Legal scholar Elie Mystal talks about his new book, Bad Law: Ten Popular Laws That Are Ruining America. From the Hyde Amendment's impact on reproductive rights to laws that shield gun manufacturers, Mystal argues flaws within these laws have made life harder for all of us. We'll talk about immigration law, voting rights, and why the deregulation of the airline industry has made most of us hate the experience of flying. Also, our TV critic David Bianculli reviews the delightful new mystery series Ludwig, from Britbox.Learn more about sponsor message choices: podcastchoices.com/adchoicesNPR Privacy Policy
Chapter 1: Who is Elie Mystal and what is his book about?
This is Fresh Air. I'm Tanya Mosley. My guest today, legal scholar Elie Mistal, says if it were up to him, every law passed before 1965 would be deemed unconstitutional. From his view, before the Voting Rights Act, the U.S. was basically an apartheid state.
Estal's new book, Bad Law, Ten Popular Laws That Are Ruining America, mixes humor with deep analysis to argue that our laws on immigration, religious freedom, abortion, and voting rights are actually making life worse than better. They've caused, he argues, massive social and political harm and don't reflect the will of most Americans.
Ellie Mistal is a legal analyst and justice correspondent for The Nation and the legal editor of the More Perfect podcast on the Supreme Court for Radiolab. He's also an Alfred Knobler Fellow at Type Media Center and the author of Allow Me to Retort, A Black Guy's Guide to the Constitution. And Ellie Mistal, as you always seem to do, you've made this subject both funny and informational.
So we'll be laughing today to keep from crying. Thank you so much for this book and welcome to Fresh Air.
Thank you so much for having me, Tanya.
Okay, so in each chapter of the book, you give an analysis of a law that you say is ruining America. There are 10 of them. How did you go about choosing which laws to focus on?
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Chapter 2: How were the ten laws chosen for the book?
That was the most difficult part of writing this book because, as you can imagine, there are a lot of laws. Many of them are stupid, and I did not read them all. So trying to scope how to pick just 10 was the initial challenge of the book. And where I landed on was trying to focus on laws that could be stricken today and and have life be better tomorrow, right?
There are many laws that we have that are dumb but inconsequential, right? And there are many laws that we have that are dumb but really complicated, right? And require not repeal but reform, require updates, require massaging, right? The laws that I focused on in my book are both consequential but
but don't need to be reformed, don't need to be massaged, don't need to be updated for the modern age. They're just stupid. And if we just got rid of them, things would be better the day after we got rid of those laws. So that was the kind of fundamental scoping of the book. And that's how I came up with the 10 that I chose to focus on.
You are saying that these laws aren't basically imperfect, like the other types of laws that you mentioned. you're arguing that their very function is to harm.
And what I try to do in the book is explain that the harm that these laws caused was what was intended by the people who passed them. You know, a lot of times in the book, I will go into the history of how these laws came about in the first place. And you will see people making terrible decisions in real time in support of these statutes and other kind of legal concepts and measures, right?
The laws that I'm focusing on are functioning as intended, if you will. And their intention was poor. Their intention was bad. Their intention was anti-democratic or racist or, again, or monopolistic.
I want to get to something I said when I introduced you, that you feel like before 1965, really all laws before 1965 should be abolished by and large. The United States legal system relies so heavily, though, on judicial precedent. So almost everything goes back to what happened before it.
So your feelings that everything before 1965 is kind of in direct opposition to what America is most proud of. Can you explain that argument a little bit more?
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Chapter 3: Why should laws before 1965 be reconsidered?
Indeed it is. It is in opposition to what America is most proud of because I don't think America should be particularly proud of slavery and apartheid. And when you look at the laws that were passed before 1965, what we have is a situation where not everybody who was living here under the laws had a right to have a say in what those laws were. They didn't have a right to vote.
They didn't have a right to participate in the government, not a full, fair and equal right to participate in the government. And so that is antithetical to the concept of democratic self-government. Now, Tanya, you did slightly misstate my position in the open because I don't say that all of the laws passed before 1965 should be immediately and forever abolished tomorrow.
That is actually a little bit too extreme even for me. What I am saying is that any law passed before the 1965 Voting Rights Act, which I – have always said is the most important single piece of legislation ever passed in American history because it's the first piece of legislation ever passed in American history that made real the promise of democratic self-government, right?
Before the 1965 Voting Rights Act, we are functionally an apartheid state. So what I'm saying is that any law passed before the Voting Rights Act should be viewed with constitutional skepticism. Right. So put it like this. If all you got for why this should happen or that shouldn't happen is some law that was passed in 1921. I don't care. I just don't care.
And I don't think the government should care. I don't think legislators and I don't think judges should care if you've got an additional argument. for why the law is good, well, now we can have a discussion, right? Because I'm not saying that every single law passed before 1965 was facially bad.
Right. I mean, there are some that were actually really good that moved forward progress. The 1964 Civil Rights Act, I think, was pretty good.
Right. But I also think, and this is perhaps me being a little bit naive, I also think that the laws that were passed before the Voting Rights Act, the laws that were passed before we had full, fair, and equal participation in government from all Americans, the laws that were passed before that, that we like, that we think are good, we could probably pass those again. At least we could try. Right.
So if you think that you have this law from 1921 that's still really good and really relevant and really important for the modern age, why don't you pass it again, this time asking everybody, not just rich white men. Let's ask everybody if we think that law is still good. And if so, and some of them will be, then let's go.
Let's talk a little bit about some of the laws that you focus on in the book. We're not going to be able to get to all of them, but all of them in some capacity are part of the current news cycle. It's really interesting. And one big one is our immigration laws. I want to talk about this in regards to a case that we are following right now.
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Chapter 4: What are the issues with current immigration laws?
