Madison’s Music: On Reading the First Amendment, a new book by Burt Neuborne, at first appears an unlikely work to serve much purpose today. Who wants to celebrate slave owner James Madison’s view of freedom as embodied in a long outdated Constitution in desperate need of updating or rewriting? And who wants to hear it from a former legal director of the ACLU who just signed a petition supporting the hiring of Harold Koh, defender of drone murders and presidential wars of aggression, to teach human rights law at New York University, a petition by a bunch of stuffy corrupted professors countering the moral stand being taken by students?
But Neuborne’s main thesis is not the worship of James Madison, and he merely suffers the same blindness to war as the rest of his society, believing, as he writes, that the world is “dependent on the anchor of American power” (whether the world wants it or not). While legalizing murder may not be a problem for Neuborne’s view of the Constitution, legalizing bribery is. And that’s where Madison’s Music becomes useful. Each time the U.S. Supreme Court rules in favor of plutocracy it is ruling against precedents, common sense, basic decency, and a coherent and plausible reading of the Bill of Rights that reads the various amendments as aimed at strengthening democracy.
It’s also ruling against a Constitution that nowhere gave it, the Supreme Court, any right to rule on any such things. While there is, sadly, no way to read the Supreme Court out of the Constitution, it can be quite easily understood as subject to the laws of Congress rather than vice versa. Not that today’s Congress gets us any closer to democracy than does today’s Supreme Court, but when our culture is ready for reform, the paths available will be numerous and each and every institution subject to reform or abolition.
The first amendment reads: “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 of the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”
Neuborne, to his credit, does not choose to read this as the ACLU does, namely as including a defense of bribery and private election spending.
Madison’s original draft, severely edited by the Senate — one of those institutions worthy of abolition, and one for which Madison himself was in part to blame — began with protection of both religious and secular conscience. The final draft begins by forbidding the government from imposing religion, and then forbids it from prohibiting anyone’s religion. The point is to establish, in an eighteenth century manner, the freedom of thought. From thought, one moves on to speech, and from ordinary speech one moves on to the press. Each of these is guaranteed freedom. Beyond speech and press, the trajectory of an idea in a democracy proceeds to mass action: the right to assemble; and beyond that there remains the right to petition the government.
As Neuborne points out, the first amendment depicts a functioning democracy; it doesn’t simply list unrelated rights. Nor is freedom of speech the only real right it lists, with the other rights being simply particular instances of it. Rather, freedom of thought and press and assembly and petition are unique rights with their own purposes. But none of them are ends in themselves. The purpose of the whole array of rights is to shape a government and a society in which popular thought (at one time of wealthy white males, later expanded) has at least some significant impact on public policy. Currently, of course, it does not, and Neuborne puts much of the blame for that on the Supreme Court’s choices over the centuries, well meaning and otherwise, in how to read the first amendment.
As Neuborne suggests, the right to petition the government has been neglected. Nothing goes to a vote in the House of so-called Representatives unless approved by the majority party leader. Forty-one senators representing a tiny sliver of the population can stop almost any bill in the Senate. A democratic understanding of the right of petition might allow the public to compel votes in Congress on matters of public interest. In fact, I think this understanding would not be a new one. Jefferson’s Manual, which is part of the rules of the House, allows for petitions and memorials, which are often submitted to Congress by local and state governments and groups. And at least in the case of impeachment proceedings, it lists a petition and memorial (written statement of facts accompanying the petition) as one of the means of initiating impeachment proceedings. I know because thousands of us collected millions of signatures on petitions to begin the impeachment of President George W. Bush, the desirability of which also reached a majority in public opinion polls despite zero action or discussion in Washington. The public was unable to even compel a vote. Our grievances were not redressed.
The right of assembly has been confined in free-speech cages, the right of free press has been corporate-monopolized, and the right of free speech has been shriveled away in the right places and expanded in the wrong places.
I’m not convinced by those who argue against all limits on speech. Speech is, appropriately enough, not considered free when it comes to threats, blackmail, extortion, false statements causing harm, obscenity, “fighting words,” commercial speech urging illegal action, or egregiously false and misleading commercial speech. Under the International Covenant on Civil and Political Rights, to which the United States is a party, “any propaganda for war” must be prohibited, a standard which, if enforced, would eliminate a big chunk of U.S. television viewing.
So, we must choose where to allow speech and where not to, and as Neuborne documents, this is currently done with zero respect for logic. Spending money to elect a plutocratic-friendly candidate is considered “pure speech,” deserving of the highest protection, but contributing money to that candidate’s campaign is “indirect speech,” deserving of a bit less protection and therefore subject to limits. Meanwhile burning a draft card is merely “communicative conduct” and when a voter writes in a name as a protest vote that gets no protection at all and can be banned. The Supremes do not allow judges to hear cases in which one litigant is a major benefactor of the judge, yet allow elected officials to govern people who buy them their seats. Corporations get first amendment rights despite lacking the human dignity to qualify for the fifth amendment’s right to remain silent; are we supposed to pretend corporations are human or not? The Court upheld an Indiana voter ID requirement despite understanding that it would disproportionately harm the poor and despite not a single case of voter fraud being found anywhere in Indiana. If the right to outspend anyone else and effectively buy a candidate an election is the highest form of protected speech, why is the right to vote the lowest? Why are long lines to vote in poor neighborhoods allowed? Why can districts be gerrymandered to guarantee election of a candidate or party? Why can a criminal conviction strip away the right to vote? Why can elections be designed to benefit a two-party duopoly rather than the voters?
Neuborne writes that, “the robust third-party culture of the nineteenth century rested on ease of ballot access and the ability to cross-endorse. The Supreme Court has wiped out both, leaving a Republicrat cartel that stifles new ideas that might threaten the status quo.”
Neuborne suggests many of the usual, and very good, solutions: creating free media on our air waves, providing tax credits to effectively give every person money to spend on elections, matching small donations as New York City does, creating automatic registration as Oregon just did, creating an election day holiday. Neuborne proposes a duty to vote, allowing an opt-out — I’d rather add an option to vote for “none of the above.” But the real solution is a popular movement that compels one or more branches of our government to view its purpose as supporting democracy, not just bombing other countries in its name.
Which brings us to the primary thing our government does, which even its detractors among law professors approve, namely war. To his credit, Neuborne favors the right to conscientious objection, as well as the free-speech right of groups or individuals to teach nonviolent action techniques to groups labeled “terrorist.” Yet he supports hiring as a teacher of so-called human rights law a man who used his law background to tell Congress it had no war powers, to legitimate a brutal and blatantly illegal attack on Libya that has left behind a possibly permanent catastrophe from which helpless people are fleeing by boat, and to sanction the practice of murdering men, women, and children in large numbers by missile from drone.
I would love to see the explanation from Professor Neuborne as to how it can be the government’s right to murder him (and anyone near him) with a hellfire missile, while it is simultaneously his right to be secure in his person against unreasonable search and seizure, his right not to be held to answer for a capital or otherwise infamous crime unless on a presentment or indictment of a Grand Jury, his right to a speedy and public trial, his right to be informed of the accusation and to be confronted by the witnesses, his right to subpoena witnesses, his right to a trial by jury, and his right not to suffer cruel or unusual punishment.
