Preface for The Cult of the Constitution
PREFACE
BAD FAITH
I still remember the day I was saved.
I was 8 years old. I was sitting, as I had sat nearly every Sunday morning of my childhood, in a hard oak pew with my mother and brothers, all of us dressed as respectably as our poverty would allow. As he did every Sunday at the close of services, our preacher stood in front of the altar, flanked by a Christian flag on one side and an American flag on the other, asking who among us was ready to come forward and accept Jesus into their heart. Some Sundays three or four sinners would stumble down the aisle toward salvation; sometimes no one left the pews. When those seeking salvation got to the front, they would huddle down with our pastor, and their voices would drop too low to be heard by those of us remaining in our seats. Very often they would weep. The end was always the same: Our pastor would lift his head and hands up and say the person’s name out loud, and the congregation would join him in rejoicing that one more soul had escaped eternal damnation and joined the fellowship of the church.
By the day I decided to be saved, I had watched all this happen hundreds of times. I had heard how the streets of heaven were paved with gold and how no death and no suffering would ever be found there. I had heard the thunderous warnings about the burning fires of hell, where the sinners who had been too proud to repent would spend all of their days in torment and isolation. I had heard that all one had to do to obtain immortal life, avoid damnation, and be welcomed into the fold of the faithful was to accept Jesus as my Lord and Savior.
It sounded so easy. I had come very close to stepping out into the aisle several times before, but I had shrunk back at the thought of all the eyes in the pews and of the preacher’s booming voice so close to my ear. I was seized with the fear that if I did step out in the aisle, the deacons would shake their heads forbiddingly and send me back, explaining that the offer of salvation was not meant for people like me.
In all of those hundreds of Sunday mornings, I had never seen anyone who looked like me get saved. We were the only Asian members of our tiny, all-white Southern Baptist church. We were also one of only a handful of Asian families in the entire town of Pine Bluff, Arkansas, a city whose population was almost evenly divided between white and black. We were a minority even within that minority, as my brothers and I were the biracial children of a Taiwanese mother and a white father. Our father had died when we were young, and my mother was raising the three of us by herself, and I was convinced that our poverty was the first thing people saw when they looked at us, like the mark on Cain’s forehead.
Church was in many ways a refuge. No one was likely to call me a “chink,” or shout gibberish at me as they pulled their eyelids back into slants, or mock my mismatched, secondhand clothes. Church meant gospel songs, grape juice and tiny tasteless wafers for communion, and a gift-wrapped present with my name on it at Christmastime. But I could never shake the feeling that even in church, we were at best pitied and tolerated rather than warmly embraced.
I wondered if salvation would change that.
That day, as our elderly church pianist hammered out the final hymn of the Sunday service, the fear of eternal damnation and the desire to belong to a community won out over my other anxieties. I made my way down the aisle, and, to my immense relief, I wasn’t turned back. That Sunday, I was the one kneeling down before the altar with our preacher, I was the one tearfully accepting Jesus into my heart, and I was the one being presented to the congregation as the newest member of an eternal fellowship, forever and ever amen.
As I grew older, I found myself increasingly frustrated by the contrast between what I was taught about the Bible in church and my own study of the text. First were the problems I encountered in attempting to take the Bible literally, as Southern Baptists do. Genesis, for example, presented no end of difficulties. It made no sense to me why God, if he were all powerful, would need to rest after only six days of work. I was confounded by the reference to Cain’s marriage, wondering where the only living son of the first two human beings had found a wife. And I kept tripping over the passage in which God says, “The man has now become like one of us, knowing good and evil” after Adam eats the forbidden fruit, wondering who God was speaking to and why he used the first-person plural.
Then there were the contradictions between the Old and the New Testament. We were often told in sermons and Sunday school that to be a Christian meant being compassionate, nonjudgmental, and forgiving, but so much of the Old Testament seemed to exalt in God’s vengeance and cruelty. These passages stood in such a sharp contrast to the New Testament, which emphasized God’s humility and humanity in the form of Jesus Christ. The Old Testament’s steady stream of rapes, executions, and plagues jarred with New Testament stories of feeding the hungry and tending to the sick; “eye for an eye” seemed fundamentally out of step with the commandment to “turn the other cheek.”
