← Amicus With Dahlia Lithwick | Law, justice, and the courts
Amicus With Dahlia Lithwick | Law, justice, and the courts
The End of an Era, and the Cult of the Constitution.
00:58:51
What we lost with the passing of Justice John Paul Stevens, and Mary Anne Franks on what we lose when we unquestioningly revere the nation’s founding document.
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- [00:06]
Marianne Franks
There's no plausible, intelligible reason for us to continue to tell ourselves this fairy tale, especially not in this day and age. And and we have seen the consequences of not confronting this, of pretending as though our founding was anything other than what it was. And it is long past time for us to do something in terms of actually facing it and trying to reckon with it.
- [00:31]
Dahlia Lithwick
Hi, and welcome back to Amicus, Slate's.
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Interviewer/Host
Podcast about the law, the rule of.
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Dahlia Lithwick
Law, and the Supreme Court. I'm Dahlia Lithwick and I cover those things for Slate this week.
- [00:41]
Interviewer/Host
Amidst all of the tweeting and the Jeffrey Epstein and the Michael Cohen and.
- [00:46]
Dahlia Lithwick
The new illegal asylum orders, the American legal world actually lost a giant in the person of John Paul Stevens, former justice of the U.S. supreme Court, who died at age 99 from complications following a stroke. The tributes and the remembrances in recent days got overshadowed by some of the most rancorous behavior Washington has ever seen. And that's too bad. Just reading the accolades offered up by his former clerks who revered him, and his colleagues at the High court, who all seem well aware that his death represents the absolute end of an era. It served to remind all of us about the dying values of civility, soft spokenness, temperateness, generosity. Justice Stevens always, always opened his questions at oral argument with, may I just ask? And that was right before he would slice an argument into gentle, symmetrical ribbons. This fall, we will, I promise, dedicate an entire episode to Justice Stevens, his life, his jurisprudence, and we'll talk to some of his former clerks and oral advocates about his really controversial decisions in the flag burning and voter ID cases and all the ways in which a, quote, moderate conservative became eventually the Court's liberal lion. And here's a spoiler he always claimed the Court moved around him. And a spoiler to the spoiler. I believe him. For today, just a memory of mine. This is the last time I saw him personally. Just over two years ago, we did an event together before a packed house, and he was as vigorous and charming as ever, funny and thoughtful and respectful even. Even as he pushed back at some of my impertinent questions from the stage in the Green Room, I mentioned that one of my very favorite people on the planet was his former clerk, now a law professor, and his whole face lit up as he told me how proud he is to know her. Well. That clerk was Sonya west, with whom I wrote a remembrance this week at Slate, and we'll put it on the show page and no insult intended here to any former clerks of any Justices now before or future. But I would always tell people who are clerking at the court to befriend the state clerks, if not to marry the Stevens clerks. He had an uncanny knack for picking people who were just like him. They were soft spoken, brilliant, willing to admit flaws, never perfectly comfortable in the spotlight. They were his family and he was theirs. And our thoughts go out to them and his family. This week, a friend reminded me of.
- [03:20]
Interviewer/Host
A Stevens dissent this week that didn't.
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Dahlia Lithwick
Get enough press attention in a case called Pennhurst vs. Haldeman about the reach.
- [03:26]
Interviewer/Host
Of the 11th Amendment.
- [03:28]
Dahlia Lithwick
Now, this dissent was written in 1984, and it's a dissent that could serve in some ways as a eulogy to a whole way of looking at the court as an institution. Here is John Paul Stevens, dissenter, long before he would become John Paul Stevens, liberal icon. Quote, this case has illuminated the character of an institution. The record demonstrates that the Pennhurst State School and Hospital has been operated in violation of state law. In 1977, after three years of litigation, the district court entered. Detailed findings of that abundantly support that conclusion. And then there's a break and the.
- [04:04]
Interviewer/Host
Bulk of the opinion. And then he continues in his conclusion.
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Dahlia Lithwick
As follows, quote, throughout its history, this court has derived strength from institutional self discipline. Adherence to settled doctrine is presumptively the correct course. Departures are, of course, occasionally required by changes in the fabric of our society. When a court, rather than a legislature, initiate such a departure, it has a special obligation to explain and to justify the new course on which it has embarked. Today, however, the court casts aside well settled, respected doctrine that plainly commands affirmance of the court of appeals, the doctrine of the law of the case, the doctrine of stare decisis. The court repudiates at least 28 cases. The doctrine of sovereign immunity, the doctrine of pendant jurisdiction, and the doctrine of judicial restraint. 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. End quote. John Paul Stevens, rest in peace. And now let.
- [05:17]
Interviewer/Host
Mmm, crying again.
- [05:19]
Dahlia Lithwick
And now let's turn to the Constitution or more accurately, some of the misplaced beliefs we have in it. Or perhaps more accurately still, the religious fervor Americans reserve for a document that, it turns out many of them have never read. This episode is part of our summer series where we take the opportunity to.
- [05:40]
Interviewer/Host
Step back, to think big, to look.
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Dahlia Lithwick
Ahead and look back and hear from.
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Interviewer/Host
Some of the most interesting people working.
- [05:46]
Dahlia Lithwick
In and writing around and thinking about the courts and the law and the rule of law.
- [05:51]
Interviewer/Host
And that's why we wanted to talk.
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Dahlia Lithwick
To Marianne Franks, whose book the Cult of the Constitution, was published this spring by Stanford University Press. Franks is a professor of law at the University of Miami School of Law, where she teaches First Amendment law, criminal law and procedure, and family law. She serves as president and legislative and tech Policy director of the Cyber Civil Rights Initiative, which tries to regulate online harassment and abuse. And she was the drafter of the first model criminal statute on revenge porn. She's a co producer of the 2015 documentary Hot Girls Wanted. And one of the reasons I wanted to have Marianne on the show is.
