For the Symposium on Mary Anne Franks, The Cult of the Constitution (Stanford University Press, 2019).
As it happens, I finished Mary Anne Franks’s The Cult of the Constitution only real recently, just as I read Jack Balkin’s review of her book. I am tempted simply to comprise his review past times reference, since I substantially handgrip amongst almost all of it. He captures real good both what is admirable inward the bulk in addition to what I disagree with. I volition mostly focus on the latter here, but I practise want to tell that I recollect that her critique of much established First Amendment doctrine—or ideology—with regard to such phenomena as “revenge porn” or the Internet to a greater extent than mostly is fantabulous in addition to extremely thought-provoking.
Perhaps as a role of my age, in addition to the sheer fact that none of my professional person instruction interests whatsoever longer focus on the First Amendment, or, fifty-fifty to a greater extent than certainly, the Internet, I, different Jack, am fundamentally ignorant of many contemporary issues. Although I rest a card-carrying fellow member of the ACLU, the target of much of her criticism, I remove hold picayune problem agreeing amongst many of her specific critiques and, to a greater extent than particularly, her dot that the costs of a free-speech regime, especially inward the modern era, may good hold out borne past times socially marginalized or unusually vulnerable groups, of which women are her primary, in addition to persuasive, example. It is hard for me to believe that anyone could read her chapters discussing such issues without, at the real least, questioning what mightiness hold out long-accepted verities, in addition to recognizing that a lot of the empirical assumptions behind them mightiness good hold out opened upwards to challenge (such as, for example, the actuality of “chilling effects” generated past times disciplining practically any speech).
Perhaps ane other ground for some of my ambivalence well-nigh some of her arguments is exactly the fact that I am a full-fledged fellow member of the specific target grouping amongst regard to her explanation of the “cultic” importance of the Free Speech provision of the First Amendment in addition to of the Second Amendment. After all, I am indeed a quite elderly white male, in addition to I recollect the showtime of these 2 adjectives is of some importance for reasons I volition offering presently. Also, it may fifty-fifty hold out relevant, inward terms of her analysis, that, thank you lot to my almost xl years as a well-compensated, in addition to fairly frugal, police professor, I would past times whatsoever reasonable mensurate hold out classified as wealthy. Although cast analysis as such plays a relatively minimal role inward her overall argument, salvage for when she denounces the role of the Koch Brothers in addition to the implications of Citizens United, the realities of my racial in addition to sex identity are forepart in addition to centre throughout the book.
I practise recollect it significant, as a police professor nearing 80, that I came to consciousness regarding the First Amendment inward the 1950’s in addition to ‘60’s. Justices Hugo Black in addition to William O. Douglas were nifty heroes of mine because of their vigorous defense strength of Freedom of Speech. Antagonists of costless speech communication were legion inward those days. They included the House Un-American Activities Committee in addition to other McCarthyite organizations (including some inside the Executive Branch); as good as the white men on the Alabama jury in New York Times v. Sullivan who would gladly remove hold bankrupted the New York Times in a trumped-up defamation suit. Black in addition to Douglas were, I was certain, fighting the skillful fight, as clearly evidenced inward the Pentagon Papers instance in addition to their opposition to Richard Nixon in addition to his associates. I don’t remove hold whatsoever problem amongst latter-day critiques of Sullivan; I’ve offered some myself, but it is vital to sympathise why Black’s in addition to Douglas’s dismissal, inward their concurring opinions, of all of defamation police seemed so attractive at the time.
Jack coined the valuable term “ideological drift” to pull the phenomenon past times which ideas ane time associated amongst progressives or leftists acquire adopted, inward real different contexts, past times their adversaries. No dubiousness that has occurred amongst regard to much Free Speech doctrine, which, as Franks notes, is as probable to hold out invoked these days past times large tobacco in addition to other large corporations as past times the “puny anonymities” or “lonely dissenters” who populated most of the canonical caselaw of my youth. Whether or non one-time dogs tin hold out taught novel tricks, it is both necessary in addition to proper to hold out reminded that ideas that indeed mightiness remove hold been compelling a one-half century agone mightiness remove hold lost some of their luster. And ane should convey the harsh reality that slogans issued past times the Supreme Court were quite unlikely to hold out based on audio empirical enquiry in addition to served far to a greater extent than as ideological pronouncements—many of which I was completely happy to endorse—than as accurate guides to human behavior.
