Madison's Music

by Burt Neuborne

  It’s possible, of course, that Revolutionary-era monkeys on a typewriter (or mice with quill pens) would have randomly stumbled upon such a fine-tuned democratic chronology. But even if the disciplined order of the six textual ideas is merely the result of random good fortune, the full First Amendment, as Madison and his friends wrote it, should be democracy’s best friend. It’s tragic that the current Supreme Court majority, utterly ignoring Madison’s music, has turned the isolated, artificially truncated seven-word Free Speech Clause into democracy’s bad parent.

  DEMOCRACY’S BAD PARENT—SUFFOCATING ONE DAY, ABSENT THE NEXT

  Congress enacted a campaign finance law limiting the massively unequal electoral power of the rich. The suffocatingly strict Supreme Court said no, ruling that the Free Speech Clause guaranties the rich uncontrollable power to dominate the democratic process.6

  Arizona tried to help underfunded candidates compete with rich ones by providing campaign subsidies designed to match the spending of the rich, privately funded candidate. The suffocatingly strict Supreme Court said no, ruling that matching campaign subsidies unconstitutionally “penalize” the free-speech rights of rich candidates.7

  Congress, following the advice of Teddy Roosevelt, sought to wall off the vast trove of corporate wealth from our elections. The suffocatingly strict Supreme Court said no, ruling that unlimited corporate electioneering is protected by the Free Speech Clause because, according to five justices, an unlimited diet of corporate propaganda is actually good for us.8

  California sought to broaden the two major parties’ nominating processes by allowing all voters to participate in the nomination of both Republican and Democratic candidates in a convenient format, the “blanket primary.” The suffocatingly strict Supreme Court said no, insisting that opening up the major party nominating process to all voters unconstitutionally dilutes the associational rights of party members.9

  North Carolina drew legislative lines to help racial minorities recover from centuries of political exclusion. The suffocatingly strict Supreme Court scolded the state officials and said no, insisting that drawing electoral lines in an effort to help racial minorities secure fair political representation is a dangerous form of racism.10

  In 1965, Congress overwhelmingly adopted a Voting Rights Act aimed at protecting minority voters in the states of the old Confederacy, requiring the Justice Department to sign off on proposed election law changes to make sure that they did not adversely affect black and Latino voters. Congress overwhelmingly reenacted the provision, called “pre-clearance,” in 1982, and again in 2006. The suffocatingly strict Supreme Court said no, informing both houses of Congress that minority voters don’t really need special protection anymore.11

  However, when cynical politicians set up hurdles to prevent poor people from voting, including requiring photo identification cards or proof of citizenship, the inexplicably absent Supreme Court can’t find a constitutional violation.12

  When powerful incumbent legislators rig district lines to ensure their permanent reelection, the inexplicably absent Supreme Court looks the other way.13

  When political bosses of both parties draw partisan district lines to ensure the election of their party’s candidates, the inexplicably absent Supreme Court says it’s just politics as usual.14

  In the dysfunctional democracy the justices have built, at least one half of the electorate doesn’t vote,15 the Supreme Court gets to pick a president,16 the extreme wings of each major party dominate the nominating process, minor parties are rendered powerless, rich ideological outliers control the political agenda, voting can be an ordeal, lobbyists treat elected officials as wholly owned subsidiaries, and rivers of money flowing from secret sources have turned our elections into silent auctions.

  Madison would weep.

  The sad truth is that for the last half century the Supreme Court, as a bad parent, has decided dozens and dozens of constitutional cases that have shaped the contours of American democracy without paying attention to the quality of the democracy it was building. If an architect designed an expensive house with fancy windows, elegant doors, sweeping staircases, and graceful walls but didn’t worry about how they all fit together, no one would want to live in her accidental house. That’s just what the Supreme Court has done with American democracy. A narrow majority of the justices has built an accidental, dysfunctional democracy that no one except the superrich and the politically powerful wants to live in.17

  Can Madison’s democracy-friendly First Amendment help us to think our way out of our current democratic malaise? I’m sure that the answer is yes, but only if we recover the ability to read Madison’s entire First Amendment as a meticulously organized road map of a well-functioning egalitarian democracy. I’ll return to what a democracy-friendly First Amendment might look like in the next chapter, but first we should take a quick look at the rest of Madison’s great poem, for Madison’s music doesn’t stop with the First Amendment. The Founders understood that ideal cities perched on imaginary hills are notoriously fragile. They knew that practical defenses rooted in realpolitik had to be put in place to reinforce the First Amendment’s “parchment barriers.” The Second through Eighth Amendments deploy those defenses in a precisely organized catalog of risks to the First Amendment’s ideal democratic polity, organized by category and order of magnitude. No similarly ordered catalog of democratic risks and remedies exists in the eight hundred years of our rights-bearing heritage.

  MADISON’S SURPRISINGLY EGALITARIAN SECOND AMENDMENT

  The Second (and Third)18 Amendments reflect the Founders’ fearful (but all too accurate) understanding that subversion or overthrow by force of arms is the fate of most democracies. Placement of the Second Amendment immediately after the iconic First telegraphs their concern that, despite the protections built into the 1787 Constitution,19 the risk of armed subversion by the military remained the greatest threat to their democratic handiwork. Madison’s characteristically pragmatic antidote was to insert checks and balances into the organizational structure of the new nation’s military forces. On one hand, he envisioned a typical eighteenth-century mercenary standing army, nominally commanded by the president but having little kinship with or loyalty to the people it supposedly served. On the other, he envisioned a reserve standby army consisting of the entire white male population in arms in the form of a “well-regulated” citizens’ militia. Madison hoped that the very existence of such a militia would check the mercenary standing army.

