you know and i use dog analogy a lot because i love dogs right. love there are no bad dogs like all dogs, right? there are just owners. yeah. in his reform versus abolition. right. i could be wrong. i mean, the abolitionists make a good point. i could be wrong, but i think that it's i think that it's worth it to try. and then but then the last thing i'll say about this that when people then say like, oh, but the abolition, it's a bad it's a bad slogan. we don't like the slogan defund the police. it's like, okay, well then give me your slogan, right? because we because what we can't do is pretend like there's no problem. right? and that's where that's where i think having the sons comes in like my, you know, i've got an i've got a nine year old who's like super sweet. he's like, he's a pleaser, which is a problem. he's a bit of a manipulator
because problem. but he's a sweet kid. he, like you. he likes to dance poorly and, you know, make bad jokes and all this kind of sweet little kid stuff. and when do i take it away from him? right? when do i reach into life and tell him, no, you can't up and hug that person? no, you to you can't run. are you kidding me? run in store and fall into some white person. see what happens. you know, my it got taken away from me when i was. 13. we were playing, you know, living grew up in a black neighborhood as my parents kind of did better. we moved to a white neighborhood, as one does, i suppose. and so i'm at this white house. we're playing ball and hit the ball with the fence. and it's into like the mean guys are. it's like one of those guys that are like field of dreams were like, is super mean neighbor guy with a big dog and so nobody wants to go get balls. we have one ball. we draw straws or sticks to. get the ball. i drew the small stick, hopped the fence. go get the ball. run away from the dog. everything's fine. finish the game. parents, pick me up. how's your day? both my mom. my dad in the car. i'm. explain them that this person
spent like dad hits the brake. my mom goes, oh, lord, oh, lord. he going get shot. like, just just has like a breakdown, right? and i'm like, what? right. and they just like you, can never do that. but i drew the last straw. i don't care what straw. you don't you with all these white boys and not even in your neighborhood and you're going to go hop some white man's fence for a ball, son will you will never go to that person's house without ten balls. all right, i'll buy you another. but you never having them. and you have to your friends understand that you just won't play along. and it was really like, you know, at first i obviously thought my dad was, you know, like, okay, father, maybe somebody needs a scotch tonight. like, you know, but like, you know, you come to realize that that's he you understand? he was making that point. yeah. when do i have to do that to my kid? yeah soon. and and as a as a as i said, as
a black woman. a black child. and i'm a large bone woman. so you can imagine my ten year old is huge the bigger that he gets, the more or i have to protect. that's something that i in my travels, i find that white families don't understand, that black families implicitly understand it's not about the age of our kids. it's about the height. it's about the size. once they're big, we have to treating them like they're adults. were guardians of what age they happen to be because that's how society is going to treat them and that's how they're going to have to interact regardless of what gender. yeah, yeah. oh, yeah. your are not protected. you don't have the the girl protection that white girls have. no, no. yeah. so before this gets away from me, we will have time for you to ask questions that. adds up. thank you, sir. so many more questions. we're just agreeing with each other. it's just i amens in the
audience. so let me. let me this question. how do we use this second founding of the. amendments, plus the 19th amendment. so how do we use this second founding to strip the veneer from the founding document so as to expose the hypocrisy of cancel culture and the right to bear arms for self racial profiling, killing, or the subordination of women and the oppression of people who identify as lgbtq, for example. yeah. so having said that, i'm not i'm not overly impressed with the second founding because there are other ways to go, for instance, the south african example, you know, when nelson mandela, you know, he gets out of prison and matt damon wins a rugby match and now he's president and everything's great why would they do they take their apartheid african's constitution and just like put on some amendments. no they threw that in the trash. they threw it in the trash and
they started over with a whole new constitutional convention made from all the people, including women and right now the south africans just on the world stage, one of the best just one of the best written constitution there is out there in terms of the protection of individual rights and such things. it's a great document better than ours. oh well, fine. we got what we and i don't want a new constitutional convention. it'll just lock in a lot. the same racism that we have today because of the unequal, because we still are focused on land as opposed to people. so i would have a constitutional convention if there would be like 58 delegates from california and one from wyoming. but, you know, work like that. so can't for a constitutional convention. so instead what i do, as i say, you know what, it's fine. i only need two things to write a good course, to have a good constitution. the 14th amendment and parts of the first amendment. but the rest i don't like i can write i can do everything else that i need to do with the 14th amendment in the first, because the 14th amendment says right there that you have equal protection of laws and due
process, and we interpret that to be substantive due process. that means real fairness as opposed to mere procedural fairness. excuse me, substantive fairness and equal protection. that's all i need. and then, you know, probably shouldn't beat people because they talk or i fight, right? and that's it. then i can because because it does everything. so i can't, you know, people say like, oh, what's opposite of originalism? i call myself a 14 amendment or all just guy, right? just because everything, everything i do would be strange through does this law mean equal protection or is this law substantively fair? you answer me those two questions and you can have your off those veil either of those questions for any reason. then that law is no good. is that equal protection is a substantive fair. those are the only questions that matter for any new law on the books. if meet those two, then you can get into. then you can have it. then you can. then then it's a political debate. but before that it's not a political debate, it's a it's a it's an issue of fundamental justice and fairness and that's not a political question.
