The Cult of the Constitution
Mary Anne Franks

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INTRODUCTION

WHO WE ARE



“You will not replace us.”

On the night of August 11, 2017, hundreds of white men1 marched through Charlottesville, Virginia, waving torches and chanting, “You will not replace us,” “Jews will not replace us,” and “Blood and Soil,” a translation of the Nazi slogan “Blut und Boden.” In their path was a small group of University of Virginia students who had linked arms around a statue of Thomas Jefferson, the university’s founder. Skirmishes broke out; witnesses reported that the marchers attacked the students with their torches and with chemical sprays.

The following morning, a much larger group of demonstrators gathered in the city’s recently renamed Emancipation Park for the “Unite the Right” rally organized by a white supremacist named Jason Kessler. Some of the demonstrators carried Confederate flags and displayed swastikas. Others wore military-style tactical gear and carried assault rifles, taking advantage of Virginia’s open-carry law. These demonstrators were met by hundreds of counter-protesters, and violent confrontations began almost immediately. Video footage shows one man firing a gun into a crowd of people and six men beating a young African American man in a parking garage.2 Virginia Governor Terry McAuliffe declared a state of emergency, and the crowds were ordered to disperse.

In the afternoon, one of the far-right demonstrators drove his car full speed into a crowd of unarmed counter-protesters. The attack injured thirty-five people and killed a 32-year-old woman named Heather Heyer. Two state troopers, who were monitoring the demonstration from the air, died when their helicopter crashed. Responding to criticism that law enforcement had failed to maintain order, Governor McAuliffe claimed that the heavily armed demonstrators “had better equipment than our state police had.”3

The demonstrators were ostensibly protesting the city’s planned removal of a statue of Confederate General Robert E. Lee and the renaming of Lee Park as Emancipation Park. Before the march, city officials had attempted to move the rally to a larger location farther from downtown for public safety reasons. Kessler, represented by the American Civil Liberties Union (ACLU) of Virginia, successfully argued in a lawsuit that moving the demonstration would violate the First Amendment.

It was not the first time a left-leaning civil liberties organization had defended the prerogative of a white supremacist group to march in a town that did not want them there. Forty years before the events in Charlottesville, the ACLU famously fought for the right of the National Socialist Party of America (NSPA) to march through the Illinois suburb of Skokie, home to nearly a thousand Holocaust survivors. The neo-Nazi marchers planned to wear Nazi storm trooper uniforms and carry signs proclaiming “Free Speech for the White Man.”4 At the time, the ACLU was widely perceived as a liberal organization, and its support of the rightwing extremist group was met with surprise and condemnation in many quarters. Today, however, the ACLU’s defense of the NSPA is often cited as an example—sometimes as the quintessential example—of courageous and principled commitment to free speech. The Skokie case helped define what is sometimes called the absolutist approach to the First Amendment, which maintains that even the most extreme and repugnant forms of expression must be protected. The ACLU’s advocacy on behalf of white supremacist efforts to demonstrate in Charlottesville in 2017 earned the organization similar criticism and praise prior to the event.

But Charlottesville turned out quite differently than Skokie. The 1977 Skokie march never took place. The NSPA had originally planned to march in Marquette Park in Chicago, and it had been cleared to do so by the time the Skokie case was settled. The small group marched there instead without dramatic incident. By contrast, the Charlottesville march erupted in violence, and that violence was repeatedly and vividly broadcast through both mainstream and social media. The injuries and deaths resulting from the demonstration in Charlottesville cast the consequences of free speech absolutism in a very different light.

Two days after the demonstration, Governor McAuliffe highlighted the Virginia ACLU’s role in ensuring that the rally took place downtown rather than in what the city considered to be a safer location a few miles away: “We were, unfortunately, sued by the ACLU. The judge ruled against us. That rally should not have been in the middle of downtown.”5 A board member of the Virginia ACLU resigned following the demonstration, stating that he would not “be a fig leaf for Nazis.”6 In a joint statement posted a few days after the demonstration, three California ACLU affiliates appeared to break ranks with the Virginia ACLU’s decision to defend Kessler. According to the California statement,

