Over the last several months at the Forum, I have been noticing lots of new scholarship that demonstrates considerable hostility toward free speech rights, or at least free speech rights in the way that these have developed and been protected for what many authors think is the last 30 years or so (but what is more accurately described, in my own view, as the past 100 years or so) in American law and politics. For a few book examples, see here, here, here, here, here, here, and here. For the gathering swell of articles in the legal academy making similar claims about both free speech and religious freedom, see my paper discussing these developments. All of this deserves a new tag: First Amendment Constriction.
Here is another new book in this blossoming genre, this one more aggressive and vigorous in its claims than some of the others: The Cult of the Constitution: Our Deadly Devotion to Guns and Free Speech (Stanford University Press), by law professor Mary Anne Franks. Notice, incidentally, the deprecating allusion to religion in the title and in the description below in the repeated references to “fundamentalism,” signaling the sort of commitment that one makes in an unreasoned or amaurotic way (this move may be seen in other recent scholarship as well).
“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.”