Madison's Music: On Reading the First Amendment

By Burt Neuborne

“A detailed history of the transformation of First Amendment law” from one of the nation’s foremost civil liberties lawyers (The New York Times).
 
Are you sitting down? It turns out that everything you learned about the First Amendment is wrong. For too long, we’ve been treating small, isolated snippets of the text as infallible gospel without looking at the masterpiece of the whole. Legal luminary Burt Neuborne argues that the structure of the First Amendment as well as of the entire Bill of Rights was more intentional than most people realize, beginning with the internal freedom of conscience and working outward to freedom of expression and finally freedom of public association. This design, Neuborne argues, was not to protect discrete individual rights—such as the rights of corporations to spend unlimited amounts of money to influence elections—but to guarantee that the process of democracy continues without disenfranchisement, oppression, or injustice.
 
Neuborne, who was the legal director of the ACLU and has argued numerous cases before the Supreme Court, invites us to hear the “music” within the form and content of Madison’s carefully formulated text. When we hear Madison’s music, a democratic ideal flowers in front of us, and we can see that the First Amendment gives us the tools to fight for campaign finance reform, the right to vote, equal rights in the military, the right to be full citizens, and the right to prevent corporations from riding roughshod over the weakest among us. Neuborne gives us an eloquent lesson in democracy that informs and inspires.
 
“In the dark art of lawyering, Neuborne has always been considered a white knight.” —New York

• Language: English
• Publisher: Open Road Integrated Media
• Release date: May 10, 2011
• ISBN: 9781620970539

Burt Neuborne

Burt Neuborne is the Inez Milholland Professor of Civil Liberties and founding legal director of NYU Law School's Brennan Center for Justice and has participated in more than two hundred cases in the U.S. Supreme Court. Neuborne is the author of Madison's Music and the forthcoming When at Times the Mob Is Swayed: A Citizen's Guide to Keeping Our Republic (both from The New Press) and lives in New York.

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ALSO BY BURT NEUBORNE

Building a Better Democracy: Reflections on Money, Politics and Free Speech: A Collection of Writings by Burt Neuborne

El papel de los juristas y del imperio de la ley en sociedad Americana (The Role of Judges and the Rule of Law in American Society)

Free Speech, Free Markets, Free Choice: An Essay on Commercial Speech

Emerson, Haber, and Dorsen’s Political and Civil Rights in the United States, volume 1 (with Paul Bender and Norman Dorsen) and volume 2 (with Paul Bender, Norman Dorsen, and Sylvia Law)

The Rights of Candidates and Voters (with Arthur Eisenberg)

Unquestioning Obedience to the President: The Constitutional Case Against the Vietnam War (with Leon Friedman)

© 2015 by Burt Neuborne

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The House Was Quiet and the World Was Calm from The Collected Poems of Wallace Stevens by Wallace Stevens, copyright © 1954 by Wallace Stevens and copyright renewed 1982 by Holly Stevens. Used by permission of Alfred A. Knopf, an imprint of the Knopf Doubleday Publishing Group, a division of Random House LLC. All rights reserved.

Published in the United States by The New Press, New York, 2015

Distributed by Two Rivers Distribution

LIBRARY OF CONGRESS CATALOGING-IN-PUBLICATION DATA

Neuborne, Burt, 1941– author.

Madison’s music : on reading the First Amendment / Burt Neuborne.

pagescm

Includes bibliographical references and index.

ISBN 978-1-62097-053-9 (e-book)

1.United States. Constitution. 1st Amendment.2.Civil rights—United States—History.3.Constitutional history—United States.I.Title.

KF45581st .N482015

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Composition by dix!