it's a question of who we are as a as a as a society and as a society, always trying to get us to a point where we are substantively fair, have equality for all. it's not actually that hard of a standard, right? it's not actually that, you know, it's like one of the things that i always kind of understand what gay rights of the people who were against the gay movement, that's like you don't have to get gay married, you understand that right? you just you could just marry woman if you if you don't want to marry a man, you can just do that. it'll leave these people alone. like what? like what's the problem? right the idea that we kind can't understand the mere concept of kind of live and let live of letting other people do what seems best to them in the privacy of their own minds and the privacy their own bedrooms. it's just constantly shocking to me. right. i talk about in the book, like you, the baker who with the cake, he doesn't want to do the cake. and nobody's asking you to jump out of the cake, bro. well, nobody said i love it. nobody says you just just you
went business to make cakes. take money, take money that this people are giving you for your business. i was that you don't even write anything on a wedding cake just so you could say like i will not write something on my cake. okay, fine. we'll give me the cake. i'll put my own groom and groom on it and you can take your money and go home and but no, we have to have literal federal case over this bigoted baker. okay, so sorry. take take it down. take it there. so i want to give you, i think is a really good word, who you are. so we know frederick douglass was a woman's rights man. was he? that's hard to think of just as a reader. right? that that's what he said. that's what they said. but i think you're a reconstruct action man. so i that actually gives heft to your 14th amendment. well, you know, the reconstruction was was great. we saw one of the the we had
black participation in government we had some we had some we were asking towards goodness during reconstruct. and then rutherford b has had a contested election. it was the electoral college tie, so it went to congress to secure his election. he he he was a republican. he needed from southern democrats that gave him the votes exchange for him taking the troops out of the south. and rutherford did the reconstruction in the south basically went back to its confederate ways and which where we find them today in some of the you know, in so many ways like it like the difference between missouri today and missouri in 18. yeah, the missouri in 1880 and missouri in 1850 are not all that different. all that different. so you know what we see in this country is that white southerners have not been to accept freedom and equality unless they're white northern
cousins are shoving it down their throat with guns like that. just you had to do it in the civil war. you had to do it in the reconstruction, too, for ruby bridges to go to school. she an armed -- guard. mm. right. like, if you don't have force, they accept it. and it's something that's kind of a constant problem with our constitutional structure. i always say that you know republicans and conservatives, they take constitutional setbacks. sorry, they take constitutional losses as mere setbacks. right. as a mere like temporary like, you know, we lost that battle, but we're going to win the war. and, you know, and they they never stop coming, even when they lose. they never stop trying. right. so i'm going to ask one last question. even though i have so because i want to give the audience members an opportunity to speak with you. i have a keen interest in the reconstruction amendments plus 19th amendment, all in context specifically, i've taught a class called women's the 19th amendment and the duality of a movement to students and to lawyers. these consumers, of course, are
always surprised to learn that the 19th amendment did not facilitate access to voting for black women at the time of its ratification in 1920. instead, black women were made to wait 45 more years to have the funding mental badge of citizenship recognized by the voting rights act of 65. here's the question why is this important context to know for current discussions about voter suppression? the john lewis voting rights act and the scotus nomination of judge catton, g. brown, jackson. so the voting act is my pick for the most important piece of legislation in american bar none. i don't think it's an don't think it's close because as i said, the conservatives ignored the 15th amendment for 100 years. they ignored 19th amendment as it apply to women of color for 50 years without, a law without a statute that makes the amendments enforceable.
