Madison's Music (29 page)

What happened to Jacob Abrams and his co-defendants, Mollie Steimer, Hyman Lachowsky, and Samuel Lipman, was even worse. Abrams and his three confederates were charged with tossing copies of two leaflets from a tenement window to a street on the Lower East Side of Manhattan. One leaflet, written in English, opposed the use of American troops in Russia. The second, in
Yiddish, called for a general strike and the cessation of munitions production. The four young radicals were arrested and convicted. A fifth, Jacob Schwartz, died in police custody under suspicious circumstances. The federal trial judge ruled that the leaflets had a “bad tendency” to lead readers to engage in unlawful acts. The three men were each sentenced to twenty years in prison. Mollie Steimer, twenty years old, four feet nine inches tall and weighing all of ninety pounds, was sentenced to fifteen years.

This time, Holmes and Brandeis finally voted to reverse the convictions, but seven members of the Supreme Court voted to affirm.
⁸⁷
After Woodrow Wilson refused to consider a postwar amnesty for political prisoners, Warren Harding ordered the four released, but only if they agreed to be deported to Russia.
⁸⁸
Samuel Lipman died in Stalin's purges. Hyman Lachowsky perished under the Nazis. Mollie Steimer was arrested by the Bolsheviks in 1922 and deported from Russia to Germany the following year. When Hitler assumed power, she fled from Germany, only to be arrested in France and placed in a concentration camp. After World War II, Mollie settled in Mexico City, where Jacob Abrams was editing a Yiddish-language newspaper. She died in Mexico in 1980 at the age of eighty-three.

“Parchment barriers” had a decidedly mixed record during World War II. Things started badly in 1940 when the Supreme Court, picking up just about where it had left off with Mollie Steimer in 1919, voted 8–1 (with justices Black and Douglas joining the majority) to uphold the expulsion of young Jehovah's Witnesses from public school for refusing to salute the flag.
⁸⁹
Three years later, though, the Court reversed itself and issued one of its most celebrated free speech opinions, ruling 6–3 that compulsory flag salutes violate the First Amendment. Felix Frankfurter dissented.
⁹⁰
Seventy years after it was written, Justice Jackson's magnificent First Amendment rhetoric in
Barnette
retains the power to inspire.
⁹¹
In 1944, however, the parchment barriers collapsed once again. In
Korematsu v. United States
, the Supreme Court upheld the constitutionality of military orders forcing more than 130,000
innocent Japanese Americans, citizens and lawful permanent residents alike, into internment camps during World War II.
⁹²
Not one of the internees was or has ever been charged with unlawful action. No similar wartime programs were even considered for the nation's German or Italian communities.

We feign astonishment today that we could have been so racist, but the infamous
Korematsu
opinion was supported by FDR and Earl Warren (as governor of California), written by Hugo Black, and joined by William O. Douglas. In fact, Black and Douglas were the swing votes in a 6–3 decision.

