Madison’s Music: On Reading the First Amendment, by Burt Neuborne (New York/London: The New Press, 2015, ISBN 978-1-62097-041-6). 260 pp. Hardcover, $25.95.
If there is one thing the world’s greatest democracy should get right, it would be democracy. Right? How unfortunate then that recent Supreme Court decisions have, as civil rights attorney Burt Neuborne observes in Madison’s Music: On Reading the First Amendment, left us with a democracy that barely lives up to the name. The five conservative armchair political scientists on the court could not have done any worse had they set out deliberately to undermine our democracy. In Neuborne’s reckoning, they have created a dysfunctional, jurist-rigged electoral process that is fully controlled by a few thousand wealthy oligarchs, in which incumbents can gerrymander their way to permanent job security. If that weren’t enough, when cynical politicians use photo identification cards or proof of citizenship to keep some of us away from the polls, the court’s conservative majority simply looks the other way.
Burt Neuborne is the Inez Milholland Professor of Civil Liberties and the founding legal director of the Brennan Center for Justice at New York University Law School. He has served as the national legal director of the American Civil Liberties Union. You may remember Neuborne as Jerry Falwell’s lawyer in the Milos Forman film The People v. Larry Flynt and as the Court TV commentator for the trial of O.J. Simpson.
In his new book, Neuborne puts the court on trial for having managed to turn the First Amendment into a virtual enemy of democracy. The trouble lies with the justices’ habit of reading the amendment and, indeed, the entire Bill of Rights, as a series of separate phrases, each to be interpreted in isolation. Focused only on the content, they miss the equally important form and structure. Neuborne’s original and intriguing idea is that, like a great poem or piece of music, the meaning of James Madison’s First Amendment is to be found not in form or content alone but in the way the author has harmonized the two. When the First Amendment is read with attention not only to what it means but also to how it means, the amendment restores itself to the democracy-friendly tool that James Madison surely wanted it to be.
Neuborne asks us to consider Madison’s remarkable music as one 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.” The amendment begins with the individual’s freedom of conscience, moves to his or her individual freedom to express beliefs and ideas, proceeds to the freedom to disseminate thoughts through the press and/or collective action, and culminates with the possibility of the idea becoming the basis for new law. The amendment’s form is a description of democracy in action. Even the order of the religion clauses is telling. Madison understood that the government must be prevented not only from prohibiting certain beliefs but also, and primarily, from forcing an individual to affirm beliefs in betrayal of his or her own conscience.
Unlike most others of his generation, Madison realized that freedom of religion was not possible without freedom from religion. His initial proposal for what became the First Amendment included protection for religious belief and for the “full and equal rights of conscience.” However, the committee assigned to review Madison’s drafted amendments redacted the phrase “equal rights of conscience,” apparently believing it to be redundant. At that time, it seems, conscience meant religious conscience to such a degree that the idea of a secular conscience, if it arose at all, would generally have been dismissed as a contradiction in terms.
If you rip the free speech clause out of the First Amendment, without regard for its place and purpose in a democratic republic, you end up with decisions such as that in the recent Town of Greece v. Galloway case, in which the court gave its stamp of approval to starting local town meetings with prayer, even if the prayers were almost exclusively Christian. The court bothered not at all with the issue of nonbelievers being made to feel like outsiders while attempting to participate in their own town’s zoning decisions. Nor did the court seem able to appreciate that prayer before town meetings constitutes speech by the government, not by private persons. As Neuborne warns, it is bad enough that today’s court treats corporations as free speakers and sentient religious beings, but “when the government starts praying, and we have no choice but to listen, it’s time to look out!”
The First Amendment also includes rights that are not specifically spelled out in the text. These non-textual rights, such as the right to vote and to enjoy fair political representation, are “hidden in plain sight in Madison’s text,” and yet our highest court can find no basis on which to intervene when presented with cases of runaway gerrymandering. In Pennsylvania, for example, Rep. Lou Barletta has taken gerrymandering to new heights of absurdity. You may remember Barletta as the Hazelton, Pennsylvania, mayor who denied business permits to employers and levied fines against landlords if they hired or rented to illegal immigrants. For this mean-spirited, loutish behavior, Barletta was rewarded with a seat in the U.S. House of Representatives.
In Barletta’s hands, Elbridge Gerry’s salamander has become a grotesque monstrosity stretching its carcass some 180 miles from north central Pennsylvania to nearly the Mason-Dixon line and swallowing up voters from all or parts of nine counties. Barletta’s cynical line drawing has led some Pennsylvanians to consider a rewrite of the state’s rules around gerrymandering, and a few legislators have already come out in support. It remains to be seen whether enough of them will have the integrity to submit themselves to true and fair elections and whether the Supreme Court will find its way to support elections that aren’t rigged from the start.
No modern democracy, says the author of Madison’s Music, makes it harder to vote than does the United States. For example, a brief search online will reveal that in twenty-three states it is currently the case that without a documented, qualifying excuse, you are not allowed to vote by way of an absentee ballot. Unless you are incapacitated or overseas somewhere, you have no choice but to physically appear at your local polling place. Not only that, but you will have to do so on a Tuesday, which, for most of us, is a work day and will, therefore, mean you will have windows of about two hours in the morning and two hours in the evening to get yourself to your designated polling station. Why do we vote only on Tuesday? The reason is that voters used to need Monday to travel to the polls. That has not been the case for one hundred years or so, but, as they say, change doesn’t come easy.
Americans fret about our low voter turnout and about the increasing polarization that breeds gridlock in our government. But if the wealthy control the polls and the pols, and gerrymandering foreordains the outcome, what point is there to adding voting to our already overcrowded workday schedule? Our rigged and antiquated electoral process practically assures that the fervent ideologues among us will be overrepresented at the polls and will elect political extremists like themselves, who, once in office, will proceed to spurn compromise in favor of blaming the other side for preventing anything getting done. Is this any way to run a democracy?
The First Amendment exists to protect important individual liberties, no doubt, but Neuborne wants to remind us that it also exists to protect participatory democracy. It is written in a form that basically describes how things get done in a democratic system, but in order to appreciate this, we have to be willing to listen so as to hear Madison’s music.