The Cult of the Constitution
by Mary Anne Franks
ISBN 13: 978-1503614987
Book description

In this controversial and provocative book, Mary Anne Franks examines the thin line between constitutional fidelity and constitutional fundamentalism. The Cult of the Constitution reveals how deep fundamentalist strains in both conservative and liberal American thought keep the Constitution in the service of white male supremacy. Constitutional fundamentalists read the Constitution selectively and self-servingly. Fundamentalist interpretations of the Constitution elevate certain constitutional rights above all others, benefit the most powerful members of society, and undermine the integrity of the document as a whole. The conservative fetish for the Second Amendment (enforced by groups such as the NRA) provides an obvious example of constitutional fundamentalism; the liberal fetish for the First Amendment (enforced by groups such as the ACLU) is less obvious but no less influential. Economic and civil libertarianism have increasingly merged to produce a deregulatory, "free-market" approach to constitutional rights that achieves fullest expression in the idealization of the Internet. The worship of guns, speech, and the Internet in the name of the Constitution has blurred the boundaries between conduct and speech and between veneration and violence. But the Constitution itself contains the antidote to fundamentalism. The Cult of the Constitution lays bare the dark, antidemocratic consequences of constitutional fundamentalism and urges readers to take the Constitution seriously, not selectively.


Recommended on 2 episodes:

The Dobbs Decision Isn’t Just About Abortion. It’s About Power.
On Friday, a Supreme Court majority voted to overturn Roe v. Wade. On Sunday, we released an episode with Dahlia Lithwick that goes through the court’s decision in detail, and we will continue to come out with new episodes on the ruling — and its vast implications — in the days and weeks to come. Today, we’re re-airing an episode that we originally released in February of this year with Columbia Law professor Jamal Greene — a conversation that is even more relevant now than it was when we originally released it. The Dobbs ruling may be the most poignant example of how extreme the U.S. Supreme Court has become in recent years, but it’s certainly not the only one. “Getting race wrong early has led courts to get everything else wrong since,” writes Greene in his book “How Rights Went Wrong.” But he probably doesn’t mean what you think he means. “How Rights Went Wrong” is filled with examples of just how bizarre American Supreme Court outcomes have become. An information processing company claims the right to sell its patients’ data to drug companies — it wins. A group of San Antonio parents whose children attend a school with no air-conditioning, uncertified teachers and a falling apart school building sue for the right to an equal education — they lose. A man from Long Island claims the right to use his homemade nunchucks to teach the “Shafan Ha Lavan” karate style, which he made up, to his children — he wins. Greene’s argument is that in America, for specific reasons rooted in our ugly past, the way we think about rights has gone terribly awry. We don’t do constitutional law the way other countries do it. Rather, we recognize too few rights, and we protect them too strongly. That’s created a race to get everything ruled as a right, because once it’s a right, it’s unassailable. And that’s made the stakes of our constitutional conflicts too high. “If only one side can win, it might as well be mine,” Greene writes. “Conflict over rights can encourage us to take aim at our political opponents instead of speaking to them. And we shoot to kill.” It’s a grim diagnosis. But, for Greene, it’s a hopeful one, too. Because it doesn’t have to be this way. Supreme Court decisions don’t have to feel so existential. Rights like food and shelter and education need not be wholly ignored by the courts. Other countries do things differently, and so can we. We also discuss the reason we have courts in the first place, why Greene thinks Germany’s approach to abortion rights could be a model for America, Greene’s case for appointing nearly 200 justices to the U.S. Supreme Court and much more.

Let’s Talk About How Truly Bizarre Our Supreme Court Is
“Getting race wrong early has led courts to get everything else wrong since,” writes Jamal Greene. But he probably doesn’t mean what you think he means. Greene is a professor at Columbia Law School, and his book “How Rights Went Wrong” is filled with examples of just how bizarre American Supreme Court outcomes have become. An information processing company claims the right to sell its patients’ data to drug companies — it wins. A group of San Antonio parents whose children attend a school with no air-conditioning, uncertified teachers and a falling apart school building sue for the right to an equal education — they lose. A man from Long Island claims the right to use his homemade nunchucks to teach the “Shafan Ha Lavan” karate style, which he made up, to his children — he wins. Greene’s argument is that in America, for specific reasons rooted in our ugly past, the way we think about rights has gone terribly awry. We don’t do constitutional law the way other countries do it. Rather, we recognize too few rights, and we protect them too strongly. That’s created a race to get everything ruled as a right, because once it’s a right, it’s unassailable. And that’s made the stakes of our constitutional conflicts too high. “If only one side can win, it might as well be mine,” Greene writes. “Conflict over rights can encourage us to take aim at our political opponents instead of speaking to them. And we shoot to kill.” It’s a grim diagnosis. But, for Greene, it’s a hopeful one, too. Because it doesn’t have to be this way. Supreme Court decisions don’t have to feel so existential. Rights like food and shelter and education need not be wholly ignored by the courts. Other countries do things differently, and so can we. This is a crucial moment for the court. Stephen Breyer is retiring. And in this term alone, the 6-3 conservative court is expected to hand down crucial decisions on some of the most divisive issues in American life: abortion, affirmative action, guns. So this is, in part, a conversation about the court we have and the decisions it is likely to make. But it’s also about what a radically different court system could look like. We discuss the Supreme Court’s recent decisions on vaccine mandates, why Greene thinks judicial decision-making is closer to punditry than constitutional interpretation, the stark differences in how the German and American Supreme Courts handled the issue of abortion, Greene’s case for appointing nearly 200 justices to the U.S. Supreme Court, why we even have courts in the first place and much more.
Jamal Greene Feb. 4, 2022 3 books recommended
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by @zachbellay