"Don't interfere with anything in the Constitution. That must be maintained, for it is the only safeguard of our liberties." President Abraham Lincoln's words, delivered in 1856, still sound contemporary. Americans on all sides of the political spectrum see the Constitution as a uniquely wise document. School children learn about the founders and the great compromise at Philadelphia. Congress members read the text aloud in the capitol. The Constitution is excellent — Democrats and Republicans agree.
Well, perhaps not quite everyone. Legal scholar Mary Anne Franks’ new book “The Cult of the Constitution” dissents from this nearly universal enthusiasm. Franks isn't anti-Constitution. But she argues that uncritical reverence for the Constitution leads, not to liberty, but to injustice.
Franks isn't anti-Constitution. But she argues that uncritical reverence for the Constitution leads, not to liberty, but to injustice.
"When I say that reverence is a problem, I don't mean in the sense of respect for foundational principles that we're trying to aspire to," Franks said. "What I'm concerned about is reverence that leads us to create an idea of the Constitution based on our intuitions of what we think should be there, rather than what is."
Franks compares constitutional fundamentalism to Biblical fundamentalism. Both, she argues, insist that a text is both infallible and instantly comprehensible while pushing highly contentious interpretations as an excuse to harm others without remorse. "The combination of reverence and ignorance is at the heart of all fundamentalism," Franks writes.
The clearest example of constitutional fundamentalism is the extreme rhetoric that has grown up around the Second Amendment. Second Amendment fundamentalists, led by the National Rifle Association, argue that the Constitution must always allow individuals to bear arms, though the text of the amendment is about the right to a well-regulated militia.
Proponents further argue that the supposed right of individuals to carry assault rifles is the one true right that protects all others. People must have guns to defend themselves from government overreach.In this context, any attempt to regulate guns can be presented as an apocalyptic descent into tyranny. During the 2016 presidential campaign, Donald Trump, for example, hinted that it wouldn't be surprising if gun rights proponents assassinated Hillary Clinton if she is elected president to prevent her infringing on their Second Amendment rights.
Gun fundamentalists, Franks says, tell themselves, "I carry a gun because it's my constitutional right, and I feel better when I have it and the fact that it makes you uncomfortable and that it objectively makes you less safe is something I just don't care about."
This essentially selfish logic is also a hallmark of First Amendment fundamentalism. Unlike Second Amendment fundamentalism, which is mostly a phenomenon of the right, the First Amendment is embraced and revered across the political spectrum.
Unlike Second Amendment fundamentalism, which is mostly a phenomenon of the right, the First Amendment is embraced and revered across the political spectrum.
Nonetheless, Franks says, First Amendment fundamentalism and Second Amendment fundamentalism create similar problems. First Amendment absolutists see it as an absolute right that must always be protected. So, the American Civil Liberties Union defended the right of neo-Nazi marchers in Charlottesville, Virginia, in 2017 not just to march, but also to march on whatever route they wanted, despite the town's safety concerns.
The ACLU won. But the result wasn't actually free speech for all. Instead, violence broke out and a white supremacist murdered a counterprotester named Heather Heyer. Giving neo-Nazis the right to organize and march ended one woman's ability to speak forever.
Another example of how First Amendment fundamentalism can go awry is in the realm of campaign finance reform. In the 2010 Supreme Court case Citizens United, the court decided that corporate donations have to be treated as free speech by individuals. This gives the wealthy a huge tool with which to influence elections in their interest. Free speech, though, for the court, trumps concerns about concentration of power, inequality or the integrity of democracy.
Franks argues that we can look to the Constitution itself to puncture constitutional fundamentalism. In particular, she points to the Fourteenth Amendment, which says that government shall not "deny to any person within its jurisdiction the equal protection of the laws." The 14th Amendment, Franks told me, "means that whatever you think is true about the law or about the status of our rights, it has to be true for everyone."
The First and Second Amendments focus specifically on individual rights. But the 14th for basic legal equality in all areas. First and Second Amendment fundamentalists claim that all other considerations must bow before the right to speech or guns. But the 14th Amendment says that you must consider not just to principles, but consequences. If your right to speech or guns means that, for example, black people are not safe in the streets of your city, that's not acceptable.
The 14th Amendment was, of course, drafted specifically after the Civil War to protect the rights of black people. The Constitutional Convention in Philadelphia, Franks points out, was a meeting of wealthy white men, many of whom were slave owners. They never intended to extend equal rights to everyone; John Adams, as just one example, outright mocked his wife when she suggested the convention should include protections for women. The First and Second Amendments were not originally intended for everyone. The Constitution that Abraham Lincoln said should never be interfered with supported slavery. It's only with the 14th Amendment that the Constitution began to protect marginalized people.
Giving greater weight to the 14th Amendment doesn't resolve all constitutional questions, of course. For example, Franks suggests much more aggressive action against websites like Backpage that are accused of facilitating sex trafficking. Sites such as Backpage claim they have a free speech right to publish advertisements for adult services; Franks says that if these ads lead to criminal or harmful activity, the sites should be liable.
But critics of more regulation point out that forcing these websites offline harms sex workers whose homicide rates drop precipitously when they are able to advertise and screen clients online. Franks advocates for limiting free speech rights in this case in order to protect sex trafficking victims. But doing so puts sex workers at risk. Free speech fundamentalism harms marginalized people in some cases. But free speech rights are vital for their protection in others.
In other words, weighing harms and benefits can be difficult. Free speech fundamentalism offers to make things simpler; you just pick one principle and stick by it, ignoring all other concerns. But the 14th Amendment, not to mention common sense and decency, argue that approach is inadequate. Contra Lincoln, the Constitution doesn't magically safeguard our liberties, though it provides some principles that can be helpful in preserving them. We can use the Constitution to create a better country. But constitutional fundamentalism will create a worse one.