- [06:30]
Interviewer/Host
Because I tend to be, for all.
- [06:32]
Dahlia Lithwick
Of my political leanings, a pretty small C, conservative when it comes to the.
- [06:36]
Interviewer/Host
Constitution and the law.
- [06:37]
Dahlia Lithwick
For the most part, I revere courts, I revere the Constitution, and I always start from the premise that when those things are working, we're all just better off. Well, Marianne Franks is, and I think it's fair to say this, more reflective of the blow it all up school of constitutional analysis. And I actually say this as a compliment, whether you agree or disagree. We just want to dive into her work and see whether I'm really as stodgy and a grumpy old grandpa as I sometimes fear I have become. So, Marianne Franks, welcome to Amicus.
- [07:11]
Marianne Franks
Thank you so much for having me.
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Interviewer/Host
I want to give you a chance to tell me I'm wrong before we even move on to the merits. I know you're not a total nihilist, but I know you're much less reverent.
- [07:23]
Dahlia Lithwick
Than I am, and I want you.
- [07:26]
Interviewer/Host
To maybe talk a little bit about even before we get to the Cult of the Constitution. Your academic background comes to this a little bit by way of philosophy, moral philosophy, and there's a lot of actual theological and religious thinking baked into the way you approach this. So maybe start from there. Tell us how you got here and.
- [07:50]
Dahlia Lithwick
Why it is that you're much more.
- [07:52]
Interviewer/Host
Mistrustful of the cult that we've created around the Constitution in this country.
- [07:57]
Marianne Franks
Certainly. So you're exactly right. There is very much in the background of all of this a kind of crisis of faith in every sense, not just in the law, but also in this kind of more existential, philosophical, and somewhat religious sense. As I say in the preface to the book, the kind of frame for the project was falling away in many respects from my own upbringing as a fundamentalist As a Southern Baptist, realizing that 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. And when I say around me, as you made reference to this is over a decade working on issues of privacy, of sexual violence, of gun violence, and hearing from people who not only disagreed with what I was saying or the policy proposals that I was making, but would often say things along the lines of, well, this is because you don't respect the Constitution, or it's because you don't understand the First Amendment or you don't value the Second Amendment. And it was so eerily reminiscent of much of my religious upbringing that it wasn't just about disagreement. It was a kind of being cast aside as a heretic almost to say that if you don't have faith in this document in the way that we, whoever that we happen to be at that moment, then there's something fundamentally wrong about the position that you're coming from. And that would make it so difficult to have these conversations because it would shut down a lot of the, I think, very productive discourse that people can have in academia and elsewhere where we talk through the differences we might have in interpretation and application. So this project really was a kind of drawing together of my own background as someone who was raised in a religious community and became very skeptical and disillusioned with it and the same experiences I was having on the legal front and recognizing that the problem that I seem to be seeing over and over again was this highly selective reading and very self interested reading that most people were doing of their sacred scripture, whether that was the Bible in my, in my upbringing or whether it's the Constitution now. And I include myself in that because I think the attachments that most Americans have to the Constitution are exactly as you say, we're, we're raised on it in a certain way. We're raised to respect it in a way that is different from probably any other document or any other text that we have. And so it was a, it was a hard project in many ways because it felt painful to talk about the Constitution this way. But I do think that I distinguish myself from, you know, the Garrisonian sort of blow it all up, you know, set the Constitution. I do believe that there is a way to remain faithful to the Constitution that is good faith as opposed to bad faith. It's just that that's a very difficult and demanding kind of fidelity.
- [10:47]
Interviewer/Host
So talk about this a little because I think I've often said without unpacking it to the extent you have in the book that we are the most religious, secular country in the world because we really worship at the temple of.
- [11:03]
Dahlia Lithwick
The U.S. supreme Court.
- [11:05]
Interviewer/Host
The justices, you know, pat around in robe. It's built to look like a temple, quite literally. We take their words as oracular. And then we fetishize this document and we pretend that baked into the document, right. Is separation of church and state. And yet at the same time, we revere the document. And one of the things that you flagged, I think, in your first chapter, is the ways in which Americans love the Constitution. They worship it. They, you know, huge swaths of Americans believe, if they, they believe in nothing else, no formal church. They still believe in the Constitution, but you say they've never read it and they don't know what's in it.
- [11:47]
Marianne Franks
Right, right. And that's that extraordinary combination of reverence and ignorance. And I don't mean that in a pejorative sense necessarily, but a literal sense, as in, you know, polls have shown that the average American has never read the Constitution in its entirety. So we're talking about this incredible emotional investment in a document that many people, most people don't really have much ide about in terms of its actual words, in terms of its actual history. And that to me is always very troubling. As an intellectual or as an academic or as just a thoughtful person. It should be alarming, I think, to us if we have such an emotional attachment to something we don't actually know that well.
- [12:29]
Interviewer/Host
So the other thing, before we talk about doctrine, I want to just talk about the other marker in your book that you lay out really early, which is insiders and outsiders, those with power, those without.
- [12:41]
Dahlia Lithwick
And you talk about your own story.
- [12:43]
Interviewer/Host
Not just growing up in a fundamentalist.
- [12:45]
Dahlia Lithwick
Church, but born the daughter of a.
- [12:47]
Interviewer/Host
White American World War II veteran, but a Taiwanese mother and being kind of othered even within the church context for a lot of your childhood. And I wonder if you could talk a little bit about the ways in which that makes you sensitive to the baked in assumptions in the Constitution about white male entitlement to power.
