Vol. 29 No. 10 (November 2019) pp. 114-116THE CULT OF THE CONSTITUTION, by Mary Anne Franks. Stanford: Stanford University Press. 272pp. Cloth $26.00. ISBN: 9781503603226.
Reviewed by Mark Rush, Department of Politics, Washington and Lee University. Email: rushm@wlu.edu.
This is a very important book. Mary Anne Franks’ new book, THE CULT OF THE CONSTITUTION offers a thoughtful critique of the western, liberal conception of liberties and rights. In doing so, she offers an equally thoughtful criticism of the American approach to interpreting the Constitution and, in particular, the First and Second Amendment. This is not just another exegesis on the breadth or narrowness with which scholars and jurists should interpret freedom of speech and religion and the right to bear arms. Instead, Franks forcefully reminds us that how one chooses to interpret the Constitution has clear consequences that cannot be separated from the theories on which approaches to reading constitutional text may be based.
Franks contends that the absolutist manner in which Americans, from jurists to citizens, now interpret rights to speech and gun ownership creates a society in which we have become blind to the fact that the exercise of liberty by the powerful can cause direct, interpersonal harm to others and limits their ability to exercise their own rights. On the one hand, this argument is by no means new; long ago, Ronald Coase acknowledged that the exercise of rights may be zero-sum. Accordingly, he sought to reconcile and balance clashes of rights and liberties.
But, whereas Coase drew upon relatively benign examples (e.g., clashes between doctors and candymakers whose offices share the same walls or farmers whose crops suffered due to the sparks produced by passing trains), Franks urges the reader to consider the clash of rights and liberties in the broader context of the 21st century. In situations, such as those described by Coase, the state was clearly capable of serving as referee to balance and manage conflicts between and damage caused by rights-bearing individuals regardless of how broadly or narrowly the courts interpreted the scope of liberties.
However, in the 21st century, Franks argues that absolutist interpretations of freedom of speech and the right to bear arms have led to the proliferation of violence that the state is clearly unable to control. Thanks to the internet and social media, speech has been weaponized (in the form of cyberbullying, revenge porn, and so forth) in manners that the Founders never could have imagined. Similarly, the proliferation of gun violence demonstrates that the nearly absolute protection of the right to bear arms has led to a state of uncontrollable and random violence that even the staunchest civil libertarian would be hard-pressed to justify. Accordingly, it is more than irresponsible, says Franks to continue interpreting the constitution on the basis of 18th, 19th or 20th century conceptualizations of rights, liberty, and harm.
Overall, Franks offers a powerful argument in favor of reconceiving the scope and definition of constitutional rights that takes into account the realities of 21st century society. She echoes (p. 12, p. 60) Mary Ann Glendon’s challenge to Ronald Dworkin’s absolutist vision of individual rights: “if someone has a right to something, then it is wrong for government to deny it to him even though it would be in the general interest to do so” (Glendon 1991, p. 40 citing Dworkin 1977, p. 269). Such an interpretation of rights, says Glendon, “promotes unrealistic expectations and ignores both social costs and the rights of others” (Glendon 1991, p. xi).
Franks nicely casts the clash of rights in terms of the overprotection of liberties at the expense of rights. America’s fixation with ensuring liberty overlooks the fact that liberty favors the powerful and therefore can be exercised at the expense of the rights and liberties of the weak or [*115] minorities. She condemns the right and the left, ranging from the NRA to the ACLU, for focusing so exclusively on the promotion of liberty to speak and bear arms. This exclusive focus leads them to become blind to the protection of the rights of those who do not wish to be targeted by hate speech or by the guns of mass killers.
Cast in this light, the western, liberal marketplace approach to rights fails because it ignores the fact that some people are born into circumstances of weakness or dependency from which they can never escape, while others are born into circumstances of power from which they never wish to leave. (See generally pp. 111-118). Maintaining a free marketplace for the exercise of liberty is a tremendously effective defense against governmental encroachment on freedom.
But, in the 21st century, unfettered exercise of liberty by some ends up threatening not the government, but other individuals. While the government can handle hate speech directed at it, the individual victims of revenge porn and hate speech transmitted through social media are not likely to be as equipped to ward off attacks or control their damage. Similarly, while guns may be necessary to ward off government encroachments on the liberty of gun owners, we need government to step in and constrain that liberty if it threatens other rights-bearing individuals.
This is a powerful, damning, essentially post-liberal criticism of western notions of rights and liberties. Franks offers a solution that is no less western or liberal in scope or spirit. Drawing upon “Kant’s categorical imperative, Rawls’s justice-as-fairness, or most simply the Golden Rule” (p. 18), she contends that society should place constraints on the exercise of liberty by some to preserve that same liberty for all and protect those who suffer irreparable damage. Franks thus rejects the application of economic marketplace arguments to the political sphere. “More speech” will not repair damage caused by speech—especially in an era when social media amplify the scope and gravity of harmful speech so quickly.
