Vol. 30 No. 7 (August 2020) pp. 114 - 119FRACTURING THE FOUNDING: HOW THE ALT-RIGHT CORRUPTS THE CONSTITUTION, by John E. Finn. Lanham, MD: Rowman and Littlefield, 2019. 258pp. Cloth $34.00. ISBN: 978-1-5381-2367-6.
Reviewed by Kevin McGravey, Department of Political Science & Public Policy, Merrimack College. Email: mcgraveyk@merrimack.edu.
While media attention on the Alt-right has grown recently, there has been a relative lack of serious scholarly treatment of the Alt-right and its approach to the Constitution. John E. Finn’s FRACTURING THE FOUNDING fills this lacuna with an important and timely book, offering an accessible primer on who makes up the Alt-right, how and why the Alt-right has developed its own version of the Constitution, and why understanding this movement matters. Finn’s treatment of the Alt-right and its constitution, which he refers to as the Alt-constitution, is carefully done and offers an excellent source for scholars and students alike.
Finn’s book contains six chapters in addition to a substantive introduction and conclusion that collectively present a case that the Alt-right has produced its own constitutional vision at odds with the Constitution’s text and values. After an introduction that motivates the book’s purpose and layout, Finn begins with a definitional sketch of the Alt-right that presents both continuities and discontinuities within it. Finn explains that the Alt-right, like other movements, shares common goals but is not monolithic. Despite differences within the Alt-right, which are explored through brief biographical sketches of Alt-right leaders, Finn outlines common principles around which the movement coheres. Among these principles are “white racial supremacy…belief in the sanctity of state and local government coupled with the suspicion…of the federal government…strict limits or a complete ban on immigration and opposition to gun control and the social welfare state” (p. 23).
Having defined the Alt-right, Finn proceeds in subsequent chapters to explain and critique the Alt-right’s approach to the Constitution. He looks at particular areas in which its vision of the country and its laws both breaks with and endangers traditional constitutional principles. In Chapter 2, Finn details the Alt-constitution’s religious foundations. As he notes, the Alt-right goes beyond the somewhat common notion that there are religious roots undergirding the idea of, for example, natural rights in the Constitution. Rather, for the [*115] Alt-right, understanding its very particular Christian foundations “is the single most important key to understanding what the Alt-constitution means….” (p. 72). The Alt-right believes not only that “the United States is a Christian nation” but more fundamentally “that the Founders’ handiwork is divinely inspired” and thus “the original Constitution is perfect and has no need of change” (p. 43). As Finn emphasizes, the idea that the Founding was divinely inspired has significant implications for the Alt-right’s approach to constitutional interpretation which emphasizes a version of originalism and draws upon the Protestant notion that a text such as the Constitution can be understood without expert guidance from scholars and judges. Religion is central, on Finn’s account, to understanding the Alt-right’s conception of the Founding and the entire Alt-constitution more broadly.
In Chapters 3 and 4 – together a real strength of the book – Finn surveys the Alt-right’s conception of the First and Second Amendments. Chapter 3 outlines the Alt-constitution’s First Amendment. With respect to the speech clause, Finn notes that what distinguishes the Alt-constitution’s protection of speech is that unlike others who debate the meaning of the clause, the Alt-right denies the claim that “the First Amendment does not protect all manner of speech or expression” (p. 81). In other words, they emphasize (though, as noted later, not for all citizens or viewpoints) a kind of speech absolutism. Later in Chapter 3, Finn describes the Alt-constitution’s approach to the religion clauses which emphasize the protection of Christianity. This protection takes two forms. On the one hand, Justice Thomas’s view that the Establishment Clause is merely a restriction on the establishment of a federal religion but allows states the freedom to aid religion is “a cornerstone of the Alt-constitution’s conception of freedom of religion” (p. 99). But, on the other, the Alt-right free exercise clause emphasizes the protection of Christian religions over others. For example, Finn explains how the Alt-first amendment would see CHURCH OF LUKUMI BABALU AYE, INC. v. CITY OF HIALEAH (1993) as wrongly decided because the protection of the Alt-right’s free exercise clause extends only to Christian faiths. With respect to parts of the First Amendment, Finn critically engages with the Alt-right on these clauses and draws out the hypocrisy in their approach. While the Alt-constitution professes absolutism, that absolutism applies only to positions friendly to and persons within the movement. As Finn summarizes, “the free speech provisions of the Alt-first amendment are white and the religion clauses are Christian” (p. 100). [*116]
Chapter 4 moves to the Alt-second amendment which is similarly distinct from the version we normally discuss in its absolutism. As Finn highlights, the Alt-right believes absolutism is required because the right to bear arms “is God-given and cannot be taken away or repealed by human agency” (p. 111). To this point, Finn explains that even if we wanted to repeal the Second Amendment (which he thinks might be wise), the Alt-constitution would suggest we cannot because of its status as a natural or God-given right. In the latter half of the chapter, Finn connects the work of Chapters 3 and 4 by highlighting the role of militias in the Alt-right and the Alt-constitution’s claim that “the right to own a firearm and freedom of speech morph... into a right to form armed militias...to protect liberty…against...tyranny” (p. 132). It is worth noting that Chapter 3 also demonstrates Finn’s skill in weaving together an account of non-traditional sources on the Alt-constitution with clear constitutional explanation and interpretation. For example, in this chapter he combines his account on the Alt-second amendment with a precise account of originalism in D.C. v. HELLER (2008) that will both make scholars pleased in its nuance and accuracy while remaining accessible to an audience less familiar with constitutional theory.
