Tuesday, December 10, 2019

Constitutional Reckoning

Guest Blogger

For the Symposium on Mary Anne Franks, The Cult of the Constitution (Stanford University Press, 2019).

Mary Anne Franks

On July 25, 1974, Representative Barbara Jordan of Texas opened her argument for impeaching the President the of the United States by reflecting on the preamble to the Constitution. Jordan, the first African-American Congresswoman elected from the South, noted that when those words were written, she was not included in the Constitution's protections.  But “through the process of amendment, interpretation and court decision I have finally been included in 'We, the people.’” Congresswoman Jordan continued, "My faith in the Constitution is whole, it is complete, it is total. I am not going to sit here and be an idle spectator to the diminution, the subversion, the destruction of the Constitution.”

It was an extraordinary moment: a black woman calling the most powerful white man in the country to account by invoking a document intended to enshrine white male supremacy. It is a moment that captures many of the themes of The Cult of the Constitution: the hard-fought struggle to turn “we the people” from legal fiction into reality; the exploitation of the Constitution to serve the interests of a powerful elite; and the power of the Constitution to halt this abuse. I am grateful to the organizers of this symposium, Danielle Citron and Frank Pasquale, as well as all of the contributors, for their thoughtful engagement with my work and the questions and critiques they have provided. While I cannot hope to do justice to the nuance and range of these contributions, I offer here a limited reflection on one thread that runs through many of them as well as through my book: the question of who “we” are.  

The final words of Leslie Kendrick's eloquent contribution are "we are all living in Charlottesville.” But, as her invitation to ponder Frederick Schauer’s article Uncoupling Free Speech underscores, the consequences of this depend very much on who “we” are. According to Schauer, “existing understandings of the First Amendment are based on the assumption that, because a price must be paid for free speech, it must be the victims of harmful speech who are to pay it.” That is, the cost of free speech does not burden “us” equally, but is disproportionately borne by those, to borrow the words of Mari Matsuda, “least able to pay.” Schauer seeks to resist this assumption, arguing that "if free speech benefits us all, then ideally we all ought to pay for it, not only those who are the victims of harmful speech.” 

Schauer’s article brings into focus how the concept of “we the people” - with regard to the First Amendment and beyond - continues to promote a false universalism even after it no longer formally excludes women and nonwhite persons. First Amendment fundamentalists speak of the cost of free speech as a price “we” all must pay, which disguises how the victims of harmful speech suffer far more than those who are not targeted. Jeff Kosseff’s contribution candidly acknowledges this disparity, encouraging his "fellow free speech cultists -- the civil liberties groups, the journalists, the media lawyers, the technology companies” to “consider nuanced solutions that preserve our extraordinary free speech rights while minimizing harms to others and allowing everyone to have a voice.  ... [C]onsider how we can work together to open avenues to speech for all Americans, and not just the privileged.” Anupam Chander worries, however, that regulation of online content “will inevitably suppress the speech of not only white male supremacists, but also marginalized groups.” 

How restricting the powerful may also restrict the vulnerable is a significant concern, but one of the most disturbing tendencies of constitutional fundamentalism is the way it allows the powerful to cast themselves as the vulnerable, a tactic I call “victim-claiming." As Joseph Blocher notes in his contribution, this tactic is used to great effect by Second Amendment fundamentalists, who successfully leverage the nonexistent threat to gun rights to “protect guns in ways that extend ‘the right to keep and bear arms’ far beyond the right articulated in Heller.” That extension includes the attempt to curtail First Amendment rights for the sake of the Second, as illustrated in a case that Claudia Haupt sharply criticizes in her contribution, Wollschlaeger v. Governor of Florida (also known as “Docs v Glocks”).

In my book, I write that while Charlottesville is who we are, it is also not all we are. In my view, the equal protection clause of the Fourteenth Amendment offers a way to make good on the promise of “we the people.” This is not to fetishize the equal protection clause, but rather to leverage it against selective uses of other parts of the Constitution. Adhering to the imperative of equal protection, which I read as an expression of the principle of reciprocity expressed in numerous philosophical and religious traditions, is how we can most effectively guard against self-interest and the division between “us” and “them." Jack Balkin and Sandy Levinson both take issue with this, emphasizing the decidedly inegalitarian realities of the Fourteenth Amendment as well as of the religious and philosophical traditions underpinning the principle of reciprocity. Their takeaways from this diverge: Balkin suggests that what I am really advocating for is constitutional redemption; Levinson indicates that what I really should be advocating for is constitutional revolution. 

But my goal is neither constitutional redemption nor constitutional revolution, but constitutional reckoning. The primary target of The Cult of the Constitution is bad faith, or the selective appropriation of the Constitution for self-interested ends. It is a project that calls for judgment - of texts, yes, but even more importantly, of people. It is vital, in my view, to openly and accurately credit those who have truly struggled to make “we the people” mean what it says, while condemning those who use it to promote “us over them.” As Thurgood Marshall observed in “Reflections on the Bicentennial of the United States Constitution,” “’We the People’ no longer enslave, but the credit does not belong to the framers. It belongs to those who refused to acquiesce in outdated notions of ‘liberty,’ ‘justice,’ and ‘equality,’ and who strived to better them.”

As Frank Pasquale and Danielle Citron note, “law’s halo” has a powerful effect on the perceived legitimacy of particular acts and omissions. The Constitution’s halo, for better or for worse, remains incredibly potent. One can wish we had a better Constitution, or hope that this one will be abolished, or strive to amend it, but anyone not solely confined within the legal professoriate must also contend with it as it is.

Forty-five years after Congresswoman Jordan’s speech, another woman invoked the preamble to the Constitution and her faith in the document to call for the President of the United States to be impeached. On December 4, 2019, Professor Pam Karlan of Stanford Law School told Congress, "Our Constitution begins with the words 'We the People’ for a reason. Our government, in James Madison's words, 'derives all its powers directly or indirectly from the great body of the people.’” Karlan, like Jordan before her, denounced the President’s violation of his duty to protect and defend the Constitution. "If we are to keep faith with the Constitution and our Republic,” Professor Karlan stated, "President Trump must be held to account.” The stakes of a constitutional reckoning could not be higher. 

Mary Anne Franks is Professor of Law & Dean's Distinguished Scholar at the University of Miami School of Law. You can reach her by e-mail at mafranks at

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