- [13:12]
Marianne Franks
Right. It is, I think the background that I have, that is to say the, the racial background, the background of poverty, all of that helps estrange me to some extent from the sort of dominant culture. And that's what I think in some ways made it possible for me to write a book like this and to come to the understandings that I have that sense of never quite belonging. And I try to Say this a bit carefully in the book, that it wasn't that the church was hostile to us. In many ways, it was a much more welcoming environment than my school, for instance, or my everyday experiences outside of our house. But at the same time, Pine Bluff, Arkansas, where I grew up, is an extremely divided town between white and black. And that seems to be the principal dynamic. It has the dubious honor of being named the most dangerous little town in America by the Independent, which did a profile on my hometown a few years ago. It suffers from high crime rates. It suffers from racial divisions. It is a struggling city in many ways. And there's a sense in which, if you don't line up with one of those cultures, you are really out of place in a very significant sense. And to some extent, that is a privilege, because it means that you're not affiliated with one side or the other in this really absolute sense. And so you can escape some of the really terrible things, I think, that happen especially to racial minorities on a regular basis in Pine Bluff, Arkansas. But it was also a sense of being very much outside of any understanding that anyone in that city had. And there's this complicated dynamic, too, of the model minority. The idea that Asians somehow are the minorities you don't have to think too much about because they're quiet and they're not really going to get up to much trouble. But how that also complicates your interactions with both the black culture and the white culture, and then overlaid with this whole culture of poverty, which is really, I think, something that was a real marker, I think, for my childhood. So the benefit of it was that it set me apart, in a sense, that made it possible for me to observe without feeling too much at home in any particular context. And I think there's something productive about that, or there can be something productive about that. When you're not really at home in any given community, it gives you the chance to cast somewhat of a critical eye on what you see.
- [15:31]
Interviewer/Host
Your opening salvo here is about the framers. And you really go hard on the. You know, the story we tell each other, which is, well, yeah, they were a little racist, but they were visionaries, they were revolutionaries. You know, there was only so much they could do in the context of the moment they were in. And you hammer that argument pretty hard. It's reminiscent to me of some of Rebecca Traister's work in her book About Anger, where she's saying, you know, let's retell this story as a story in which women actually knew all along that what the framers were doing was repurposing hierarchies. They were throwing off sort of British hegemonic rule, but imposing their own. And they did it knowingly, both in the context of race and gender. And I wonder if you can talk a little bit about why it is that we have been so sanguine in telling the story of the great and perfect framers who just were a little blinkered on race and gender rather than the story you tell, which is they made a very deliberate choice. You say we always talk about the compromises they made, but they didn't actually give up anything. Talk a little bit about why that gets left aside in our talking of the founding era.
- [16:50]
Marianne Franks
This is again one of those moments where I see these overlaps between religion and the Constitution, because I think you see a lot of the same things when you talk to, for instance, people who grew up in any Christian church, whether that's Catholic or Southern Baptist or what have you. There's this constant sort of rationalization of what is fundamentally irrational and self interested. And I think part of it is it is because it's harder to do anything else right. If we actually confront what our origins are, if we actually confront the system that we are all to some extent locked into, it's a. It's a very. It's a very disorienting and destabilizing confrontation. Because we would all prefer to think that the founders were human, but that is to say we recognize their limitations. But think of it mostly in those terms that they didn't know certain things, that with the benefit of history and what we know now, they would be different, they would be enlightened. And it is pretty clear from the history that that's not true. This was a pretty blatant power grab on the part of these revolutionaries. And the idea that somehow we need to cut them some slack because they couldn't possibly have seen racial and gender equality as possibilities. I think we can understand based on what people like Abigail Adams were writing and talking about the time, that that's not true. They had every opportunity to consider it and they deliberately chose what they chose. But I think it's because part of it is that we are stuck, right? We are stuck in this history. By the time any of us develop the faculties to think about this critically, we are probably adults. We've already been raised on a diet of reverence for the founding Fathers. And 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 about really anything, but certainly not something that they have, up until that point, taken pride in. And what I think is important is that we create a space for people to feel guilty without feeling as though everything is lost. It is okay to say that our history is what it is. It is okay to come out and say that without saying everything is terrible. And there's nothing legitimate about America. We don't have to go that far. And there seems to be a lack of space for having that conversation, to be honest and confrontational about the limitations and then think really hard about what that then means, about what society has to do differently in terms of making up for that or confronting that, but not as a kind of condemnation of every person alive today as being hopelessly compromised because of our founding. I think that the worst thing that we can do is to be that extreme about it as to. To really shut off the conversation before we can get it off the ground, which is to say, now, let's confront this and see what we can do. But there's absolutely no. There's no plausible, intelligible reason for us to continue to tell ourselves this fairy tale there, especially not in this day and age. And we have seen the consequences of not confronting this, of pretending as though our founding was anything other than what it was. And it is long past time for us to do something in terms of actually facing it and trying to reckon with it.
- [19:54]
Interviewer/Host
It. So I love that as a segue, because I think what you've done here is married the mythology of who we were to the mythology of who we are today. And I think what you argue in the book is the thing that allows us to say, the framers were perfect, but a little blinkered is the thing that allows us to say, and we are perfecting ourselves day after day and becoming more equitable and fair and tolerant. Your books, the Meat of It opens in Charlottesville, 2017. And I lived in Charlottesville for 18 years. So it's hard to read about Heather Heyer and to read about the Nazi rally, But I think one of the things you debunk is the idea that everybody's commentary in the days after Charlottesville was, Charlottesville is not who we are as Americans. This is not who we are. And your conclusion is, dude, this is precisely who we are. I interpolated the dude there. You didn't write that. But I think your point is that the lies we tell ourselves about our past and how sort of white male privilege are baked into the founding documents enable the lies we tell about ourselves today.