[T]he First Amendment does not protect people who incite or engage in violence. If white supremacists march into our towns armed to the teeth and with the intent to harm people, they are not engaging in activity protected by the United States Constitution. The First Amendment should never be used as a shield or sword to justify violence.7

The organization’s national leadership was quick to counter the impression that a rift had developed within the ACLU. Within days, Anthony Romero, the ACLU’s executive director, told the Wall Street Journal that the ACLU would not support armed demonstrators in the future: “If a protest group insists, ‘No, we want to be able to carry loaded firearms,’ well, we don’t have to represent them.”8 While Romero and other ACLU representatives insisted that this was not a change in ACLU policy, the statement drew criticism from those who perceived the ACLU to be backing away from its absolutist commitment to First Amendment rights, as well as those who believed that the organization was denigrating Second Amendment rights.9 A statement by the national ACLU one day after the California affiliate’s statement did little to clear up the confusion.10 According to the statement, the national ACLU agreed with “every word in the statement from our colleagues in California. The First Amendment absolutely does not protect white supremacists seeking to incite or engage in violence.” But “[a]t the same time,” the statement continued, “we believe that even odious hate speech, with which we vehemently disagree, garners the protection of the First Amendment when expressed non-violently.”11

The national ACLU’s statement attempted to sidestep the issue grimly highlighted in Charlottesville: the contested boundary between speech and violence. The claim that the First Amendment protects speech but not violence assumes, as an initial matter, that speech and violence can always be meaningfully separated. This was not the first time that assumption had been challenged, but the weapons prominently displayed amid the swastikas and Confederate flags in Charlottesville brought the challenge into particularly sharp relief. Particularly when the First Amendment absolutism endorsed by organizations such as the ACLU collides with the Second Amendment absolutism endorsed by organizations such as the National Rifle Association, speech and violence become difficult to disentangle.12 The Charlottesville demonstration accelerated already intense debates over First Amendment protections for hateful speech and the Second Amendment rights of citizens to openly display loaded weapons in volatile situations.

The “Unite the Right” rally also highlighted the role of the Internet in mobilizing and amplifying extremist groups committed to both online and offline violence. The small group of neo-Nazis planning the 1977 Skokie march relied on in-person communications and printed flyers. By contrast, the “Unite the Right” rally had been organized and advertised on various white supremacist and neo-Nazi websites, attracting a broad coalition of extremists from around the country. The march’s attendees “shared advice on weaponry and tactics, including repeatedly broaching the idea of driving vehicles through opposition crowds” through online chat applications and websites.13 On August 14, 2017, one such website, a popular white nationalist propaganda site named the Daily Stormer, published a piece celebrating Heather Heyer’s murder, calling her a “fat, childless, 32-year-old slut”14 and urging its readers to target her funeral.

In the days following the rally, the Daily Stormer’s domain registration was canceled, first by the domain name service provider GoDaddy and later by Google’s domain management service.15 Twitter and Facebook both removed content associated with the Daily Stormer from their platforms, and the Internet security company Cloudflare terminated the Daily Stormer’s account.16 While some praised tech companies for taking a stand against the site, the Electronic Frontier Foundation (EFF), a prominent civil liberties and digital rights organization, criticized these responses. The EFF asserted “that no one—not the government and not private commercial enterprises—should decide who gets to speak and who doesn’t.”17

Charlottesville raised questions not only about what the Constitution is meant to protect, but also who the Constitution is meant to protect. The spectacle in Charlottesville was freighted with symbolism: white male protesters rallying around a statue of the leader of the Confederate Army as a diverse group of counter-protesters locked arms around the statue of the author of the Declaration of Independence. Robert E. Lee fought to preserve the institution of slavery; Thomas Jefferson proclaimed, “all men are created equal.” Indeed, the fierce debate over the removal of Confederate monuments across the country is a testament to how deeply divided Americans continue to be over issues of race and national identity. These divisions often map neatly onto political affiliations, making it seem that the conflict can be further reduced to conservative versus liberal, Republican versus Democrat. It is tempting to characterize America’s contemporary identity crisis as the choice between Lee and Jefferson, between bigotry and egalitarianism. But the harsh reality is that a choice between Lee and Jefferson is not much of a choice at all.