And it's this guy and his science that the U.S. Congress relied upon while writing the initial INA. This guy was giving congressional testimony in those congressional testimonies.
Congressman, congressmen from both political parties, by the way, were saying how important the testimony is and how important it was to write an immigration law that would protect the white race in America from mongrelization. By the weaker and inferior races.
That's literally in the congressional record in support of the Immigration and Nationality Act, which is currently being used to hold Mahmoud Khalil illegally. It is one linear story. And that story is steeped in literal Nazi eugenics.
Ellie, you actually start off the book asking the question, why isn't everyone registered to vote? Every single voter registration law you argue is anti-democratic. And I want you to explain what you mean.
Every single one, right? So look, voter eligibility requirements are one thing, right? Voter eligibility requirements are things like you have to be 18 and you have to live in the state that you vote in and all these kinds of rules and regulations. And I can argue that some of the eligibility requirements are bad or wrong. But again, the scoping of the book, what can we repeal?
I don't think that we can repeal voting. voter eligibility requirements. We need to have some of them, even if some of them are ones that I wouldn't agree with or like. Voter registration, on the other hand, is completely useless. Once we have established the rules for eligibility, everybody who is eligible should be automatically registered to vote. And that is not just me saying that.
That is most of the democratic world saying that. America is unique in its double hurdles to voting, right? We call ourselves the greatest democracy in the world. We are not. We are not in the top 10 because other countries have universal freedoms. Most other countries have some form of universal registration so that if you are eligible to vote, you are automatically then registered to vote.
You don't have to go through a two-step process. Hey, I'm eligible. And now also I'm registered. That is insane. And that is straight up anti-democratic.
Let's go to the period after the Civil War when registration laws actually took effect. Can you just remind us of that time period?
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Chapter 5: Why is voter registration considered anti-democratic?
damning that is in a place like New York City, where if you move from Manhattan to Brooklyn, as many people do as they have children, if you move from Manhattan to Westchester, as I did when I realized that my kid couldn't live in a shoebox, you have to re-register when you move to Brooklyn or when you move to Westchester or when you move to Long Island.
One of the things your book does in talking about these bad laws is kind of give the reader, like open up the reader's mind to a vision of what would our society look like if these laws were no longer in existence or we had a chance to vote for them, for a new set of laws. How would overhauling voter registration, from your view, actually change society?
Well, I like to think of it this way. The high watermark for voter participation in this country happened before we had voter registration, right? We had 80, almost 90 percent turnout before voter registration laws attacked the country. There are a couple of other stories about that. There are a couple of other reasons for that.
We're a bigger country now than we were in the 1800s, yada, yada, yada. But I believe strongly that if we just had a voter eligibility requirement and everybody who was eligible to vote was automatically registered to vote, we would see participation shoot on up in this country and voter participation, not just for presidential elections.
But for all the other elections all the way down the ballot, for the off-year elections, the congressional midterms, for state and local elections, people think about re-registering around the four-year presidential election cycle. People often don't even know when their local elections are taking place.
But if everybody was preregistered, if everybody was – everybody who was eligible was automatically registered, then you could literally say, hey, Jim, it's Tuesday. We got to go vote today. Really? What? I didn't know we had an election day. Yeah, we do, Jim. Let's go. And we could just go and vote and go home and go back to ESPN.
That's how – you want to make voting as frictionless as possible if you want to increase participation.
Okay, let's take a break. Our guest today is legal scholar and author Ellie Mistal. We'll be right back after a short break. I'm Tanya Mosley, and this is Fresh Air.
on the latest bonus episode of Fresh Air, an interview with Yoko Ono from 1989. She says that she became famous for her marriage to John Lennon, but her own avant-garde art wasn't taken seriously then. That was the kind of natural feeling people had. I think, well, she's Mrs. Lennon. What's she doing anyway? I mean, she doesn't have to work anymore, you know?
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Chapter 6: How can changing voter registration laws impact society?
But that price fixing, like the fixing of the price, though, I mean, it was also very expensive to fly, right?
Well, see, there's... The economists disagree. It was expensive to fly some places, but it was cheaper than it is now to fly some places. But it was cheaper to fly other places, right? And the difference between what was overly expensive and what was fairly priced depended on how popular the route was. Because the point of the price fixing was not just the big bad government stamping down the –
businesses and innovation. That wasn't why they were price fixing. They were price fixing to try to encourage airlines to fly to low populated routes.
You know, today, I think one of many things with airline travel that people get upset about Well, first off, it does seem like prices are all over the map. It's all based on the market. But what people really get upset about is how these incredibly profitable airlines continually get bailed out by taxpayers. What could travel actually look like if airlines were regulated today?
Right. Well, this is also the problem of neoliberalism, right? It's ceding to the market what should be a government function, but then still having the government there to back up the market every time it fails. And that is a great business if you are one of the deregulated businesses, right?
Because that means you get to keep all of the profits when things are going well and get bailed out when things are going poorly. The airlines have had massive repeated shocks after 9-11, during COVID. That's just in the past 20 years, right? 25 years. Yet we bail them out. When the airlines are doing great, do they pay us back? Do they give the money back? No, no, no, son, no.
That's not how it works. That's one of the fundamental flaws of neoliberalism. When you give the market what should be a government function, it's not just that the government then has to bail them out when they go poorly. It's that the government never gets the benefits when they do well. Yeah. And that's the definition of the airline industry.
They get all of the profits when things are fine, and we have to pay for them anyway when things go wrong.
Okay, Ellie, let's take a short break. If you're just joining us, my guest today is legal scholar and author Ellie Mistal. We'll continue our conversation after a short break. This is Fresh Air. We don't have time, Ellie, to go through all of the laws that you've highlighted in your book, but I do want to quickly go through a few more of your arguments.
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