all a constitutional amendment is just like a suggestion, right? so after the civil war, it was a suggestion that we let people vote regardless of race in the same way that like after prohibition, it was a suggestion we stop people from drinking. it was the act that made prohibition a thing some really it was the voting rights act that made the 15th amendment a thing and it was wildly successful. and not only is it the most important piece of piece of legislation american history? i can also make an argument that is the most successful piece of legislation in american history. and again, i point simply to the election of a black president ford years after it was, which is which is an amazing trajectory. just an amazing trajectory. right. so what did white conservatives do? they took away 15th amendment by cutting away the voting rights act before. that black president was even done with his term 2013. john and shelby county v holder
eviscerates section five of the voting rights act. now section five is the same as the section that had it made. basically, you had to ask for federal permission before you changed. your voting rights and voting rights laws that was so universally accepted that not only had been ratified re ratified in 2006 by george w bush noted not care of black people, but was also you figure ronald reagan who started his campaign in philadelphia, in mississippi, which is mississippi burning territory for for those in the no and had said the voting rights act humiliates the south which i'm cool with but arguably he meant that as a bad thing he had to expand the voting rights act. but john roberts, an unelected, unaccountable person, was able to take it away in 2013. and it's just been rolling since then. in 2021, we have brnovich v arizona. they eviscerate roberts, alito, this time eviscerate section two
of the voting rights act. all of the voting, the attacks on democracy that we see now in our news, those not come from donald trump. i he's the bad guy that the media wants to say. those did not come from donald trump. they came from john roberts. it is john roberts who is actual bannon. he's the guy behind the curtain who has the strings to eviscerate our voting protections. so that an orange buffoon like donald trump can then. and his guest a jackboot people can. i don't call the i just want to call it i don't want to give him that that level right just like jackboot idiot people. that's why they've had this because john roberts set the scene for them. if if you don't if you don't control, i guess, i come back to if you don't control the courts, you don't control anything. the john lewis voting rights act, great idea.
the freedom to vote act, not as good as h.r. one, but still fine. yeah, let's do that. but what makes democrats think that those those things are going to matter john roberts think go anywhere. he's got more help now than he did in 2013. if you don't take the courts, you aren't taking back they'll pass the john laws that the john lewis voting rights act even if they had mentioned cinema, they pass it and roberts would knock it down before breakfast. they pass the freedom to vote act and samuel alito would knock down before breakfast. you have to take back the court in order to have voting rights, and that's always been true since even the passage of the 15th amendment. thank. so, andy, how did we do on time? what about actual lent? so please raise your we have a question right here in the front and then we have another question sort of mid great on
what got to go to dubois. so the question was what got you to go up was so for those in the know so this is one of the was a white shoe manhattan law firm which was where worked right out of right out of law school. what got me to go there money. right i was like also so i was the not the first person in my family to go to college not the first person of my family to go to graduate school. i was very lucky, that sense. but devil voice. so, you know, i come bring that up to say that when debevoise offered me my first year salary that was money than either of my college educated parents either had ever made in a year. more as a 25 year old. and you know, there were you know, sacrifices had to be made so that i could go to harvard college and harvard school.
