The reverence Americans profess for the Constitution is all too often a selective and self-serving devotion. Constitutional fundamentalists, as I call them, treat the Constitution the way that religious fundamentalists treat sacred scripture: they read only the parts that serve their interests, interpret those parts in self-serving ways, and claim to be faithfully obeying the commands of a higher, noble authority in doing so. Like all cults, the cult of the Constitution makes use of powerful propaganda to justify the unequal distribution of power and privilege. The outsized focus on constitutional rights relating to guns and speech perpetuates the political, economic, and cultural domination of white men rather than serving the interests of “we the people.”
This selective constitutionalism transcends political affiliation. While conservatives dominate the appropriation of the Second Amendment for racist and sexist ends, both conservatives and liberals use the First Amendment to promote free speech ideology that reinforces white male supremacy. The civil libertarian fetishization of the “marketplace” finds its fullest expression in the idealization of the Internet, where guns, speech, money and everything else supposedly circulate freely –but always to the primary benefit of white men above all others.
This book endeavors to take the Constitution seriously, not selectively. It does so by focusing on the Fourteenth Amendment, the keystone of the Constitution. The equal protection clause demands that Americans be treated equally under the law, which includes equal protection of their constitutional rights. To dismantle the cult of the Constitution that has sustained an elitist and antidemocratic system of constitutional protection for more than two hundred years, it is necessary to engage in honest constitutional accounting. We must confront the fact that constitutional rights and resources have overwhelmingly been allocated to the interests of white men, and that the white male monopoly on power is neither natural nor benevolent. To achieve the unfinished project of equality, we must reorient our constitutional attention to the most vulnerable.
The book opens with the 2017 Unite the Right rally in Charlottesville, Virginia, because it so dramatically illustrates the consequences of constitutional fundamentalism. In Charlottesville, we saw the collision of the First and Second Amendments as well as a demonstration of the Internet’s power to radicalize and coordinate violent white male supremacists. Assault rifles mingled with swastikas and Confederate flags borne by white men chanting “you will not replace us.” While high-profile figures on both the left and the right condemned the protest as “not who we are” as Americans, the protest was, in many ways, a testament to exactly who we are: a country founded by and for white men.
America was founded on the pretense, not the reality or even the aspiration, of equality. The wealthy, white, male framers used the egalitarian rhetoric of the Constitution to disguise their economic, sexual, and political exploitation of women and enslaved people, and the Constitution continues to provide cover for white male supremacy today through the outsized attention to guns and speech.
In “The Cult of the Gun,” I discuss the attachment of Second Amendment fundamentalists to strict social hierarchies reinforced by rigid gender roles, belief in racial superiority, and distrust of government. The National Rifle Association (NRA) has cultivated a collective paranoia and persecution complex among gun owners that spills over into other social issues, from religious freedom to women’s reproductive rights. Second Amendment fundamentalism promotes an interpretation of self-defense that benefits the powerful, such as neighborhood vigilantes and police officers, while endangering the most vulnerable, including victims of domestic violence, racial harassment, and police brutality.
In “The Cult of Free Speech,” I discuss the role of the American Civil Liberties Union (ACLU) in shaping both political and social understandings of free speech along with the more recent rightward shift in First Amendment practice and application. The left-right First Amendment alliance has helped transform free speech doctrine from a shield protecting the most vulnerable to a sword for the most privileged and powerful members of society. Liberal and conservative views of free speech have converged on topics ranging from revenge porn, commercial and corporate expression, and campus speech. This convergence has deepened existing inequalities in the free speech and other constitutional rights of women and racial minorities.
In “The Cult of the Internet,” I detail the role of the Internet in exacerbating the worst excesses of leftwing and rightwing fundamentalism, which has helped push constitutional fundamentalism in an increasingly violent and overtly white male supremacist direction. The law responsible for the Internet’s diffuse and deregulated structure, Section 230 of the Communications Decency Act, is free-market constitutionalism on stilts. While Section 230 has played a vital role in the growth and development of the Internet’s positive potential, it has also cleared the way for powerful corporations to benefit from increasingly risky conduct while bearing none of the costs.
Constitutional fundamentalists are dangerously susceptible to being radicalized by false persecution narratives. The Internet, in bringing fundamentalists together and amplifying their shared feelings of grievance, helps turn fundamentalists into fanatics prone to justifying and employing violence to protect their identity and their beliefs. The confluence of intense, constitutionally-inflected attachment to guns, speech, and the Internet has blurred the boundaries between conduct and speech, and veneration and violence.
I was brought to this project through my work as a legal scholar and advocate focusing on the rights of free speech and self-defense, two rights that women and minorities have never enjoyed on equal terms to white men. As a law professor, I teach First Amendment law, Second Amendment law, and law and technology. I also serve as the President and Legislative and Tech Policy Director of a nonprofit organization, the Cyber Civil Rights Initiative (CCRI). In 2013, I authored the first model criminal statute criminalizing the distribution of private, sexually explicit material without consent, which has since served as the template for both state and federal legislation on the issue. I have worked on gun violence issues and self-defense laws that deprive women and minorities of their equal rights to self-preservation, including working with the Florida League of Women Voters to educate lawmakers on Stand Your Ground laws in 2015 and testifying against a Florida bill that sought to allow guns on campuses across the state.
I would hope that the reader would encounter the first pages of the preface first. They do not outline an argument or a political position but tell a personal story about the tragedy of lost faith. These are the pages that lay bare the spirit and the stakes of my project.
My most modest goal for the book is for it to contribute to the improvement of Americans’ constitutional literacy. More ambitiously, I would like the book to deprive constitutional fundamentalism of its seductive but corrosive power. I would be gratified if reading this book encourages people to adopt a critical, rather than reverent, attitude to the Constitution, so that bad faith constitutional claims might more easily be exposed as such. If this book led people to persistently question not only which constitutional rights but whose constitutional rights are being defended, I would consider it a success.
Most ambitiously, I would wish that the book could make people more receptive to adopting the principle of reciprocity, not only as a legal but as a moral principle. It is always tempting to dress up one’s self-serving beliefs as fidelity to a higher authority, and it can be hard to detect when we are doing so. The principle of reciprocity is the surest test of our real motivations, whether in law or love or any part of life: to ask ourselves whether we would deny to others the benefits we claim for ourselves, or, conversely, whether we would impose on others the wrongs we seek to avoid for ourselves.
Dr. Mary Anne Franks is a Professor of Law at the University of Miami School of Law. Her areas of research include free speech, firearms law, cyberlaw, criminal law and procedure, and privacy. She serves as the President of the Cyber Civil Rights Initiative and regularly advises legislators and tech industry leaders on online privacy and abuse issues. She holds a J.D. from Harvard Law School and a D.Phil. and M.Phil. in Modern Languages from Oxford University, where she studied as a Rhodes Scholar. Dr. Franks has also taught at Harvard University and the University of Chicago Law School.