“I think there is blame on both sides” for what happened in Charlottesville, President Donald Trump told reporters on August 15, 2017.18 This remark was criticized by figures across the political spectrum for promoting a false equivalence between the violent actions of white supremacists, most notably the murder of Heyer, and the conduct of the largely unarmed counter-protesters. But the remark also contained an inadvertent truth. In their repeated invocations of the First and Second Amendments, the neo-Nazi demonstrators in Charlottesville echoed the neo-Nazi demonstrators planning to march in Skokie forty years earlier: The Constitution is first and foremost for white men. While conservatives officially distance themselves from this sentiment and liberals denounce it, the Constitution has indeed functioned to protect white male supremacy since the day it was written.

The term “white male supremacy” requires elaboration. It differs from the more commonly used expression “white supremacy” in two important ways. First and most obviously, it includes the word “male,” intentionally highlighting the gendered as well as racialized nature of America’s social and political hierarchy. The term “white male supremacy” is meant to make the patriarchal foundation of power visible, illuminating the intimate connections between racial and sexual inequality.19

Second, “white male supremacy,” as the term is used in this book, refers not only to ideology of violent extremists who openly call for the exclusion or elimination of women and nonwhite men, but also to groups and individuals who express “softer” forms of racial and gender superiority, including members of the so-called alt-right as well as more mainstream conservatives. It also includes the ideology of many self-described liberals who espouse commitment to racial and gender equality in theory but reinforce existing hierarchies of power in practice. White male supremacy can be subtle and even seemingly benevolent as well as overt and violent. And because white male supremacy is an ideology, not an identity, its adherents are not limited to people who are white or male.

White male supremacy demands, in essence, that the interests of white men take priority over those of all others. In this sense, the concept of white male supremacy mirrors the concept of constitutional supremacy. As stated in Article VI, Clause 2, the Constitution is “the supreme Law of the Land.” This “supremacy clause” acknowledges that other laws may be created and enforced, but none may conflict with and all are ultimately subordinate to the ultimate authority of the Constitution. In a similar fashion, those who adhere to the ideology of white male supremacy may tolerate the expansion of rights to women and nonwhite men, but only to the extent that these rights do not conflict with or undermine the rights of white men.20 White male supremacy is thus profoundly antidemocratic.

Though the ideology of white male supremacy is pervasive, relatively few people are willing to openly endorse it. While there are some extremists who will proudly assert their belief in racial and gender superiority, it is more common for white male supremacy to be disguised and diffused within some seemingly neutral belief system. That system can be a religion, an economic theory, or, as is the focus of this book, a Constitution.

Notes

1. While a few women were also present, the demonstration was dominated by men.

2. Frances Robles, “Two Men Arrested in Connection with Charlottesville Violence,” New York Times (Aug. 26, 2017), https://www.nytimes.com/2017/08/26/us/charlottesville-arrests.html?mcubz=0

3. David A. Graham, “Could Police Have Prevented Bloodshed in Charlottesville?” The Atlantic (Aug. 14, 2017), https://www.theatlantic.com/politics/archive/2017/08/could-the-police-have-prevented-bloodshed-in-charlottesville/536775/

4. Steven H. Shiffrin, What Is Wrong with the First Amendment? (Cambridge 2016).

5. Morning Edition, “Incident in Charlottesville Will Make Us Stronger, Gov. McAuliffe Says,” National Public Radio (Aug. 14, 2017), http://www.npr.org/2017/08/14/543358169/incident-in-charlottesville-will-make-us-stronger-gov-mcauliffe-says

6. Dara Lind, “Why the ACLU Is Adjusting Its Approach to ‘Free Speech’ After Charlottesville,” Vox (Aug. 21, 2017), https://www.vox.com/2017/8/20/16167870/aclu-hate-speech-nazis-charlottesville

7. “ACLU of California Statement: White Supremacist Violence Is Not Free Speech” ACLU of Northern California (Aug. 16, 2017), https://www.aclunc.org/news/aclu-california-statement-white-supremacist-violence-not-free-speech

