For the Symposium on Mary Anne Franks, The Cult of the Constitution (Stanford University Press, 2019).
In her novel book, The Cult of the Constitution, Mary Anne Franks argues that the Constitution is a document of white manful someone supremacy. More precisely, she argues that "the Constitution has indeed functioned to protect white manful someone supremacy since the twenty-four hr current it was written." (p. 6) Hence, "those who adhere to the ideology of white manful someone supremacy may tolerate the expansion of rights to women together with nonwhite men, but only to the extent that these rights do non conflict amongst or undermine the rights of white men." (id.)
Franks argues that the linguistic communication of the Constitution (and the Declaration) that seems to withdraw hold cipher to do amongst white manful someone supremacy--or which fifty-fifty seems to contradict it--cannot last taken at human face upwardly value: "The Constitution may withdraw hold begun amongst the words “We the People,’ but it was a document that both reflected together with perpetuated white manful someone supremacy" (pp. 8-9). Although it has been modified together with amended, it continues to perform this task: "these changes were rattling slow inwards coming, together with they withdraw hold at most modified white manful someone supremacy, non dislodged it "(p. 9). Thus, "[w]hile just about of the beneficiaries of this constitutional cartel have, at momentous points inwards history, used their ability to confer constitutional recognition on women together with minorities, the creation, interpretation, together with application of constitutional rights withdraw hold all primarily served the interests of the Americans who most closely resemble the master copy founding fathers. The heart together with soul of constitutional ability together with privilege inwards this province has never shifted dramatically—that is to say, democratically—away from white men" (p. 10).
Franks' declaration is a version of what Reva Siegel calls "preservation through transformation." Society is organized inwards status hierarchies. As these hierarchies "modernize," that is, as they are partially dismantled together with reformed, they reemerge inwards novel guises, preserving their hierarchical graphic symbol inwards novel ways using novel justifications together with novel techniques.
At the same time, Franks really admires the Fourteenth Amendment together with its Equal Protection Clause, which, she argues, embodies the value of reciprocity. She identifies this thought amongst the Golden Rule together with amongst Immanuel Kant's categorical imperative, together with notes that "it is a concept that is affirmed yesteryear religious together with philosophical traditions all over the world," (p. x) giving examples from the New Testament, the Talmud, Edmund Burke, writers inwards Ancient Egypt, together with Confucius. (p. 31). "[T]he Fourteenth Amendment," she writes "struck me as the constitutional facial expression of the Golden Rule. The equal protection clause seemed to last the keystone of the Constitution, the source of the entire text’s moral legitimacy together with structural intelligibility." (p. xi).
The Cult of the Fourteenth Amendment
Taking these 2 claims together creates a puzzle. If the Constitution's guarantees are suspect because they are the production of white manful someone supremacy, why are the regulation of reciprocity together with the Fourteenth Amendment non every bit suspect because they besides are the production of white manful someone supremacy? Why should nosotros apply the hermeneutics of suspicion to i laid of texts but non the other?
After all, the cultures Franks mentions that produced the historical thought of reciprocity were fifty-fifty to a greater extent than manful someone supremacist than today's America. The ancient sages who get-go articulated the Golden Rule treated women similar chattel. Confucius's philosophy is deeply hierarchical. The Talmud is suffused amongst patriarchy. Nor were these cultures innocent of racism. Kant, the formulator of the categorical imperative, proclaimed that "[t]he Negroes of Africa withdraw hold yesteryear nature no feeling that rises higher upwardly the ridiculous," and once dismissed a sexist declaration made yesteryear a dark carpenter non because it was non "worth considering," but because "this scoundrel was completely dark from caput to toe, a clear proof that what he said was stupid."
These problems are particularly obvious inwards the instance of the Fourteenth Amendment. The text of the Fourteenth Amendment, as Franks good knows, was adopted yesteryear white men who sought to save their superior status as white men fifty-fifty as they changed just about of the rules of their society. The vast bulk of the white men who adopted the Fourteenth Amendment did non believe that the novel amendment would alter the common-law coverture rules, which stripped married women of most of their rights. Moreover, the Fourteenth Amendment granted dark people only civil equality, non political equality or social equality. Just similar the repose of the Constitution, the Fourteenth Amendment, inwards its formulation together with its application, was deeply morally compromised from the start.
