Elie Mystal: Ten Popular Laws That Are Ruining America

CHRISTIANE AMANPOUR, CHIEF INTERNATIONAL ANCHOR: Now, as the Trump administration’s battle with the courts escalates, one legal expert is taking a step back to reimagine what a more representative U.S. legal system could look like. Bestselling author, Elie Mystal tells Hari Sreenivasan about his unconventional theory explored in his latest work.

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HARI SREENIVASAN, CORRESPONDENT: Christiane, thanks. Elie Mystal, thanks so much for joining us. Your new book with a fantastic title, I might add, “Bad Law: Ten Popular Laws That Are Ruining America.” It focuses on 10 laws that you say if repealed would make America better. First of all, where do you even start? How do you figure out which 10 to go after to write a book about?

ELIE MYSTAL, AUTHOR, “BAD LAW: TEN POPULAR LAWS THAT ARE RUINING AMERICA”: Thank you so much for having me, Hari. Yes. Scoping is obviously the very first problem for a book like this. There are many laws, many of them are terrible. I have not read them all. So, there is a large universe that you’re working from. But the way that I started to whittle it down and scope it, was to try to think of laws that could just be repealed. There are many bad laws that need to be reformed, updated, massaged, brought into our modern age, and I kind of left those to the side and focus on the ones that we could just be rid of. We could be rid of today and would make our world better tomorrow. So, that’s kind of where I started the scope. And then the second valence I looked at was the subtitle of the book, “Ten Popular Laws that Are Ruining America.” So, I tried to focus on laws that were — that enjoyed broad bipartisan support at the time they were passed. You see this book is about laws that are working as intended. The racism or the misogyny or the anti-poverty. The stuff that the laws are doing was what the people who passed the laws wanted them to do right? And so, I tried to really hone in on laws that people liked at one time, both parties, both of them, again, a lot of this book is — it is a bipartisan look at mistakes that both parties have made. Now, belatedly, in a lot of cases, Democrats have been like, well, oh, it was a terrible mistake. We never should have passed it. But the law is still there, and you don’t see Democrats agitating and organizing to repeal to fix their own mistakes of the past. And so, that’s kind of how I scope the book down to just 10.

SREENIVASAN: You say in there, if it were up to me, I’d treat every law passed before the Voting Rights Act of 1965 as presumptively unconstitutional. The government of this country was illegitimate when it ruled over people who had no ability to choose the rules. Explain.

MYSTAL: Well, I wouldn’t give the laws passed before the Voting Rights Act, which I argue is the most important piece of legislation in American history because it’s the first piece of legislation that made us anything approaching a democracy or a republic as opposed to an apartheid state. And so, if you bring to me a law that’s passed before everybody who was living here had a reasonable opportunity to vote on the law and vote on the representatives who would make those laws, then I’m just not going to give it a whole lot of deference, right. I’m not saying that you can completely ignore those laws, but certainly, when you think about how a court gives deference to the will of Congress or the will of the people when it’s making their decisions, I wouldn’t give a deference at all, right? And you bring me a law from 1921, I’m like, yes, whatever. Do you have anything supporting your case from after apartheid? Do you have anything supporting your case from, I don’t know, the 1970s? Right? And if you can’t give me a reason for your law to exist or your argument to win with a modern argument, then I would disregard your antebellum arguments.

SREENIVASAN: Well, let’s talk a little bit about who gets to vote. You lay out in the book that America is sort of different than other democracies. What is America not getting right or could get better?

MYSTAL: OK. So, one of the — I would say the key stupid thing that we do. Is that we don’t have one national electoral system. Our electoral system flows up from the states. So, instead of one federal election system, we have 50 different federal election systems, and each states has its own rules for who’s eligible, who has to register, when you can start voting, whether or not you can early vote, can you cure your votes after the they’ve been cast? What’s the process for mail-in ballots? When’s the registration date? It’s ridiculous. It is — and it’s different in every state, depending on what side of the river you’re — you happen to be on, whether or not you’re allowed to vote on Saturday or not. That is not what all of the other major democracies in this world do. They’ve fixed this problem. They have one national electoral system, and that not only allows for, I think, more confidence in the system, it also allows for less friction in the system. And that, to me is the real key point here. It makes it easier for people to vote when there’s only one system that they have to familiarize themselves with, right?

SREENIVASAN: Yes.