This book was set in Electra

24681097531

Odysseus the Tailor

Odysseus the Tailor’s real name was Sam. A gentle, unassuming man who stood all of five five, my father was one of a dozen U.S. Navy frogmen dropped into the English Channel several hours before the Normandy invasion in 1944, with instructions to attach explosives to a wall of underwater steel spikes designed to tear the bottoms out of Allied landing craft. Once the explosives were in place, Pop and his buddies swam to the beach and crouched in the surf until the invasion boats neared the French coast. Then they blew a hole in the steel wall, opening a bloody path to the liberation of Europe. After D-Day, Pop was assigned to Patton’s Navy, a small combat unit supporting amphibious crossings of French rivers during the Third Army’s push toward Paris. From our kitchen in the Greenpoint section of Brooklyn, my mother and I anxiously plotted Odysseus’s progress across Europe. My job was to keep Pop up-to-date on his beloved New York Giants. Each letter from me contained baseball box scores laboriously clipped from the Brooklyn Eagle. Pop’s heavily censored replies promised a glorious future when we would see a baseball game together at the Polo Grounds.

When Odysseus the Tailor finally came home in the summer of 1946, I oiled my baseball glove and waited for the great day. July passed into August—but no baseball. Pop reopened his tailor shop, and we sat comfortably in the warm sunlight while silver needles danced in his thimbled fingers—but no baseball. School began after Labor Day—but no baseball. Finally, in mid-September, I broke down at dinner. What have I done, I wailed, that we can’t go to a Giants game. My father, who had forgotten his wartime promise, was stricken. He hugged me. I love you, Butchie, he whispered. But we can’t go to a Giants game yet. . . . They still don’t let black people play, and we just don’t support things like that.

Instead, we took the ferry across the Hudson River to see the world champion Newark Eagles play a Negro League game at Ruppert Stadium. I don’t remember much about the game, other than the beautifully dressed, multiracial crowd, the noise, the sunlight, and the joy of being my father’s son.

Farewell, Odysseus of the silver needles. This book is for you.

CONTENTS

1.Reading the First Amendment as a Poem

2.Why Reading the First Amendment Isn’t Easy

3.Madison’s Music: Lost and Found

4.The First Amendment as a Narrative of Democracy

5.Madison’s Music Restored: Recovering Madison’s Democracy-Friendly First Amendment

6.The Democracy-Friendly First Amendment in Action

7.Mr. Madison’s Neighborhood

8.Divine Madness: Hearing Madison’s Music in the Religion Clauses

9.The Costs of Ignoring Madison’s Music: The Enigma of Judicial Review

10.Madison, the Reluctant Poet: How the Great Poem Almost Didn’t Get Written

Notes

Index

1

Reading the First Amendment as a Poem

This is not a work of history. I claim no special expertise about James Madison’s interior life. Nor do I claim to be describing his subjective purpose. I don’t even claim that Madison himself was wholly responsible for his music. As we’ll see, Madison’s arranger, Roger Sherman, deserves some credit. Rather, it is an effort to read the First Amendment’s forty-five words—all of them—as a coherent whole in order to recapture what I call Madison’s music.

I rest this book on the phrasing, rhythm, order, and placement of the forty-five words themselves. When we read a great poem, we do not ask whether the poet intended to achieve a particular emotional, aesthetic, or intellectual response. It is enough that the choreography of words triggers a responsive chord in a careful reader. The thesis of this book, dear reader, is that a careful study of the order, placement, meaning, and structure of the forty-five words in Madison’s First Amendment will trigger a responsive poetic chord in you that will enable us to recapture the music of democracy in our most important political text.

Today we hear only broken fragments of Madison’s music. Instead of seeking harmony and coherence in the First Amendment, we read the First Amendment (indeed, the entire Bill of Rights) as a set of isolated, self-contained commands, as if the Founders had thrown a pot of ink at the wall and allowed the order, placement, and structure of each provision in the Bill of Rights to be randomly determined by the splatter. The result is an arbitrary constitutional jurisprudence that has left us with a dysfunctional, judge-built democracy that is owned lock, stock, and barrel by five thousand wealthy oligarchs, a pseudodemocracy in which district lines have been carefully gerrymandered to rig the outcomes of most legislative elections, only half the population bothers to vote, and cynics erect barriers designed to disenfranchise the weak and the poor.