8. Joe Palazzolo, “ACLU Will No Longer Defend Hate Groups Protesting with Firearms,” Wall Street Journal (Aug. 17, 2017), https://www.wsj.com/articles/aclu-changes-policy-on-defending-hate-groups-protesting-with-firearms-1503010167

9. David French, “After Charlottesville, the First and Second Amendments Are Under Fire,” National Review (Aug. 18, 2017), http://www.nationalreview.com/article/450615/aclus-second-amendment-troubles-after-charlottesville

10. Eugene Volokh, “Odd Statement from the ACLU: ‘White Supremacist Violence Is Not Free Speech,’Washington Post (Aug. 16, 2017), https://www.washingtonpost.com/news/volokh-conspiracy/wp/2017/08/16/odd-statement-from-the-aclu-of-california-white-supremacist-violence-is-not-free-speech/?utm_term=.6d372d365a78

11. AirTalk, “After Statement Saying White Supremacist Violence Isn’t Free Speech, Are CA ACLU Branches Breaking Rank?” SCPR (Aug. 17, 2017), https://www.scpr.org/programs/airtalk/2017/08/17/58638/after-statement-saying-white-supremacist-violence/

12. Dahlia Lithwick and Mark Joseph Stern, “The Guns Won,” Slate (Aug. 14, 2017), http://www.slate.com/articles/news_and_politics/jurisprudence/2017/08/the_first _and_second_amendments_clashed_in_charlottesville_the_guns_won.html

13. David Z. Morris, “Leaked Chats Show Charlottesville Marchers Were Planning for Violence,” Fortune (Aug. 26, 2017), http://fortune.com/2017/08/26/charlottesville-violence-leaked-chats/

14. Madison Malone Kircher, “Was Neo-Nazi Website Daily Stormer Hacked by Anonymous After a Post About the Charlottesville Victim?” New York Magazine (Aug. 14, 2017), http://nymag.com/selectall/2017/08/daily-stormer-not-hacked-by-anonymous-loses-godaddy-domain.html

15. Katie Mettler and Avie Selk, “GoDaddy—then Google—Ban Neo-Nazi Site Daily Stormer for Disparaging Charlottesville Victim,” Washington Post (Aug. 14, 2017), https://www.washingtonpost.com/news/morning-mix/wp/2017/08/14/godaddy-bans-neo-nazi-site-daily-stormer-for-disparaging-woman-killed-at-charlottesville-rally/?utm_term=.deacc66f436e

16. Tony Romm and Kurt Wagner, “Twitter Is Joining Its Fellow Tech Companies in Clamping Down on the Daily Stormer, a Neo-Nazi Website,” Recode (Aug. 16, 2017), https://www.recode.net/2017/8/16/16158292/twitter-facebook-cloudflare-google-godaddy-daily-stormer-alt-right-nazi-charlottesville.

17. Jeremy Malcolm, Cindy Cohn, and Danny O’Brien, “Fighting Neo-Nazis and the Future of Free Expression,” Electronic Frontier Foundation (Aug. 17, 2017), https://www.eff.org/deeplinks/2017/08/fighting-neo-nazis-future-free-expression.

18. Michael D. Shear and Maggie Haberman, “Trump Defends Initial Remarks on Charlottesville; Again Blames ‘Both Sides,’New York Times (Aug. 15, 2017), https://www.nytimes.com/2017/08/15/us/politics/trump-press-conference-charlottesville.html?mcubz=3

19. The term is admittedly not fully comprehensive, as it does not highlight prejudice based on class, sexual orientation, religion or lack thereof, gender identity, disability, or immigration status, all of which are part of the story of American inequality. This book focuses on the inequalities of gender and race that are literally foundational to American constitutional culture.

20. Derrick Bell described a similar phenomenon in the context of racial remediation, suggesting that whites will tolerate efforts to address racial inequality only so long as such efforts do not negatively impact their own interests:

Racial remedies may . . . be the outward manifestations of unspoken and perhaps subconscious judicial conclusions that the remedies, if granted, will secure, advance, or at least not harm societal interests deemed important by middle and upper class whites.

See Derrick A. Bell, Jr., “Brown v. Board of Education and the Interest-Convergence Dilemma,” Harvard Law Review, 93 (1980), 523.