Things didn't get much better in the 1950s, during the Cold War. During the McCarthy years, despite the First Amendment, ninety-three leaders of the American Communist Party went to jail, not for anything they actually did, but simply for leading a lawful political party pledged to the violent overthrow of capitalism at some point in the indefinite future.
⁹³
Thousands of Americans were fired, harassed, and blacklisted solely because of suspected sympathy with communism or socialism. Consider the fate of one of the nation's original defenders of free speech, Elizabeth Gurly Flynn. Flynn's life was the stuff of legend. Born in Concord, Massachusetts in 1890, Flynn and her family moved to New York City in 1900. In 1906, Elizabeth celebrated her sixteenth birthday, gave her first speech (at the Harlem Socialist Club), was arrested for the first time (along with her father) for speaking on Broadway without a permit, and was expelled from high school for political activities. By her seventeenth birthday in 1907, Flynn was a full-time organizer for the International Workers of the World, touring Western mining camps as a charismatic platform speaker. She worked with Big Bill Haywood, visited Joe Hill in jail in 1914 (he wrote a song for her called “Rebel Girl”), and played prominent roles in strikes and IWW free-speech movements in Spokane, Missoula, Philadelphia, Lawrence, Paterson, Duluth, Chicago, and the Mesabi Range. Theodore Dreiser called her a young Joan of Arc. Along with Roger Baldwin (and Felix Frankfurter), she was a charter member of the ACLU in 1919. Her membership was not
surprising, for in its early days, one of the ACLU's reasons for being was protection of IWW organizers, both from prosecution for opposing World War I and from arrest for union-organizing activities. Beginning in 1921, Flynn worked tirelessly in an unsuccessful effort to spare Sacco and Vanzetti from the death penalty. In 1927, she collapsed on a speaking tour of the West. Medical diagnoses included an obscure heart ailment, an impacted wisdom tooth, and a strep infection, but the root cause of Flynn's collapse was almost certainly emotional. The execution of Sacco and Vanzetti literally broke her heart. Flynn remained in Portland, Oregon, for almost ten years. In 1936, she returned to New York and was welcomed home as a prodigal daughter. The ACLU unanimously elected her to its board of directors. The American Communist Party welcomed her as a new member in 1937, elected her to the Central Committee in 1938, and to the Political Bureau in 1941. In 1942, Flynn ran for Congress at-large from New York State on the Communist Party ticket and received more than fifty thousand votes. In 1951, she led the mass movement in support of the Communist Party defendants in the first wave of Smith Act prosecutions and was swept up in the second round of indictments. Convicted of holding a leadership position in the American Communist Party, Flynn served two years in federal prison. In 1961, she became chair of the American Communist Party. Flynn died unexpectedly in Moscow in 1964. Her posthumous papers revealed that one of her great regrets was not defending the principle of free speech within the American Communist Party. Perhaps it was just deserts, but the free-speech principle that Flynn ignored as a Communist Party official not only failed to protect her from criminal prosecution for her beliefs, but it couldn't even protect her from being expelled from the ACLU board in 1938 for her association with communists.

During the Vietnam era, although the Court provided significant First Amendment protection to anti–Vietnam War demonstrators, protection did not extend to young men who burned their draft cards in public to express opposition to a war that Congress had never explicitly authorized. They went to prison as convicted
felons.
⁹⁴
A unanimous Supreme Court that included Earl Warren, William O. Douglas,
⁹⁵
and William Brennan Jr. held that because burning a draft card to make a political point was communicative conduct, not pure speech, it was not entitled to first-class speech protection. Of course, that didn't stop the justices eight years later from ruling that spending unlimited amounts of money to influence an election is pure speech, not communicative conduct.
⁹⁶
Nor did it stop five members of the Court in
Citizens United
from ruling that large for-profit corporations are engaged in pure speech when they pour unlimited treasury funds into an election campaign. Five members of the Supreme Court have even held that providing matching subsidies to underfunded candidates, enabling them to respond to privately funded campaign speech, unconstitutionally “burdens” the free-speech rights of rich candidates.
⁹⁷

Today despite the First Amendment's parchment barriers, we still can't buy Cuban magazines and newspapers or visit Havana without special permission from the government. Idealistic Americans are forbidden, on pain of prison, from teaching peaceful methods of resolving grievances to foreign groups labeled by the executive as terrorists.
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Students have virtually no free-speech rights to publish uncensored high school newspapers or express unwelcome opinions about drugs or their teachers. The free-speech rights of public employees and labor unions are under siege. And despite the First Amendment right to political anonymity and the Fourth Amendment's protection of personal privacy, the promise of constitutional protection against universal government surveillance is in shambles.

So much for parchment barriers.

