"The View," Elie Mystal, a legal analyst and justice correspondent: All Laws Passed Before 1965 Should Be ‘Presumptively Unconstitutional’
In a recent interview on "The View," Elie Mystal, a legal analyst and justice correspondent for The Nation, advocated that all laws enacted before the 1965 Voting Rights Act should be considered "presumptively unconstitutional." Mystal's argument is based on the premise that prior to this landmark legislation, the United States functioned as an "apartheid country," systematically denying significant portions of its population, particularly African Americans, the right to participate in the democratic process. The Daily Caller
He contends that laws established during this period lack legitimacy because they were created without the input or representation of all citizens. Mystal asserts that the disenfranchisement of marginalized groups resulted in a legal framework that did not reflect the will or protect the rights of the entire populace.
This perspective has ignited a robust debate among legal scholars, historians, and political commentators. Supporters of Mystal's view argue that scrutinizing pre-1965 laws is essential to address and rectify systemic inequalities embedded within the legal system. They believe that such an approach is necessary to ensure that contemporary laws uphold principles of equity and justice, viewing the period before the Civil Rights Movement as fundamentally compromised in its legislative legitimacy due to widespread disenfranchisement.
Conversely, critics contend that deeming all laws passed before 1965 as presumptively unconstitutional is overly broad and dismisses the complexity of historical legislation. They point out that not all pre-1965 laws were inherently discriminatory and that many have been foundational to the American legal and constitutional order. Conservative voices argue that this kind of sweeping historical revisionism undermines the rule of law by discarding legal traditions and principles that have stood the test of time. They warn that framing an entire era of legislation as illegitimate could open the door to destabilizing precedents, where laws are judged not on their merits or outcomes, but on ideological narratives about history.
From a constitutionalist viewpoint, the idea of retroactively invalidating laws based on a political assessment of the time they were passed erodes respect for legal continuity and the principles of limited government. Many conservatives advocate for reforms to be addressed through legislative amendments and democratic consensus—not blanket rejections of the nation’s legal heritage. They emphasize that the Constitution has mechanisms for change, and those should be used rather than rhetorical condemnations of entire eras.
Mystal's assertions are part of a broader discourse on how historical contexts influence the legitimacy and fairness of legal systems. This discussion underscores the ongoing efforts to reconcile past injustices with present-day legal and social standards.
If you can stomach it, you can watch Elie Mystal's interview on "The View":
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