Mary Anne Franks says the nation’s forefathers would be dumbfounded walking the streets of New York today. They would be unable to rationalize women walking about unsupervised, managing men and running companies. They would be dumbfounded to see blacks mixing in with whites as if they were equals, running companies and managing white men.
The Constitution they settled on was focused on securing privilege for white males only. So when so-called originalists interpret the articles and amendments today, they are showing their hand of racist bigotry and white male supremacy. She calls it the founding fraud – that the framers were never dedicated to equality and democracy but that we are all equal under the law the way the documents were written. White males fight that.
Franks has some experience in inequality under the Constitution. She is a woman, of mixed race, from a terribly poor background. That’s 0 for 3. Now as a Constitutional scholar, she brings a clear and unsentimental eye to the prejudice and inequality the framers baked into their founding documents.
The Cult of the Constitution is an enormously quotable review of how far off course America has slid. It is densely packed with clear legal analysis, embarrassing examples of corporate and judicial hypocrisy, and justifiable anger at the extortion by white supremacists to hijack the nation as its personal fief. It is powerful, compelling and damning. Sadly, it is also a relief to know someone is thinking this way, because all we seem to see is successive challenges by the most privileged to make it even worse.
It begins with a comparison of religious vs constitutional fundamentalism, and keeps returning to that comparison as the facts reinforce it. Both believe the words (Bible, Constitution) are to be taken literally, that they were given by God, and that any interpretation of them is blasphemy. Anyone who disagrees is not just wrong but evil. Franks says “I have seen firsthand how often people use the Constitution the way religious fundamentalists use the bible – selectively, self-servingly, and in bad faith.” At the same time, most Americans have never read the Constitution, don’t know what’s in it, and the little they are certain of is wrong. “The combination of reverence and ignorance is at the heart of all fundamentalism,” she says.
Her book analyzes three hot-button areas: freedom of speech, guns, and the internet. In every case, she proves how far wrong both the fundamentalists and the courts have gone, twisting the words of the Constitution to meet the demands of the selfish and the greedy, the racist and the fanatically “conservative”.
Franks shows the hypocrisy of the first and second amendment battles with two clear examples:
- If free speech is a “marketplace of ideas that will eventually resolve into truth,” as the conservatives would have it, then why is it not permissible to advocate communism? The ACLU will defend neo-nazis and other purveyors of hate speech into this marketplace, insisting on only total freedom. But they draw a line at communism.
-For the second amendment, gunlovers insist they should be able to wander the aisles of their local Walmart with an AR-15 slung over their backs. But if a black person did that, the police would be there in seconds. Open carry is for whites only. It is just more proof that the issue is not freedom, but white male supremacy.
White male supremacy appears throughout The Cult of the Constitution. It has become evident the founders wrote it for themselves, to cement their hold on society. Today, Franks says, white males complain constantly about the erosion of their exalted position, whining louder and more pathetically than any of the actual victims of inequality. She shows that nothing has abridged their freedoms, but rather that they continually try to expand them as others encroach on their exclusive rights.
The most confounding story in The Cult of the Constitution is of the American Civil Liberties Union, the ACLU. It has been spending countless millions defending neo-nazis, the KKK, hate speech, the alt-right and revenge porn online. It celebrates its “victories” claiming the country is “a little bit freer” now, thanks to its efforts. Journalists have linked it to conflicts of interest in accepting huge donations from the tobacco industry and the Koch Brothers to promote the unfettering of corporate “speech”.
The rot seems to have set in with Hugh Hefner, praising the ACLU for helping legitimize pornography in the 1950s, and calling on readers to donate to the organization. Since then, it has been feeding at the trough of whoever wants to donate large sums. Rather than being on the opposite side of issues involving the NRA, for example, the ACLU complements its efforts to spread guns as widely as possible. It doesn’t seem to matter that its positions on these issues (for these donors) conflicts directly with stances it takes on other issues. The ACLU can be bought. Franks is incensed at it all. There is a special place in hell for the ACLU.
There is so much arguing over the meaning of individual amendments, rights and freedoms, that we have lost sight of the Constitution as a framework for the nation, Franks says. When we focus on one amendment and twist it into a meaning that pleases corporations, for example, there are knock-on effects to other amendments and rights. As we continue on this path, we lose perspective, and the whole thing is perverted into an unrecognizable shape.
This refreshing distancing and looking at it with a neutral perspective is what has been missing from the discussion all along. I have reviewed numerous books on constitutional issues, and they all start by taking the arguments as legitimate. Franks tosses them out. She puts them in societal perspective instead of legal status: “The belief in absolute rights – self-defense or otherwise – is incompatible with a commitment to the constitution,” she says.
“Misinformation campaigns, conspiracy theories and propaganda have poisoned public discourse and promoted scientific, political and cultural illiteracy,” she says. The internet is being used to discriminate against women, minorities and vulnerable groups in unprecedented ways. Claims by white male supremacists that their speech rights are being cut off on the internet becomes more pathetic whining in Park’s telling of it. It’s an upside down world that Franks rights.
Editor's note: This review has been published with the permission of David Wineberg. Like what you read? Subscribe to the SFRB's free daily email notice so you can be up-to-date on our latest articles. Scroll up this page to the sign-up field on your right.
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