you know, vacations were not taken and people didn't buy dresses and lots of things went in, you know, like, like for so many lots of things went in to making me have that education. and i felt like i owed it to people to try to like making money. i didn't buy. and i thought i ordered. so by my last step was things. so the way i was is a great firm, if you like, that sort of thing. if you're into corporate law, it's a good place. so but i quit because i'm i'm i'm doing a case and you junior personalities and it's a it's an oil company who i can't name and nigeria and the oil company is doing horrible things in nigeria. and i'm on the side of the oil company. i was just like, hey, on the ancestors did not sacrifice this so i could be sitting here telling the nigerian government how to just just take it just suck, right? let's not like whatever i'm supposed to be doing. it wasn't this this was not the dream. like what you look like that
epiphany. i quit about two weeks later. next question. next, we have a order. so the gentleman midway for 14th amendment section. three are is there a practice go away to use the 14th amendment? section three to get rid of the politicians who supported the january six insurrection? yes. so this question has come up a lot recently because people are trying to use it, exclude traders essentially from running for office again, especially the orange trader in chief. i will say i will start here. this book i finish it after january six and still this i didn't go into a big section three that's how new this idea is in the scholarship and literature. all right so there's been a lot written about it in the last
year. so but this is a relatively new thought and use of the of the amendment. so i don't want to say anything too aggressive of is there a way. sure. but who gets to decide if there's a way? the same sex conservatives who currently control the supreme court specify within right. so the 14th amendment, the section three of the 14th amendment, remember, this is coming after civil war. and so it basically says that anybody who held office but then kind of works against the government could not hold office again. it was specifically kind of like jeff davis you're out right that the former people who were in the confederacy could run for office but people who actually held office in the united states government and then abandoned that office to join the confederacy. those were the people who were excluded. a donald would be the guy that you're thinking about because he held office and then you know
didn't do arguably was part of the coup attempt again i think i think it can work but the problem that you always come back to is who gets to decide john roberts and his cabal. right. so it's almost i can answer that the same way that i answer term limits. on term limits are super popular. right. you look at gallup polls, you know, lots of people want term limits on the supreme court and they're all these crazy plans to figure out how to get term limits without needing a constitution amendment to get term limits on the supreme court. i love them all, but john roberts gets to make the call and i can't go to john roberts court and be like, i think all of you people should be much less powerful and expect to win. right. and i think similarly, i don't know that i can walk into roberts court and be like here, i can use this amendment, you know, novel to exclude republicans who some who appointed some of you from running office again and expect them to agree. okay. which is sad.
thank you for your opinion of mitch mcconnell and his influence on the court and how we got where we are today in regards to supreme court primarily because mitch mcconnell in the senate and now he's going to be it's a great possibility that the next coming couple of years he's going to be the dominant speech donor and control. he is a very insidious and. okay yeah so mitch mcconnell he's not somebody to just yeah no it's he's he's we got we got him we got the question the most dangerous man america and has been the most effective dangerous man in america for ten, 15, 20 years specifically. the court what he's done is that he he understood fans that his party is on popular. and i think that's what people forget sometimes. like there republicans who think that they're popular, they're
they're just wrong, right? like they're their agenda and platform is massive be unpopular. mcconnell's kind of secret strength is that he knows exactly how unpopular unlikable he and his people are. and so he's used the court because he knows that because he knows that the court is institution that is removed from the popular. well, you can't vote a supreme court justice out. you move them out with the changing of the winds. he knows that once you get them on there, they're there for functionally right and are able to manipulate the laws and have a veto power on the other branches of government. so that's been his insight and his just brazen willingness to play hardball and. the democrats tend to not able to match his fire with fire. but i don't just blame democratic politicians for that. i mean, i blame them somewhat because, you know, there's enough to go around. but, you know, i also blame the democratic base for that because the bottom line is that you cannot win a republican primary
for president or senate without being strong on the courts. we all know the right like you cannot like think about go back to 2016 donald trump crazy man oh i'm 18 establishment mexicans rapists i'm on the wall like crazy person. what about the supreme court. i exactly the normal thing. mm right. like all of us i just no just a where's my list. the bed flocking. here you go. and i'm just a regular old person. we go. okay, i'm back to crazy like that. so that was 2016, right? fast forward to 2020. joe biden is you know, we got everybody running. we got bernie sanders running. we got the coffee man running. we got, you know, mayor stop and frisk running. we got everybody running. joe biden is the most conservative person on courts, pete, but the judge has a whole plan five by five we're going to do right, bernie sanders lawyer says we could have 100 justices. i don't know i don't care. i right. warren is interested in it. biden is like nope maybe a
