Thursday, October 10, 2019

Balkinization Symposium on Mary Anne Franks, The Cult of the Constitution

Guest Blogger

Frank Pasquale and Danielle Citron

The Cult of the Constitution (Stanford University Press, 2019) is one of those rare books that works on several levels: as compelling storytelling, as powerful advocacy, and as illuminating expert analysis of both the law and politics of of First and Second Amendment doctrine in the United States. The legal and political dimensions of speech and violence (and, very importantly, speech-as-violence) are subjects she has addressed with passion, creativity, and eloquence for over a decade. The book could not be more timely, as authoritarians around the world are attracting stochastically violent followers easily incited to harassment and murder by unscrupulous leaders, misogynists, racists, and anarchist partisans with a "burn it all down" mentality. The Yom Kippur shooting in a German synagogue, inspired by anti-Semitic and misogynistic indoctrination online, is just the most recent example of the deadly results of the cult-like devotion to a view of guns and speech at all costs. (See Franks’s New York Times op ed on the shooting here.) Every day supplies new examples of the extremes that Franks explores and the profound costs to the most vulnerable among us.

As co-authors of a series of articles on surveillance, power, and technology, and in our independent work on fraught free expression issues, we have each been inspired by Franks's simultaneously bold and wise perspectives on 21st century American constitutionalism. Franks's title reference to "cults" is in significant ways both an homage to and critique of Jack Balkin's conception of "Constitutional Faith." Franks believes in the promise of the US constitution, particularly in its egalitarian passages, to bring Americans closer to a truly inclusive and just polity. But she fears the majestic generalities of the constitution can easily be hijacked to entrench white supremacist vigilantism, all-too-easily cloaked as "only words" or mere "jokes." As Kathleen Belew has compellingly shown, the internet has been key to such movements since its inception, and its influence in this direction metastasizes to this day.

In this virtual symposium, we have convened leading legal scholars to comment on Franks's important book. They include: Joseph Blocher (Duke), Anupam Chander (Georgetown), Danielle Keats Citron (B.U.), Claudia Haupt (Northeastern), Leslie Kendrick (Virginia), Jeff Kosseff (U.S. Naval Academy), Sanford Levinson (Texas), Paul Ohm (Georgetown), Frank Pasquale (Maryland), and Jack Balkin (Yale)

At the conclusion, Mary Anne will respond to the commentators.

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