Yet nigh the cease of the book, Franks argues that "[t]he ascendency of equal protection is inherently anti-fundamentalist, as it necessitates the consideration of all rights together with all people. It cannot last stripped out of context as a stand-alone superright amongst the ability to elevate the interests of just about over others. It is a dominion as good as a right, a examine that must last universally applied to all laws, including other constitutional rights. The Fourteenth Amendment tells us that if white men’s rights to gratuitous speech communication or self-defense are protected to a greater extent than than women together with nonwhite men’s, the Constitution has been violated. If white men’s rights to gratuitous speech communication or self-defense infringe upon those same rights of women or nonwhite men, the Constitution has been violated. Because of the Fourteenth Amendment, i tin only laurels the Constitution yesteryear honoring equality. The Fourteenth Amendment hence commits the constitutional faithful to a seat incompatible amongst supremacy or hierarchy of whatever kind." (p. 202).
Given the actual history of the ratification of the Fourteenth Amendment, together with its implementation inwards the century together with a one-half that followed, this passage blinks reality. It sounds similar the variety of cheerleading for abstract conceptions of rights that Franks criticizes so severely inwards the repose of the book. Franks tells us that the Fourteenth Amendment "cannot last stripped out of context as a stand-alone superright amongst the ability to elevate the interests of just about over others." (p. 202). But it is difficult to notice periods inwards the Nation's history inwards which the Fourteenth Amendment has not been used inwards this way. It has been repeatedly invoked to protect the interests of employers over labor, men over women, white people over dark people, together with so on. Franks is quite sure that "The Fourteenth Amendment hence commits the constitutional faithful to a seat incompatible amongst supremacy or hierarchy of whatever kind." (p. 203). This sounds similar the rattling assort of constitutional fundamentalist speak that Franks rails against.
How tin nosotros brand sense of these 2 different moves inwards the book-- deeply skeptical of the history that produced the linguistic communication of the Constitution, yet conveniently looking the other way when it comes to the linguistic communication of the Fourteenth Amendment? It is non plenty to say that Franks speaks inwards 2 registers-- i realistic together with critical together with the other idealistic together with prophetic. That is because she is relentlessly critical of other people who endeavour this gambit-- the defenders of the First Amendment (and indeed of the Constitution) who debate that the Constitution's non bad principles move yesteryear the way that the Constitution together with the First Amendment withdraw hold really been used. Behind high minded appeals to principle, she argues, is the grim reality of their application. This rhetorical handwaving is a characteristic of constitutional fundamentalism. Having excoriated others, she tin hardly adopt the same rhetorical strategies for herself.
Anti-fundamentalism together with Constitutional Redemption
I think that the best way to reconcile these 2 different positions is to jettison the thought that whatever characteristic of law--whether the Fourteenth Amendment or anything else--"is inherently anti-fundamentalist." Instead, Franks should move amongst her critical instincts, together with just withdraw hold that at that spot is no legal regulation that cannot last used to sustain hierarchy together with injustice. If, as Franks argues, the correct of liberty of facial expression tin last used to enforce censorship, certainly the correct of equal protection tin last used to enforce inequality. Oliver Wendell Holmes i time remarked that the epigraph on his tombstone should read, "Here lies the supple tool of power." What was truthful of Holmes the jurist is also truthful of the Fourteenth Amendment, together with indeed, of constabulary itself.
Instead of whitewashing (and I occupation the term advisedly) the Fourteenth Amendment, i should educate what Franks calls an "anti-fundamentalist constitutional culture," amongst an "honest constitutional accounting" (p. 203) of how the Constitution's linguistic communication has been used, together with to whose benefit. Such an anti-fundamentalist constitutional civilization would care for the Constitution as a piece of work inwards progress, imperfect together with flawed, but containing resources for constitutional redemption, to money a phrase.
To say that the constitutional text together with the constitutional tradition comprise resources for redemption does non commit us to the thought that the text together with the tradition is impervious to fundamentalisms, to the defence forcefulness of unjust hierarchies, or to political corruption. H5N1 redemptive Constitution begins amongst the acknowledgment that the Constitution exists, together with ever has existed inwards a fallen condition, that it is a "covenant amongst decease together with an understanding amongst hell," but that it nevertheless contains resources--words, ideas, together with institutions--that tin last redeemed inwards history. Constitutional redemption is non secured inwards the text, only its possibility.
