Madison's Music (6 page)

Current Supreme Court efforts to read the Tenth Amendment are also stuck at the extremes, only this time the political positions are reversed. Many conservatives read the Tenth Amendment as an open-ended invitation to codify and enforce their subjective vision of American federalism by protecting
inherent
attributes of state sovereignty (natural law, anyone?) against usurpation by Congress or the president. The problem is that there is no consensus about what counts as an inherent attribute of sovereignty, leaving the Tenth Amendment hostage to whatever political theory about federalism a majority of the justices happen to embrace at any given time. But the alternative modern reading of the Tenth Amendment is also untenable. Liberals, echoing Robert Bork's “ink blot” approach to the Ninth, argue that the Tenth is simply a political truism, too amorphous to be given effective judicial content. According to them, Madison was just blowing symbolic smoke when he drafted the Tenth Amendment.

Predictably, neither liberals nor conservatives acknowledge the deeply inconsistent nature of their respective cross-readings of the closing amendments. If, however, we respect the structural reasons for placing the Ninth and Tenth Amendments at the close of the document, we see that Madison was neither adopting natural law,
inviting judge-made theories of federalism, nor creating meaningless ink blots. Rather, faced with the political need to say something about omitted rights and implied powers, Madison turned the two closing amendments into a brilliant reading lesson. The Ninth Amendment tells us that when omitted individual rights are at issue, we should not be afraid to expand the literal text in favor of freedom, using the disciplined technique of equity of the statute. The Tenth Amendment tells us that when implied government power is at stake, we should do exactly the opposite, limiting the literal grant of powers by invoking
inclusio unis
.

Once we understand Madison's poetic Ninth Amendment as authorizing American judges to read the rights-bearing provisions of the constitutional text against the disciplined background of the equity of the statute, it becomes possible for us to recover the rest of Madison's music embedded in the text of the First through Eighth Amendments—especially Madison's democracy-friendly First Amendment.

5

Madison's Music Restored

Recovering Madison's Democracy-Friendly First Amendment

Democracy has always been beset by an internal contradiction. While the ethos of democracy calls for equal exercise of political power by all the governed, the practice of democracy has tended to exclude the weak and reinforce the strong. The ancient Greeks invented democracy, but the Athenian Constitution parceled out the vote to a fraction of the potential electorate, excluding women, slaves, aliens, and the poor. The Italian and Swiss city-states popularized democracy in the seventeenth and early eighteenth centuries, but the Florentine, Venetian, and Genevois versions of democracy were really government by merchant princes. The British proved that mass democracy could work but did not formally embrace “universal” suffrage until 1884 and even then denied the vote to women until 1918. France didn't enfranchise women until 1946.

AMERICA'S THREE-TIER DEMOCRACY

Not surprisingly, American democracy began its life in the late eighteenth century by formally denying the vote to the weakest segments of society—women, blacks, Native Americans, and the poor. Most efforts at democratic reform in the United States have concentrated on expanding a narrow formal definition of the franchise. In 1870, the Fifteenth Amendment sought to end racial obstacles to the ballot. In 1920, the Nineteenth Amendment guaranteed the vote to women. In 1964, the Twenty-Fourth Amendment protected
the poor by banning poll taxes in federal elections. In 1971, the Twenty-Sixth Amendment extended the vote to eighteen-year-olds in federal elections. Beginning in the early 1960s, a blizzard of Supreme Court opinions wiped out property qualifications and durational residence requirements for voting, and invalidated malapportioned legislative districts favoring rural voters at the expense of urban interests. Only the constitutionally malapportioned Senate, where rural states with about 21 percent of the population can control fifty-one senators, survives. In 1975, Congress barred literacy tests for voting nationwide, overturning a 1959 Supreme Court decision that had unanimously upheld the practice. Enactment and vigorous enforcement of the Voting Rights Act of 1965, as amended in 1982—especially the preclearance requirement of Section 5—finally ended the shameful de facto exclusion of racial minorities from the electorates of the states of the old Confederacy. Let's hope there is no backsliding now that the Supreme Court has ruled that preclearance is no longer necessary because it has worked so well.