It doesn’t have to be that way. A poetic vision of the interplay between democracy and individual freedom is hiding in plain sight in the brilliantly ordered text and structure of the Bill of Rights, but we have forgotten how to look for it. Recovering our ability to hear Madison’s music would pave the way to a democracy-friendly First Amendment aimed at reinforcing Lincoln’s hope that government of the people, by the people, and for the people shall not perish from the earth.

We honor James Madison as the driving force behind the Bill of Rights. We recognize him as Thomas Jefferson’s indispensable political lieutenant. We applaud him as the nation’s fourth president. But we’ll never do Madison full justice until we revere him as a great poet—not a literary poet like Wallace Stevens, but a political poet like Abraham Lincoln or Ronald Reagan. Madison’s poetic genius was structural—a mastery of the contrapuntal interplay between the collective practice of democracy and individual liberty. His poetic voice speaks to us in the harmony of the 462 words, thirty-one ideas, and ten amendments—each in its perfectly chosen place and all interacting to form a coherent whole—that constitute the magnificent poem to democracy and individual freedom called the Bill of Rights.

When we read a great literary poem like The House Was Quiet and the World Was Calm, Wallace Stevens’s celebration of the miracle of reading, we concentrate deeply on each word and pay particular attention to the rhythmic cadence of the language and stanzas, and to the imagery they spin.

The house was quiet and the world was calm.

The reader became the book; and summer night

Was like the conscious being of the book.

The house was quiet and the world was calm.

The words were spoken as if there was no book,

Except that the reader leaned above the page,

Wanted to lean, wanted much most to be

The scholar to whom his book is true, to whom

The summer night is like a perfection of thought.

The house was quiet because it had to be.

The quiet was part of the meaning, part of the mind:

The access of perfection to the page.

And the world was calm. The truth in a calm world,

In which there is no other meaning, itself

Is calm, itself is summer and night, itself

Is the reader leaning late and reading there.

The magical quality of The House Was Quiet is not merely in its 141 words and its elegant phrases. Wallace Stevens achieves great poetry in the interplay between and among his words, and in the capacity of their order, rhythm, cadence, and imagery to generate meaning and mood that enriches and ennobles the plain text, imbuing it with a kind of music. Every great poem has an internal music that hides in plain sight with not a word out of place or an image wasted. What if we were to read Madison’s Bill of Rights—especially his First Amendment—with the same respect and intensity that we lavish on a Wallace Stevens poem, paying close attention, not only to the individual words and phrases of the first ten amendments, but also to their interplay, order, cadence, and imagery? Would we find the music of poetry in Madison’s handiwork? I have no doubt that the answer is yes.

In Wallace Stevens’s words, I invite you to rediscover Madison’s music, to be the scholar to whom Madison’s Bill of Rights is most true, to be the reader leaning late and reading there.

2

Why Reading the First Amendment Isn’t Easy

Reading the First Amendment isn’t easy. Consider the text:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

NEITHER THE WORDS NOR THE HISTORY HELPS MUCH

The words themselves aren’t much help. Reading the first word, Congress, literally would leave the president, the military, fifty governors, and your local cops free to ignore our most important set of constitutional protections. Reading the fourth and fifth words, no law, literally would wind up protecting horrible verbal assaults like threats, fraud, extortion, and blackmail. The three most important words in the First Amendment—the freedom of—the words that introduce, modify, and describe the crucial protections of speech, press, and assembly, simply cannot be read literally. The phrase the freedom of is a legal concept that has no intrinsic meaning. Someone must decide what should or should not be placed within the protective legal cocoon. Finally, the majestic abstractions in the First Amendment, like establishment of religion, free exercise thereof, peaceful assembly, and petition for a redress of grievances do not carry a single literal meaning. In the end, each of the abstractions protects only the behavior we think it should protect.