MYSTAL: So, at an alpha kind of 30,000-foot level our inability to have a national election system is a fundamental problem with our country.

SREENIVASAN: You have a whole chapter called, “How Did Immigrants Become Illegal?” You say it was invented basically with the stated intentional goal of keeping america white and protestant. How do you think we should be approaching it?

MYSTAL: Yes. So, again, throughout my book, I don’t ask people take my word for it, I go back and I look at the actual language from the people who passed the law. In the case of the 1921 Immigration and Nationalization Act, which is what is our foundational immigration law in this country. This law was — this law heavily relied on the science of America’s leaning eugenicist, Harry Laughlin. So, you know, that’s kind of a problem. And the congressman at the time, as they were passing the law, said that this law was necessary to stop the mongrelization of the white race by the inferior races. I don’t think a law that is based on such obvious and stated bigotry and racism should be allowed to exist today in modern America. The simple fix to me for the immigration problems, and to be clear, Hari, if I had a complete fix for the immigration problems, I wouldn’t be telling it to you, I’d be telling it to the good people in Stockholm and I’d be waiting for my price. All right. Like it’s a large issue. I don’t have all of the answers here, right. But I think the first and most simple fix on the immigration issue is to make it a civil offense as opposed to a criminal offense, right? We have criminal laws for people who commit crime, including immigrants who commit crime. That is taken care of. What we don’t need to do is to criminalize people who have committed no crime, simply because they’re here out of status, simply because they overstayed their visa, simply because they didn’t fill out the right paperwork in the right form, in the right triple (INAUDIBLE) with the carbon copy and get it notarized, like that is not a criminal offense, that is a civil offense. Now, civil penalties can be significant. Civil penalties can be harsh. Civil penalties include deportation. That is a civil penalty in this country and we can do that if we feel that a person has violated our laws in a civil sense. But throwing people in jail, taking them away from their children, throwing their children in jails, or holding pens or concentration camps, or whatever euphemism we’re calling it today, that’s immoral, that’s wrong, and that doesn’t need to happen. And the only reason why that does happen is because the 1921 Immigration and Nationalization Act supported by people with the very most racist intentions possible made it so. Before the 1921 Act all immigration offenses were civil penalties, not criminal, and they could be again if we repealed that section of that law.

SREENIVASAN: You mentioned the Immigration and Nationality Act passed in, what, 1952. And you know, when we look at something like Mahmoud Khalil, the pro-Palestinian activist and Columbia University graduate student who’s been in the center of a lot of discussion, he’s a green card holder, but Secretary of State Marco Rubio says the INA gives him the authority to deport an alien whose presence or activities could have serious foreign policy consequences for America. What’s what’s wrong with that thinking?

MYSTAL: It’s tyrannical. It’s tyrannical. People’s legal status should not be up to the whim of any one official. That is what they do in tyrannies. In America, we are supposed to have process. We are supposed to have an opportunity to appeal. We are supposed to have evidence. What evidence is Rubio required to give under that subsection of the statute? Clear as I can read, none. It’s his whim. And when you live under the whim of men, you live under the tyranny of men. It’s that simple. That is a perfect example of why some of these bad laws, some of these old laws desperately need to be repealed. Because there are poison pills laced in them. Look, Hari, I wrote a whole book. I had a whole chapter on the Immigration National Act, Nationality Act. I didn’t even know that section existed until Rubio pulled it out of his hat to justify jailing a valid green card holder. I don’t even know about it. And I’m an expert, right? <Laugh> what I’m talking about, and this is, this is the, this, I’m saying this is part of the problem, right? Because there are things in the laws that nobody really knows what they are, how they work, right? Until some usually person with bad intents, pulls it out of their hat, right? And if we, and in this case, we have a situation where a person with bad intent is pulling it out of his hat to enact his whims, as opposed to anything approaching a normal legal process.

SREENIVASAN: You also write in your book about the stand your ground law. Most Americans became familiar with it in 2012 when George Zimmerman fatally shot, 17-year-old Trayvon Martin because he thought he was well within his rights to do so. A little background on the law for our audience and what your problem is with it.

