Our Constitution Is More than Identity Politics

Most people know that American legal education is liberal. Among law professors, Democrats outnumber Republicans by a ratio of about 50 to one. One consequence of this monoculture is that faculty publications tend to reflect ideology more than scholarship. Exhibit A would be last year’s Boston Globe essay, “Redo the First Two Amendments,” by Professor Mary Anne Franks of Ohio’s University of Miami School of Law.

The First Amendment guarantees citizens the right to religious exercise as well as the right to free expression and assembly. The Second guarantees the right to keep and bear arms. Franks’s essay appears to be an outgrowth of her recent book, The Cult of the Constitution: Our Deadly Devotion to Guns and Free SpeechFranks argues there that the first two Amendments inspire “irrational results,” and allow “the most powerful members of society” to benefit at “the expense of vulnerable groups.” Both, she thinks, could be improved by situating them in the general welfare clause of the Constitution’s Preamble. Such welfare must be defined, however, as including “equality and dignity of persons” and “the right of self-determination in reproductive matters.” In other words, we need feminism, identity politics, and abortion.

Supposedly, this is a book about constitutional law. In reality, it’s left-wing politics as usual.

Franks is aware of the Constitution’s ratification in 1788 but seems uninterested in those dangerous times after the American War of Independence and just before France’s guillotine-soaked revolution. And despite being a frequent Constitution Day speaker, she doesn’t mention much of the Constitution’s substance and structure – its 7 Articles and 27 Amendments, for example—and appears ignorant of its remarkable stability and endurance. France, by comparison, has had in the same time period 14 Constitutions and is now in its Fifth Republic.

It is easy to forget and take for granted how unusual and impressive the American experiment of limited government was—and is. 

Like most in legal academia, historical facts such as these matter little when compared to the real agenda–advancing the politics of race and sex. Thus, Franks is focused not on this history but on 2017 and Charlottesville, Virginia, the site of protests when that city took down its Confederate statues; local law enforcement stood down so hostile groups inevitably interacted and got violent. By day’s end, one protester was killed by a motorist. Franks says most demonstrators were white male supremacists exercising their First Amendment rights of assembly. She is now, therefore, calling for the revision of that Amendment, with the Second one thrown in for good measure (after all, the day’s one fatality was by a car, not a firearm).

Franks’s readiness to “redo” the Constitution stems in part from her resentment for its drafters:

The Constitution is first and foremost for white men … [and] has indeed functioned to protect white male supremacy since the day it was written.

The Founding Fathers were essentially self-interested and essentially trying to hang on to their own privileges and tried to exclude, or rather to continue to perpetuate exactly the forms of exploitation that they complained of the British, to do the exact same things to slaves and also to women…

Unfortunately, this mentality is widespread not only in academia but now in much of the American public, thanks to a similarly left-leaning media establishment. It lacks a factual basis, however, and is therefore grossly unfair to the Founding Fathers.

At America’s founding, the governing class was drafting a Constitution, a document that governs the government by outlining and limiting precisely the powers of that government and therefore of that class. Accordingly, the writing of the Constitution itself was already an act limiting their powers—their interests—not aggrandizing them. Tyrants, by comparison, do not bother with Constitutions. Their wish is a command. Most of human history involves this type of rule by tyrants over minions, by lords over serfs, and by emperors over subjects. It is easy to forget and take for granted how unusual and impressive the American experiment of limited government was—and is. 

Yes, one can see the drafting of a constitution—or the drafting of any law, for that matter—as nothing more than an attempt by some to lord power over others. One could see it as a manipulative play to protect self-interest, as Franks and those like her tend to do. But business agreements would never be reached—much less constitutions ratified—if negotiations were only that. 

The irony here is that the American Constitution is proof of the very opposite of what Franks sees: It was against the power interests of the governing class to guarantee citizens the right to free speech, and what’s more, they did not need to do it. The norm among power-seekers is suppression of speech: What autocrat wants someone mobilizing sentiment against him with leaflets or lectures? Some might point to the present silencing of COVID dissenters as proof of this norm. Those insecure about their power, yet wanting to consolidate it, typically “disappear” their opponents. They do not write a First Amendment guaranteeing their opponents’ right to free expression and assembly. 

Franks herself is, of course, also a beneficiary of the First Amendment. She writes and speaks freely because of it and its drafters, many of whom risked their own liberty and safety to secure these rights for others during those tumultuous times (a good reason to dwell on that historical period more than on one day in Charlottesville). Franks might consider gratitude rather than grievance.

And what of American women, whom Franks mentions alongside slaves as suffering “forms of exploitation” at the hands of America’s founders?

Leaving aside Franks’s questionable equating of American women with American slaves, she misses a more obvious observation about American women, and their European counterparts, as do most of today’s academics: Given the information now available about the status of women worldwide, including required burkas in the Middle East, forced marriages of young girls there and in parts of Africa, along with their genital mutilation as a form of social and sexual control, why does she not ask: How did women in the West escape this type of abuse, practiced even today?

Western women are among the most educated, free, and respected in the world–and this has been true, significantly, well before modern feminism, as the lives of Clara Barton, Amelia Earhart, and Eleanor Roosevelt attest.

But even if one engages the question of legal and constitutional rights for American women, such as the right to vote secured in 1920 by the 19th Amendment, writer Helen Andrews has documented how the main opposition to movements like women’s suffrage was actually led by women themselves. Rationales were varied but included concern that women would lose influence as more high-minded thinkers who were above the political fray which made them, in their view, more effective advocates for social reforms such as public aid to the poor. They also wanted to protect home life from incursions by the state since they foresaw that political parties would court women’s votes, inevitably intruding upon the domestic sphere and family relations.

Therefore, Franks’s complaint that American women were victimized at the founding because they did not have the same legal rights as men does not withstand scrutiny. Ideas like this go unchallenged in law schools and get traction in the public square only because America’s academic institutions have effectively purged more honest, rigorous, and independent thinkers from their faculties. As a result, Socratic examination of assertions and theories simply does not happen. The result is less knowledge and more ideology.

As for Franks’s predictable position on slavery—that the Founding Fathers wrote the Constitution to solidify the exploitation of African slaves—this too lacks a factual basis and historical understanding (even an understanding of current events).

Obviously, the painful question of American slavery cannot be resolved by any given essay or book. That said, using simplistic assertions of white supremacy or privilege to explain a practice as ancient and as historically commonplace as slavery is almost embarrassing.

Not only does slavery date from antiquity, it can still be found today in parts of the Middle East, Asia, and Africa. While the commercial slave trade was distinct in that slaves were not spoils of war, the uncomfortable reality is that Africans themselves handed over other captured African tribes to European traders. Therefore, many ethnic groups had blood on their hands, not just so-called white supremacists.

America is therefore not unique in having had slavery (or in having racial tension). It is more noteworthy for its efforts to right this wrong, with the Civil Rights movement, its system of laws, and its continued discussion of nondiscrimination—arguably also a legacy of our Founding Fathers. 

But it is this historical and factual perspective that professors like Franks lack, in large part because America’s hopelessly politicized and conformist academy won’t allow it.