So much for the literal text.

History (or what’s sometimes called originalism these days) is even worse as a firm guide to reading the First Amendment. The truth is that the First Amendment as we know it today didn’t exist before Justice William Brennan Jr. and the rest of the Warren Court invented it in the 1960s. In fact, history turns out to be the worst place to look for a robust First Amendment. Thomas Jefferson thought free speech was a pretty good idea, but the ink wasn’t dry on the First Amendment before President Adams locked up seventeen of the twenty newspaper editors who opposed his reelection in 1800. One of the jailed editors was Benjamin Franklin’s nephew Benjamin Franklin Bache. He died in jail. Despite the newly enacted First Amendment, not only did the federal courts remain silent in the face of Adams’s massive exercise in government censorship; they often initiated the prosecutions. Matthew Lyon, Vermont’s only Jeffersonian member of Congress, was jailed for four months and fined $1,000 for criticizing the president in his newspaper. Lyon had the last word, though. He was released just in time to cast Vermont’s swing vote for Thomas Jefferson when the presidential election of 1800 was thrown into the House, helping to seal Adams’s defeat.¹

The nineteenth and early twentieth centuries were free-speech disasters. Before the Civil War, antislavery newspapers were torched throughout the North. All criticism of slavery was banned in the South. Slaves were even forbidden to learn to read.² During the Civil War, President Lincoln held opponents of the war in military custody for speaking out against it. After the Civil War, labor leaders went to jail in droves for picketing and striking for higher wages. Labor unions were treated as unlawful conspiracies.³ Radical opponents of World War I were sentenced to ten-year prison terms and eventually deported to the Soviet Union—for leafleting.⁴ In 1920, Eugene Debs polled more than one million votes for president from his prison cell in the Atlanta federal penitentiary, where he was serving a ten-year jail term for giving a speech in 1917 praising draft resisters. Released in 1921, Debs, his health broken, was banned from voting or running for office; he died in 1926.⁵ After World War II, fear of communism translated into jail or deportation for thousands of political radicals guilty of saying the wrong thing or joining the wrong group, culminating in 1951 with the Supreme Court’s affirmance of multiyear jail terms for the leadership of the American Communist Party, despite its status as a lawful political party.⁶

So much for history, unless you want to erase the First Amendment.

SEARCHING FOR THE FIRST AMENDMENT’S PURPOSE HELPS ONLY A LITTLE

If we can’t read the First Amendment literally or rely on its checkered history for firm guidance about how to read it today, perhaps we can read each of the forty-five words in light of its underlying purpose. The problem, of course, is agreeing on whose purpose counts, figuring out what that purpose is, and deciding how best to advance it. When he finally awakened to the need for a robust First Amendment, the great justice Oliver Wendell Holmes Jr. told us that its real purpose is to ensure a free market in ideas, so that the best ideas will triumph in the long run through free competition.⁷ That, of course, is the mantra of free-market capitalism—to say nothing of Darwinism—trusting that free competition will lead us to the best of all possible worlds: political, economic, social, and biological. We know from bitter experience that the extreme version of the free-market mantra can be wrong in the economic sphere. History teaches that completely unregulated economic markets can lead to disaster. Witness the stock market collapse of 1929 and the economic collapse of 2008. The key is knowing when and how to regulate the economic market and when to let it alone. The same goes for the idea market. The vast bulk of the time, a free market in political ideas works fine, but history teaches that occasionally false (or at least horrendous) ideas triumph with disastrous social consequences—witness the broad popular acceptance of Nazism in pre–World War II Germany, the stubborn persistence of racial prejudice everywhere, the perennial lure of anti-Semitism, the unending worldwide oppression of women, widespread support for slavery in the old South and in much of the world today, and the modern embrace of jihadist terror.