- [21:12]
Marianne Franks
Right, exactly that. If it were only that we were engaging in this mythology, and it's a false one, historically or otherwise, and that's all there is to it, then maybe we don't need to have this conversation. But what we know is true. I think what we have to admit is true at this point. If not by 2017, we should have certainly confronted what happens when you don't recognize the flaws in your founding. What happens when you don't recognize the fact that the mythology is a mythology. It tells you constantly. You're constantly saying that to yourself and characterizing Americans generally as being what we should have aspired to be, as if it were true. And that's exactly what I say is wrong with the Constitution. Institutional founding was. It was an expression of equality, as though it had happened, as opposed to a project to be fulfilled. As a project to be fulfilled. It is an extraordinary document. It's an extraordinary aspirational project. But there's something incredibly perverse and exactly anti progressive and anti enlightened right about the idea of trying to assert that at that time or at this time, we are in fact committed to equality. So. So I think it is that troubling moment where instead of taking those principles as things that we could aspire to, we rush over to say, no, we're already those people. We have a couple of flaws at the margins, but we're already those people. And yes, it was extraordinary to see everyone across the political spectrum saying, what happened in Charlottesville does not represent what America is when it so clearly did. 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.
- [22:52]
Interviewer/Host
And Charlottesville, for you, stands for, you know, the two arms of your book in some sense are free speech fundamentalism and gun fundamentalism. And I think you critique the left and the right, respectively, for taking each of those analytically to a place that almost inexorably brings us to Charlottesville. It becomes the manifestation in the book of left wing orthodox about speech, right wing orthodoxies about guns. The first and the Second Amendment get.
- [23:25]
Dahlia Lithwick
Together, have a baby, and it is.
- [23:27]
Interviewer/Host
The catastrophic things we see in August 2017 in Charlottesville. And I wondered as I read it, if you had some sense that you could see this coming.
- [23:37]
Marianne Franks
I think we certainly should have seen it coming. And there's a third part to this. I mean, you're exactly right that the book is mostly focused on the free speech fundamentalism aspect and the Gun fundamentalism, fundamentalism aspect, but also what I call the Internet fundamentalism aspect, which is closely tied to that First Amendment orthodoxy. But one of the things that I contrast Charlottesville with is the Skokie March of the 1970s, this idea, this kind of heyday of liberal commitment to bad speech and defending bad speech and how different things are in terms of the literal weaponization of certain ideologies and also the mass mobilization that the Internet has made possible. And so I do think that Charlottesville, even referring to Charlottesville as a wake up call, is in some ways disingenuous. Because of course, we have seen this coming. We've seen this coming really throughout every cycle in history, right? Every time there has been a tiny breach, let's say, of the white male monopoly, when you've actually seen some possibilities of it, of it being chipped away, whether that's Obama's election or whether it's women actually obtaining power in the workplace. I mean, what we see is a vicious backlash every day, time and again, because we have never reckoned with the prejudices and limitations of our history. It just keeps getting compounded. So you get these moments, these brief reprieves of sort of liberal tolerance or progress. And you know that that's always going to unleash what has never really been fully dealt with. And there's this sense in which there's investment in that across the political spectrum, because as much as it may be or look like Democrat versus Republican, it's really just white power and everything else. And that's what it's always has been. And we're just not willing to talk about it that way. Now there's this strange idea or the strange thing that happens where liberals can see it when they see it in Second Amendment fundamentalists or when they see it in the far right, but they can't see how much of it reflects the shared commitments that they actually have, that Americans actually have across the political spectrum. So I do think that Charlottesville was a belated sort of wake up call. It couldn't have been any more symbolic. It couldn't have been any more of a. Of an on point illustration of all the things that are fraying at the edges of our society today. But we have seen this over and over again. This isn't new. It was simply one of the most reported on and documented and seen in real time moments where we see the actual clash between people who think that America stands for one thing and people who think that it stands for another, and the sheer weight of what it means to not have fully reckoned with any of the.
- [26:17]
Interviewer/Host
Marianne, when you talk about our failure to reckon with or adequately deal with these things, are you talking about a constitutional project? Are you talking about discourse? What would it look like to have the reckoning that you say we've missed out on?
- [26:36]
Marianne Franks
It's difficult to answer that without thinking about which point in history could it have happened? Because there's a part of me that wants to say if the founders had actually done what they said, then we would be in a very different place if it had actually meant. When you write we the people, and you mean it when you take the lessons of this incredible thing that you're doing, when you are deciding there's been oppression up to this point, we recognize what tyranny looks like. And not only do we recognize it in the sense that we personally, those of us in power, relative power, see it, but also now we also realize how we have been doing this to people who are even less in power than we are, are. If there had actually been that moment of real revolution, then it's hard for me not to want to indulge in what that would have looked like, that it would have been this empathetic wake up call to say we know what tyranny looks like, we know what exploitation looks like, and not only do we reject it for ourselves, we reject the sense in which we are doing it to other people when we are doing it to people who don't look like us. So of course that would be a very different history to write. And, and I think there's a practical question of saying, well, okay, that didn't happen, so now what? And I think, you know, you see the Reconstruction Amendments trying to get at it somewhat. And then when you have the text of the 14th Amendment, as I say in the book, the Equal Protection Clause, I think now you actually have a textual basis on which to hang much of what I would consider to be the project of equality and the project of real democracy. And we've really not done that. We've really failed in our. Our commitment to the 14th Amendment. We have treated the Constitution when we tend to give it the salience and this power, it's rarely ever in service of equal protection. It's usually in service of some right, some super right that we have latched onto, that we have a very fetishized attachment to. So what I guess it would look like is you can take it in pieces. You could say, how could First Amendment doctrine have looked differently in these certain cases if we actually were committed to Equal protection for freedom of speech. Speech. What would the Second Amendment look like? For that reason? I think we could probably do it with every right that we hold dear as Americans. So I think that's one way that we could think about it. There's obviously other possibilities, which is to sort of start all over, right? People have thought about, should we just really just get rid of the Constitution? Has it outlived its usefulness? I haven't thought so much about those possibilities because they don't seem particularly realistic. But I do think if it's true that one advantage of where we are as a country is that we think we care about the Constitution, we think we care about. About these values, then we need to practice being principled in our commitment to those values. And we could do that. That seems like a plausible project, although.
