Monday, April 26, 2021

The Cult of Blind Spots

 “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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