Amicus With Dahlia Lithwick | "The End of an Era, and the Cult of the Constitution."

Slate Podcasts – July 20, 2019
Guests: Marianne Franks (Professor of Law, University of Miami)
Host: Dahlia Lithwick

Episode Overview

This episode of Amicus is devoted to two major themes: the passing of Justice John Paul Stevens and a critical exploration of American constitutional “worship” through an interview with legal scholar Marianne Franks, author of The Cult of the Constitution. The wide-ranging conversation examines how Americans mythologize both the Supreme Court and the Constitution itself, the historic and current consequences of that reverence, and the way selective readings of the Constitution have contributed to exclusion and social harm—particularly focusing on issues of race, gender, speech, and guns.

Key Discussion Points and Insights

1. Remembering Justice Stevens – The End of an Era

[00:45 – 05:17]

• Lithwick reflects on the life, character, and legacy of Justice John Paul Stevens, the former Supreme Court Justice who passed away at 99.
• Stevens exemplified values increasingly rare in public discourse: civility, soft-spokenness, temperateness, generosity.
• Memorable anecdote about Stevens' warmth toward his clerks, especially Sonya West ([02:50]).
• Lithwick reads an extended passage from one of Stevens' notable dissents (Pennhurst v. Haldeman, 1984), highlighting his judicial philosophy on self-discipline and institutional character ([03:27 – 05:17]).
• Quote—John Paul Stevens, Pennhurst Dissent [04:08]:

  "Throughout its history, this court has derived strength from institutional self-discipline... No sound reason justifies the further prolongation of this litigation or this court's voyage into the sea of undisciplined lawmaking. As I said at the outset, this case has illuminated the character of an institution. I respectfully dissent."

2. Introducing Marianne Franks and "The Cult of the Constitution"

[05:17 – 07:10]

• Franks’ work interrogates America's near-religious reverence for the Constitution.
• Lithwick describes her own "small c" conservative approach to constitutional law, in contrast to Franks' more radical critique ([06:31]).

3. Faith, Religion, and Constitutional Reverence

[07:13 – 11:46]

• Franks draws a parallel between fundamentalist religious faith and the American attitude toward the Constitution ([07:57]).
• Both involve emotional, uncritical attachment and the ostracism of “heretics” who question doctrine.

  Franks [07:57]:
  "...extraordinary similarities between the way that people in my church would read the Bible and the way that I would see people... reading the Constitution."

• Many Americans emotionally invest in the Constitution without having actually read it; reveals "reverence and ignorance"[11:46].

4. Insiders, Outsiders, and the Myth of the Founding

[12:28 – 15:30]

• Franks discusses her personal background (mixed-race and poverty in Arkansas), observing how it allowed her to critically assess “dominant culture” assumptions ([13:11]).
• The U.S. founding document, Franks argues, was constructed to protect the interests of white men—deliberately, not by omission ([16:50]).

  Franks [16:50]:
  "...they deliberately chose what they chose. But I think it's because... it's just really difficult, I think, to confront that sort of history without feeling incredibly guilty. And if there is one thing that humans don't want to do is feel guilty..."

• The persistent myth: America was always an egalitarian project; the truth is willful exclusion and maintenance of power.

5. Charlottesville and the Myth of American Innocence

[19:53 – 23:24]

• Franks highlights the 2017 Charlottesville rally as proof of white male privilege embedded in both history and the present ([21:11]).

  Lithwick paraphrase, summarizing Franks’ point [21:11]:
  "The lies we tell ourselves about our past... enable the lies we tell about ourselves today."

• She critiques bipartisan denialism: after Charlottesville, public figures claimed “this isn’t who we are”—Franks insists “this is precisely who we are” ([22:51]).

6. Free Speech and Gun Fundamentalism

[23:24 – 32:19]

• Franks unpacks how selective, fundamentalist readings of the First and Second Amendments (free speech, right to bear arms) fuel contemporary crises like Charlottesville.
• Modern “fundamentalism”: Both left and right cling to selective interpretations that ignore real social harms.
• Development of Second Amendment worship: Once about militias, now viewed as an unfettered individual right to gun ownership due to NRA lobbying and changes within both politics and legal scholarship ([35:57 – 40:12]).

  Franks [35:57]:
  "...really not much conflict over what the Second Amendment meant... it was a militia, right? ... In the 1970s the NRA... becomes completely imbued with the culture wars... People who don't care anything about the Constitution or about history are really sure that the Second Amendment gives them the right to have guns wherever they want."

7. The Civil Rights vs. Civil Liberties Dichotomy

[32:19 – 35:21]

• Franks explains the tension: civil rights recognizes group-level historical disadvantages; civil liberties presumes a fictional equality and is focused on protecting individual rights even when they perpetuate inequity.