THE DECK CHAIR THEORY OF THE FIRST AMENDMENT

Sometimes, usually just after I've lost a case, I succumb to what I call the deck-chair theory of the First Amendment. I grumble that when the weather is sunny, we unfold an elegant deck chair that we call the First Amendment. As we lounge in our chair, we
extol its comfort and sophisticated design, congratulating ourselves for owning such a useful and stylish piece of furniture. At the first sign of rain, though, we fold up our beautiful deck chair and put it away until the sun comes out again. Could it be, I ask myself, that the real reason the First Amendment has flourished for more than two hundred years is that it's never gotten wet? When I emerge from my funk, though, I remember that the historical record is much more complex. I remember that the story of our past is not just a cynical tale. Courageous popular support for freedom can—and has—made a difference. I remember that in each period of crisis, brave voices have rallied to the Bill of Rights. John Adams jailed his critics, but the people rejected the Alien and Sedition Acts in the election of 1800. Congress declined to renew the Acts in 1802, and President Jefferson pardoned the victims. I remember that President Lincoln tolerated a huge amount of dissent and criticism during the Civil War, presiding fairly over a hard-fought 1864 presidential election in which he was vigorously challenged by George McClellan, one of his ex-generals. Clement Vallandingham came out of hiding and actually served as McClellan's shadow secretary of war during the election. I remember that, responding to public concern, Lincoln tempered his initial resort to military rule by granting an amnesty to all political prisoners in 1862. And I remember that once the Civil War was over, the Supreme Court repudiated Lincoln's effort at unilateral military rule, establishing important precedents that protect us today. I remember that the World War I prosecutions of war resisters, including Schenck and Debs, eventually impelled justices Holmes and Brandeis to issue the dissent in
Abrams
and the concurrence in
Whitney
that lit the way to the modern First Amendment. I remember that on the very day the Supreme Court upheld the Japanese internment camps in
Korematsu
, it ruled that every detainee must be given a prompt individual hearing on dangerousness,
⁹⁹
dooming the camps as a practical matter and leading to their closing three months later. I remember that in 1968, Congress apologized to the surviving Japanese detainees and awarded them $10,000 each—too little too late,
but something. I remember that the Supreme Court eventually blunted some of the worst excesses of the McCarthy years and that it was Joe McCarthy who was eventually censured by the Senate. I remember that it was the Supreme Court that kept the civil rights movement in the South from being smothered by hostile police. I remember that the Supreme Court refused to permit the president to block publication of the Pentagon Papers, and that popular opposition to the Vietnam War drove a sitting president from office, hastening the end of the carnage. I remember that despite occasional slipups, the scope and intensity of our current First Amendment freedoms are remarkably broad.

Finally, I remember that the real lesson of our First Amendment history is that a Bill of Rights without popular support really is a toothless parchment barrier but that a rights-bearing document backed by popular support can move mountains.

That's where the loss of Madison's music hurts most deeply. The aesthetic force of Madison's lost poetry could be of incalculable value in rallying the level of public support needed to sustain the practical vitality of the Bill of Rights, especially the First Amendment, in storm-tossed times. It's possible, of course, to attempt to rally popular support for fragments of the Bill of Rights displayed as isolated slogans. But if the isolated slogans were understood by the people as threads in a harmonious tapestry, interacting with and reinforcing each other as the elements of a magnificent poem to human freedom and political democracy, it would be much easier to rally “We the People” to defend the Bill of Rights, for it would speak to them in the coherent voice of poetry. Would that prevent us from giving in to fear in time of crisis? Of course it wouldn't. Human beings are not machines. Fear and emotion will always be part of the equation. But precisely because fear and emotion can erode the protections of the Constitution and Bill of Rights, it is doubly important to couch First Amendment protections in their strongest, most persuasive form—as an integrated, lapidary poem to democracy and freedom with not a word or idea out of place.

10

Madison, the Reluctant Poet

How the Great Poem Almost Didn't Get Written

The story of the textual evolution of the Bill of Rights during that febrile summer of 1789 makes it difficult, if not impossible, to claim that the structure and organization of the Bill of Rights was driven by a single person's vision.
¹
Madison didn't even want to produce a single, coherent Bill of Rights. The Senate's role remains delphic. Too many other important players, including Roger Sherman and Elbridge Gerry, were involved to claim that Madison's intentions controlled everything. What should matter today, though, is not what a group of long-dead, slave-owning white men of substantial property may have been thinking about in 1789. Their world is long gone, and a good thing, too. Their evanescent intentions have little or no relevance to a contemporary world that they could not have imagined. It's the enduring text that matters. As I've noted earlier, great poems aren't beautiful because poets have willed them so. The unique beauty of great poetry is found in the text itself, in the imagery, emotions, and meaning produced by the order, cadence, structure, and content of the words. Madison and his friends, whatever they may have been thinking as summer turned into autumn in that remarkable year, transmitted a text to us that turns out to be a great poem about freedom and democracy, if only we will take the time and effort to read it closely. There is the music of poetry in the order, cadence, structure, and content of the text of the Bill of Rights, especially the First Amendment, if we are wise enough to hear it.