It is also truthful that my limited career as a practicing lawyer includes 2 cases, ane of which really got to the Supreme Court, as a volunteer attorney amongst the oft-criticized ACLU. The minute instance involved defending the right of the Ku Klux Klan to march inward Austin, Texas, when the City Council, no dubiousness reflecting the views of a bulk of their constituents, attempted to block the march—a protestation against immigration—by evoking the undoubtedly dreadful history of the Klan inward American history. In the other case, I happily defended a fellow member of Lyndon LaRouche’s United States Labor Party against charges that he had violated the rights of Princeton University past times trespassing on its belongings to transcend out leaflets condemning the Trilateral Commission and, to a greater extent than specifically, the get led past times many left-wing students for Princeton to divest its investments for inward South Africa. For what it is worth, the primary footing of the defense strength was the New Bailiwick of Jersey State Constitution. After losing earlier the New Bailiwick of Jersey Supreme Court, Princeton appealed to the United States Supreme Court amongst an absurd declaration that their institutional First Amendment rights were violated past times requiring that it allow people similar my customer on campus. Because the University had inward fact changed its rules, the Court dismissed the instance as moot. The City of Austin, incidentally, after losing its case, was required to pay some $8000 inward lawyers’ fees to the ACLU; no dubiousness the City Council viewed this as simply a terms of reassuring most Austinites that it was no friend of the Klan. I would non hesitate to convey either instance today in addition to to handle to vindicate the rights of despicable groups similar the Klan or simply extraordinarily eccentric groups similar the LaRoucheites to the same bird of access to public infinite as to a greater extent than “respectable” groups, many of whom, inward terms of their actual touching on on American society, I catch as at to the lowest degree as pernicious.
It may hold out also relevant that if I ever acquire an obituary inward the Times, it volition likely hold out for having authored, inward 1989, The Embarrassing Second Amendment, which suggested that political liberals had to halt pretending that the Amendment wasn’t component division of the Constitution in addition to that it did, inward fact, heighten a multifariousness of extremely of import in addition to vexing issues. The most of import of them involves the extent to which ane really wants, as Max Weber suggested, to give the province a genuine monopoly over the way of violence. In the essay, I quoted a bumper stick of the times, “When Guns Are Outlawed, Only the State Will Have Guns.” One mightiness recollect that someone amongst Franks’s ain sensibilities mightiness truly wrestle amongst the implications of that sticker—especially if ane views the province as, if non the ruling commission of the bourgeoisie, in addition to so at to the lowest degree the ruling commission of powerful white males. At the real least, Weber's dictum requires ane to remove hold a nifty bargain of trust inward the province in addition to inward those it selects to send arms that tin hold out used against the powerless in addition to the vulnerable. I argued then, in addition to believe now, that the Second Amendment, properly understood, has picayune to practise amongst “self-defense” inward the feel adopted past times Justice Scalia in Heller and everything to practise amongst a civic republican invention of a virtuous public willing in addition to able to— inward the words of Lin-Manuel Miranda—“rise up” against an arguably tyrannical state. Perhaps nosotros no longer believe inward the real perchance of such a virtuous populace, in addition to believe instead that guns are probable to hold out kept or borne only past times “deplorables.” That is real much a possibility worth discussing, however, instead of simply assuming, for its credence has deeply disturbing implications for the real thought of liberal democracy.
This point, incidentally, gets to a weakness of Franks’s analysis of the arguments for costless speech. She altogether correctly points out the perhaps fatal weaknesses inward the measure defenses emphasizing rights to unimpeded self-expression or the assertion past times John Milton that “truth” is to a greater extent than probable to triumph inward whatsoever argument amongst falsehood, permit lonely Oliver Wendell Holmes incoherent notion that the best evidence of truth is its powerfulness to prevail inward the :marketplace of ideas." The reality of contemporary social media in addition to the Internet has simply underscored the facts that some self-expression should hold out suppressed, if at all possible, in addition to that “fake news” is a genuine threat to whatsoever semblance of republic fifty-fifty if nosotros are properly skeptical of Donald Trump’s invocation of that concept.
But she resolutely ignores the 3rd defense strength of a costless speech communication authorities made past times Fred Schauer inward his classic bulk on the subject, which is basically the mistrust of the province to serve as a disinterested in addition to thoughtful censor of speech communication that well-intentioned people mightiness agree, about the seminar table, merits suppression. She properly notes the overlap betwixt some of the positions adopted past times devotees of the ACLU in addition to to a greater extent than “orthodox” libertarians such as those associated with, say, the Cato Institute. Modern political liberals must indeed explicate why they (or we) remove hold organized faith inward the State to regulate the economic scheme but non to regulate other aspects of social life inward the shout of the public interest. But she for certain does non laid out whatsoever sustained declaration of her ain as to the extent to which nosotros should reject libertarianism inward all of its guises in addition to simply house our organized faith inward a benevolent province to acquire it right.