  Franks [32:51]:
  "The civil rights approach looks at... the history... who has been deprived, and how can we... achieve a more equitable distribution... The civil liberties approach... participates in this... view that we're all somehow granted equal access."

8. Corporate Power, Money, and Speech

[42:19 – 45:41]

• Lithwick and Franks discuss how moneyed interests—NRA for guns, corporations for speech—exploit constitutional doctrine to their own ends.
• Corporate “speech” rights (Citizens United) and the ACLU’s controversial positions come under critique.

  Franks [43:24]:
  "Corporations... are relentless in pursuit of profit and completely indifferent to... the general welfare. And then you constitutionalize that..."

9. Technology, the Internet, and Speech Harms

[44:45 – 53:10]

• Franks pivots to the failure of doctrine to address contemporary harms (revenge porn, harassment, online abuse) faced disproportionately by women and minorities.

  Franks [45:41]:
  "...the only limitations that there need to be are when the government are upon the government. ...if you had had women or non white men to help craft what we think of as our most fundamental rights... you would have heard something very different."

• The notion that Facebook and other platforms are unregulatable is challenged as serving entrenched interests ([51:20]).

10. Hope and the Equal Protection Clause

[53:10 – 57:34]

• Franks presents a guarded hope that the Equal Protection Clause (14th Amendment) could serve as a framework for empathy and genuine equality, if taken seriously.

  Franks [54:34]:
  "As imperfect as the 14th amendment is, I do see it as this belated attempt to confront the sins of the past..." "What I'm hoping... is if you can recognize suffering in yourself... can we say then that would require to look at that person [next to you] and say, I see where you are. And I also care as much about lifting you up as I care about lifting myself up."

• Lithwick is more skeptical: “We've had [the Equal Protection Clause] for a long time. It's not getting us where we need to go” ([53:10]).

Notable Quotes & Memorable Moments

• Lithwick on Stevens’ questions at oral argument [00:40]:

  "...he would slice an argument into gentle, symmetrical ribbons..."

• Franks on religious parallels [07:57]:

  "There were these extraordinary similarities between the way that people in my church would read the Bible and the way that I would see people around me reading the Constitution."

• Franks on the American myth [22:51]:

  "It so clearly represents exactly the cost of not paying attention and having for centuries told ourselves that we are something that we are not."

• Franks on selective constitutional fundamentalism [40:12]:

  "...the Constitution tells us ... have as many guns as possible and no restrictions on them."

• Franks on hope [54:34]:

  "If you can recognize suffering in yourself... can we say then that would require to look at [others] and say, I see where you are. And I also care as much about lifting you up as I care about lifting myself up."

Important Timestamps & Segments

• 00:45 – 05:17: Lithwick's remembrance of Justice Stevens, reading from Pennhurst dissent
• 07:13 – 11:46: Franks on parallels between religious faith and constitutional reverence
• 13:11 – 15:30: Franks on her outsider perspective and perception of privilege in constitutional origins
• 16:50 – 19:53: Deliberate exclusion of marginalized groups at the founding and its consequences
• 21:11 – 23:24: Charlottesville as a reckoning for America's foundational myths and white male power
• 32:19 – 35:21: Civil rights vs. civil liberties, and their practical implications
• 35:57 – 40:12: The shift from a militia-based understanding of the Second Amendment to an individual right, and how that history was rewritten
• 44:45 – 51:20: Internet speech, corporate power, and the inadequacy of court doctrine for modern technological harms
• 53:10 – 57:34: Can the Equal Protection Clause be a real foundation for democracy and empathy?

Tone and Language

• The conversation is frank, intellectually rigorous, and sometimes urgent in tone.
• Dahlia Lithwick is self-deprecating and open, positioning herself as a respectful but skeptical constitutionalist against Franks' more radical critique.
• Franks is direct yet deeply thoughtful, balancing critique with hope.

Conclusion

The End of an Era, and the Cult of the Constitution is a searching examination of American legal mythology and its consequences, from the rarified air of the Supreme Court to the everyday harms wrought by modern fundamentalist constitutionalism. Whether reflecting on the legacy of Justice Stevens, the whitewashing of founding injustices, or the failures of courts and doctrine to address the harms of speech and guns, Lithwick and Franks argue that only honest reckoning and principled empathy—perhaps found (for Franks) in the Equal Protection Clause—can move the nation closer to its professed ideals.

For listeners and readers:
This episode offers a tour-de-force critique of constitutional culture, well-suited for anyone who wants to understand the stakes behind arguments about speech, guns, and equality in contemporary America.