Transcripts For CSPAN2 Elie Mystal Allow Me To Retort - A Black Guys Guide To The Constitution 20221026

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 nations 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 labs 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 mostels new book, allow me to retort a black guys 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, hell 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, im a giant person. It takes a while to get situated. All can you hear me . Yes. So actually need mikes, but no, its an honor to be here this evening at the free library of philadelphia an important site. Were 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. Id like you to introduce the theme of the book and what you hope the book will accomplish. Yeah, well lets start here because it comes up quite a lot. Its called a black guys guide to the constitution, not a guide to the constitution for black guys. Right. And so thats 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, whats going on in the kind of nether regions of that document, kind of become more important right like and then we, you know, well 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, its like its 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 its like its a cadillac now. No, it aint. Its still a ford. I can still tell by the engine that its a ford focus. Now. It could get us to where were going potentially. Like its not honestly, its im not saying that its a car that has no utility. But lets be honest about what this thing is. Right. And so thats really thats 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. Its you know, its labor is is the labor of it was really just trying to take a lot of thoughts and ideas that ive 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, thats say what is that like what . Whats how is the professor going . Well, you know, we have to understand that what James Madison was writing like. Why do i care . And its 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 im 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 its kind of like where the first line the book is, the constitution is not good. The last line of the book, ill save you the ill save you the trouble. The last line of the book is the constant tution is trash. Its 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 dont know. It seems to me that he a deal made by white slavers, white colonists and rich white abolitionists who werent. No, no who are still willing to deal with slavers and colonists. Just maybe. Doesnt represent the best that we can do as a society. Maybe thats what our highest. Right. I think thats 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 werent 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 couldnt 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. Thats 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. Thats 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. Thats our constitution. That strike three. As far as you summed it up. But im going to roll back. Okay . I want to roll back. So lets roll back to those reconstruction amendments. Yeah. And look, good ones like lets 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 thats that. And thats 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 didnt ask. I mean, think about it this way. They didnt ask Frederick Douglass what the amendment should read that gave people freedom. Why wouldnt 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 theyd 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, id like to finish my sentence. Thats 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 Courts 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 amendments equal protection clause. When it came to segregation, just straight up, just didnt 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, were 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 thats the thats 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 heres a question and well shift gears. Anyone who knows me knows im 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, im talking about law. And, you know, i need people to wake up, right. Like thats just like if you talk about law and im 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 im whether im writing an article from the nation or from writing a book, i understand that its a huge ask, right . You people have like lives and like stuff to do it, you know, bills to pay. And im like, time out. I have a thought, i have a thought. Everybody stop. I have a thought. You should read these thoughts because theyre good thought like. So thats a huge ask. So like, if im not giving some entertainment value while im making that huge ask, thats just like bad job by me, right . So thats number one. Just, just trying to get people into the stories that im 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 dont think a base maga person is any smarter than a base liberal person. I just youre not going to make me believe that. I just dont think that right. But the conservative leaders do. They 1 to 1 connection. So they tell their maga people, you know, if you dont 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 theyre all i got to have the right. They all know theyre 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 dont 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 aint going to happen with Police Reform . Then you have to have the Supreme Court. We dont make that 1 to 1 connection and we dont 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 whats good right now, and im trying to like, just put it where everybody can understand it, not dumb it down, because that doesnt 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 its awful what they do right. You know, im 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 youre 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, its the shortest chapter, so theres that. So there are theories that. All right, stopping Police Brutality. Theres a scene from the first austin powers movie. Mike myers, doctor evil character is executing his elaborate plot to kill austin powers. Its 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 ill get it ill come back here. Boom. Ill blow his brains out. Of course, doctor evil ignores him. You just dont get it, do you, scott . And thats 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. Its really not that complicated. The last three chapters of the book, which youll 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 theyre black and only reasonable search make shooting people because theyre 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, theyd 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 deescalate 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. Ive 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 wont be implementing the Fourth Amendment. As i suggest, and i wont 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 cant stop Police Brutality, not because its 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 shes 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 theyre 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 socalled 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 coopers 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 dont 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 selfdefense. As ive explained in a previous chapter, even the way that we apply the legal concept of selfdefense 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, its a problem entirely created by and for the benefit of white people. I dont 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 president ial election since the passage of the Civil Rights Act. Folks, thats not a phase, right . Thats not randomness, because. Oh, i didnt. That candidate by barack obama lost the white vote. All right, hillary lost the white vote. Sorry. Whoever against nixon that im 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 thats what so i say a majority of white people im 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 thats awesome. But you have to understand where the real pushback is coming from. Right. So the other thing thats worth it. So thats, 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 im not a police abolitionist not because i cops are good or because cops have been appropriately or whatever, but because we havent tried holding them accountable. Its just its just never been done before. Now, the abolitionists will say to me, its never been because it cant be