There are obviously challenges to operationalizing Franks’s vision. It is theoretically sound (Kant and Rawls were onto something). But, there is no doubt that it would require more than just a sea-change in the manner by which a society interprets and regards fundamental rights. With regard to speech, Franks calls essentially for a retooling of Holmes’s clear and present danger test to make it more applicable to the 21st century and to interpersonal injuries. Whereas Holmes sought to rein in the government’s power to silence speech that it finds unpopular, Franks echoes Brandeis’s call for more government action to control the interpersonal violence or injury that occurs among individuals—especially when the powerful invade the privacy rights of others (Warren and Brandeis). With regard to the Second Amendment, there is no gainsaying the extent of gun violence in the United States (see e.g., BBC 2019). But, one wonders how the U.S. government or society will be able to generate an incentive powerful enough to convince gun owners to turn in some weapons without appearing to be the force threatening to disarm the population the gun owners fear.
This is not to question the passion, sincerity, or power of Franks’s observations and arguments. Instead, it is simply an acknowledgment of the challenges confronting Franks—or anyone else—who calls for a reanimation or re-amplification of the governmental power that the Constitution seeks to constrain. Who will control the governors and guard the guardians?
This review would be unconscionably incomplete without a sincere, friendly criticism. As tremendous as it is, THE CULT OF THE CONSTITUTION is also a very repetitive work that too often resorts to vilifying what Franks conceives as the white, male supremacist influence that animated the Framers and continues to permeate the constitution’s text and interpretation. There is no question that the constitutional system clearly discriminated against women and minorities throughout U.S. history and that absolutely necessary changes were “very late in coming” (p. 9). [*116]
But, there is also no doubt that, at any time in any country’s (or the world’s) history, some group will benefit or has benefited disproportionately from the rules by which the legal or economic systems are organized. This is not a uniquely American phenomenon. Amy Chua described such powerful groups around the world as “market-dominant minorities” in WORLD ON FIRE. Long ago, Marc Galanter (1974) explained “Why the ‘Haves’ Come Out Ahead” in any legal system in a seminal article in the LAW AND SOCIETY REVIEW. Thomas Friedman pointed out that the “developing world” suffered unfair economic disadvantage due to nothing more than geography until internet connectivity “flattened” the world and levelled the economic playing field.
While there is no gainsaying Franks’ observation that anglos, men and the wealthy have benefited disproportionately from the manner in which the Constitution has been interpreted and applied, it is unfortunate to cast an argument and analysis as important and powerful as hers in such a nationally myopic (or, perhaps, myopically national?) manner. The problems she describes are truly global in scope. If not, they are at least, endemic to western liberalism and democracy. Accordingly, Franks does a disservice to her work by repetitively scapegoating (well-to-do) American white males when the important core of her analysis transcends any nation’s political divisions and exposes the ongoing, pervasive power and impact of class and wealth in any political system.
THE CULT OF THE CONSTITUTION is an extremely important book. Franks challenges scholars and supporters of 20th century liberal constitutionalism to acknowledge its shortcomings in dealing with the technological and social-media-driven realities of the 21st-century. While Franks offers no clear solutions in this book, she has forced open a new and vital debate about rights, liberties and constitutional government.
REFERENCES:
BBC. “America’s Gun Culture in Charts.” 5 August 2019. Last accessed 10 October 2019. https://www.bbc.com/news/world-us-canada-41488081
Glendon, Mary Ann. 1991. RIGHTS TALK: THE IMPOVERISHMENT OF POLITICAL DISCOURSE. New York: The Free Press.
Dworkin, Ronald M. 1977. TAKING RIGHTS SERIOUSLY. Cambridge: Harvard University Press.
Coase, Ronald H. 1960. “The Problem of Social Cost.” JOURNAL OF LAW AND ECONOMICS 3: 1-44.
Warren, Samuel D. and Louis Brandeis. 1890. “The Right to Privacy.” HARVARD LAW REVIEW 4: 193-220.
Chua, Amy. 2003. WORLD ON FIRE: HOW EXPORTING FREE MARKET DEMOCRACY BREEDS ETHNIC HATRED AND GLOBAL INSTABILITY. New York: Random House.
Galanter, Marc. 1974. “Why the Haves Come Out Ahead: Speculation on the Limits of Legal Change.” LAW AND SOCIETY REVIEW 9:95-160.
© Copyright 2019 by the author, Mark Rush.