As I continued to read the Bible on my own over the years, I could not help but notice how many of the Old Testament stories most treasured by the people of my faith were stories of domination: men’s domination of women, masters’ domination of slaves, favored tribes’ domination of other peoples, God’s domination of all humanity. What seemed even more peculiar was how many of these stories told of powerful, favored men being brought to rage and ruin by those weaker than themselves: servants, members of disfavored tribes, and, most of all, women. There was Adam—the first man, namer of all things, father of humanity—deprived of eternal life by a woman’s seductive curiosity. Joseph—interpreter of dreams and favorite son of Jacob—thrown into prison on the word of a loose woman falsely crying rape. Then there was Samson—strongest man in the world, blessed by God—reduced to a blind weakling by a faithless woman with a pair of scissors. And of course the story of Noah and the Great Flood, in which God himself—omnipresent, omnipotent—is driven into such rage by his disobedient children that he wipes them from the face of the earth.
These stories troubled me all the more as I began to see their resonance in the political and cultural beliefs of the larger conservative community around me. This was a community that believed that men were the head of the household, that white people were more hardworking and virtuous than black people, and that deviant forces (including homosexuality, promiscuity, and abortion) were constantly threatening to destroy our society. Instead of carefully reading scripture to shape its worldview, my community seemed to be using its worldview to shape its reading of scripture.
My college studies in literature, philosophy, and religion deepened my skepticism about the faith I was raised in. Literary theory taught me how to read a text; philosophy taught me how to evaluate moral systems; and religious studies taught me that Christianity was only one faith among many.
The work of the eighteenth century philosopher Immanuel Kant had probably the most profound impact on my thinking during these years. The first time I encountered his famous “categorical imperative”—“Act only according to that maxim whereby you can at the same time will that it should become a universal law”—I was struck by its resemblance to the New Testament command to “do unto others as you would have them do unto you.” But Kant’s imperative is more than a moral command. It is a test, not only of the morality but the intelligibility of our actions. A rule that applies only to others and not to ourselves is no rule at all, but merely a self-serving preference upon which no coherent moral system can be built.
The principle that Kant articulates in the categorical imperative is sometimes called “reciprocity,” and it is a concept that is affirmed by religious and philosophical traditions all over the world. What ultimately led me to abandon the religion of my childhood was my realization that it betrayed this fundamental principle, despite it being at the heart of Christianity itself.
By the time I finished my undergraduate studies and left for England to study on a Rhodes Scholarship, I no longer comfortably identified as either a Christian or a conservative.
After completing my doctorate in literature at Oxford, I turned to the study of law. I was drawn to constitutional law in particular, and even more specifically to the Reconstruction Amendments. These amendments expanded and transformed the Constitution in a way that paralleled the way the New Testament expanded and transformed the Bible. The Fourteenth Amendment makes clear that it is both impermissible and illogical to read the Constitution selectively either in terms of which rights it protects or of whose rights it protects; as such, the Fourteenth Amendment struck me as the constitutional expression of the Golden Rule. The equal protection clause seemed to be the keystone of the Constitution, the source of the entire text’s moral legitimacy and structural intelligibility.
For more than a decade now, my work as a legal scholar and advocate has been dedicated to the principle of constitutional reciprocity. I have focused on the rights of free speech and self-defense, two rights that have been interpreted in ways that overprotect certain groups and underprotect others. I have worked to combat intimate privacy invasions that diminish the ability of women and minorities to express themselves freely and gun policies that jeopardize their equal rights to self-preservation.
Much of my work on free speech and privacy has focused on nonconsensual pornography (often called “revenge porn”), a form of abuse that disproportionately affects women and causes irreparable damage to victims’ reputations, psychological health, job prospects, and personal relationships. I authored the first model criminal statute criminalizing nonconsensual pornography in 2013, which has since served as the template for both state and federal legislation on the issue. I served as the reporter for the Uniform Law Commission’s (ULC) Uniform Civil Remedies for Unauthorized Disclosure of Intimate Images Act, which was approved in July 2018. I have provided expert testimony regarding the impact of intimate privacy violations on freedom of expression and have worked with legislators and tech industry leaders on policies to protect equal rights to free speech.
