Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Corey Brettschneider corey_brettschneider at brown.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Jonathan Hafetz jonathan.hafetz at shu.edu
Jeremy Kessler jkessler at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at yu.edu
Rick Pildes rick.pildes at nyu.edu
David Pozen dpozen at law.columbia.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
David Super david.super at law.georgetown.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Nelson Tebbe nelson.tebbe at brooklaw.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
In her new book, The Cult of the Constitution, Mary Anne Franks argues that the Constitution is a document of white male supremacy. More precisely, she argues that "the Constitution has indeed functioned to protect white male supremacy since the day it was written." (p. 6) Hence, "those who adhere to the ideology of white male supremacy may tolerate the expansion of rights to women and nonwhite men, but only to the extent that these rights do not conflict with or undermine the rights of white men." (id.)
Franks argues that the language of the Constitution (and the Declaration) that seems to have nothing to do with white male supremacy--or which even seems to contradict it--cannot be taken at face value: "The Constitution may have begun with the words “We the People,’ but it was a document that both reflected and perpetuated white male supremacy" (pp. 8-9). Although it has been modified and amended, it continues to perform this task: "these changes were very late in coming, and they have at most modified white male supremacy, not dislodged it "(p. 9). Thus, "[w]hile some of the beneficiaries of this constitutional cartel have, at momentous points in history, used their power to confer constitutional recognition on women and minorities, the creation, interpretation, and application of constitutional rights have all primarily served the interests of the Americans who most closely resemble the original founding fathers. The core of constitutional power and privilege in this country has never shifted dramatically—that is to say, democratically—away from white men" (p. 10).
Franks' argument is a version of what Reva Siegel calls "preservation through transformation." Society is organized in status hierarchies. As these hierarchies "modernize," that is, as they are partially dismantled and reformed, they reemerge in new guises, preserving their hierarchical character in new ways using new justifications and new techniques.
At the same time, Franks genuinely admires the Fourteenth Amendment and its Equal Protection Clause, which, she argues, embodies the value of reciprocity. She identifies this idea with the Golden Rule and with Immanuel Kant's categorical imperative, and notes that "it is a concept that is affirmed by religious and philosophical traditions all over the world," (p. x) giving examples from the New Testament, the Talmud, Edmund Burke, writers in Ancient Egypt, and Confucius. (p. 31). "[T]he Fourteenth Amendment," she writes "struck me as the constitutional expression of the Golden Rule. The equal protection clause seemed to be the keystone of the Constitution, the source of the entire text’s moral legitimacy and structural intelligibility." (p. xi).
The Cult of the Fourteenth Amendment
Taking these two claims together creates a puzzle. If the Constitution's guarantees are suspect because they are the product of white male supremacy, why are the principle of reciprocity and the Fourteenth Amendment not equally suspect because they too are the product of white male supremacy? Why should we apply the hermeneutics of suspicion to one set of texts but not the other?
After all, the cultures Franks mentions that produced the historical idea of reciprocity were even more male supremacist than today's America. The ancient sages who first articulated the Golden Rule treated women like chattel. Confucius's philosophy is deeply hierarchical. The Talmud is suffused with patriarchy. Nor were these cultures innocent of racism. Kant, the formulator of the categorical imperative, proclaimed that "[t]he Negroes of Africa have by nature no feeling that rises above the ridiculous," and once dismissed a sexist argument made by a black carpenter not because it was not "worth considering," but because "this scoundrel was completely black from head to toe, a clear proof that what he said was stupid."
These problems are especially obvious in the case of the Fourteenth Amendment. The text of the Fourteenth Amendment, as Franks well knows, was adopted by white men who sought to preserve their superior status as white men even as they changed some of the rules of their society. The vast majority of the white men who adopted the Fourteenth Amendment did not believe that the new amendment would alter the common-law coverture rules, which stripped married women of most of their rights. Moreover, the Fourteenth Amendment granted black people only civil equality, not political equality or social equality. Just like the rest of the Constitution, the Fourteenth Amendment, in its formulation and its application, was deeply morally compromised from the start.
Yet near the end of the book, Franks argues that "[t]he command of equal protection is inherently anti-fundamentalist, as it necessitates the consideration of all rights and all people. It cannot be stripped out of context as a stand-alone superright with the power to elevate the interests of some over others. It is a rule as well as a right, a test that must be universally applied to all laws, including other constitutional rights. The Fourteenth Amendment tells us that if white men’s rights to free speech or self-defense are protected more than women and nonwhite men’s, the Constitution has been violated. If white men’s rights to free speech or self-defense infringe upon those same rights of women or nonwhite men, the Constitution has been violated. Because of the Fourteenth Amendment, one can only honor the Constitution by honoring equality. The Fourteenth Amendment thus commits the constitutional faithful to a position incompatible with supremacy or hierarchy of any kind." (p. 202).
