“The Cult of the Constitution,” by Mary Anne Franks, 2021
This
book is written by a woman who grew up among fundamentalist Southern Baptists who took the Bible literally and eventually saw the myriad flaws in the Bible. Here she applies that method
to look at the libertarian and fundamentalist views of the Constitution, specifically
the 1st and 2nd Amendments. She ignores other flawed or anti-democratic
sections of the Constitution, perpetuating the cultish status of that document
herself. Sort of like the Christians who
dislike the Old Testament but love the New Testament - while ignoring the bloody
book of Revelations in the ‘New’ Testament.
Oops!
Franks
retails the well-known history of the creation of the Constitution in 1787,
when slaves, women and men without property were relegated to second, third and
fourth-hand status in the U.S. The
3/5ths compromise, fugitive slave laws and continuing importation of slaves
were all codified by it. Women were not
allowed to vote. Voting for poor ‘white’
male farmers and workers was denied by property tests. She quotes ‘founder’ John Adams rejecting
voting rights for women and for ‘white’ men who were “without a farthing.” Native Americans were not considered. In many states, you had to be a Protestant to vote until much later. In
effect, the original Constitution was not a democratic document. Her main liberal focus on the Constitution is
as an expression of “white male supremacy.” She should have added the word ‘wealthy’ and perhaps even Protestant -
but that goes against her class intent.
Elite wealth is the product of capital and the class system; it is also
profoundly undemocratic as we have seen.
These are issues she mentions as if they mean little.
Constitutional
Cult
Franks
does not look at other undemocratic Constitutional aspects: lifetime appointments to the Supreme Court;
the very existence of the Senate (members were appointed originally); the
Electoral College; state control over voting; prison slavery and corporate
personhood, to name a few. The archaic
nature of the Constitution goes well beyond her limited focus. She considers the 14th Amendment’s
‘equal protection clause’ of 1868 to be a lifesaver; the U.S.’s ‘golden rule.’ It took a second U.S. revolution, an uncivil
war to create that amendment. What will
it take to actually make the U.S. a real democracy?
Franks
explains the propaganda role of the Constitution as similar to a cultish holy
book, beyond reason or challenge. The
right claims the Constitution was inspired by Jesus Christ; the Klan included protecting the U.S.
Constitution in their own constitution. She
sees this cult in the fundamentalist libertarian interpretations of both the 1st
and 2nd Amendments, represented by the organizational poles of the
ACLU, the Electronic Freedom Foundation (EFF) and the NRA.
The
Amendments
Franks
essential argument about Constitutional fundamentalism is that the 1st
and 2nd amendments are now seen as absolute rights: for everyone to
carry guns all the time everywhere, and for anyone to say anything, anytime,
anywhere. This ignores the key issue of
harm. In actual practice this means militias and
fascists can now threaten their enemies with guns, while right-wing thugs can
spew threats on-line. Franks is a lawyer who has opposed on-line threats
against women and makes a detailed argument exposing the false image of a
‘free’ internet. Franks takes the
arguments of the NRA in support of guns; ACLU arguments protecting fascist
speech and EFF arguments about an unregulated internet to task, in detail, with
examples, statistics, legal cases and logic.
She shows how Constitutional absolutism harms minorities and women and
enables white supremacy and sexism. The
concept of a gun as another form of ‘speech’ cements the link between the NRA and ACLU.
In the
process Franks’ understanding of the 2nd Amendment sometimes
contradicts what it actually means. She
suggests twice that it means a protection against “government tyranny” –
sounding like a rightist NRA member. The
phrase “being necessary to the security of a free state” does not mean opposing
tyranny – it means a militia backing up the government. It was a substitute for a standing army, a weapon against the indigenous and used in slave patrols.