I notice her chapter denouncing the Second Amendment problematic inward ane of import respect. If the Second Amendment simply disappeared tomorrow from the Constitution, it is non clear exactly what divergence it would brand inward American police or society. Of class as component division of the text the Second Amendment has nifty symbolic effect, but her declaration is non simply well-nigh symbolism. Firearms remove hold long been an almost constitutive component division of American culture, non to the lowest degree because nosotros were born inward a trigger-happy secession from the British Empire. I was personally appalled when Texas adopted an “open carry” provision, but was in addition to so surprised to uncovering that or so 45 of the 50 states inward fact remove hold province laws adopting ane or some other cast of opened upwards carry. And, non surprisingly, many province constitutions, a dependent area well-nigh which Franks, similar almost all of the American legal professoriate, exhibits no apparent interest, explicitly protect rights to maintain in addition to conduct arms.
I would for certain prefer a less arms-saturated social club than the ane nosotros alive in, in addition to I am confident that most “gun control” laws would non hold out dependent area to serious challenge nether the Second Amendment, fifty-fifty after Heller in addition to McDonald. But ane should recognize that back upwards for guns is rooted far to a greater extent than deeply inward American culture, for meliorate and, certainly, for worse, than it is inward reverence for the Constitution. The NRA did non create a firearms civilization inward America, fifty-fifty if it most for certain figured out how to mobilize it for sometimes nefarious purposes.
So permit me goal past times what I notice to hold out the most perplexing characteristic of Franks’s book, good spelled out past times Jack, though I volition likely hold out a chip to a greater extent than critical than he is. He notes that her condemnation of the “cult of the Constitution”—which really means, inward the context of this book, back upwards for detail notions of the First in addition to Second Amendments—is complemented past times her apparent belief that if only nosotros await at the Fourteenth Amendment, in addition to its Equal Protection Clause, in addition to so nosotros volition inward fact remove hold a Constitution worth rallying around.
I am skeptical that rallying about the abstract notion of equality volition solve many of our practical political or social cleavages. One of my ain favorite books, which I refer inward all of my classes when I start out instruction well-nigh the Equal Protection Clause is Douglas Rae et al., Equalities. Its dot is simple: There are 108 logically defensible theories of equality, in addition to the textual Constitution inward detail most for certain does non give a clue as to which of these 108 should hold out accepted as the winning theory. I also honey to pass a nifty bargain of fourth dimension on Strauder v. West Virginia, which I remove hold touted as the only instance students really involve to read on race in addition to Equal Protection if they wishing to sympathise the basic tensions that the Court has never come upwards unopen to resolving inward the nearly 140 years since Strauder. Does the Amendment require “color-blindness,” i.e., indifference to race, or instead an “anti-subordination” regulation that permits “friendly” racial classifications fifty-fifty as it prohibits “unfriendly” ones? The Court is instantly split 5-4 on the answer to that inquiry inward component division because both sides tin notice plenty of supporting material.
I volition also note, for what it is worth, that the Fourteenth Amendment correspond the triumph of strength or arms rather than whatsoever deliberative procedure past times which the partisans of white supremacy were persuaded to mend their ways. Congress divided the South into military machine districts in addition to refused to readmit Southern states into the Union until they agreed to ratify the proposed Amendment. As amongst our initial secession from the British Empire, the Civil War in addition to Reconstruction are the clearest examples of political (or legal) authorisation growing out the barrels of guns, as much as nosotros are embarrassed past times that fact.
But my major disagreement amongst Franks is non simply her undertheorized occupation organisation human relationship of the Fourteenth Amendment in addition to her facile reliance on the Golden Rule or on Kant’s categorical imperative. Rather, my principal objection is that, similar most of the legal professoriate, she is interested exclusively inward rights provisions of the Constitution in addition to seems indifferent to the of import structural provisions of our Constitution that are far to a greater extent than of import inward explaining, for example, the continued ascendency of a minority of aging white (and rural) males inward our increasingly modern in addition to multiracial political culture. Thus I was simply astounded when I got to the concluding chapter of her bulk to realize that she is soundless imbued amongst a remarkable bird of “constitutional faith,” fifty-fifty if it centers about the Fourteenth Amendment.