Given the actual history of the ratification of the Fourteenth Amendment, and its implementation in the century and a half that followed, this passage blinks reality. It sounds like the kind of cheerleading for abstract conceptions of rights that Franks criticizes so severely in the rest of the book. Franks tells us that the Fourteenth Amendment "cannot be stripped out of context as a stand-alone superright with the power to elevate the interests of some over others." (p. 202). But it is hard to find periods in the Nation's history in which the Fourteenth Amendment has not been used in this way. It has been repeatedly invoked to protect the interests of employers over labor, men over women, white people over black people, and so on. Franks is quite sure that "The Fourteenth Amendment thus commits the constitutional faithful to a position incompatible with supremacy or hierarchy of any kind." (p. 203). This sounds like the very sort of constitutional fundamentalist talk that Franks rails against.
How can we make sense of these two different moves in the book-- deeply skeptical of the history that produced the language of the Constitution, yet conveniently looking the other way when it comes to the language of the Fourteenth Amendment? It is not enough to say that Franks speaks in two registers-- one realistic and critical and the other idealistic and prophetic. That is because she is relentlessly critical of other people who try this gambit-- the defenders of the First Amendment (and indeed of the Constitution) who argue that the Constitution's great principles transcend the way that the Constitution and the First Amendment have actually been used. Behind high minded appeals to principle, she argues, is the grim reality of their application. This rhetorical handwaving is a feature of constitutional fundamentalism. Having excoriated others, she can hardly adopt the same rhetorical strategies for herself.
Anti-fundamentalism and Constitutional Redemption
I think that the best way to reconcile these two different positions is to jettison the idea that any feature of law--whether the Fourteenth Amendment or anything else--"is inherently anti-fundamentalist." Instead, Franks should go with her critical instincts, and simply accept that there is no legal principle that cannot be used to sustain hierarchy and injustice. If, as Franks argues, the right of freedom of expression can be used to enforce censorship, surely the right of equal protection can be used to enforce inequality. Oliver Wendell Holmes once remarked that the epigraph on his tombstone should read, "Here lies the supple tool of power." What was true of Holmes the jurist is also true of the Fourteenth Amendment, and indeed, of law itself.
Instead of whitewashing (and I use the term advisedly) the Fourteenth Amendment, one should develop what Franks calls an "anti-fundamentalist constitutional culture," with an "honest constitutional accounting" (p. 203) of how the Constitution's language has been used, and to whose benefit. Such an anti-fundamentalist constitutional culture would treat the Constitution as a work in progress, imperfect and flawed, but containing resources for constitutional redemption, to coin a phrase.
To say that the constitutional text and the constitutional tradition contain resources for redemption does not commit us to the idea that the text and the tradition is impervious to fundamentalisms, to the defense of unjust hierarchies, or to political corruption. A redemptive Constitution begins with the acknowledgment that the Constitution exists, and always has existed in a fallen condition, that it is a "covenant with death and an agreement with hell," but that it nevertheless contains resources--words, ideas, and institutions--that can be redeemed in history. Constitutional redemption is not secured in the text, only its possibility.
This seems to be closer to Franks' actual position. She considers but rejects the Garrisonian idea of dispensing with the Constitution altogether. She thinks that the Constitution, taken as a whole, is corrigible, even though parts of it may not be. "What makes the Constitution worth defending is precisely that it is neither divine, nor fixed, nor infallible... [but] that it can be changed." (p. 202) The framers' greatest gift was their sense of humility-- their understanding that later generations might benefit from greater experience, and see what they themselves could not. Franks points to Article V as the primary engine of constitutional change (a claim that will no doubt delight my friend and co-author Sanford Levinson). Even so, many, if not most, of the changes that have made the Constitution more fair, more just, and more equal have come from constitutional constructions outside of the formal amendment process. The important point, however, is that a constitutional culture of anti-fundamentalism must not become too tethered to the status quo and it must not fear the possibility of constitutional change.
Equal Protection, Reciprocity, the Categorical Imperative, and the Golden Rule
Franks believes that the concept of reciprocity should be the starting point for constitutional reform. She identifies reciprocity with the Golden Rule, with Kant's categorical imperative, and with the Fourteenth Amendment's Equal Protection Clause.
I'm puzzled by the argument that the concept of equal protection is the same as the categorical imperative. First, a lot depends on how one articulates the universal maxim. Second, equality (not to mention "equal protection of the laws") is a complex concept with many different meanings, some of which may not correspond to Kant's idea. Third, equal protection contemplates the possibility of tradeoffs, balances, and accommodations, many of which are probably forbidden by the universalizing maxim of the categorical imperative. Franks may mean simply that everyone has equal moral worth and that all people should be treated equally as ends in themselves. Those are certainly Kantian ideas, but they too are not the same thing as the equal protection of the laws in the Fourteenth Amendment. The Fourteenth Amendment allows people to be treated instrumentally in a host of different ways, through countless state policies that govern populations. The Constitution enacts neither Mr. Herbert Spencer's Social Statics nor Immanuel Kant's Groundwork of the Metaphysic of Morals.
I also don't think that the concept of reciprocity is the same thing as the concept of equality that Franks is concerned with in this book, much less the concept of equal protection. In Confucianism, a parent and child may have reciprocal duties, but they are most certainly not equals. In many cultures husbands and wives have reciprocal relations, but those relations are not equal ones. Reciprocity in that case means each person respects and treats the other appropriately given their differences in role and situation. In many cultures reciprocity means that individuals respond appropriately to actions taken previously by others, for example in gift exchanges, in sequences of favors, and even in acts of retribution and revenge. These situations are reciprocal but they may not be equal; indeed practices of reciprocity can sometimes reinforce differential status and hierarchy. In many cases, true equality requires something far stronger than mere reciprocity.