commission. maybe if you're right. did it cost them a vote? did not cost him a vote. certainly didn't cost him the nomination. and that is the asymmetry. republican. and like i said, they go to the mattresses for this stuff. democrats don't. and as long as democrats don't, democratic won't act like that. right. why don't the american people force in the democratic party that has the same of clout that mitch not clout, but the person who gets is white house. yeah. like the person like sheldon gets it. and look, he was up for it he wanted to be chair of the senate judiciary committee. democrats went with the establishment guy, -- durbin not the -- durbin is bad but like didn't put white house in that job because white house wanted that job and he knows how to use that job so like these kinds of things are part of the problem. hey, thanks for being here, love. only halfway. but my question is really more one of my favorite essays that
you've written is the one where you talked about white people telling you about how you should respond to racism. and it shocked me, i have to say, and i thought i was pretty good. i don't know when i read that, i thought, well, maybe i'm not, but i know a lot of really, really, really people, good white people who think they're doing the right thing and i think i'm doing the right thing. but i know they're not and i know we're not. i shouldn't say that we're not always it. maybe we are. what do you need you personally? because you can't speak for all black people. i know that. what black people need from us. what is it that we can do on a daily basis? so this is not only i would say thank you for the question. i get that question lot. when i and i appreciate you saying that you that i cannot speak for all black people cause i can't. and it's it's important that i that i you understand that i'm not trying to. however, what i generally need from an ally is for them to be to sound like me in the rooms
where i ain't invited. mm. right. mm hmm. which now my white friends will attest to this. that's a pretty high bar when you're me, right? right. like because when i am, am invited into room, the conversation goes sideways, quick. and so i'm when i'm asking my white friends, my white allies, to sound like me, i'm asking them to sound like me and you know the country club. and in the you parent pta meeting and then the right and it's not easy for them and they'll text me like i have text on my phone, white friends telling me, oh person is saying now what should i say ali and i will tell them what they should say and they will say, i can't say that. and i'm like, okay, why? i would but you're crazy. i'm like, well, now, now next time we go out for drinks, i'm to yell at you like, that's all right. but, you know, so that's for me, that's a particularly high bar. but that is my bar like, you know, because there are, you know, i'm not going to thanksgiving dinner with these people. i'm not you know, i'm not
invited into these spaces. all the time i say that, you know, i'm on tv, too, i'm not you know, i'm not in the executives suite with the people who make decisions, who get shows or not, you know, on the television networks, if you're going to be my ally, you sound like i would sound when you're in when you're invited in that meeting. right. and it's a high bar, but it's what, you know, that's that's the bar. you know, and i just point out that, you know, as much as it's easy for me to say, because i don't have, you know attachments like that, you know, a lot of my black friends are also not as free as i am, right? like, you know, they have to they have to be concerned about their paper, about about their job and their money and their, you know, positions. and yeah, it's often enough they will risk it all to tell that white man to go shut his -- mouth right. rather like you and you can if you've ever been in a meeting you've seen like somebody else do this. you know what i'm like. you will see a black person, like, just making that calculation.
like, is it all worth it? because i'm about. i'm about to lose everything just to all this man. and they're trying to like, just if you could just if you could just get maybe i should be the one to leave the meeting so i can keep my because like you're thinking the thinking, right? i've been, you know, again, my wife has a has a respectable and i've been in, you know, the party with her and i'm like, oh, waiting to leave because we have a mortgage and we need to keep her and i don't eat, right? so it's i understand that it's a it's really difficult sometimes, but that's the goal, right? yeah. it's that's where you start. that's the top ask. and if you anywhere close to that and then we then we, then we break bread and call ourselves friends. and i think part of that too, if i may add, it's actually building the muscle. so you have to do. elie mystal out the gate, right? right. because i'm the dean of a law school. i'm not doing elie out the gate, but it's building the muscle in
saying i'm going to say something and then tomorrow i'm going to add a couple of more that. and then by the end of the week, i'll have a full sentence and i'll be able to back that sentence with conviction. yeah, i see. just to back that up, i see it a lot in my own life with women's issues right where you're in the world, you're on the proverbial locker room, you know the jokes are flying around and things are flying around. it's like building the muscle exactly right to be the guy that's actually speaks up is like, we're not going to we're not going to do that joke, right? we're not going to. yeah. did you really say that? we're not going to do and don't we don't believe they don't really believe that. right. like it's, it's work but yeah. yeah. one more. okay. so right here you just go. oh, i'm sorry okay. two more than have. yeah. okay, let's, let's do this there and then harris, then here really quick. what do you think about court expansion court. let it.
