The First Reformed Church of the Founding Fatherhood

Mary Anne Franks, The Cult of the Constitution

Americans widely think we know what the U.S. Constitution says, and most think we know what it means. But according to research, most of us have never actually read it. Like the Bible or the Qur’an, we generally only scan the text seeking justifications for opinions we already have. Moreover, though we think the Constitution enumerates our “rights,” most of those rights are limited, positional, and tainted by history.

Constitutional law scholar Mary Anne Franks, a lapsed fundamentalist Christian herself, compares the American Constitutional fondness for legal prooftexting with religious fundamentalism of multiple stripes. What Franks calls “Constitutional fundamentalism” involves a selective, self-serving reading which true believers nevertheless consider obviously true. This fundamentalism manifests in various forms and, for Franks, resembles the structure of religion, for good or ill.

This begins with our veneration of the Constitution itself. In Franks’ description, our retellings of its drafting in 1787 have the reverential tone of an Easter pageant, eliding the aspects that cause us discomfort nowadays (Three-Fifths Compromise, anyone?) while highlighting the qualities that support our shared values. This nigh-religious acclamation inevitably soft-sells the reality that the Founding Fathers were entirely White, entirely male, and disproportionately likely to own slaves.

From this origin myth, Americans’ religious behavior breaks along partisan lines. While conservatives believe the whole Constitution rests on the Second Amendment, liberals place their trust in the First Amendment. (Franks admits this is an overgeneralization, but a useful one.) Further, both sides’ reading of each amendment is selective; Conservatives disregard the “well regulated militia” clause, where liberals overemphasize the Free Speech clause.

As Franks dives into these conflicting forms of Constitutional fundamentalism, I admit I started anticipating where her opponents are likely to find putative weaknesses in her claims. Like unbelievers attempting to describe religion from an outsider’s perspective, Franks sometimes uses hasty generalization to describe precepts True Believers handle with more nuance. She sometimes compresses difficult precepts into bullet points, stating articles of faith in terms which her opponents would dispute.

Mary Anne Franks

But, glossing Franks’ tendency to oversimplification, the real heart lies in her close reading of higher court rulings that reflect the fundamentalist precepts hidden in modern politics. In keeping with her religious metaphor, she reads court opinions exegetically, unpacking themes and parsing difficult or obscure passages. Like a seminarian trying to explain how Greek has evolved since Paul’s time, Franks guides us through what her 200-year-old source text actually means.

If this sounds like difficult reading, it is. Franks uses dense prose in very long chapters to elucidate how judicial history demonstrates her point. Though she’s good at explaining what she means in vernacular English, her tone is nevertheless unrelentingly professorial, and her meaning doesn’t always reveal itself at first face. Franks sets a fairly high textual tone early, and expects her reader to follow her, which isn’t always easy.

This difficulty matters because Franks’ theme isn’t light. In 1787, the Founding Fathers used the language of democratic equality in drafting the Constitution, though they clearly didn’t mean it. In the same way, whether we refer to Second Amendment fundamentalism on the right, or First Amendment fundamentalism on the left, Americans generally use Constitutional language in ways that benefit White men. Franks’ theme throughout this book is “white male supremacy.”

Our Constitutional rights nominally cover everyone; Franks cites the Fourteenth Amendment to assert that. But in practice, that isn’t so. While Second Amendment fundamentalists turn mute when government agents murder Black men with guns—think Philando Castile—First Amendment fundamentalists have frequently shown similar disregard for women’s and minorities’ speech. Consider the “free speech” pushback against anti-revenge porn legislation.

(It bears saying that, for Franks, these fundamentalists are embodied in their most outspoken organizations, the NRA and the ACLU. As with Christians, the church doesn’t uniformly represent all believers.)

Franks’ analysis culminates on the Internet. Though early webhead visionaries imagined the Internet as a libertarian utopia, the guise of anonymity has made it a haven of violence and ugly language, usually targeted at women and minorities. But whenever anybody proposes addressing this, somebody cries Constitutional impingement, inevitably defending White, heterosexual men, the American group least likely to need defense.

Every reader will find something to dislike in this book. True Believers will claim that Franks misrepresents their respective faiths. Franks turns harsh language on Donald Trump that will alienate the White men who most need her message. But Franks provides an important lens for analyzing important controversies of American case law. Because here as elsewhere, justice should outweigh dogma.