Of course, Franks might mean only that version of reciprocity that enforces the Golden Rule. But this too, is not really the same thing as equality-- or at least the kind of equality that Franks is concerned with in this book. To ask how you would like to be treated if you were in the other person's position begs the question of what the other person's position is. That is, how is the other person embedded in existing social relations? Is the other person a woman or a child or slave living within a status regime? If so, then you should treat them as you would want to be treated if you were a woman, or a child, or a slave in that status regime--that is, according to the appropriate reciprocal duties and obligations. For this reason, the Golden Rule, I am sorry to say, does not have to be an attack on existing status hierarchies, but may take these hierarchies for granted--at least in the societies that first articulated the principle. Indeed, it could even be viewed as an idealized or benevolent enforcement of some of those hierarchies and status relations.
When we read the Gospels, we see more revolutionary ideas poking out, for example, in the parable of the Good Samaritan. And when St. Paul says in Galatians 3:28 that there is neither Jew nor Gentile, neither slave nor free, nor male or female, for all are one in Christ Jesus, he points in a revolutionary direction. Yet when St. Paul says this, he is definitely not arguing for anything like sex equality-- he wants wives to submit to their husbands. When we read statements of the Golden Rule today, we read them through our present day mores, which are very egalitarian, but that is not necessarily what the Golden Rule meant to these more traditional cultures. What Franks wants is a version of the Golden Rule that breaks free of the very people and societies that articulated it, that attacks and challenges the existing foundations of society itself, rather than being exercised within society's unjust confines. She wants the sort of revolutionary Golden Rule that would probably have horrified all the people she quotes in support of it.
The Cult of the Constitution and the Critical Legal Tradition
What is Franks after, then? Her principle cannot be that the law can't treat some people differently than others. The law does this all the time, in situations that I am quite sure Franks would find unproblematic. Rather, she is articulating a principle that is quite familiar in both constitutional theory and critical legal theory. It is a version of the antisubordination principle: law and society should not be organized to allow the subordination of some groups by other groups. Franks is concerned with the substantive equality of social groups. Her conception of equality is sociological, and law operates both ideologically and as an instrument of social power. Constitutional fundamentalism is an ideology that, at least with respect to constitutional questions, justifies and naturalizes the maintenance of group domination and subordination. Constitutional fundamentalism is a way of thinking about the Constitution that preserves and maintains status inequality, and enforces it through domination, coercion, and, on occasion, violence.
This way of thinking places the book in the critical legal tradition. Indeed, The Cult of the Constitution is one of the best works in the critical legal tradition to have appeared for some time.
Franks writes fearlessly and energetically; her rhetorical style is clear, sharp, and powerful. Her arguments recall key themes in the critical legal studies critique of rights. Focusing on purely formal rights is unlikely to further justice and will probably apologize for injustice. When rights are stated in purely formal terms that are insensitive to differences in context, they tend to benefit those people and groups that are already most powerful in society, and these people and groups will tend to define rights in such a way as to promote and maintain their own power. Powerful people and groups understand their rights in terms of what preserves their superior status and power. When reforms threaten either their status or their power, they respond by asserting that they are the true victims, that they are being unjustly persecuted, and that their rights have been violated.
Thus, the critical legal tradition holds, formal accounts of rights inevitably tend to entrench inequality and hierarchy. This is not simply because (as Robert Nozick famously argued) liberty rights continuously disturb patterns of equal holdings. Rather, it is because abstract claims of rights must be defined and implemented to have effect in society, and they are defined and implemented in such a way as to advantage some groups over others-- in particular, the most powerful groups in society. Franks reiterates these arguments powerfully in the context of First and Second Amendment rights, as well as free speech rights more generally (i.e., in cases of private regulation of speech on (non-public) college campuses and by social media). She shows how rights talk and the implementation of rights in practice advantages whites and males over women and minority groups.
Nevertheless, this kind of critique raises the obvious question whether rights can ever be useful for those who are in subordinate positions in society. If the underlying reality is white male supremacy, why won't new rights protections be equally compromised? This too raises a familiar debate in the critical legal tradition.
Many critical legal scholars were deeply skeptical of rights talk, but critical race theory scholars responded that rights discourse, although imperfect, is still useful, even though it can and will be co-opted. Patricia Williams, for example, famously argued that contract formalities, for all of their faults, actually protect the rights of racial minorities if only because they treat minorities as people who have rights.
Franks falls into the latter camp. Her rhetoric is often revolutionary, but her actual posture is that of a reformer. She thinks that new rights protections can benefit people, for example, victims of non-consensual pornography. She is both a critic of the Constitution and a defender of the Constitution, both a critic of rights discourse and a reformer seeking greater rights protections. She is a protestant constitutionalist of a particular kind, an anti-fundamentalist believer in the Church of the American Constitution.