By 2000, therefore, with the important exceptions of ex-felons in a few states, notably Florida and Virginia, and the perennial dilemma of how to provide political representation for long-term resident aliens and children, the formal American electorate finally embraced all of the governed (with the exception of the residents of the District of Columbia, Puerto Rico, and American Samoa), with virtually no legally mandated exclusions.

And yet the age-old contradiction between inclusionary aspiration and its exclusionary reality continues to plague American democracy in the twenty-first century. The rosy formal picture of a universal American electorate masks a darker political reality that resembles the exclusionary electorates of the past. American democracy is currently divided into three tiers of citizens—I call them supercitizens, ordinary citizens, and spectator citizens.

An economically elite top tier of supercitizens, consisting of the wealthiest 1 to 2 percent of the population, wields enormously disproportionate political power. Supercitizens of both parties set
the national political agenda, select the candidates, bankroll the campaigns (virtually all campaign contributions and expenditures come from the top 2 percent of the economic ladder), and enjoy privileged postelection access to government officials (whose telephone call does a busy senator take?). Membership in the supercitizen tier is neither defined by law nor confined to the wealthy. It is possible to become a supercitizen on the basis of talent, fame, good looks, family status, inheritance, or sheer persistence. But money gets you in with no questions asked. Likewise, membership in the top tier is not formally confined to white men. Women and people of color occasionally crack the ceiling. But having substantial disposable income for politics is still overwhelmingly a white male prerogative in American society.

A second tier of ordinary citizens consists of the 40 percent to 60 percent of the formally eligible electorate who actually vote. Ordinary citizens navigate among the choices made available to them by supercitizens. After supercitizens have set the table by deciding what issues are worth debating, what campaign speeches are worth funding, and what candidates are worthy of running, ordinary citizens—like jurors in a lawsuit or judges in a beauty pageant—choose among the issues and candidates that have been put before them. Ordinary citizens often wield real power. Choosing between the (usually two) alternatives offered by supercitizens can be important, as long as the alternatives provide a real choice. Often, though, the range of available alternatives is constrained by the relatively homogeneous, economically privileged supercitizen slice of the electorate that formulates them. Moreover, the potential electoral power wielded by ordinary citizens is diluted by widespread political gerrymandering, rendering the outcome of most legislative elections a foregone conclusion.

A third tier, I call them spectator citizens, is made up of the 40 percent to 60 percent of the eligible electorate that does not vote, resulting in an American political reality in which a small economic elite of supercitizens interacts with a second tier of relatively well-off ordinary citizens to produce a form of popular governance
that exalts the rich and virtually excludes the poor from political power. Even if the huge mass of nonvoting spectator citizens were a random slice of the population, the existence of such a potentially volatile pool of alienated nonparticipants would pose a threat to American democracy, constituting a proverbial loose cannon just waiting for a demagogue to fire it off. The problem is far worse in the United States than elsewhere, though, because the nonparticipating third tier is not a random slice of the population. Spectator citizens are disproportionately poor, badly educated, and nonwhite.

The unpleasant reality is an American electorate skewed in favor of the powerful, once directly imposed by law but now reproduced indirectly by less obvious means. A century ago, political participation was legally rationed by formal denial of the vote to women, the poor, and newcomers, as well as by de facto prohibitions that prevented blacks and Latinos from voting. Today participation in the democratic process is rationed by the operation of our system of voter registration, election administration, legislative apportionment, and campaign finance, with its capacity to skew available information in favor of the rich. The political rationing system may be less visible to the naked eye, but the effect on the poor and less educated is almost as effective.