done. And i say, thats an interesting point. If we have been tried, but it hasnt been tried. So at least lets lets at least try once. Lets 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. Weve 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. Dont 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 dont 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 youre going to shoot to death, because you they have a gun, you best be. Sure. Because if youre not, you go to jail because thats what would happen to anybody else. Right . I cant come home and see a person, you know, like rummaging through my trash and shoot them in the back of the head. Id be, oh, i thought it was a gun when it was actually a light saber, like, i cant do that, so why wouldnt you hold the police to the same High Standard we tried that. And so thats why i am not a police abolitionist, because i think that we actually tried holding these people accountable. Thats why im 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 its i think that its worth it to try. And then but then the last thing ill say about this that when people then say like, oh, but the abolition, its a bad its a bad slogan. We dont like the slogan defund the police. Its like, okay, well then give me your slogan, right . Because we because what we cant do is pretend like theres no problem. Right . And thats where thats where i think having the sons comes in like my, you know, ive got an ive got a nine year old whos like super sweet. Hes like, hes a pleaser, which is a problem. Hes a bit of a manipulator because problem. But hes 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 cant up and hug that person . No, you to you cant 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 im at this white house. Were playing ball and hit the ball with the fence. And its into like the mean guys are. Its 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. Everythings fine. Finish the game. Parents, pick me up. Hows your day . Both my mom. My dad in the car. Im. 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 im like, what . Right. And they just like you, can never do that. But i drew the last straw. I dont care what straw. You dont you with all these white boys and not even in your neighborhood and youre going to go hop some white mans fence for a ball, son will you will never go to that persons house without ten balls. All right, ill buy you another. But you never having them. And you have to your friends understand that you just wont 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 thats 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 im 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. Thats something that i in my travels, i find that white families dont understand, that black families implicitly understand its not about the age of our kids. Its about the height. Its about the size. Once theyre big, we have to treating them like theyre adults. Were guardians of what age they happen to be because thats how society is going to treat them and thats how theyre going to have to interact regardless of what gender. Yeah, yeah. Oh, yeah. Your are not protected. You dont 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. Were just agreeing with each other. Its 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, im not im 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 hes president and everythings great why would they do they take their apartheid africans 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. Its a great document better than ours. Oh well, fine. We got what we and i dont want a new Constitutional Convention. Itll 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 cant for a Constitutional Convention. So instead what i do, as i say, you know what, its 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 dont 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. Thats all i need. And then, you know, probably shouldnt beat people because they talk or i fight, right . And thats it. Then i can because because it does everything. So i cant, you know, people say like, oh, whats 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 its a political debate. But before that its not a political debate, its a its a its an issue of fundamental justice and fairness and thats not a political question. Its 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. Its not actually that hard of a standard, right . Its not actually that, you know, its like one of the things that i always kind of understand what gay rights of the people who were against the gay movement, thats like you dont have to get gay married, you understand that right . You just you could just marry woman if you if you dont want to marry a man, you can just do that. Itll leave these people alone. Like what . Like whats the problem . Right the idea that we kind cant 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. Its just constantly shocking to me. Right. I talk about in the book, like you, the baker who with the cake, he doesnt want to do the cake. And nobodys 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 dont even write anything on a wedding cake just so you could say like i will not write something on my cake. Okay, fine. Well give me the cake. Ill 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 womans rights man. Was he . Thats hard to think of just as a reader. Right . That thats what he said. Thats what they said. But i think youre 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 theyre 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 dont have force, they accept it. And its something thats 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 were going to win the war. And, you know, and they they never stop coming, even when they lose. They never stop trying. Right. So im 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, ive taught a class called womens 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. Heres 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 dont think its an dont think its 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 im 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 its 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 hes 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. Hes 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 dont call the i just want to call it i dont want to give him that that level right just like jackboot idiot people. Thats why theyve had this because john roberts set the scene for them. If if you dont if you dont control, i guess, i come back to if you dont control the courts, you dont 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, lets do that. But what makes democrats think that those those things are going to matter john roberts think go anywhere. Hes got more help now than he did in 2013. If you dont take the courts, you arent taking back theyll 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 thats 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 didnt 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 didnt 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 youre into corporate law, its a good place. So but i quit because im im im doing a case and you junior personalities and its a its an oil company who i cant name and nigeria and the oil company is doing horrible things in nigeria. And im 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 . Lets not like whatever im supposed to be doing. It wasnt 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 didnt go into a big Section Three thats how new this idea is in the scholarship and literature. All right so theres 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 dont want to say anything too aggressive of is there a way. Sure. But who gets to decide if theres 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 youre 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 youre thinking about because he held office and then you know didnt 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 its 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 theyre 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 cant 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 dont 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 hes going to be its a great possibility that the next coming couple of years hes going to be the dominant speech donor and control. He is a very insidious and. Okay yeah so Mitch Mcconnell hes not somebody to just yeah no its hes hes 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 hes done is that he he understood