Have you considered why the First Amendment is structured the way it is, or how the 10 amendments of the Bill of Rights came to be so ordered? Me neither, until I read Bert Neuborne’s new book, Madison’s Music: On Reading the First Amendment.
That James Madison was the primary author of the Constitution is a lesson from high school civics. More obscure is that Madison, as a member of the first House of Representatives, was also the prime author of the Bill of Rights, which he drafted in response to demands from the 11 states that had ratified the Constitution and the two that had refused.
Neuborne, a Supreme Court lawyer, New York University law professor and former legal director of the ACLU, walks readers through the history of the Bill of Rights and First Amendment jurisprudence, and argues that the contemporary Supreme Court has chopped the meaning of our fundamental freedoms into pieces devoid of the context in which Madison and the 1st Congress created them.
“Today we hear only broken fragments of Madison’s music,” he writes. “Instead of seeking harmony and coherence in the First Amendment, we read [it and the other nine] as a set of isolated, self-contained commands.”
Neuborne appears sympathetic to the challenge. “The majestic abstractions in the First Amendment . . . do not carry a single literal meaning.” Even “the phrase the freedom of is a legal concept that has no intrinsic meaning.”
Of course, this is the challenge of all words and all concepts: they are open to our interpretation. Those who argue that the words in the Constitution have a universal meaning are just as narrow as those who argue for a fundamental understanding of the Bible. The problem for American democracy is that nine unelected judges have been set up as the arbiters of our system. And according to Neuborne:
The result is an arbitrary constitutional jurisprudence that has left us with a dysfunctional, judge-built “democracy” 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.
To return to Madison’s vision, he writes, we should read the text as a whole. The Constitution establishes the structure of the U.S. government; the Bill of Rights is the sheet music for how it is to be played by federal officials, the states, and the people.
The First Amendment contains 45 words:
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.
Leaving aside the limiting phrase “Congress shall make no law,” the amendment sets the order in which democratic change occurs. First, it bars the government from designating a state-sanctioned religion. Then it protects the free exercise of religion – which, as Madison intended, includes secular conscience, the right to speak it, disseminate it, and gather to discuss and agitate for it. That, dear citizen, is how a political idea becomes reality.
The ordering of the other amendments is almost as logical. The Second takes up guns and nation’s defense and the Third protects against the Red Coats’ propensity to take citizens’ homes for the use of their troops. Neuborne reviews the fascinating drafts of the Second without comment; the Third has never required much attention.
Amendments Four through Eight concern, in order, a citizen’s rights when the government uses its power to compel: search and seizure; limits on evidence in court; right to a jury trial and counsel; rights in civil cases; and limits on punishment.
The Ninth is a correspondent to the First, enabling the courts to expand unenumerated rights, such as privacy, freedom of secular conscience, free association – and imminently, same-sex marriage. The Tenth runs the opposite way, circumscribing federal power.
As clearly as Neuborne places the Bill of Rights in historical context, and as much fun as he has detailing the weird history of Marbury v. Madison in which the Supreme Court asserted its power to interpret the law and the Constitution, his brief is the cramped interpretation of First Amendment freedoms under the current “hierarchical” 5-4 majority. It has “shied away from giving constitutional meaning to the textual protection of democracy that is the essence” of the First.
The problem, Neuborne writes, stems from Baker v. Carr, the historic one-man/one-vote case in 1962 in which the justices struck down malapportioned legislative districts based on the Equal Protection Clause of the Fourteenth Amendment. Precedents would have developed far differently had the court ground Baker in contextual First Amendment freedoms. And indeed, in a 1976 case, the court ruled that Equal Protection bars intentional discrimination, but does not address laws with disparate effects, so long as the discriminatory effect is unintentional. Thus, when in 2002 a legal team challenged Florida’s 144-year-old constitutional provision disenfranchising felons, lower courts cited precedent in ruling it irrelevant that one-quarter of the state’s black males couldn’t vote, unless the plaintiffs could prove the provision was enacted with a discriminatory purpose. The Supreme Court declined to hear the appeal.
That’s one example of the “doctrinal silos” in which the justices have operated since Baker. Another is an “imperial Free Speech Clause,” which the high court has taken out of First Amendment context, ruling in a set of cases beginning with Buckley and climaxing with Citizens United that money equals speech and corporate rights are equivalent to human rights.
Neuborne cites four recent cases in which the court has proclaimed the rights of the speaker superior to the rights of the hearer:
- United States v. Alvarez (2012) – in which the court struck down the federal Stolen Valor Act, which made it a crime to lie about having received military honors or decorations. Alvarez, a candidate for local office in California with no military record, claimed to have received the Medal of Honor. Neuborne contends the 6-3 decision stemmed from the justices’ fear of the government regulating speech “that is unsupported by any plausible concept of human dignity and that cannot possibly be thought to aid hearers in making our institutions function better.”
- Snyder v. Phelps (2011) – in which the court reversed damages against Fred Phelps of the infamous Westboro Baptist Church for picketing a soldier’s funeral. Writes Neuborne of the 8-1 decision: “freedom of speech included a speaker’s right to hijack the funeral of a young soldier as a backdrop for their bigotry, despite the additional anguish imposed on the soldier’s family.”
- Brown v. Entertainment Merchants’ Ass’n (2011) – in which the court struck down a California law that restricted sales to minors of violent video games. The 7-2 decision protected “the developers of violent video games pitching misogyny, torture and murder to kids for fun and profit,” again out of fear of the government’s regulatory power.
- United States v. Stevens (2010) – in which the court, 8-1, struck down as overbroad a federal law criminalizing commercial creation, sale, or possession of certain depictions of animal cruelty.
In these and other cases over the last quarter-century, the court “tend[s] to tear out seven words – Congress shall make no law . . . abridging . . . speech – and read them as a deregulatory command forbidding any government interference with communication.” Under a contextual reading of the First Amendment, Neuborne argues, the rights of speakers (billionaire campaign financiers, media conglomerates, lying candidates, hateful picketers) would be balanced against the rights of hearers – voters (consumers) of one kind or another. The scales would be the government – specifically Congress, elected by We the People.
“Don’t get me wrong,” Neuborne writes. “I get nervous about government censorship. But I also get nervous about the Court’s fixation on speakers who run roughshod over others who live in the neighborhood. Recognizing a community of speakers and hearers doesn’t mean the overthrow of the speaker. But it is really necessary or wise to raise appalling speakers above the law just because we mistrust government ability to regulate them fairly?”
As a close observer of Congress over four decades, I have come to view the First Branch of government as that most to blame for our political dysfunction. Neuborne, who has been player in the Third Branch even longer, reminds me there is blame to go around. His book also includes the most moving dedication I have ever read.