My work on protecting equal rights of self-defense has focused on the disparate impact of gun violence on women and minorities. I have worked with the Florida League of Women Voters to educate lawmakers about the effects of stand-your-ground laws and testified against legislation that would have allowed guns to be carried on campuses across the state.
In the wake of the February 2018 mass shooting at Marjory Stoneman Douglas High School in Parkland, Florida, my two areas of particular focus—gun violence and online abuse—collided in an unsettling way. It was horrifying to watch the young survivors of the shooting become the targets of vicious online harassment, threatened with violence and death simply for speaking out against gun violence and political corruption. Here were children exercising their First Amendment rights in the midst of unimaginable pain, only to be vilified as crisis actors bent on destroying the Second Amendment. It wasn’t long before someone created an image of Emma Gonzalez, one of the most visible and eloquent Parkland student activists, appearing to show her ripping up the U.S. Constitution. My experiences working on free speech, gun rights, and online abuse issues drove home the disheartening lesson of this book: Fundamentalism is as alive and well in law as it is in religion. I have seen firsthand how often people use the Constitution the way religious fundamentalists use the Bible—selectively, self-servingly, and in bad faith.
Much as the evangelical community I was raised in focused on verses about homosexuality or women’s inferiority while ignoring the Golden Rule, constitutional fundamentalists focus on individual rights of speech and bearing arms while disregarding the equal protection guarantees of the Fourteenth Amendment. This is not just a tactic of conservatives, whose affinity for Christian fundamentalism is no secret, but also of self-identified liberals. I was not particularly surprised when National Rifle Association supporters and Breitbart readers denounced my work on gun violence as an attack on the Constitution; I was more taken aback when American Civil Liberties Union representatives and self-identified liberals made similar claims about my efforts to protect intimate privacy rights.
As I have fielded e-mails, phone messages, and social media posts threatening me with job loss, rape, and death, I have been struck by another parallel between religious and constitutional fundamentalism: the tendency to engage in a tactic I call victim-claiming. Often used in conjunction with victim-blaming, which attempts to deprive victims of sympathy, victim-claiming attempts to generate sympathy for perpetrators. Victim-claiming is a reversal technique that puts the powerful in the the space of the vulnerable, the abuser in the space of the abused. It is the theme that disturbed me as a young reader of the Bible, which often portrays powerful men as suffering at the hands of their supposed inferiors. The point of such passages seemed to be the justification of the use of violence by the powerful against the vulnerable.
The fundamentalist reading of the Constitution, especially of the First and Second Amendments, produces the same effect. The most powerful and privileged people in America—white men—cast themselves as an underclass engaged in a protracted struggle against the women and minorities seeking to censor and disarm them.
I was moved to write this book because I believe that good faith can conquer bad. I believe that good faith in the Constitution, in particular, is both possible and necessary. I wrote this book to make the case against fundamentalism and for the principle of reciprocity expressed in Christianity’s Golden Rule, Kant’s categorical imperative, and the Fourteenth Amendment’s equal protection clause. I wrote this book to advocate for the position that the only rights any of us should have are the rights that all of us should have. If only some of us are saved, all of us are lost.
As I was writing this book, I struggled with the fear that it too often states the obvious, that it lacks subtlety, that its moral claims are so blindingly apparent that there is no need to state them explicitly. On one particularly difficult day of writing I happened across the following passage:
[W]e have now sunk to a depth at which the restatement of the obvious is the first duty of intelligent men. It is not merely that at present the rule of naked force obtains almost everywhere. Probably that has always been the case. Where this age differs from those immediately preceding it is that a liberal intelligentsia is lacking. Bully-worship, under various disguises, has become a universal religion, and such truism as that a machine-gun is still a machine-gun even when a “good” man is squeezing the trigger . . . have turned into heresies which it is actually becoming dangerous to utter.
George Orwell wrote these lines in 1939. I have pushed aside my fears about the obviousness of this book and the simplicity of its claims because I fear something else much more: what our future will look like if the obvious is left unsaid.