Moreover, neither the economic market nor the idea market is ever really free. We know that powerful economic entities can stifle competition and foist inferior products on consumers at excessive cost. That’s why we have antitrust laws and bans on false advertising. But the idea market is also far from free. Given the high cost of mass speech, only the rich and powerful can afford to engage in effective mass political communication. The poor suffer the speech they must.

Thus, while Holmes’s notion of a free market in ideas is both a useful metaphor and a helpful guide, it is not a fail-safe key to reading the First Amendment, especially in settings such as campaign finance reform or access to the mass media, where vast private concentrations of power and huge resource imbalances systematically distort the market.

Justice Louis Brandeis, who joined with Holmes in pioneering the modern First Amendment, tells us that the real purpose of the First Amendment is to enhance human dignity by protecting individual self-expression and autonomous choice. According to Brandeis, respect for the inherent dignity of the speaker as a human being requires us to tolerate efforts at self-expression, even when they do not help our choice-dependent institutions to work better.⁸ Brandeis’s recognition of the close link between speech and human dignity infuses the First Amendment with a deep moral purpose worth fighting for. But is it an automatic trump that invalidates all speech regulation? What about speech that mocks human dignity? It’s hard to find much human dignity in virulent hate speech, pornography about brutalizing women, cigarette ads linking sex and smoking, violent video games aimed at children, libel, or unlimited corporate electioneering. And what happens when the speaker’s dignitary interest in self-expression runs headlong into the hearer’s dignitary interest in self-worth, or a speech target’s dignitary interest in privacy or accuracy? Should the speaker’s dignity always outweigh everyone else’s?

Finally, many modern free-speech theorists argue that the real purpose of the First Amendment is prophylactic, designed to keep government out of the business of regulating communication because governments inevitably seek to manipulate the minds of ordinary citizens in order to stay in power.⁹ There is good reason to distrust government as a censor. Has there ever been a dictatorship that did not use censorship to keep itself in power? But two factors complicate the effort to explain and apply the First Amendment as an unyielding prophylactic ban on government efforts to regulate speech.

First, the most egregious historical examples of abusive government censorship have taken place in totalitarian or authoritarian regimes. While democracies engage in their fair share of abusive censorship, it’s much harder to censor in a democracy when everyone is watching. After all, democracies have successfully operated vast public education programs for more than a century, with all the capacity for ideological brainwashing that such an enterprise entails, without slipping into First Amendment hell. In fact, the public schools’ record on toleration and openness, while far from perfect, is a good deal better than that of private schools, most of which function as ideological Xerox machines.

Second, removing government from the equation doesn’t mean that speech becomes free. When an unyieldingly prophylactic First Amendment takes government out of the speech regulation game entirely, it creates a regulatory vacuum that will quickly be filled by powerful private entities such as Amazon with the capacity to influence what gets seen and heard by the population. What should frighten us more? A democratically elected government tweaking the speech market to protect the weak or a wholly unregulated speech market dominated by a few massive corporations?

A TALE OF TWO READINGS

Disagreement over the relative importance and persuasiveness of the three usual candidates for the First Amendment’s underlying purpose—preserving free markets in ideas, respecting human dignity, and avoiding government censorship—has split the current Supreme Court into two First Amendment wings: deregulatory and aspirational. The five current Republican justices, intuitively drawn to unregulated markets, supportive of the rhetoric (if not always the reality) of personal autonomy, and intensely suspicious of government regulation in any setting, tend to read the First Amendment as an iron deregulatory command. Once the five Republican justices have taken the government out of the speech-regulation game, they don’t worry much about what goes on in the vacated space, as long as it doesn’t interfere with their parallel commitment to stable hierarchies. Speakers at the bottom of hierarchies, such as public employees, prisoners, soldiers, and high school students, don’t get much free-speech protection from the five Republican justices, but corporations, wealthy ideologues, and big media receive intense deregulatory protection.