This seems to last closer to Franks' actual position. She considers but rejects the Garrisonian thought of dispensing amongst the Constitution altogether. She thinks that the Constitution, taken as a whole, is corrigible, fifty-fifty though parts of it may non be. "What makes the Constitution worth defending is exactly that it is neither divine, nor fixed, nor infallible... [but] that it tin last changed." (p. 202) The framers' greatest gift was their sense of humility-- their understanding that after generations powerfulness do goodness from greater experience, together with meet what they themselves could not. Franks points to Article V as the primary engine of constitutional alter (a claim that volition no dubiousness please my friend together with co-author Sanford Levinson). Even so, many, if non most, of the changes that withdraw hold made the Constitution to a greater extent than fair, to a greater extent than just, together with to a greater extent than equal withdraw hold come upwardly from constitutional constructions exterior of the formal amendment process. The of import point, however, is that a constitutional civilization of anti-fundamentalism must non teach besides tethered to the status quo together with it must non fearfulness the possibility of constitutional change.
Equal Protection, Reciprocity, the Categorical Imperative, together with the Golden Rule
Franks believes that the concept of reciprocity should last the starting yell for for constitutional reform. She identifies reciprocity amongst the Golden Rule, amongst Kant's categorical imperative, together with amongst the Fourteenth Amendment's Equal Protection Clause.
I'm puzzled yesteryear the declaration that the concept of equal protection is the same as the categorical imperative. First, a lot depends on how i articulates the universal maxim. Second, equality (not to advert "equal protection of the laws") is a complex concept amongst many different meanings, just about of which may non stand upwardly for to Kant's idea. Third, equal protection contemplates the possibility of tradeoffs, balances, together with accommodations, many of which are in all likelihood forbidden yesteryear the universalizing saying of the categorical imperative. Franks may hateful just that everyone has equal moral worth together with that all people should last treated every bit as ends inwards themselves. Those are certainly Kantian ideas, but they besides are non the same affair as the equal protection of the laws inwards the Fourteenth Amendment. The Fourteenth Amendment allows people to last treated instrumentally inwards a host of different ways, through countless province policies that regulation populations. The Constitution enacts neither Mr. Herbert Spencer's Social Statics nor Immanuel Kant's Groundwork of the Metaphysic of Morals.
I also don't think that the concept of reciprocity is the same affair as the concept of equality that Franks is concerned amongst inwards this book, much less the concept of equal protection. In Confucianism, a parent together with kid may withdraw hold reciprocal duties, but they are most certainly non equals. In many cultures husbands together with wives withdraw hold reciprocal relations, but those relations are non equal ones. Reciprocity inwards that instance way each someone respects together with treats the other appropriately given their differences inwards role together with situation. In many cultures reciprocity way that individuals answer appropriately to actions taken previously yesteryear others, for illustration inwards gift exchanges, inwards sequences of favors, together with fifty-fifty inwards acts of retribution together with revenge. These situations are reciprocal but they may non last equal; indeed practices of reciprocity tin sometimes reinforce differential status together with hierarchy. In many cases, truthful equality requires something far stronger than mere reciprocity.
Of course, Franks powerfulness hateful only that version of reciprocity that enforces the Golden Rule. But this too, is non really the same affair as equality-- or at to the lowest degree the variety of equality that Franks is concerned amongst inwards this book. To inquire how you lot would similar to last treated if you lot were inwards the other person's seat begs the enquiry of what the other person's seat is. That is, how is the other someone embedded inwards existing social relations? Is the other someone a adult woman or a kid or slave living inside a status regime? If so, so you lot should care for them as you lot would desire to last treated if you lot were a woman, or a child, or a slave inwards that status regime--that is, according to the appropriate reciprocal duties together with obligations. For this reason, the Golden Rule, I am piteous to say, does non withdraw hold to last an assail on existing status hierarchies, but may convey these hierarchies for granted--at to the lowest degree inwards the societies that get-go articulated the principle. Indeed, it could fifty-fifty last viewed as an idealized or benevolent enforcement of just about of those hierarchies together with status relations.
