The Cult of the Constitution by Mary Anne Franks (Hardcover) (272 Pages)
The subtitle of this book is “Our Deadly Devotion to Guns and Free Speech.”
Many on one side of the ideological and partisan divide would nod at one-half of that allegation. Yes. The title is an allegation. And, it raises questions likely to concern people across the ideological spectrum. Who thinks we are too concerned about both guns and speech?
The book has the job of proving that there is a “cult” of the Constitution, specifically on free speech, guns, and freedom of the Internet. The book raises a few wider concerns about society’s faith in the Constitution itself. But, it focuses on those three subjects.
Mary Anne Franks, a law professor and advocate, supports an egalitarian philosophy, which she argues is guided by the Golden Rule and philosophers like Immanuel Kant. Franks argues that a proper application of the First and Second Amendment could and should be guided by this.
Our current philosophy, she argues, too often is a libertarian one which favors white men over the needs of women and minorities. The book’s philosophy at times overlaps with critical race theory (CRT), including referencing Kimberlé Crenshaw.
The book, from its very title, challenges sacred cows. It is an important part of the conversation, especially as the current United States Supreme Court goes in another direction.
The author challenges “fundamentalism” and “cults,” arguing both seek out uncompromising simplistic answers to complex questions. The author’s concern is not the resistance of “nothingness,” but certain discriminatory and dangerous approaches to addressing it.
Should I Read It?
This book, about two hundred pages of basic content, is clear and upfront about its point of view. The author is a deep believer of the Equal Protection Clause and the reciprocity she believes that provision demands. The criticism of CRT alone shows what is up against.
Those open to her point of view or who wish to read about it to find out how the other side is “wrong” can profit from reading this book. Those interested in free speech, guns, and the Internet should as well. The book helps show that in practice shows the complexity involved.
The book covers some weighty legal topics in a straightforward way that appeals to the general audience. Things like “standing” are simply explained. A range of topics are covered in easily consumed bits of a few pages each. Franks writes as the teacher/advocate she is.
You do not need to be a law student or expert to read and understand this book. Some beginners to the material might wish to look elsewhere. Skim the book a bit if you can to get a sense of things. The author’s works are also available online to get a sense of her style.
No pictures, charts, or anything of that nature. Books without them deserve a demerit.
The author speaks about her evangelical religious background as a child, which she eventually questioned when she was older. Franks grew to respect a “Golden Rule” principle where a rule should be applied equally to all. A test of both fairness and the intelligence of the rule.
Franks believes the Equal Protection Clause of the Fourteenth Amendment is the constitutional expression of this Golden Rule. Her work as a legal scholar and advocate has involved putting it into effect as well, in areas such as self-defense, the rights of free speech, and privacy rights.
Franks rejects both a fundamentalist view of religion and the Constitution. Both in her view provide both an overly extreme argument of “the truth” while applying it in a bad faith way which harms the needest. Good faith respect for the Constitution is possible.
“Victim claiming” of the powerful exists in both religion and constitutional analysis, where the most powerful are made out to be aggrieved victims. Rights worthy of respect should apply to all equally. A constitutional system for privileged white men is not a fair or sensible one.
Introduction: Who We Are
Franks argues that the Constitution has functioned to protect white supremacy from the time it was written. A smaller subset (the book was written during the Trump Administration) is actively supportive; many others still allow the protection to go on.
Liberals and conservatives generally are understood to have separate constitutional visions. There is some overlap, including both glorifying some aspects of the past.
There has also been a growing overlap of libertarianism, including in matters of free speech. Such libertarianism can interfere with protecting the equality that we should foster.
Chapter One: The Cult of the Constitution
The Constitution is widely honored as almost a sacred thing. Some recognize that originally the document allowed for slavery, a sort of “necessary” evil. But, even that is gone now.
There is a general mythical view of a great compromise. When Justice Thurgood Marshall, the first black justice to the Supreme Court, provided a dissenting view among celebratory remarks for its two hundred anniversary, many were upset at him.
The Constitution has various aspects that in practice are discriminatory in a way that favors well off white men. The “need” to do so in 1787 was somewhat exaggerated; we should at the very least understand what happened. The same applies today, any “need” is even less apparent.
There is “constitutional fundamentalism” that (often ignorant of even the full text of the Constitution, more so the full complexity of it) deems this necessary.
This includes the use of “super rights” that myopically, in extreme fashion, cite a single thing (e.g., an extreme version of free speech, gun rights) as more important than anything else.
Chapter Two: The Cult of the Gun
A conservative fundamentalist gun-rights absolutism has had a special degree of rhetorical and political power in recent years.
[I suggest looking elsewhere for a complete history of this issue, especially the constitutional developments, there being many good books on the subject. I think her summary is incomplete.]
This is not because constitutional text compels such a view.
The Second Amendment speaks of a “militia,” a government-led institution, which runs counter to the libertarian, often anti-governmental, view of gun rights today.
The efforts of the National Rifle Association (NRA) and D.C. v. Heller is discussed.
The application of other constitutional provisions, including the Privileges and Immunities Clause (the route Justice Thomas takes), to this subject, is not discussed.
A basic “right to defense” is covered, including how it is a limited right, not the extreme “fetish” of gun rights extremists. The Second Amendment has a limited purpose; a right to self-defense, a more general liberty, is both limited, and is not specifically about “guns” at all.
The discussion of the right to defense is an important example of how it is wrong to argue Franks “ignores” or “hates” constitutional rights.
She explains “who” in practice tends to truly enjoy libertarian gun laws, including how “stand your ground” laws seem not to benefit women and non-whites in equal fashion.