On pp. 200-201 of her 204-page book, nosotros read a brilliant give-and-take of William Lloyd Garrison’s denouncing, in addition to indeed, burning, the Constitution because it was a “Covenant amongst Death in addition to an Agreement With Hell.” If nosotros handgrip amongst Garrison that the “Constitution is fatally compromised,” Franks writes, in addition to so fifty-fifty modern devotees of the Constitution, similar herself, “must practise as Garrison did: repudiate the Constitution inward its entirely. If the constitution stands for white manful mortal supremacy, it should hold out assault john in addition to burned downwardly to ash.” It mightiness hold out worth noting that Heidi Schreck, inward her Pulitzer-nominated play What the Constitution Means to Me, narrates her ain disillusionment amongst the Constitution in addition to concludes amongst a debate, influenced partly past times a bulk that my married adult woman in addition to I co-authored, Fault Lines inward the Constitution, as to whether the Constitution should hold out “abolished.” I likely would remove hold preferred the word “replaced,” but I’m for certain tape as exhibiting ever-increasing unhappiness amongst the Constitution in addition to believing that it constitutes, inward its ain way, a clear-and-present danger to our national survival (and, because of the sheer importance of the U.S., perhaps the survival of most people inward the world).
Why would anybody believe that the existence of the Fourteenth Amendment, without more, would hold out plenty to salvage the Constitution from a neo-Garrisonian criticism, given that nosotros proceed to alive inside systematically undemocratic institutions crafted inward 1787 that remove hold been insufficiently amended since then? Franks is aware of views similar mine; she cites my book Our Undemocratic Constitution, which pleads for a novel constitutional convention to address its patent defects.
“This approach,” she writes,
however, has obvious practical limitations. The Constitution, is, for now, the nation’s binding document, in addition to it is unlikely that it volition hold out assault fire, or fifty-fifty significantly amended, whatsoever fourth dimension soon. Constitutional claims volition likely ever retain powerful rhetorical appeal, in addition to those who criticize the Constitution volition likely ever hold out attacked as unpatriotic, perhaps fifty-fifty treasonous. The assertion that ‘the Constitution is non all that matters’ volition never hold out as compelling as the claim that ‘this is what the Constitution means,’ whether inward a courtroom, a classroom, or a boardroom. The Constitution is the only political text that garners widespread recognition in addition to honour inward our society, and it our best hope for improving our collective interests. There is picayune to hold out gained in addition to much to hold out lost past times ceding the constitutional field, fifty-fifty if it were truthful that the Constitution is non worth defending. emphasis added]
She goes on: “What makes the Constitution worth defending is exactly that it is neither divine, nor fixed, nor infallible. The greatest virtue of the Constitution is that it tin hold out changed.”
To pose it mildly, at that spot is no recognition inward these remarks that the United States Constitution may good hold out the most hard constitution inward the solid set down to change, inward component division because of the ridiculous devotion that it has generated, but also because Article V makes it so slowly for well-placed involvement groups, most of them dominated past times white males, to block needed change. Consider, for example, the Equal Rights Amendment, proposed past times 2 thirds of each House of Congress (and supported, for what it is worth, past times Richard Nixon), in addition to ratified past times a bulk of the states amongst a bulk of the population. There was widespread back upwards for the ERA, but it just didn’t affair because of the requirements of Article V. The United States Constitution is exceptional amid constitutions about the solid set down inward its imperviousness to change. It is also past times far the most stiff of whatsoever of the 51 constitutions (state in addition to federal) that really constitute the tradition of “American constitutionalism.” American province constitutions are mostly far easier to amend, and, if involve be, to replace, than the Constitution of 1787 that Frank resolutely defends.
In these higher upwards passages, Franks has shown herself to hold out a devoted fellow member of the Cult of the Constitution. No meliorate proof could hold out offered of that Cult—the almost irrational handgrip that the Constitution undeservedly maintains inward the consciousness of Americans—than its handgrip over the consciousness of fifty-fifty a vigorous in addition to thoughtful critic similar Mary Anne Franks. It is that Constitution, amongst its undemocratic structures, that inflicted on us the indefensible United States Senate. Madison ane time described the Senate as a “lesser evil” to having no Constitution at all, but it remains an “evil” nonetheless amongst regard to its regulation of equal representation of the states, in addition to the evil increases amongst each passing day. And that unequal representation way that the predominantly white in addition to rural populations of the county—which may also to a greater extent than patriarchal inward political civilization than other states—have grotesquely excessive powerfulness inward the Senate—a trunk that is best labeled an “affirmative activity program” for the residents of little states. Even if ane tin barely imagine progressive amendments making it through the modern Senate, it remains the instance that a unmarried legislative theater inward xiii separate states, totaling less than 5% the national population, could doom whatsoever changes Franks mightiness want to make. If Franks really wants to criticize white manful mortal supremacy, she should start amongst the United States Senate, which stands inward the way of many of the constitutional and statutory reforms she mightiness desire.
I am glad that I read this book. I learned a lot well-nigh some of the violence beingness visited daily on women in addition to non-white men inward this country, in addition to I realized yet ane time to a greater extent than how limited my knowledge is well-nigh the actual functioning of the modern Internet. But as a serious critique of “the Cult of the Constitution,’ it is surprisingly limited and, therefore, disappointing.
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