When nosotros read the Gospels, nosotros meet to a greater extent than revolutionary ideas poking out, for example, inwards the parable of the Good Samaritan. And when St. Paul says inwards Galatians 3:28 that at that spot is neither Jew nor Gentile, neither slave nor free, nor manful someone or female, for all are i inwards Christ Jesus, he points inwards a revolutionary direction. Yet when St. Paul says this, he is definitely non arguing for anything similar sexual practice equality-- he wants wives to submit to their husbands. When nosotros read statements of the Golden Rule today, nosotros read them through our acquaint twenty-four hr current mores, which are rattling egalitarian, but that is non necessarily what the Golden Rule meant to these to a greater extent than traditional cultures. What Franks wants is a version of the Golden Rule that breaks gratuitous of the rattling people together with societies that articulated it, that attacks together with challenges the existing foundations of gild itself, rather than existence exercised inside society's unjust confines. She wants the assort of revolutionary Golden Rule that would in all likelihood withdraw hold horrified all the people she quotes inwards back upwardly of it.
The Cult of the Constitution together with the Critical Legal Tradition
What is Franks after, then? Her regulation cannot last that the constabulary can't care for just about people differently than others. The constabulary does this all the time, inwards situations that I am quite sure Franks would notice unproblematic. Rather, she is articulating a regulation that is quite familiar inwards both constitutional theory together with critical legal theory. It is a version of the antisubordination principle: constabulary together with gild should non last organized to allow the subordination of just about groups yesteryear other groups. Franks is concerned amongst the noun equality of social groups. Her excogitation of equality is sociological, together with constabulary operates both ideologically together with as an musical instrument of social power. Constitutional fundamentalism is an ideology that, at to the lowest degree amongst observe to constitutional questions, justifies together with naturalizes the maintenance of grouping domination together with subordination. Constitutional fundamentalism is a way of thinking nearly the Constitution that preserves together with maintains status inequality, together with enforces it through domination, coercion, and, on occasion, violence.
This way of thinking places the mass inwards the critical legal tradition. Indeed, The Cult of the Constitution is i of the best plant inwards the critical legal tradition to withdraw hold appeared for just about time.
Franks writes fearlessly together with energetically; her rhetorical trend is clear, sharp, together with powerful. Her arguments think key themes inwards the critical legal studies critique of rights. Focusing on purely formal rights is unlikely to farther jurist together with volition in all likelihood apologize for injustice. When rights are stated inwards purely formal price that are insensitive to differences inwards context, they tend to do goodness those people together with groups that are already most powerful inwards society, together with these people together with groups volition tend to define rights inwards such a way as to promote together with hold their ain power. Powerful people together with groups empathise their rights inwards price of what preserves their superior status together with power. When reforms threaten either their status or their power, they answer yesteryear asserting that they are the truthful victims, that they are existence unjustly persecuted, together with that their rights withdraw hold been violated.
Thus, the critical legal tradition holds, formal accounts of rights inevitably tend to entrench inequality together with hierarchy. This is non just because (as Robert Nozick famously argued) liberty rights continuously disturb patterns of equal holdings. Rather, it is because abstract claims of rights must last defined together with implemented to withdraw hold trial inwards society, together with they are defined together with implemented inwards such a way as to payoff just about groups over others-- inwards particular, the most powerful groups inwards society. Franks reiterates these arguments powerfully inwards the context of First together with Second Amendment rights, as good as gratuitous speech communication rights to a greater extent than to a greater extent frequently than non (i.e., inwards cases of private regulation of speech communication on (non-public) college campuses together with yesteryear social media). She shows how rights speak together with the implementation of rights inwards exercise advantages whites together with males over women together with minority groups.
Nevertheless, this variety of critique raises the obvious enquiry whether rights tin ever last useful for those who are inwards subordinate positions inwards society. If the underlying reality is white manful someone supremacy, why won't novel rights protections last every bit compromised? This besides raises a familiar debate inwards the critical legal tradition.
Many critical legal scholars were deeply skeptical of rights talk, but critical race theory scholars responded that rights discourse, although imperfect, is soundless useful, fifty-fifty though it tin together with volition last co-opted. Patricia Williams, for example, famously argued that contract formalities, for all of their faults, really protect the rights of racial minorities if only because they care for minorities as people who withdraw hold rights.
Franks falls into the latter camp. Her rhetoric is frequently revolutionary, but her actual posture is that of a reformer. She thinks that novel rights protections tin do goodness people, for example, victims of non-consensual pornography. She is both a critic of the Constitution together with a defender of the Constitution, both a critic of rights discourse together with a reformer seeking greater rights protections. She is a protestant constitutionalist of a item kind, an anti-fundamentalist believer inwards the Church of the American Constitution.
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