The four Democratic justices, suspicious of wholly unregulated markets and intuitively drawn to a more egalitarian vision of human dignity, are more tolerant of government efforts to level the speech playing field. They read the First Amendment as an aspirational vision of a tolerant self-governing community. Unlike their deregulatory colleagues, the four aspirational justices are willing to uphold government regulation of the electoral speech of corporations and wealthy individuals aimed at protecting political equality and are more sympathetic to speakers at the bottom of a hierarchy.

Much of the time, the Court’s deregulatory and aspirational wings beat in harmony. Because deregulation of the speech process usually coincides with aspirational concerns about respect for human dignity, the two wings have combined in recent years to forge the strongest First Amendment Supreme Court in our history. It’s no coincidence that the iconic Supreme Court decisions in 1989 and 1990 holding flag burning to be protected by the First Amendment turned on the votes of three aspirational and two deregulatory justices.¹⁰ But the wings do not always agree. In settings where the deregulatory First Amendment allows the speech process to be dominated by the strong to the detriment of the weak, the Court often splits 5–4 over the constitutionality of efforts to restrain overly powerful speakers, enhance weak ones, and protect vulnerable hearers.¹¹

Until now, believers in an aspirational First Amendment have been hampered by the diffuse nature of their goals. Apart from an ill-defined romantic link to Justice Brandeis’s idea of human dignity and a formulaic invocation of Justice Holmes’s free-market metaphor, there hasn’t been much discussion of exactly what the aspirational First Amendment aspires to. Justice Breyer has begun to root his aspirational reading of the Constitution in respect for democratic governance.¹² I hope to build on his intuition by providing an aspirational footing based on the forty-five words that make up the First Amendment, especially their remarkably disciplined order and structure.

Don’t get me wrong. I’m not an expert on Madison’s psyche. I don’t insist that he or his colleagues sat down and composed the First Amendment with democracy in mind—although I strongly suspect that they did just that. It is enough that what finally came out of Madison’s quill pen in the summer of 1789 was a precisely organized textual blueprint for a robust democracy. Madison’s First Amendment text brings together six ideas—no establishment of religion, free exercise of religion, free speech, free press, free assembly, and the right to petition for redress of grievances—in a rights-bearing document for the first time in human history and deploys the six ideas in a rigorous chronological narrative of free citizens governing themselves in an ideal democracy. What matters today is not holding midnight séances with long-dead rich white men in a search for some fictive authorial purpose, but the enduring reality of the text—the order, placement, and meaning of the forty-five words themselves.

3

Madison’s Music: Lost and Found

Again please consider Madison’s remarkable First Amendment as a whole:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Now consider its fate.

MADISON’S MUSIC LOST

The current Supreme Court takes the ten words of the Free Speech Clause—Congress shall make no law . . . abridging the freedom of speech—tears them from the First Amendment’s full text, and treats the artificially isolated phrase as the source and full definition of our most important set of constitutional protections. Worse, in practice, the Court uses only seven of the ten words, omitting the freedom of and reading the clause as if Madison had written Congress shall make no law abridging speech. By ignoring the inconvenient three words the freedom of, the Supreme Court dumbs down the Free Speech Clause from a challenge to decide what a man-made legal abstraction called the freedom of speech should include to a simplistic command to deregulate the process of communication.

Moreover, in reading the truncated seven-word Free Speech Clause, the justices do not ask why the ten amendments constituting the Bill of Rights open with the protections listed in the First Amendment¹ or why the forty-five words and six ideas in its text are ordered as they are. Why did Madison and his friends put the First Amendment first, and why does it begin with two religion clauses? Within the religion clauses, why does the prohibition on government establishment of religion come before protection of free exercise of religion? Why do the three immensely important freedoms of speech, press, and assembly follow the two religious freedom clauses in that particular order, and why does the right to petition for a redress of grievances bring up the textual rear?

We don’t even try to understand how freedom of association, a seventh First Amendment right, which is not mentioned in the First Amendment’s text, relates