July 02, 2021

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*This piece was originally published on Feb. 19, 2021*

The Constitution, first drafted in 1787, stands as the supreme law of the land in the U.S. But Mary Anne Franks — a law professor at the University of Miami who grew up attending a fundamentalist church in Arkansas — says that often “we read it not as a text but as Scripture,” much in the same way she was taught to read the Bible as a child.

Franks, author of The Cult of the Constitution, argues that originalism — the judicial view that the Constitution should only be interpreted as its writers meant it to be when it became law — has been used to justify ahistorically broad interpretations of both the First and Second Amendments. Rather than claiming “transcendental access” to the founders’ legal intentions, she proposes we honor the Constitution communally by extending its rights and values to all, including the most vulnerable members of our society.

Three Takeaways:

  • Franks uses the word “cult” to describe how Americans sometimes view the Constitution, even though she knows that’s a loaded word. She says an originalist reading creates a hierarchy between “the people who know” and “the people who believe” akin to how cults and religious fundamentalists present and try to export their views.
  • Though often described “as men of their time,” the founding fathers had contemporaries who noted the hypocrisy of fighting taxation without representation, while subjugating slaves and women. Franks focuses on Abigail Adams, who, in 1774, expressed to her husband her dislike for the notion that American revolutionaries “fight ourselves for what we are daily robbing and plundering from those who have as good a right to freedom as we have.” 
  • Franks argues that interpreting the Second Amendment as protecting an individual’s right to bear arms in public is a highly-politicized view that only became popular in the last few decades. Rather, the more mainstream interpretation of the Second Amendment was that it enshrined a “collective right” protecting against a centralized government seizing arms from the people.

More Reading:

  • Dive into the details of District of Columbia v. Heller, a 2008 Supreme Court case that Franks discusses during the episode. This recent ruling is the first to declare that the Second Amendment protects an individual’s right to bear arms for self-defense.
  • Abigail Adams famously disagreed with her husband, founding father and second U.S. president John Adams, on humanitarian issues. Read the full-text of her 1774 letter to her husband, in which she expressed her opposition to slavery.
  • Interested in learning more about originalism? Check out this Vox article explaining it, prompted by Justice Amy Coney Barrett’s appointment to the Supreme Court.
  • Franks points to Citizens United when arguing that constitutional fundamentalism warps modern considerations of free speech. This explainer details the 2010 Supreme Court case, which ruled corporations have the same free speech rights as individuals. 
  • There are many approaches to interpreting the Constitution. This essay by David Strauss, a law professor at the University of Chicago, weighs their benefits and shortcomings.

law, the Constitution, Founding Fathers, Mary Anne Frank

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