Mary Anne Franks. The Cult of the Constitution (Stanford: Stanford University Press, 2019). pp. 272. $20.
The Cult of the Constitution is a rich and insightful account of the role of the U.S. Constitution in American political life. Arguing that 1787 marked the creation of ‘not merely a constitution, but a cult’ (34), Mary Anne Franks draws out the parallels between fundamentalist approaches to religion and to the Constitution. A vital point of commonality, Franks argues, is a practice of ‘victim-claiming’ in which powerful individuals and groups position themselves as vulnerable and therefore entitled to use their power to disarm and censor those threatening them (xii-xiii). This line of thought enables the penetrating account of the Constitution’s role that Franks develops, which situates the Constitution firmly and productively within its immediate socio-political context.
Paying more attention to the ideological role the U.S. Constitution plays within political life than many institutional or legal accounts, The Cult of Constitution shows how the Constitution and the cult associated with it operate as a basis of white male power within contemporary American society. In this respect, Franks’ book contributes to burgeoning conversations over the role of race and gender within the structuring of the constitutional order that have been kindled by the popular debates over Critical Race Theory following the 2020 election (although the book itself predates that resurgence). While the association of the Constitution and constitutional law with racial and gender inequalities has tended to highlight historical developments[i] or legal practices and theorisations,[ii] Franks approaches this association from the perspective of the Constitution’s value as an artefact of social signification[iii] and in this application brings a fresh and generative approach to thinking about the power that the Constitution wields within American political life. Franks shows that across three overlapping realms of political life – gun control, free speech, and regulation of the internet – the Constitution has been deployed rhetorically to shore up white male power over other segments of the population. Franks details how the deployment of constitutional fundamentalism has become associated with the protection of white male privilege, through the selective construction of constitutional protections and obligations that both downplay and reinscribe white supremacist logics. Thus can the harmful circulation of ‘revenge porn’ be free speech, the ability to shoot down a fellow citizen while ‘standing your ground’ be a protection against tyranny, and the protection of hateful speech be necessary for the functioning of the marketplace of ideas.
Franks offers a powerful argument in the book, but readers might hope for a stronger articulation of an alternative to the cult of the Constitution. Indeed, Franks at times appears to subscribe to the very cult that is being critically examined here, albeit with the robust rejection of some of its implications. After considering the potential of ‘de-constitutionalization’, Franks asserts that ‘the Constitution is worth defending’ (201) because of its greatest virtue, that it can be changed. That was the ‘greatest gift the framers bequeathed us in this flash of humility’ (202). Placing faith in the potential of the Fourteenth Amendment (likened to the Golden Rule and the categorical imperative), Franks ultimately sees a constitutionalism which extends its protections beyond white men in meaningful ways as a mechanism for completing the ‘project of equality’ (204). However, the major contribution of Franks’ argument – a positioning of the Constitution as an ideological pillar of white patriarchy – offers the prospect that constitutional change serves to rearticulate or reestablish white patriarchy in response to new pressures. As scholars from W.E.B. DuBois to Michelle Alexander have noted, the post-Civil War constitutional reconstruction has failed to live up to its potential in the hundred and fifty years that have passed since the 13-15th Amendments. This is arguably just one such moment within the history of the Constitution, which can be a series of constitutional moments reinscribing the authority of white men in novel ways. The reinvention of the First and Second Amendments over the past decades which Frank argues in the book have produced a constitutionalization of white male privilege could be understood in terms of a further such moment. Frank seems hesitant to reach this conclusion though, which would necessitate the recognition that there is a strong argument for rejection of the Constitution if it is an ideological basis of white patriarchy. Indeed, if the Constitution marks the contracting of an elite white male body to recognize themselves as equals, à la Charles Mills’ account of the Racial Contract,[iv] it is not clear that it offers resources for the transformation of that order into something more inclusive – or at the very least that it offers more than the initiation of a wholly novel constitutional order could.
[i] E.g. David Waldstreicher, Slavery’s Constitution: From Revolution to Ratification (New York: Hill and Wang, 2009); Paul Finkelman, Slavery and the Founders: Race and Liberty in the Age of Jefferson (New York: Routledge, 2015).
[ii] See for example Derrick A. Bell jr., ‘Racial Realism,’ in Critical Race Theory: The Key Writings That Formed the Movement (New York, NY: The New Press, 1995), 302–12; Kimberlé Williams Crenshaw, ‘Race, Reform, and Retrenchment: Transformation and Legitimation in Antidiscrimination Law,’ Harvard Law Review 101, no. 7 (1988): 1331–87.
[iii] See for example Michael Kammen, A Machine That Would Go Of Itself: The Constitution in American Culture (New York: First Vintage Books, 1987); Paul W. Kahn, ‘Sacrificial Nation,’ The Utopian, March 2010.
[iv] Charles W. Mills, The Racial Contract (Ithaca, NY: Cornell University Press, 1997).