fans that his party is on popular. And i think thats what people forget sometimes. Like there republicans who think that theyre popular, theyre theyre just wrong, right . Like theyre their agenda and platform is massive be unpopular. Mcconnells kind of secret strength is that he knows exactly how unpopular unlikable he and his people are. And so hes used the court because he knows that because he knows that the court is institution that is removed from the popular. Well, you cant 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, theyre there for functionally right and are able to manipulate the laws and have a veto power on the other branches of government. So thats 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 dont just blame democratic politicians for that. I mean, i blame them somewhat because, you know, theres 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 im 18 establishment mexicans rapists im 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 wheres my list. The bed flocking. Here you go. And im just a regular old person. We go. Okay, im 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 were going to do right, Bernie Sanders lawyer says we could have 100 justices. I dont know i dont care. I right. Warren is interested in it. Biden is like nope maybe a commission. Maybe if youre right. Did it cost them a vote . Did not cost him a vote. Certainly didnt cost him the nomination. And that is the asymmetry. Republican. And like i said, they go to the mattresses for this stuff. Democrats dont. And as long as democrats dont, democratic wont act like that. Right. Why dont 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 didnt 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 youve 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 dont know when i read that, i thought, well, maybe im not, but i know a lot of really, really, really people, good white people who think theyre doing the right thing and i think im doing the right thing. But i know theyre not and i know were not. I shouldnt say that were not always it. Maybe we are. What do you need you personally . Because you cant 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 cant. And its its important that i that i you understand that im 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 aint invited. Mm. Right. Mm hmm. Which now my white friends will attest to this. Thats a pretty high bar when youre me, right . Right. Like because when i am, am invited into room, the conversation goes sideways, quick. And so im when im asking my white friends, my white allies, to sound like me, im asking them to sound like me and you know the country club. And in the you parent pta meeting and then the right and its not easy for them and theyll 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 cant say that. And im like, okay, why . I would but youre crazy. Im like, well, now, now next time we go out for drinks, im to yell at you like, thats all right. But, you know, so thats for me, thats a particularly high bar. But that is my bar like, you know, because there are, you know, im not going to thanksgiving dinner with these people. Im not you know, im not invited into these spaces. All the time i say that, you know, im on tv, too, im not you know, im not in the executives suite with the people who make decisions, who get shows or not, you know, on the television networks, if youre going to be my ally, you sound like i would sound when youre in when youre invited in that meeting. Right. And its a high bar, but its what, you know, thats thats the bar. You know, and i just point out that, you know, as much as its easy for me to say, because i dont 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, its 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 youve ever been in a meeting youve seen like somebody else do this. You know what im like. You will see a black person, like, just making that calculation. Like, is it all worth it . Because im about. Im about to lose everything just to all this man. And theyre 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 youre thinking the thinking, right . Ive been, you know, again, my wife has a has a respectable and ive been in, you know, the party with her and im like, oh, waiting to leave because we have a mortgage and we need to keep her and i dont eat, right . So its i understand that its a its really difficult sometimes, but thats the goal, right . Yeah. Its thats where you start. Thats 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, its actually building the muscle. So you have to do. Elie mystal out the gate, right . Right. Because im the dean of a law school. Im not doing elie out the gate, but its building the muscle in saying im going to Say Something and then tomorrow im going to add a couple of more that. And then by the end of the week, ill have a full sentence and ill 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 womens issues right where youre in the world, youre on the proverbial locker room, you know the jokes are flying around and things are flying around. Its like building the muscle exactly right to be the guy thats actually speaks up is like, were not going to were not going to do that joke, right . Were not going to. Yeah. Did you really say that . Were not going to do and dont we dont believe they dont really believe that. Right. Like its, its work but yeah. Yeah. One more. Okay. So right here you just go. Oh, im sorry okay. Two more than have. Yeah. Okay, lets, lets 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 thats to work. Id say a plus 20 so the real quick answer to that is, i mean, people want to be like burress why are you laughing . Im right. Like we should have 20 more justices. Who has 29 justices . Thats 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, were going to five, which, by the way, i dont care. Just i mean, you were 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 its a little bit higher bar for them to come back. So thats number one. Number two, it gives me something to trade because then i can come mcconnell or whoever and i say, im about to put 20 justices on the court. Its going to be fine. Its its going to be 11 nine because that nastiness that you did with merrick garland, we aint forgotten and we aint forgotten the alleged attempted rapist, Brett Kavanaugh like that. Just the those were some nasty things that yall did. And were not going to. So its 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 dont play ball, you dont give many points. Im 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, youre going to go to applebees, right . Right. Youre going to do the obligatory like youre youre going to do a much more moderate if you have to get more people involved. If you have 29 justices and youre majority opinion requires 15 people, that decision is going be much more moderate center, mass, mainstream, inoffensive and concise. And ill 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 im uninvited and specifically speaking to whats the batson effect. Were just having one black juror. The studies show, has a tremendous effect on the jury of acceptable. You know, they dont 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 socalled 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 isnt 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 theyre trying to create the next constituency for donald trump and hes so my book my book became Critical Race Theory book as i was writing like i didnt 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 ive said ive said this a lot times and it some people off. I dont know why, but what that really is, is white people being committed to making their kids dumb. I dont 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 kids going to know history. My kids going to know who Abraham Lincoln is. My kids going to know who Stokely Carmichael is. My kids going to read it. Its going to be yo dumb kid who doesnt 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, its 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 thats 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. Theyre like, well, when do we dont 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 cant 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 dont get these dumb is being like, i cant believe theres a war in europe. Yeah, thats 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 youre 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. Thank you so much for being here. Thank you all so much coming. I really appreciate it. I really