THE CULT OF THE CONSTITUTION

A law professor and cyberactivist examines America’s “constitutional fundamentalists.”

It’s an article of faith, writes Franks (Univ. of Miami School of Law), president of the Cyber Civil Rights Initiative, that the Constitution is the embodiment of a foundational wisdom that has not come along since. Yet, she argues, it also embodies a “founding fraud”—i.e., that the authors of that document really believed that “we the people” included everyone and not just adult white male property holders. “Constitutional fundamentalism,” writes Franks, “whether of the right or left, sanctifies the men and the moment of the founding era: that is, an era in which the interests of women and racial minorities were subordinated to those of white, economically powerful men.” The First Amendment is a particularly active battleground in that clash of interests, with adherents to the cult of the Constitution insistent that freedom of speech is absolute even as the author and like-minded critics seek legislation to protect Americans from such things as cyberstalking. In that amendment, she writes, civil liberties organizations such as the American Civil Liberties Union and Electronic Freedom Foundation were as implacably opposed as any conservative think tank. As for the Second Amendment, Franks argues that the idea that self-defense requires access to firearms is “reductive and dangerous to the general welfare.” Moreover, its protections are unevenly distributed: “Who gets to stand their ground?" she asks, provocatively, observing that the National Rifle Association and other gun-freedom groups have never been quick to encourage armed self-defense on the part of black Americans. Such double standards are abetted by strict interpretations of a document that, Franks allows, has become more sympathetic to the interests of minorities, as with the 14th Amendment—but even so, such changes “have at most modified white male supremacy, not dislodged it.”

Though repetitive and a touch too sweeping at times, this is a worthy addition to the literature of critical legal studies—and a timely text as battles over the Constitution and its interpretation continue to rage.