Madison's Music (3 page)

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.
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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.
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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.
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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.

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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 Amendment
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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 to the six textual protections in the amendment itself or ask whether similar nontextual First Amendment rights, like the rights to vote, run for office, and enjoy fair political representation, are also hiding in plain sight in Madison's text.

Nor do we ask why the remaining nine amendments in the Bill of Rights are placed in their particular order or why each unfolds as it does. Why, for example, does the intensely controversial Second Amendment—

A well-regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed—

have pride of place immediately after the iconic First? And how should the Second Amendment's “well-regulated Militia” clause interact with the “keep and bear Arms” clause in a world where the Revolutionary-era citizens' militia has evolved into a full-time citizens' army and eighteenth-century muskets have been beaten not into ploughshares but into assault rifles.

We do not ask why the protections of the Fourth, Fifth, Sixth, Seventh, and Eighth Amendments follow the Second and Third and why they are ordered as they are, horizontally within each amendment and vertically from amendment to amendment.
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Why, for example, does the Fourth Amendment's ban on “unreasonable searches and seizures” come before the Fifth Amendment's ban on compulsory self-incrimination? Why does the Fifth Amendment open with the Grand Jury Clause and close with the Due Process and Takings clauses? Why do the protections of the Fourth and Fifth Amendments precede the Sixth Amendment's guaranty of a jury trial, and why does the Eighth Amendment's ban on “cruel and unusual punishment” follow it?

Finally, we do not ask why Madison elected to close the Bill of Rights with the Ninth Amendment's tantalizing reminder that

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people

and the Tenth Amendment's austere admonition that

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

In short, we close our eyes—and our ears—to the possibility of a deep structure in the Bill of Rights worthy of a great poem. Instead of a poem, we read our most revered political text as a series of unconnected verbal commands, each clause—indeed, each word of each clause—existing in splendid isolation. In twenty-first-century America, we have lost the ability to hear Madison's music.

MADISON'S MUSIC FOUND

It would be easy to dress the Bill of Rights up to look like a poem. I could probably publish the phone book in blank verse. But is
there a deep structure in the Bill of Rights worthy of being called poetic? My answer is an emphatic yes. The poetic structure can be found both vertically, in the order of the first ten amendments, and horizontally, in the substantive structure of each amendment. Vertically, the Bill of Rights is organized as thirty-one ideas gathered into ten amendments ordered from one to ten with remarkable coherence and discipline. Horizontally, each amendment is carefully structured to tell a story of individual freedom and democratic order. Not an idea or word is out of place. In short, Madison's poem to individual freedom and democratic self-government is as carefully wrought as a Wallace Stevens poem. We owe its reading the same respect.

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The First Amendment as a Narrative of Democracy

The Bill of Rights opens with a blueprint for an ideal “city on a hill”
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—a place of respect for individual conscience, robust political discussion, and democratic self-government. The 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. It's not that any of the six ideas were new in 1789 or even particularly original. Each had appeared, albeit fragmentarily and in random order, in many of the important rights-bearing documents that had preceded the Bill of Rights. By my count, Madison had the benefit of forty-two important rights-bearing documents when he set out to catalog our basic rights in the summer of 1789.
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Each of the six textual rights codified in Madison's First Amendment had appeared and reappeared in many of the precursors, but it took Madison's genius (with a little help from his friends)
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to unite and deploy the six freedoms in a single text as the chronologically organized evolution of a democratic idea.

Madison deploys the foundational concepts in his First Amendment on a disciplined inside-to-outside axis, beginning in the two religion clauses with freedom of thought, progressing through three ascending levels of individual interaction with the community—free
expression of an idea by an individual, mass dissemination of the idea by a free press, and collective action in support of the idea by the people—and culminating in the petition clause with the introduction of the idea into the formal process of democratic lawmaking. In short, a chronological description of the arc of a democratic idea—from conception to codification. No document in the history of self-government prefigures such a carefully drawn, chronologically organized blueprint of democracy in action.

Madison's poem begins where any poem celebrating individual freedom and self-government must begin—in the interior precincts of the human spirit—with protection of religious (and eventually secular) conscience. Madison, deeply affected by enlightenment philosophers such as Immanuel Kant and John Locke, who argued that human beings are naturally endowed with freedom to shape their own personalities and beliefs, understood that the success of any democratic “city on a hill” rests on the shoulders of a free people, who must be at peace with themselves individually before they can hope to govern others. Since Madison knew in 1789, as George Orwell would tell us in
1984
, that nothing crushes the human spirit like being forced to act affirmatively to betray a cherished belief, Madison begins his poem with the Establishment Clause, a ban on forcing a free citizen to support or endorse religious beliefs she does not hold. The First Amendment's narrative then moves naturally to the Free Exercise Clause's ban on government interference with religiously motivated behavior. The careful inside-to-outside order of the two religion clauses reflects Madison's remarkably prescient assessment of the relative harm to individual dignity caused by government-coerced
affirmative
betrayals of conscience as opposed to government-imposed
negative
prohibitions on conduct reflective of conscience.

Madison understood that protection of freedom of conscience as the starting point of democratic life cannot stop with religious conscience. His original version of what became the First Amendment explicitly protected both religious and secular conscience.
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Although the House of Representatives adopted Madison's secular
conscience clause, the Senate deleted it in a secret session before sending the Bill of Rights to the states for ratification. We'll never know why. But as we shall see, the modern Supreme Court has restored the opening lines of Madison's great poem to their original comprehensive form by providing comparable First Amendment protection to deeply felt beliefs: both religious and secular.
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With freedom of thought secure as the necessary starting point of democratic life, the First Amendment's narrative turns to “the freedom of speech” as the next logical step in the evolution of a democratic idea. As with the two religion clauses, the Free Speech Clause looks both inward, protecting the internal secular thought processes of a free citizen, and outward, preserving the freedom to convey information and ideas to others.

Because Madison understood that a single free voice, no matter how earnest and intellectually compelling, can reach only a relatively small audience, his First Amendment narrative turns chronologically and logically to a fourth component of robust democracy—freedom of the press, designed to ensure a free speaker the ability to reach a mass audience.