court imagine the only thing that's to work. i'd say a plus 20 so the real quick answer to that is, i mean, people want to be like burress why are you laughing? i'm right. like we should have 20 more justices. who has 29 justices? that's the ninth circuit court of appeals right now. so not too many. the benefit of 20 more justices even beyond the revenge of just like screw these republicans is this one. it makes it very unlike it makes it harder for republicans to come back over the top. well, you do. for republicans, it was like when we get in here, we're going to five, which, by the way, i don't care. just i mean, you we're six three. if we go to 13 six and the republicans come back in and they go to 1613, how was that worse? how was that worse than? what we like. so i have no problem with republicans coming back. but you put 20 on and they got to put 40 on to get over here. now it's a little bit higher bar for them to come back. so that's number one. number two, it gives me something to trade because then i can come mcconnell or whoever and i say, i'm about to put 20
justices on the court. it's going to be fine. it's it's going to be 11 nine because that nastiness that you did with merrick garland, we ain't forgotten and we ain't forgotten the alleged attempted rapist, brett kavanaugh like that. just the those were some nasty things that y'all did. and we're not going to. so it's going to be a nine. but you me some votes you give me some play. it could be 11 nine. you could have nine of these 20 people and we could have a bipartisan joint commission to make sure that of the 11 people that we pick, elie mystal was not one of them. like, whatever you want to do, like right or, you don't play ball, you don't give many points. i'm going to put 20 of my most fiery, breathing, crazy people on the court and see what you can do about it over the next like four or five years. so it gives me something to trade and then the most important people say they want moderate mainstay seem center mass decisions. well how do you get that do you ever tried to like figure where you going to go to dinner with
like five of your friends? you might you know, you might go to thunder down under. you might you might go to the club like if you have to get your dinner together for, 15 of your friends, you're going to go to applebee's, right? right. you're going to do the obligatory like you're you're going to do a much more moderate if you have to get more people involved. if you have 29 justices and you're majority opinion requires 15 people, that decision is going be much more moderate center, mass, mainstream, inoffensive and concise. and i'll be concise as well i just would like you if you could to just double down a little bit on what you just stated, uh, to our friend here. the question what, what do i do? and you said represent me in those spaces where i'm uninvited and specifically speaking to what's the batson effect. we're just having one black juror. the studies show, has a tremendous effect on the jury of acceptable. you know, they don't just throughout all kinds of racist stuff and that so it just kind of shows empirically how important that is. so if you could apply that to the so-called crt debate,
because where you have these board of education, where people are seeing all kinds of crazy stuff and eliminating things like tony morrison. so this isn't just about, you know, the table discussing it thanksgiving. speak to that and the need for white allies in this moment because i see that as political because they're trying to create the next constituency for donald trump and he's so my book my book became critical race theory book as i was writing like i didn't know i was writing for the rest of the book. but then, you know what? white people change the definition of race theory. and suddenly i was writing critical race theory book. who knew what that debate is? and i've said i've said this a lot times and it -- some people off. i don't know why, but what that really is, is white people being committed to making their kids dumb. i don't want to do that because when it comes, you know, when my kid has to fill out his college essay to go to harvard or yale or whatever, my kid's going to know history. my kid's going to know who abraham lincoln is. my kid's going to know who
stokely carmichael is. my kid's going to read it. it's going to be yo dumb -- kid who doesn't know these things and like gets out, competed by might kid, my kid, and then willing to beat affirmative action. like, why are you making your kids dumb? and so, so then when we talk about the allyship in this particular in this context, what i say to my friends is that all you have to do when you go to the school board meeting, it's advocate for your kids to be smart. if you just you have to advocate for any particular racial or whatever, just advocate for your kids. be smart because that's all that education should be. just to just advocate for the school. tell your kid the truth and the rest what kind of play itself out. they're like, well, when do we don't want to expose our white children to the you know, so how terrible slavery was before i spoke mine. what why is it okay for me to have to expose my kids to the truth, but not okay for you to have? this was your kids, too. the why is it okay for me to have to tell my kids what your
grandmother did but not you can't tell your kids what your grandmother did like how does that work right? again, if you your kids to compete in a global world then you should want them to know the truth about. how about how history worked in same way that i want like i want my kids to know the truth about american history. i want my kids to know the truth about european history so we don't get these dumb -- is being like, i can't believe there's a war in europe. yeah, that's what you all do. i want my kids to know the truth about roman history, right? like. like i want my kids to be smart. if you're white, ally, just ask for your kids to be smart. excellent so i want to thank our hosts at the free library of philadelphia. i want to thank the audience for being in. this is what it is be in a democracy. the discourse there existence, the contestation for the liberation of the mind.