- [29:14]
Interviewer/Host
Depressingly, when you start talking about the Reconstruction Amendments, what I think is that in some ways moves us backward, right? I mean, it initiates the kind of backlight. So when you do it in a formal manner, following the constitutional guidelines for effectuating the kind of. Of change without empathy that you've just described, what you get is Jim Crow, right? You get a backlash that is more vote suppressive, more apt to segregate even than what came before. And that makes me wonder if maybe the Constitution just can't be the vehicle for the reckoning you're describing. Because when we try, and courts, as you point out in the book, tend to be the most conservative and reactionary, and it to begin with, that we're doing this backward because it's not capacious enough to hold the kind of change you're describing.
- [30:06]
Marianne Franks
I think that may be right, and it is a very depressing conclusion that I've tried to avoid in the book. But I do wonder what would it look like to actually give the 14th Amendment a kind of enforcement mechanism? And it's hard to know where to start, because all the things that you're mentioning, and we can start just from there, we can say, look, if your vote doesn't actually count the way that it should, then all of this is meaningless. There's very little that any of us can do. But I do think that as a matter of at least harm mitigation, if not revolution, we can talk about trying at least to take away this false legitimacy that people are able to grab onto by invoking the Constitution. That false sense of, yeah, legitimacy is the best word I can think of, which people sort of drape themselves in when they say, well, the First Amendment obviously doesn't allow you to do this or you are obviously violating the Second Amendment if you don't allow people to take assault rifles into playgrounds that we should at least at a minimum, what we can do is start taking away from that really quite ludicrous sort of constitutionalization that we can try to delegitimize that kind of conversation so that the Constitution does shut down our discussions, but actually provides us with a pathway forward. So I'd like to think that at a minimum that could happen. But of course, that kind of incrementalism, given the state of the world right now and how dire everything actually is, it does sound unsatisfying. And there are moments when I have really thought it really does mean we're going to have to start all over. But I don't know how we start that project either.
- [31:44]
Interviewer/Host
We know you value the journalism that.
- [31:46]
Dahlia Lithwick
We do here at the Slate, and now more than ever, our work needs your support. The very best way to support the work we do is via our membership program, Slate Plus. And with a Slate plus membership, you can enjoy this and all of Slate's podcasts ad free. Plus you'll have access to exclusive bonus content from some of your favorite Slate shows. There's a free trial to be found@slateplus.com amicus and now back to our conversation with Professor Marianne Franks of the University of Miami School of Law about her new book, the Cult of the Constitution.
- [32:20]
Interviewer/Host
Talk for a minute about you, raise the dichotomy and then thread it through the book of this tension between civil rights versus civil liberties. The point being, I think, that we're so completely informed by liberties. We have this kind of market view of liberty and this zero sum view of liberty that has occupied the field to the extent that talking about civil rights isn't even even interesting anymore. Can you talk a little bit about that dichotomy and what that means in this context?
- [32:52]
Marianne Franks
Yes. So the civil rights, civil liberties dichotomy that I perceive, I think the best way to describe it is that the civil rights approach looks at the world and looks at the values and the rights and privileges that people should have. In terms of the history, it's a very historicized view of rights and privileges, and it's a very, very pragmatic one. It recognizes that if we were to stop time right now, we would recognize that people are not equally situated when it comes to certain rights and freedoms. The civil liberties approach, by contrast, I think always participates in this completely fantastical sort of view that we're all somehow granted Equal access. And therefore the only thing we need to be worried about is any change to the status quo quo. So I think the civil rights approach is constantly looking to see what are the deficiencies here. Who has been left out, who has been oppressed, who has been marginalized, who's been deprived, and how can we. And we being very capaciously conceived as the government or the private sector or individual citizens, how can we achieve a more equitable distribution of rights and resources? Whereas the civil liberties approach is very market like, it really does begin to merge, as I say in the book, with a kind of libertarianism more generally, which is this idea that the free market works and whoever is losing out under the status quo is losing out because they're not as good or they haven't decided to compete as effectively. And it's a very individual focused kind of idea. It's very anecdotal. It's very easy to gin up some hysteria about this, if you can say, well, this one person had an experience where they weren't allowed to say what they wanted to say or defend themselves the way they wanted to defend themselves, as opposed to thinking in terms of social impact and the actual general welfare, the public welfare. And I think that the civil liberties approach to rights and freedoms has really won the day. We are constantly talking about whether or not conservatives are being suppressed online or whether or not white men are being the most persecuted group in history right now. I mean, we're actually having that kind of conversation, which is such a dehistoricized and completely cut off from actual reality discussion. And it's partly because we've lost sight of the sense of. Of group identities and what our world has actually looked like since its founding. So I think that that is one key piece to all of this, is that we don't think in terms of history, we think in terms of right now. How do I feel? Who do I identify with?
- [35:21]
Interviewer/Host
Your chapter on guns, and later your chapter on speech, makes the point that there's been a creeping change in definition of what fully realized Second Amendment liberty would look like, and that the line keeps moving and moves, sometimes imperceptibly but quite shockingly. Can you talk about a little bit in the gun context? And then we can do it in the speech context too. But what was orthodoxy in terms of the very borders of what the Second Amendment demanded even 20 years ago, 40 years ago, is now not acceptable, and.
