January 22, 2015

Madison’s Music: On Reading the First Amendment

by Burt Neuborne, Inez Milholland Professor of Civil Liberties, NYU Law, and Founding Legal Director, Brennan Center for Justice

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 will never do Madison full justice until we revere him as a great poet.

Not a literary poet like Wallace Stevens, or a prophet-poet like Abraham Lincoln, or even a peoples’ poet like Ronald Reagan.  Madison’s poetic genius was structural – a mastery of the interplay between democracy and individual liberty.  His poetic voice speaks to us in the harmony of the 462 words, 31 ideas, and 10 amendments – each in its perfectly chosen place and all interacting to form a coherent whole – that is the magnificent poem to democracy and individual freedom called the Bill of Rights.

Today, we hear only broken fragments of Madison’s music.  Madison’s 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.  Instead of seeking harmony and coherence in the Bill of Rights, the current Supreme Court majority reads the Bill of Rights as a set of self-contained commands, as if each clause – and at times, each word of each clause – existed in splendid isolation from the body of the constitutional text.  Consider the fate of the 45 words in Madison’s remarkable First Amendment:

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.

The current Supreme Court takes the 10 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 definition of our most important set of constitutional protections.

Worse, in practice the Court only uses seven of the 10 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 the Free Speech Clause down, 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.  The net result is an Imperial Free Speech Clause that has ousted the Press Clause, the Assembly Clause, the Petition Clause and much of the Religion Clauses from their important independent functions, leaving a badly skewed First Amendment that turns democracy over to the rich and reinforces the power of the dominant media corporations.

The justices do not bother to ask why the Bill of Rights opens with the First Amendment.  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 Establishment Clause come before the Free Exercise Clause?  Why do the three immensely important freedoms of speech, press and assembly follow the two religious conscience clauses in that particular order, and why does the right to petition for a redress of grievances bring up the textual rear?  We do not even try to ask how freedom of association, a seventh non-textual right added by the Supreme Court, relates to the six textual protections in the Amendment itself; nor do we ask whether similar non-textual First Amendment rights, like the right to vote, run for office and enjoy fair political representation, are also hiding in plain sight in Madison’s First Amendment.  Instead, we read our most revered political text as though the Founders had thrown a pot of ink at the wall, with the order of the words, ideas and amendments randomly fixed by the splatter.

What if we opened our eyes to the remarkable structure underlying the First Amendment?  Madison’s First Amendment is a crucial milestone in the evolution of political thought, marking the first (and, thus far, the only) time in human history that six foundational ideas – freedom from religion (establishment), freedom of religion (free exercise), freedom of speech, freedom of the press, freedom of assembly and freedom to petition for a redress of grievances – have been united in a single rights-bearing text.  Each of the six textual rights had appeared and reappeared in many of the precursors, but it took Madison’s organizational genius – with a little help from his friends – to unite and deploy the six freedoms in a single text as the chronologically organized odyssey of a democratic idea.

Madison deploys the six foundational ideas in his First Amendment on a disciplined inside-out axis beginning with the two religion clauses in the interior recesses of a free conscience, progressing through three ascending levels of individual interaction with the community – free expression by an individual, mass dissemination by the press and collective action by the people – and culminating with petition in the formal process of democratic lawmaking.  The First Amendment is, therefore, carefully structured to reflect the chronological history of a democratic idea ― born in the constitutionally protected consciences of free men and women, publicly articulated under the protection of the Free Speech Clause, widely disseminated by a protected free press, collectively advanced through free association and assembly, and formally considered pursuant to the Petition Clause.  No document in the 800 years of our rights-bearing heritage comes close to telling such a disciplined story of democracy in action.

It’s possible, of course, that Revolutionary-era monkeys on a typewriter (or mice with quill pens) randomly stumbled onto such a disciplined democratic chronology, but I strongly doubt it.  The First Amendment, as Madison wrote it, is a blueprint for a functioning egalitarian democracy.  It should be democracy’s best friend.  It borders on tragic that Madison’s First Amendment has been turned by the a majority of the current Supreme Court into democracy’s bad parent – suffocatingly strict one day, inexplicably absent the next.

It’s long past time to assert a democracy-friendly reading of the First Amendment where money isn’t speech, the ultra-rich can’t buy elections and huge profit-making corporations cannot masquerade as citizens.  Rediscovering Madison’s music is the first step on that crucially important journey.

Madison’s Music: On Reading the First Amendment is scheduled for publication by The New Press on February 1, 2015.  It is available online and on audiobooks.