The persistence of a disproportionately poor and undereducated third tier of spectator citizens poses an immense moral challenge to American democracy. Most obviously, the consent of the governed is a far less compelling concept when that consent is granted by an electorate that does not reflect the will of the poorest and weakest segments of the society. Less obviously, the feedback interaction between supercitizens and ordinary citizens is robbed of much of its legitimacy when the feedback is generated by an artificially truncated slice of ordinary citizens that does not reflect the needs and concerns of the weak and the poor. Thus, while formal mechanisms of exclusion have been dismantled, we continue to operate a democracy that significantly overrepresents the rich and under-represents the poor and the weak.

Defenders of the three-tier system tell us that it is the natural
result of a series of free choices reflecting individual preferences, abilities, and relative political sophistication. But a three-tier democracy is neither a natural inevitability nor a constitutional given. The first and third tiers are legal constructs, the predictable consequences of ignoring Madison's music in deciding how to structure American democracy. The economically elite first tier of supercitizens exists only because we have decided to treat the necessary costs of operating a complex democracy as an off-the-books expense to be borne by rich volunteers. By allowing the rich to pay the substantial costs of operating a democracy, we think we are getting something for nothing. In the end, though, we undermine the independence and integrity of the men and women who govern us by turning them into political beggars.

Worse, the Supreme Court has made it virtually impossible to deal effectively with the destructive effects of big money on our electoral system. Ignoring Madison's democracy-friendly First Amendment, we force efforts at democratic reform in campaign financing, operation of primaries, and formation of third parties to run a lethal gauntlet created by seven words in an artificially isolated and truncated Free Speech Clause torn from the rest of the First Amendment and cut off from Madison's democratic poetry.

The nonparticipating third tier of spectator citizens is also a legal construct, the predictable result of the Supreme Court's toleration of cynical obstacles to voting, including obsolete equipment in poorer areas, incompetent and Balkanized election administrators beholden to the two major parties, pre-election voter registration requirements, prevention of weekend voting, and requirements for photo ID and proof of citizenship that disproportionately limit electoral participation by weak and unsophisticated spectator citizens. In fact, the Supreme Court has tolerated or perpetuated virtually every antidemocratic practice that currently burdens American democracy—disenfranchising ex-felons, upholding cynical efforts to suppress the vote, permitting ruthless partisan gerrymandering, and allowing the nominating process to be controlled by political bosses and the campaign process by the superrich.

Neither the surrender of the electoral process to the rich nor the de facto disenfranchisement of the poor would be tolerated by a Supreme Court capable of hearing Madison's music.

HOW WE GOT HERE: JUSTICE BRENNAN'S RARE STRATEGIC BLUNDER

John Marshall and William J. Brennan Jr. were the two most successful judicial politicians ever to serve on the Supreme Court. Each was blessed with a first-rate analytical mind and a capacity to write clearly and with great conviction. Each was blessed, as well, with a gregarious personality and the ability to forge warm personal and intellectual bonds with colleagues that led to stable Supreme Court voting blocs. Marshall's mind and heart infused the early nineteenth-century Court; Brennan's, the late twentieth-century Court. As Justice David Souter noted in his moving eulogy for Justice Brennan, the sheer mass of Brennan's thirty-seven years of Supreme Court opinions exercises a gravitational pull on American law that may be unmatched in our history. One of Brennan's talents was assembling five votes on important cases. He was a genius at forging and holding a winning coalition. Indeed, he occasionally took that talent a little too far by holding rump caucuses in his chambers in which five justices would agree on a common position that would control the next day's formal vote. Brennan rarely made a strategic mistake. But when he made one, it was a whopper.

A half-century ago, in
Baker v. Carr
, the “one person, one vote” case,
¹
three iconic Supreme Court justices—Felix Frankfurter, William J. Brennan Jr., and John Marshall Harlan—debated the role of the Supreme Court in shaping American democracy. Justice Frankfurter warned that we would rue the day that unelected Supreme Court justices were given substantial power to set the constitutional ground rules for American democracy.
²
Where, Frankfurter asked, would federal judges, functioning without textual guidance as armchair political scientists, find the “judicially manageable standards” to guide their democracy decisions?