- [35:58]
Marianne Franks
How that happens, right in the gun context. It is extraordinary what has happened in the last few decades. Decades you had kind of maybe uniquely for a constitutional right, really not much conflict over what the Second Amendment meant for so long. Pretty much everyone agreed that to the extent that it was referring to the right to weapons in any specific sense, it was a militia. Right. That had to do with thinking about the history right of this country and thinking about what was needed and the fears that the founding Fathers had of a standing army and the idea that the people would need to protect themselves against a tyrannical government. Government. And that that was something that was in there as a kind of last resort. Right. Because it's pretty extraordinary when you think about it. If you rise up and, and use arms against the government, then you're really declaring revolution. And so it is extraordinary to see how that that idea had been sort of lying dormant there in the Constitution for some time and then gets activated in the 1970s by the National Rifle association and becomes completely imbued with the culture wars of the day and ever since then has only gotten worse. And what gets projected onto this new second Amendment, this idea of individual rights in an extraordinary way really does illustrate what we were just talking about, about the difference between civil rights and civil liberties. Instead of talking in terms of groups of people being oppressed by a major force such as the government, we're now talking about individuals saying I need to have a gun in every circumstance so that I can defend myself against every other citizen. Not the government which has more power than me, but my fellow citizens that I fear and hate. So that has been quite a turn. And it's one thing to move that way as a policy to have a group of people in society who have different views, let's say from the mainstream about how many weapons one should have or what self defense looks like. But to constitutionalize it the way that the NRA has is really kind of extraordinary because it now carries with it it the weight of do you hate the Founding Fathers or don't you? Right. If you don't want me to have my, my AR10 in this schoolyard, then you hate the Constitution. That is really a very chilling move and the NRA is almost single handedly responsible for that. And of course the Supreme Court helped and Heller but didn't go as far I think, as the NRA certainly would have wanted, but certainly put it on the table to say we are now definitively going to say, say that the second Amendment is about this individual right to self defense through guns. And none of that actually makes sense, whether it's the individual part or the guns part or the self Defense part, because that's not in the text and it's not in the history. But now we're all living in the world that the NRA has helped create, which is, that is what the Constitution tells us. And instead of thinking as we often, I think, think about the Bill of Rights as this kind of check on the government power, it's this kind of affirmative, primitive, positive, positive sort of force where we get to pass all these laws that say you have to allow guns everywhere. So it's not this limitation on the government, it's actually a positive right on the part of the people to say I want what I want everywhere and it doesn't matter who I, whose welfare I happen to risk when I get the thing that I want. So that is something that I think is remarkable and unfortunately has been I think echoed now in First Amendment and other, other civil, other civil liberties approaches. But that is really something extraordinary to see is that that constitutionalization of a very idiosyncratic view of what the Second Amendment could be, that then becomes, it's almost circular, right. It starts out as a kind of populist sort of idea of what the Second Amendment should look like. It gets constitutionalized and then it gets sort of repopularized. And so 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. And it becomes a mantra for certain groups in society. So it is not just happening on the sanctified Supreme Court level, but it's really at the level of the general population. And because it's guns as opposed to something else, it is something that we are all having to live with and all of us are being endangered by because people's view of what it means to be faithful to the Constitution in this sense means have as many guns as possible and no restrictions on them.
- [40:13]
Interviewer/Host
And, and this goes to a little bit to your pucks on both houses worldview, because I think in fairness, it was progressive legal scholars who were pushing the idea of an individual right to bear arms. I mean, it was certainly growing in steam over the decades. But I think, tell me if I'm wrong, but part of it was when progressive legal scholars jumped into the debate on the side of individual rights, making exactly the claims you just advanced, which is, look, if we believe in a robust First Amendment, we have to believe in an equally robust Second Amendment. That wasn't coming from the political right, that was coming from the progressive legal academy as well. And I think it goes to you know, sort of your arguments about how in the First Amendment sphere we have the same problem, which is if we use that as the benchmark that we have to have almost unfettered First Amendment rights, then pushing the boundaries of what Second Amendment rights rights looks like, fairness right, that looks like parody.
- [41:15]
Marianne Franks
I think that's right. There is a fascinating convergence, as you say. There was definitely a deliberate move on the part of the gun lobby to encourage writing on the subject of let's talk about the Second Amendment as an individual right. But you're absolutely right. It also came from liberal academics who were saying if we're going to be consistent about the nature of individual rights under the Constitution, then it means that for Second Amendment 2. And it is one of those moments where liberalism, broadly conceived, does this thing where it tries to be principled, even about things where the outcomes are maybe rather sinister. So to prove just how committed we are to a principle, to show we even mean it about the Second Amendment without possibly thinking about how well, there's another alternative here, which is that maybe we're not so right about the way that we've been handling the other rights under the Constitution. So it was an extraordinary convergence, right, between a certain kind of liberal thinking and a very motivated, very sort of, I think in some ways weirdly corporate, but also in some ways grassroots kind of push to say this is what the Second Amendment should mean.
- [42:19]
Interviewer/Host
I'm glad you got to weirdly corporate, because I think that's a big chunk in both your Second and First Amendment discussions of how money and moneyed interests are driving a lot of these tendencies to push the borders. And you talk in your chapter about speech, you talk about the aclu, in your view, getting on the wrong side of Citizens United, getting on the wrong side of corporate speech. And I wonder how much your view of this would be different if we didn't have big, big, big moneyed interests pushing for corporate speech on the one hand, or the notion that opposing unions is protected first and Amendment speech, that part of what happens is that corporations and big money and lobbying groups get very invested in pushing doctrine in a certain way, and there's no counterweight in some sense. I think your point in the book is this idea of the marketplace of ideas elides the fact that there's actually a marketplace of money that distorts exactly that.
- [43:24]
Marianne Franks
And this is what makes this even more complicated, because it's hard to imagine a world in which that didn't happen. But we know that we live in a world now where corporations, because of because of the government exist as these kind of monstrosities and monstrosity in a very specific sense that we like to believe that as civilized members of a society, we are at least somewhat limited in the terms of the harm that we can cause others because there are consequences for our actions, actions, at least at some point. The corporation is truly inhuman in that sense, because you have the ability, at least in the modern day corporation, to insulate these entities against the negative consequences of their actions while allowing them to endlessly profit from their behavior. And that sets up a real problem. And now, when you get corporations into the mix of now being able to claim that they too have constitutional rights, it's sort of the worst of all possible worlds. You've created this entity that is relentless in its pursuit of profit and completely indifferent to the impact that it has on the general welfare. And then you constitutionalize that and say, not only do they have that ruthless power in the marketplace, we are also going to invest them with constitutional dignity so that they now can make that claim as an ideological matter. And I think that's really the worst position for us to be in.