The
Many Faces of ‘Free Speech’
Besides
defending Nazi free-speech ‘rights’ for years, most prominently in 1987 in
Skokie, Illinois and now in Charlottesville, the ACLU also supported the Citizens United Supreme Court decision where money became ‘speech.’ Their logic is based on the idealist and
neo-liberal concept of the "free marketplace of ideas" – mimicking the concept of
capitalist economics without understanding that monopolies and oligopolies are the
reality of ‘the marketplace.’ 'Competition' in reality is a misnomer.
The
ACLU has also blocked with the tobacco industry and Koch Industries, joining
with the EFF to defend revenge porn, Nazi websites, cyber-bullying and
non-consensual pornography - all as ‘free speech.’ Franks sees their position as very close to
the libertarian far right. This includes
the over-wrought hysteria about ‘cancel culture’ on campuses. The
majority of cases were liberal or leftist women or African-American academics who
are censored and their cases ignored. On the other hand the few celebrity right-wingers who are
shut down are mourned. She does not go
into political issues where left academics have lost tenure or been fired,
again part of her narrow focus.
In the
most valuable and informative chapter of the book, Franks takes on the EFF,
which defends web-hosting companies that handle websites containing child
pornography, child prostitution and violent sexism and racism, saying this is
‘free speech.’ Unlike the thinking of techno-utopian
libertarians, the fantasy of a ‘free’ internet is only free for some. Franks explains how big internet content
providers are examples of moral hazard, as they have been inoculated from
liability by Section 230 of the Communications Decency Act, using it as both a
shield and sword. They are not treated
as publishers, speakers or even distributors. They are just bystanders making money! This is similar to how gun
manufacturers have super-immunity under the Protection of Lawful Commerce in
Arms Act.
Franks
never deals with the collateral damage against leftist sites when private
corporations act against the Right under pressure from civil society or the
government. There is ample evidence that
Russia-gate, defense of Venezuela and opposition to U.S. support for jihadis in the civil war in Syria have led
to left sites being de-platformed. She
was, after all, a supporter of Hillary Clinton, which explains this omission.
Reaction
to the Hard Right
This
book is actually a reaction to the growth of the hard right in the U.S. – it
just doesn’t go far enough, and for a reason. Franks does not have a
revolutionary perspective on real democracy because she wants to preserve the
Constitution like her opponents. The
Constitution is a fundamentally undemocratic document written to protect that
early capitalist system, even with its patchwork of progressive amendments. The title of the book is really just a
come-on. In an odd way, the modern judicial philosophy of ‘originalism’ pushed
by the Republican Party would love to go back to the original without
its amendments – slavery and all. This
is the continuing political and theological context of U.S. society, which is always
being pushed backwards by sections of the capitalist class.
Marxists
have supported the reasonable right to bear arms, which is not actually what
the 2nd Amendment says or meant.
Marxists also oppose 1st Amendment free speech protections for
fascists or violent sexists, given their ‘speech’ is really an incitement to
attacks on the proletariat, especially vulnerable parts of the proletariat. Leftists oppose money becoming speech or the
ownership of speech by 6 media corporations, something Franks also never mentions. Franks understands some of these points, but elides
them in her partial opposition to Constitutional fundamentalism in order to ignore
the ‘wealthy’ part of intersectionality – to put it academically. She thinks the only way to deal with these
problems is through changing the Constitution by state-approved amendments and
court fights, while ignoring the issue of economics embedded in its very
nature. After all, she is a lawyer.
A
useful book for those interested in Constitutional issues, which are
continually being applied in legal cases, or for those who oppose our bourgeois
Constitution. They will find some ammunition
in this book.
Prior
blog reviews on this subject, use blog search box, upper left: “Witty
Lightweight Attacks Marxism,” “The Second Founding” (Foner); “Loaded”
(Dunbar-Ortiz); “Prison Strike Against Modern Slavery,” “The Hidden History of
Guns and the Second Amendment” (Hartmann); “Is the U.S. an Actual Democracy?”
And I
bought it at May Day Books!
Red
Frog / SRA Member
April
26, 2021
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