MYSTAL: The law is the most provably racist law that we have. What stand your ground says is that if you are legally in a place that you are allowed to be, right, and somebody, whatever, accost you, annoys you, bothers you, threatens you, you can respond with deadly force, you can stand your ground as it were, right? I mean, that’s literally — and stand your ground is not just the tagline of the law, it is literally in the language of a lot of the laws in the various states that have them, right. When I say it’s the most provably racist law that we have statistical evidence for, if you are a white person standing your ground and you are allegedly threatened or accosted or bothered or annoyed by a black person, and you shoot that black person to death, you are 218 times more likely to be let off with no charges than if you — than if the races are reversed. If you are a black person and you stand your ground against a white person who threatens or accost or assaults or annoy you. And that’s how the law was kind of intended to function. The thing about stand your ground that a lot of people don’t understand, what it does in terms of the legal structure of it, is that it immunizes, the person who shot it immunizes, the shooter from even being taken — from even being charged with a crime and taken to trial. So, if I’m white and I shoot a black person, I say, I was standing your ground. And the cops, believe me, I cannot be charged. I cannot be investigated. If the cops just take my word for it, understand your ground, that’s it. That’s the end of the inquiry. And that’s also one of the reasons why the law is so disproportionately racist.

SREENIVASAN: So, what’s to prevent the reform route, not just for stand your ground, but a lot of the laws that you’re talking about in the books versus complete repeal and overhaul?

MYSTAL: Well, what’s the — well, again, if you think about what the law was intended to do, what’s the benefit of reforming it? Like what’s the benefit of reforming stand your ground. We have laws protecting your right to self-defense. That’s already a law. We don’t need — the stand your ground is a perfect example of a law that is only there to do bad things. If you are threatened with deadly force and you defend yourself with deadly force, we have an entire legal canon. That’s designed to figure out if your shooting was justified. Let’s call it a justified homicide. There is an entire statutory — not statutory, there’s an entire common law background for that. And it’s very — and it’s not easy, but like you can prove that you shot somebody in self-defense. It happens all the time. What do you need to stand your ground for?

SREENIVASAN: So, where do we go from here? I mean, what do you think people can do to make any kind of meaningful change if there are so many kind of structural and codified hurdles?

MYSTAL: You got to change the structure. You got to change the structure. And one of the arguments that I make in the epilogue of the book is that one of the first places that I would start is changing the structure of Congress. Right now, most of your viewers know we are stuck at 435 Congressmen, but a lot of your viewers don’t know why. There’s not a — there’s nowhere in the Constitution that says Congress can only be 435 people. We started with, you know, 90 something. We quickly went to 137. We used to add Congress people every decennial census, right? So, everybody now knows that you do the census and then you have to reapportion and so, like, you know, New York loses two representatives to Arizona because you’re — well, before we used — instead of taking congressmen from one state and putting it in another state, we just used to add more congressmen. We stopped doing that in 1920. And Hari, it’s not because we ran outta chairs, all right? It’s not because we lost the ability to make a bigger rotund. We stopped doing it in the 1920s because the 1920 census was the census that really showed the white ruling elite. That the power of this country was moving away from the agricultural and rural centers into the urban areas. That you were gonna have to add a lot more congressmen to represent a lot more people living in cities. And people got scared of that. If we had just kept going with our population increase and adding more Congress people and keeping the level of per capita representation, that is how many people one congressman represented, we had kept it steady from the 1920s, we’d have 1,200 people in Congress right now. Do you know how different our system looks with 12,00 congressmen instead of 435? It changes our entire polity. If you make representation in Congress, which is supposed to be the house of proportional representation, if you actually make it proportional, it changes the entire country. America is the least representative democracy in the world by the measure of per capita representation. One congressman here represents about 760,000 Americans, right? The next least representative government is Japan where one member of their lower house represents around 520,000 Japanese people. So, we are off the charts in terms of an unrepresentative place to live, and we could fix that. My solution in the book is called the Wyoming planet ties representation to the — representation of the least representative — of the least populous state, right? Because every state, no matter how small, gets one congressman. So, the idea is that every congressman should represent the population of the least populous state. Right now, that’s Wyoming. Wyoming has about five 50. If you made every Congress person represent around 550,000 people, you would immediately go and get about 200 to 300 more congressmen. We can change the number of representatives in Congress by a simple piece of legislation, just like we artificially limited the number of Congress people with a simple piece of legislation.

SREENIVASAN: The book is called “Bad Law: Ten Popular Laws That Are Ruining America.” Author, Elie Mystal, thanks so much for joining us.

MYSTAL: Thank you so much for having me.