In the final substantive chapters, Finn turns from alternative interpretations of constitutional principles to true alternatives to the Constitution. In Chapter 5, he traces the development of what the Alt-right terms “common law courts” which function for its members as alternatives to the traditional legal system. He also writes about the Sovereign Citizen Movement which rejects a theory of tacit consent for state legitimacy. As a result, its members see themselves as outside the normal system of law and obligations (p. 162).
Chapter 6 considers the Alt-constitution’s rejection of several constitutional amendments, such as the Fourteenth, that aim at extending equality to citizens who would not have been seen as equals at the Founding. To this point, Finn notes, the Alt-right rejects the axiom, stated well by Mark Graber, that “[c]ontemporary constitutional theory [universally concludes that] BROWN v. BOARD OF EDUCATION was correct…and DRED SCOTT v. SANDFORD was wrong” (Graber 2006, 15). Rather, Finn writes, Alt-constitutionalists often approvingly reference DRED SCOTT in favor of the proposition that only those “who would have qualified for full citizenship when the Constitution was written and ratified” qualify today and in opposition to an understanding of the Fourteenth Amendment as granting full rights of citizenship (p.185). [*117]
Taken as a whole, Finn’s approach paints a troubling picture of the potential influence of the Alt-right and the Alt-constitution. As he correctly notes, the stakes are high given that “[t]he extreme right uses…the Alt-constitution…to legitimate and conceal its racism, bigotry, and sexism, and to appeal to a broader audience” (p. 13). As the history of Weimar Germany has taught us, for example, the rejection of constitutional norms even by a small number of citizens can lead to disastrous consequences.
If there is a qualm with Finn’s important work, it is that it paints such a powerful picture of the need for action to deal with the Alt-constitution that the reader wants a fuller picture of how to do so. As Finn notes in conclusion, we all have an obligation to respond when our collective values are at risk and to, in his words, “imagine ourselves as engaged in the same constitutional project [as the Founders], a living project that asks us to make important choices about what the Constitution means and what it asks of us” (p. 201).
In important ways, Finn’s approach in the book, which deftly weaves fair engagement with the Alt-constitution with clear critique, might offer a primer. For instance, after offering an explanation of the Alt-first amendment on its own terms, Finn critiques it as inherently hypocritical. As he explains, while the Alt-constitution purports to be absolute in its protection, in reality the Alt-right wants only to protect its own kind. He notes that the Alt-right is quick to complain when an employer fires one of its members for their speech, but they have little sympathy for those with whom they disagree (such as Colin Kaepernick) who find themselves in a similar situation. In his words, the Alt-right is made up “not [of] Free Speech Warriors [but] Free Speech Snowflakes” (p. 83). Finn’s approach of forthright critique made only after sustained effort to understand offers a model for how to engage productively.
But because Finn does such a thorough job diagnosing the problem, readers may desire broader insight on his view of the proper solution. This desire manifests itself at both the micro-level within chapters and at the macro-level in the book’s conclusion on how to proceed. For instance, in the chapter where Finn addresses free speech, he notes that the Alt-right’s refusal to recognize free speech protection for those with whom they disagree and even outright “duplicity is not a good reason to silence [them]” (p. 102). He continues that privileging the First Amendment over others’ values “requires an argument” which the Alt-right assumes without providing (p. 103). As Finn notes, “the Founders rejected” this [*118] “rigidity” (p. 103). While Finn offers an excellent parsing of the problem, some readers might want a positive argument about what the proper limits on protection ought to be.
At the macro level, Finn argues that to combat those who misuse the Constitution we need a conception of “civic virtue” and “constitutional patriotism grounded in critical thinking” (p. 198). Finn hints that the development of these virtues, of which “civility and empathy are the most important” (p. 199), takes place in background civic culture. In many ways, this sounds like the approach Finn advanced in PEOPLING THE CONSTITUTION (2014) and he alludes to this prior work in endnotes to the conclusion. If this is the case, an account of how this might work effectively would help readers compelled to act by Finn’s account to have a playbook from which to work. Moreover, readers might wonder if there are other solutions that are also warranted. For example, is the state obligated to use its expressive capacity to combat this threat to the Constitution? Similarly, Finn argues that the Alt-right “has weaponized [the internet]” (p. 26) in its approach. Do internet companies such as Facebook, Reddit and Twitter have an obligation to censor or provide a response?
The desire to have clear solutions to the problems raised in this book is, I think, both a testament to the power of Finn’s work and an invitation for others take up his call to continue to develop effective responses to the issues he ably details. In the end, FRACTURING THE FOUNDING is a book that is timely and critical. It deserves to be widely read by scholars of constitutional law for its treatment of the Alt-right and Alt-constitution. It would also be of interest to scholars in other areas for its accessible treatment of legal principles in this context.
CASES:
BROWN V. BOARD OF EDUCATION, 347 U.S. 483 (1954).
CHURCH OF LUKUMI BABALU AYE, INC. V. CITY OF HIALEAH, 508 U.S. 520 (1993).
DISTRICT OF COLUMBIA V. HELLER, 554 U.S. 570 (2008).
DRED SCOTT V. SANDFORD, 60 U.S. 393 (1857). [*119]
REFERENCES:
Finn, John E. 2014. PEOPLING THE CONSTITUTION. Lawrence: University of Kansas Press.
Graber, Mark A. 2006. DRED SCOTT AND THE PROBLEM OF CONSTITUTIONAL EVIL. New York: Cambridge University Press.
© Copyright 2020 by the author, Kevin McGravey.