The costs of the Second Amendment (and that is how constitutional rights here tend to be framed, even though again gun rights can be defended in various ways) fundamentalism are addressed. Not only does it make it harder to pass good public policy, it benefits the privileged.
Chapter Three: The Cult of Free Speech
Full disclosure. While I support a constitutional right to own a gun, this chapter is the one that probably challenged my beliefs the most. Over the years, I have been more open to more regulation. But, I have generally been something of a First Amendment absolutist.
The problem here, however, is that absolutism is not realistically possible. The government regulates speech in any number of ways, banning a range of expression such as limits on advertising and “true threats.” “Freedom of speech” includes lots of regulations.
A basic trope here is the “market of ideas” metaphor, best known by its discussion by that famous wordsmith, Justice Oliver Wendell Holmes:
“[M]en have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas — that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out.”
Franks reminds us, however, that markets are regulated. Is it really true that truth always arises from this market? In this age of instant gratification and skillful methods of fake news, is there time to adequately falsehood with truth? And, such great promoters of free speech like Justice Brandeis also argued certain speech was private, such as intimate family details.
And, promotion of “the thoughts we hate” these days seems to quite often benefit a privileged few. This is especially the case with the growth of corporate power, which liberal organizations like the ACLU have some dubious connections with, including helping tobacco companies.
We can point to many aspects of free speech which are quite important, but free speech absolutism deserves some pushback. For instance, she notes concerns about threats of free speech at college campuses are overblown and if anything more likely to harm left leaning ideas.
The “chilling effects” of speech regulations, including against harassment, are often exaggerated. And, since free speech absolutism often favors the powers that be, the net result selectively benefits the privileged.
Chapter Four: The Cult of the Internet
No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information provider.– Section 230, Communications Decency Act
The Internet is promoted by some people as a bastion of freedom, a respite from the perils of tyrannous government. We know by now that such fundamentalism is likely to be a bit more complicated when things are looked at closely. And, certain people will benefit.
Like the “marketplace of ideas” metaphor, in practice, the Internet is regulated in a range of ways. Private parties like Twitter, Facebook, or 4chan have a range of rules, content is guided in a variety of ways, and equitable regulation is quite reasonable.
A basic matter addressed in this chapter is the application of a federal law intended to encourage online providers to self-regulate (such as rules for AOL chat rooms – remember them?) without being unjustly liable for a range of content they have little power over.
This general principle is supported by Franks, but she believes distributors of content still have some responsibilities. Also, some absolute “free speech” rule that demands we allow something like revenge porn is a perversion of free expression principles.
The ACLU and other groups are called out for not accepting there are valid lines here. Some even criticize any private limits. You can debate the exact lines she draws along the margins, but the author makes some challenging arguments to absolutism.
A Constitution which stands for white supremacy is not one worthy of respect. But, that is not the only interpretation available.
Likewise, a “fetish” for constitutional text, trying to find a “true meaning” to vague and contradictory text is a bad idea. It also is not necessary.
The Constitution should be applied in a way that promotes equal rights and respect. We need to understand the ways it is applied unequally. And, realize there is an opening for amendment and change in the document itself. An unequal “cult” of the Constitution is not the only way.
Points to Ponder
Scott Greenfield, a criminal defense lawyer, tweeted a few months ago about the author’s “hatred of constitutional rights.” I found that offensive. It also is what we might call “question begging.” It turns on what you think the “constitutional rights” truly are.
I have had various online debates with people who strongly disagree with me on constitutional matters. At times, they question my basic good faith, since my position is so foreign to what they believe is patently obvious. The only way to explain it is either (1) I’m an idiot or (2) lying.
I suppose taking door number two is a matter of respect. Still, I do not not think I’m lying either. Maybe (it happens), I am totally off base. I disagree with Prof. Franks on certain issues. Still, I don’t think she “hates” constitutional rights. There is a difference.
And, to be clear, you can strongly not like something in the Constitution. I myself do not think Texas and Wyoming should have the same number of senators. It violates basic one person, one vote principles. But, on speech and guns? That is not where she is coming from.
Mary Anne Franks is a law professor at Miami School of Law.
This is her only book, but she has written many articles, both academic in such publications as Atlantic, Daily Dot, Huffington Post, and her web page has a sizable listing of media appearances as well. She also has an active Twitter account.
Franks also has been a strong advocate of the causes she discusses in the book, including serving various roles (including president) at Cyber Civil Rights Initiative (CCRI), a nonprofit organization that seeks to combat cyber abuse.
She does not talk about it in the book, but in an interview she also noted:
I’m an instructor in a martial art called Krav Maga. It’s an extremely effective form of self-defense that teaches you how to take down any opponent, no matter how large or strong.
This is notable given her chapter on the “cult” of guns in this country.
Is The Cult of the Constitution Reliable?
The author is a law professor as well as public advocate on various issues covered in this book. For instance, she authored the first model criminal statute regarding nonconsensual pornograpy.
Her academic work largely focuses on certain speech and privacy matters. She also speaks of her writing being “focused” (see the preface) on self-defense issues. The article on “Men, Women, and Optimal Violence” is a helpful read.
Issues such as the overall history of the “individual rights” view of the Second Amendment (her analysis is somewhat lacking here) and other constitutional matters is something Franks has less expertise. Some of the constitutional matters discussed should be taken with that in mind.
The book is well-sourced if not as heavily detailed as a more academic book would be.
The book has a lot of material in its two hundred or so pages (the rest being endnotes and stuff), and every claim made might not be fully proven. But, she also openly makes value judgments. I think as a whole, the book is honest, and her factual basis for her analysis is reliable.