- [44:45]
Interviewer/Host
Marianne, I want to talk about your work on the Internet, because it predated this book. And then I think your chapters in this book on speech make precisely the claim you just made about corporations, which is essentially this notion that there nobody is harmed by speech unless they get punched in the mouth just doesn't map onto the current age. And I wonder if you could back up and talk a little bit bit about the ways in which you analyze speech on the Internet, whether it's revenge porn or harassment or the kind of shocking bullying that has driven women offline in terms of the real and material harms that you're describing and the ways in which our kind of quaint early 20th century notions about, you know, fighting words, doctrine or fire in a crowded theater doctrine just doesn't get us where we need to go. When in your view, speech has long past the line of these are just ideas.
- [45:42]
Marianne Franks
Right? And this really does take us right back to the formation of the Bill of Rights themselves, the way that they're constructed in these kind of artificial, isolated ways. The presumption being that if you're going to say the government should not infringe upon my right to speech, the presumption there is that you have a right of free speech, that you are not prevented in a host of ways from ever expressing what you want to express. There's this real sense of luxury that you just presume that you have These rights and the only limitations that there need to be are when the government are upon the government. And that I think if you had had women or non white men to help craft what we think of as our most fundamental rights, I think you would have heard something very different. Because of course, if we think about the question of what does it mean to protect the right of speech or defense or property to someone who's enslaved. Enslaved, you get a very different answer. If you get that question for a woman who has essentially lost her legal and social identity when she gets married, you'd get a very different response. So we have this really long history in this country of just not paying attention to the kinds of harms that anyone who doesn't happen to be white and male and for a long part of history, wealthy, the kinds of problems that they don't have to face. So speaking specifically about. About the experiences of women, well, we know that it doesn't take much to take away their rights of free speech. You can, if we're talking about the forces of domestic violence or harassment or sexual harassment at the workplace, or whether it's invasions of privacy or whether it's exposure of someone's sexual identity, these are all ways in which you can effectively shut down a woman's entire life that her career, her educational capabilities, her intimate relationship, relationships, simply by promoting a certain view of her as a promiscuous person or as someone who cannot be trusted when it comes to certain matters of domesticity. So this idea that somehow the only thing we need to worry about are these. These bizarre categories that the Supreme Court has come up with. And it's always extraordinary to think about people saying that the First Amendment protects everything except for these clearly historically labeled old categories. Those categories that are apparently agreed upon are some of the worst categories we could possibly have come up with. They make very little sense and they have very little relevance for the present day. Fighting words is an example. Obscenity is another one. When people think about the prohibition on child pornography, they forget that that didn't happen till the 1980s. So as far as historically settled upon, it's actually extremely new. And so it is a strange thing that. That the people who are most convinced of what they think is the settled doctrine of the First Amendment have not recognized that that settled doctrine really is unintelligible on its face. That if we're trying to make any kind of sense of what the Supreme Court has done with regard to the First Amendment, it really is nothing more than saying there are certain kinds of speech that we think are more harmful than they are beneficial, and therefore we're going to exempt some of them from protection. And as much as the Court itself pretends like that's not the the case. So in USV Stevens claiming as though that is not the balancing test that they've taken, they absolutely have always taken that. And that isn't just true about those clear categories of speech. It's true about everything that doesn't get even cast as a First Amendment issue. So we don't really think. And every time I say this now, I think, well, someone's going to say it soon. But there's a whole host of things, privacy regulations, rules against fraud, rules against security regulations, all of those things that aren't even characterized as First Amendment issues. So I think that it's not even so much that people have not assumed that harm in the First Amendment context can be more than physical. I think we do recognize that securities regulation, price fixing, all of that kind of stuff recognizes that. But there is this tendency to not see those categories when you're trying to tell someone, don't try to expand the First Amendment, don't try to change the status quo. It's a kind of. It's a way to make invisible the kinds of choices that are being made on a regular basis, basis, and to try to tell anyone who's calling for reform or recognition of certain types of harms that they're trying to do something radical and strange and just trying to, you know, force a kind of new social ideal onto freedom of speech, which has been basically the same forever. So I think there's a lot of unpacking to do to say, look, if you're going to even stand up for those categories that are supposedly settled within the First Amendment, then you have to take a very hard look at what the Court was trying to do. And if you recognize that those categories exist and you want to defend them, then there's absolutely no reason to not think pretty expansively about the kinds of harms that have historically and to this present day continue to affect certainly women, but also really anybody who happens to become a target of certain social and private forces.
- [50:30]
Interviewer/Host
And it's interesting because this is the perfect analog to your analysis on the Second Amendment, which is we now live in a world where, where everybody believes that the price of freedom is that everybody gets to take a gun to the playground, and the price of freedom is that they can drive women off the Internet by calling them whores. And that isn't set in stone anywhere. That's Just a kind of in the zeitgeist of what we have all come to believe that the first day.
- [50:57]
Dahlia Lithwick
So even if we're talking about Facebook.
- [50:59]
Interviewer/Host
Which isn't the government, we all just take as an article of faith. It goes back to your faith framing, but as an article of faith that there's nothing that can be done to regulate Facebook because First Amendment. So I think it's this creeping powerlessness in the face of a widespread recognition that actual harms are being done.
