Enthusiastic defenders of the First and Second Amendments to the Constitution are fundamentalist cultists—and women and minorities are their victims.
At least, that is the thesis of University of Miami law professor Mary Anne Franks’ new book, The Cult of the Constitution, an unforgiving disparagement of the Constitution’s white male origins and the allegedly unwoke application of its protections. Her subtitle brings the point home: “Our Deadly Devotion to Guns and Free Speech.”
What has spawned such a jaded view of our founding document? First, says Franks, consider its history. White men wrote the Constitution, acquiesced in slavery, and deprived women of the Constitution’s protections. Second, look around. Inequality, she says, is everywhere. Police murder blacks. White men murder women, and those not murdered are beaten into retreat from civil society through Internet threats and revenge porn.
White men control the media, academia, corporations, the economy, entertainment, and government, Franks writes. It follows, therefore, that the First and Second Amendments have joined forces to deprive all but white men of full participation in society. Our First and Second Amendment rights might be tolerable were white men not villains. Alas, “white men’s monopoly on deadly force” causes women and minorities to shrink from participating in civic life, for they cannot exercise their rights “when they fear grave bodily injury or death.” Franks’ view doesn’t explain why nevertheless women can be seen everywhere in the workplace or in the political sphere.
Flimsy evidence is Franks’s calling card, and she marshals it to support her position that the First and Second Amendments render life a nightmare for anyone not white and male. Central to her argument is the August 2017 Unite the Right rally in Charlottesville, which resulted in the murder of one young woman—improbably by a car rather than a gun. A white male rally attendee has been convicted of that murder. For Franks, a rally protected by the First Amendment featuring armed white men and resulting in the violent death of a woman symbolizes the Constitution’s toxicity.
That episode is just the latest example, says Franks, of how the “Constitution has indeed functioned to protect white male supremacy since the day it was written.” Our current president, she says, personifies the malady: With the election of the “barely literate, openly racist, pathologically dishonest sexual predator” Donald Trump, white men have felt “freer than ever to endanger public welfare with their fetish for weapons.”
However, Franks cites no statistics to support her thesis that white men have a monopoly on violence, so she seems to assume that her outrage over “the murder of Philando Castile” will serve as a substitute. But the police officer who shot Castile, an armed motorist in Minnesota whom the officer had stopped, was shown to have acted in reasonable fear of his life. He was never charged with, let alone convicted of, murder, nor was he white. Her libelous use of the term “murder” is reminiscent of former law professor Elizabeth Warren’s recent claim that Ferguson, Missouri, teen Michael Brown was murdered, even though the police officer involved was acquitted of any wrongdoing by a thorough grand jury. Our lady law professors seem to be drinking a peculiarly befuddling type of Kool-Aid.
Franks begins her book by telling us that she is of mixed race and was raised an impoverished half-white, half-Taiwanese Southern Baptist in Pine Bluff, Arkansas. “Saved” at age eight, she soon became disillusioned with fundamentalism’s “bad faith.” Having discovered the same bad faith in the Constitution, Franks has also soured on that celebrated document. She now concludes that the Golden Rule, Immanuel Kant’s categorical imperative, and the Fourteenth Amendment are the exclusive keys to a just society.
By contrast, the First and Second Amendments in deadly combination have driven women and minorities into hiding, denying them civic participation. She advocates a “civil rights approach” to constitutional rights—that is, the government should use the Bill of Rights to enforce equality among groups—rather than our “civil liberties approach,” which protects the people from government power. “Conflicts among constitutional rights must be resolved according to the demands of equality,” she writes. In short, Franks wants the government to distribute constitutional rights from each according to his privilege to each according to her needs.
Franks calls this idea that white men’s constitutional rights should be rationed until full equality is realized “constitutional reciprocity.” However, she does not articulate how this mandate would be administered. She seems unaware that in many ways, equality for women would mean a demotion. More women than men attend college, and they graduate at higher rates. Women also have lower unemployment rates than men. As for their wealth, men and women in the United States control nearly identical assets, a statistic that is not matched in countries without a First and Second Amendment. Of course, correlation is not causation, but it is a correlation worth pondering.
Are marauding, chanting white men killing women and minorities in terrifying numbers? A quick review of the research reveals that gun violence is not disproportionately propagated by white men, women are not its disproportionate victims, and the First and Second Amendments do not sanction gun crime. For confirmation, Professor Franks might consult former mayor of New York, Michael Bloomberg, or former mayor of Philadelphia, Michael Nutter, or the Bureau of Justice Statistics. In many cities, 90 percent of black male murder victims are killed by other black men. Therefore, restricting the rights of white men will not result in black safety. One suspects that learning these facts will not bring relief to Professor Franks.
One of the author’s complaints is that the white men so enamored of the Constitution have no idea what it means. Among this group, she complains, have been certain justices of the U.S. Supreme Court. She deplores Justice Antonin Scalia’s majority opinion in District of Columbia v. Heller, which held that the Second Amendment guarantees the right to defend oneself with a handgun in one’s home, even though the amendment says nothing about guns or self-defense. By this standard, how much more competent is Professor Franks, who asserts that the Fourteenth Amendment guarantees women “bodily autonomy” even though that amendment mentions neither bodies nor autonomy?
Not counting our nation’s founders, the biggest villains in Franks’ book are the National Rifle Association and the American Civil Liberties Union: They are predominantly white and male, they pursue an individual-rights agenda, and they have immoral benefactors. She declaims against the moral authority of the ACLU because it has received generous contributions from both the Playboy Foundation and the tobacco industry. But the Playboy Foundation also gave to feminist organizations, with a grateful Ruth Bader Ginsburg eagerly seeking more. As for the tobacco industry, who can forget the Virginia Slims company’s sponsorship of women’s tennis, linking smoking with women’s liberation? Yet these associations provoke no criticism.
In her final chapter, Franks drops her constitutional analysis to address “the cult of the Internet” and specifically Section 230 of the 1996 U.S. Telecommunications Reform Act, which protects Internet service providers (but not users) from liability for defamation and harassment. Franks concedes that political pressure and technological advances have curtailed online abuse without government regulation but remains dissatisfied because inequality prevails.
Cults have long been associated with irrationality, secrecy, and manipulation. But after considering the remedies that Franks promotes to impose on us her view of equality, one must conclude that joining the cult of the Constitution appears to be not only an acceptable but an imperative reaction to this potentially totalitarian threat. We had better seek membership while we still can.
[The Cult of the Constitution by Mary Anne Franks (Stanford University Press) 272 pp., $26.00]