Short Take: Mary Anne Franks Hates The Constitution

If the name strikes a bell, it’s because I’ve mentioned her from time to time.* Mary Anne Franks is a now-tenured law professor at the University of Miami Law School. She’s not a lawyer, having never been admitted to any bar, and accordingly has never practiced law, but that hasn’t impaired her ability to get tenure and teach criminal law. Go figure.

Franks lists her areas of “expertise” as

  • Criminal Law and Procedure
  • Cyber Law
  • First Amendment

How cool is that, all subjects that interest me as well! So when Andrew Fleischman twitted that Franks published a book, how could I be less than thrilled?

Uh oh. The “cult” of the Constitution? That doesn’t sound good. And “deadly devotion”? Does this involve Nike sneakers and Kool-Aid? I checked my mail, but apparently Mary Anne neglected to send me a review copy. Stercus accidit. So I turned to Amazon.

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 keeps 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.

So everybody, conservatives and liberals alike, gets the Constitution wrong because they . . . read the words? In fairness, she’s never been reluctant to assert that constitutional “fidelity” means that it’s fine provided it’s in service of her outcomes, and the moment “make no law” prevents her passionate desire to make a law, it’s “white male supremacy.” Who else would “fetishize” such horrifyingly discriminatory things like free speech when Mary Anne demands her right to be the internet’s scold?

But if she didn’t send me a review copy, which legal scholar will champion her curious characterization of the Constitution?

“Mary Anne Franks has written a powerful challenge to the prevailing constitutional orthodoxy of the right and the left. Her trenchant critique of progressives’ naive devotion to America’s flawed founding charter is provocative and persuasive. A deeply troubling and absolutely vital book.” (Mark Joseph Stern Slate)

Huge if true. And who doesn’t look to MJS when it comes to sound legal thought, right?

That this nonsensical gibberish comes from an academic, who has no restraining order preventing her from being in the vicinity of law students, is sad but not surprising. Rationalizing the re-interpretation of the Constitution to prevent things they don’t like but not the things they do has become a claim-to-fame for the unduly passionate.

Mary Anne is nothing if not passionate. Wrapping it up in language like “cult” and “fetish” is the branding of the woke. Isn’t it bad to be a “fundamentalist” and a “deadly devotee” to the Constitution? After all, who wants to be a constitutional cultist, slavishly supporting civil rights when there are sad tears being cried?

Well, I do.

And if you’re not a constitutional cultist, what are you? Never having taken Mary Anne’s crim law class, I guess I’ll never know for sure, but I’m fairly sure that those who do will be denied that opportunity learn criminal law, as they’re being taught by someone who hates the Constitution. If the choice is constitutional cultist or Franks sycophant, hand me the Kool-Aid.

*The first mention of Mary Anne here did not please her.

23 thoughts on “Short Take: Mary Anne Franks Hates The Constitution

  1. David Meyer-Lindenberg

    Ah, so progressives are “naive[ly] devot[ed] to America’s founding charter.” Cool. Could someone remind them?

  2. Black Bellamy

    Let me Hollywood-movie-review the quote a little:

    “Mary Anne Franks has written a…naive…flawed…deeply troubling and absolutely…book” — Abraham Lincoln

  3. Ray Lee

    I can’t help but reflect on the connection between the Rules for Debate post and this one (inclusive of the link back to 2013). Baby lawyers coming out of Miami Law School have been taught that challenging the reality of a law where they approve of the goal of the law equates to support for the target of the goal. see, MAF’s 2nd 2013 comment: “You are really just invested in making the world safe for misogyny is all of its forms.”

    If that is the “thinking” process, it is inevitable that the collective of those who examine the reality of a law will be considered a “cult.”

    This does not bode well.

  4. Fubar

    And if you’re not a constitutional cultist, what are you?

    To save this once flawed but great nation
    From the clutches of cults’ devastation,
    My bold MAGA¹ hat
    Proclaims to all that
    We need pun control, speech registration!

    FN 1: Mary Anne Grates Again

  5. Anonymous Coward

    “Those who can’t do, teach” with a side of Peter Principle and a burning desire to be chief commissar in charge of putting enemies of the state up against the wall.

    1. RedditLaw

      “And those who can’t teach, teach gym.” — Someone deplorable who name is no longer mentioned in polite society. Isn’t there a gym class somewhere for Prof. Franks to teach?

  6. DaveL

    If these “fundamentalists” are guilty of elevating “certain constitutional rights above all others”, which constitutional rights does she think are being denigrated? Admittedly I’m not in the habit of studiously monitoring her utterances, but has she been championing greater protection against search and seizure? Due process? Uncompensated takings? Does she know something I don’t about the quartering of soldiers in private homes?

    1. oninoshiko

      The first paragraph of Article 1 Sec 9 is generally considered irrelevant. Any implication that you can buy another person, is generally considered removed.

      Oh, and we don’t honor the 18th amendment either.

    1. SHG Post author

      Why do you hate the idea that Mary Anne should get to vote on whether you should be allowed to speak, you white male supremacist?

  7. Jason

    Those who would ignore or trample the Constitution to obtain their preferred brand of justice would do well to remember Sir Thomas More’s admonition in “A Man for All Seasons”:

    “What would you do? Cut a great road through the law to get after the Devil? … And when the last law was down, and the Devil turned round on you – where would you hide, Roper, the laws all being flat? This country is planted thick with laws from coast to coast, Man’s laws, not God’s, and if you cut them down – and you’re just the man to do it – do you really think you could stand upright in the winds that would blow then? Yes, I give the Devil benefit of law, for my own safety’s sake!”

  8. Syme

    I thought ABA forbid anyone but a JD teaching at an accredited law school?
    A friend is glass-ceilinged at another school’s law library for that reason

    ps; years ago my personal attorney used that Sir Thomas More quote in a appellate brief. I’ve wondered if that was why he prevailed.

    1. SHG Post author

      Having a JD and being a lawyer are two different things. As for the More quote, we’ve heard it a million times. If it makes the unwashed feel better, that’s nice, but trust me that it wasn’t an epiphany to a judge.

  9. Matthew Scott Wideman

    I agree with Ms. Frank’s….most of our nation’s grossest civil rights violations have been because of our slavish attention to the Constitution……wait that doesn’t sound right??????

    I cannot believe she is allowed to teach any law class at Miami. That’s probably why their football has not been good since she got there. Allegedly.

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