- [51:20]
Marianne Franks
Yes. And I think that kind of faux powerlessness is not an accident because the powers that be that say there's nothing we can do are the powers that are not being harmed. Right. There's a reason why Facebook wants to convince us that nothing can be done. There's just too much content. There's no way to regulate this in a way that would would be principled. There's a reason why the powers that are in control in government and at the corporate level and at the educational level and at every other level will say, yes, it's just too complicated. Yes, there are some problems. But trying to deal with those problems would actually be worse than the problems themselves. So we have to take a very hard look at who's saying those things. Although an extraordinary thing that is happening in the last decade or so is that you do now have the powers that be, at least currently, let's say this current administration saying, well, we actually think that Facebook should be broken up, or we do think now that conservatives are being censored on Facebook. And so we now think that we should have some government intervention, which is such a strange thing to be hearing from conservatives and from libertarians who have been saying all of this time that the market should take care of things. Well, the Facebook's policies, whatever we may think of them, that is the market taking care of things. And we should be hiding highly suspicious of any entity. Now who's suddenly concerned about that? Who's suddenly saying, now we don't think the rules are fair. So I'm very, very skeptical of where that's coming from. But it does underscore this idea that we want to believe that there are certain things that simply cannot be changed. The people who are saying that are deeply invested in things not changing. And what really does need to happen on some fundamental level level is for people to call that out and say, well, of course Facebook is going to say that. Of course people who are in power are going to say that because it is in their best interest to do so. But that doesn't make it true, and it doesn't mean that we can't ever do better.
- [53:11]
Interviewer/Host
Marianne I want to end where the book ends, which is on the sort of hopeful note of the Equal Protection Clause. And I guess this is going to have to be your next book, because it's a short chapter and I want to hear much more about it. But you do map onto the Equal Protection Clause the Kantian categorical imperative, the Golden Rule. You know, you've got such a hopeful and optimistic view of the Equal Protection Clause, and my own view is probably, in this one place, more cynical than yours, which is, you know, we've had it for a long time. It's not getting us where we need to go. You can always say intermediate scrutiny and walk away. I'm much less persuaded that if you're going to, in your words, you know, not burn down the Constitution, if you're going to move forward with it, that the Equal Protection Clause builds the thing that the word you used at the very beginning, which is empathy. Because underneath the Kantian moral imperative, underneath the Golden Rule, there is this notion that other people matter as much as you do. And I don't know that that's a constitutionalizable notion. I think that is right or wrong baked into the fatal flaw that the framers made, which is that other people didn't matter as much as they did. Tell me I'm wrong.
- [54:35]
Marianne Franks
I want to believe that you are wrong. And the way that I have thought about it up to this point is that as imperfect as the 14th amendment is, I do see it as this belated attempt to confront the sins of the past and not trying to idealize the moment that. That it was created in history. There are all sorts of problems with the way that the Amendment came about and the intentions behind it and the way that it's been applied or not applied since then. And so all of that conceded the. The attempt of this project, though, is. Is deeply personal in this. Going back to the sense of my previous upbringing, not only as a religious person, but also as a conservative person. And this, this. This remains a conflict for me because my entire family remains religious and conservative, and I don't want to lose them in any kind of meaningful sense. So what I've struggled to say and what I continue to struggle to say and still believe is a. Is a powerful conversation to have, is there is, if nothing else, a moment at which we are all saying we care about the Constitution. We can do something with that. The fact that people at least believe on some level that they. They Are they are faithful to the Constitution is a good starting point. The other thing that people say that I think we can all say is true now, everyone seems to be quite acutely conscious of the pain that they're suffering. Everyone seems to be clear on the fact that they are suffering some kind of oppression. We can also do something with that. That is to say, I think it's true that everybody is suffering from some form of oppression. Everybody is suffering from whether it's job insecurity or whether it's poverty or whether it's, whether it's identity crises or whatever the case is, people are all suffering. What I'm hoping that the book can try to help people to see is if you can recognize the suffering in yourself. This is back to the founding conversation. The better way to have a revolution is to look around the world and to say, well, if I'm suffering and I have these things, what about the person next to me who doesn't have this thing and doesn't have this thing or has this extra prejudice that they have to shoulder? Can we focus, not deny ourselves that moment of saying, yes, we are suffering, we are having. We are not who we want to be. We are not allowed to have the freedoms and the expressions and the life that we want to have. But I look at my neighbor and I see that they are struggling with the same things and they have this other burden. Can we say that to be committed to the Constitution, to be committed to the authenticity of experience, can we say then that would require to look at that person and say, I see where you are. And I also care as much about lifting you up as I care about lifting myself up. So when I defend with all of the emotional and sort of religious attachment that I have to my rights, that I fight as fiercely for you because I know you're going through more, that's the hope that this book could at least start that kind of conversation.
- [57:34]
Interviewer/Host
Well, I very much want to live in that world with you. So let's end on the hopefulness note.
- [57:40]
Dahlia Lithwick
Marianne Franks is a professor of law.
- [57:42]
Interviewer/Host
At the University of Miami School of Law, where she teaches First Amendment Law.
- [57:46]
Dahlia Lithwick
Criminal law and procedure, and family law.
- [57:48]
Interviewer/Host
She serves as President and Legislative and.
- [57:51]
Dahlia Lithwick
Tech Policy Director of the Cyber Civil Rights Initiative. She's also a co producer of the 2015 documentary Hot Girls Wanted.
- [57:59]
Interviewer/Host
And Marianne, I thank you so very, very much for coming on the show.
- [58:06]
Dahlia Lithwick
And that is a wrap for this episode of Ann Amicus. Thank you so much for listening. If you want to get in touch.
- [58:13]
Interviewer/Host
We love your mail and our email.
- [58:15]
Dahlia Lithwick
Is amicuslate.com you can always find us@facebook.com AMCUS podcast today's show was produced by Sarah Burningham. Gabriel Roth is editorial director of Slate Podcast and June Thomas is senior managing producer of Slate Podcasts. We'll be back with another episode episode of Amicus in two short weeks.