  The challenge today is to give meaning to the Second Amendment in a world where the eighteenth-century mercenary standing army has evolved into a modern citizens’ army that looks just like the people it serves, organized citizens’ militias no longer exist, and the prospect of an ad hoc group of armed citizens deterring a military takeover is a teenage fantasy that makes a good movie, nothing more. Unfortunately, in a classic example of what happens when a piece of the constitutional text is torn from its roots and viewed in isolation, a majority of the current Supreme Court ignores the structural relationship between the First and Second Amendments. Instead of reading the Second Amendment as a structural protection of First Amendment democracy against military overthrow, five members of the current Court tear the “keep and bear arms” clause from the full text, completely ignore the “well-regulated militia” clause, and insist on reading a fragment of the Second Amendment as creating a freestanding constitutional right to own guns for self-defense and sport, unconnected to the defense of democracy.20

  The current “individual self-defense” reading of the Keep and Bear Arms Clause ignores Madison’s prescient understanding that a standing army that doesn’t look like the population it purports to serve poses a unique threat to democratic governance. Madison predicted—and history teaches—that such an unrepresentative military is a good bet to turn on the polity, especially the excluded segments of the population. The ugly example of England’s religious civil wars, when Catholics and Protestants took turns excluding ea
ch other from the nation’s armed forces as the first step toward massacring each other, was obviously very much on Madison’s mind. As the eighteenth-century mercenary-based military painfully evolved during the nineteenth and twentieth centuries into an institution that resembled the society it served, Madison’s democratic “city on a hill” no longer needed a “well-regulated” citizens’ militia to counter the threat from an unrepresentative standing army. Not surprisingly, the very idea of a well-regulated citizens’ militia disintegrated. The disappearance of the citizens’ militia does not mean, however, that the Second Amendment has no role in twenty-first-century America. Reducing the Second Amendment to a historical anachronism would be unfaithful to a genuine commitment to reading the Bill of Rights—the entire Bill of Rights—as a coherent poem. Efforts by the Supreme Court’s liberal minority to consign the Second Amendment to the dustbin of history fail to respect its central place in Madison’s poem. Indeed, if forced to choose between an individual-self-defense reading that gives the Second Amendment substantial but erroneous contemporary meaning and a dismissive reading, I would choose the individual rights reading.

  But those aren’t the only choices. The modern reading of Madison’s Second Amendment closest to his original structure is a guaranty that all qualified persons, including gays, women, and people of color, enjoy an equal “right to keep and bear arms” in defense of American democracy as members of a well-regulated military that, thanks to James Madison, will always look just like the people it serves.

  MADISON AS INSPECTOR POIRÔT: AMENDMENTS IV–VIII

  With the risk of forcible military overthrow dealt with in the Second and Third Amendments (the Third Amendment prohibits troops from commandeering private houses; fortunately, we have had no need to invoke it), Madison’s poem turns logically to the next most feared source of armed subversion of democracy—abuse of the civilian law enforcement power. The disciplined order and placement of the Fourth, Fifth, Sixth, Seventh, and Eighth Amendments chronologically replicates the six phases of the criminal law enforcement process:

  investigation—Fourth Amendment,

  arrest—Fourth Amendment,

  formal accusation—Fifth Amendment,

  custodial interrogation—Fifth Amendment,

  adjudication—Sixth and Seventh Amendments, and

  punishment—Eighth Amendment.

  At each step of the chronologically organized process, Madison and his friends carefully inserted structural protections against abuse of the law enforcement power.

  The Fourth Amendment regulates investigation and arrest by strictly limiting the power of law enforcement agencies to search, seize, and arrest suspected wrongdoers. As with the checks and balances in Madison’s Second Amendment, the structural core of the Fourth Amendment is the division of law enforcement powers between the police and the courts. Under the Fourth Amendment’s Warrant Clause, the police may not carry out a search, seizure, or arrest unless they persuade a neutral judge that “probable cause” exists to believe that evidence of a crime will be uncovered or a criminal wrongdoer apprehended. In 1961, the Warren Court reinforced Madison’s original textual structural protection by construing the Fourth Amendment as requiring the exclusion at criminal trial of evidence wrongfully obtained through an unlawful search, seizure, or arrest.21 As with Justice Harlan’s discovery of implied freedom of association in the First Amendment, the Fourth Amendment “exclusionary rule” is an example of the power of American judges to find implied constitutional rights in the interstices of the constitutional text. We’ll explore that process further when we consider Madison’s Ninth Amendment.

  Once a Fourth Amendment investigation has identified and placed a suspected wrongdoer under arrest, Madison’s poem moves logically to the formal charging and interrogation phases governed by the Fifth Amendment, which opens by empowering a group of ordinary citizens sitting as a grand jury to decide whether enough evidence of guilt exists to justify a formal accusation (indictment). Madison’s Fifth Amendment then turns logically to custodial interrogation, limiting the power of the police to force a defendant to incriminate himself. As with the Fourth Amendment’s exclusionary rule, the modern Supreme Court forbids the introduction at trial of involuntary custodial statements. Of course, statements given under torture are barred. But so are custodial statements taken without informing the accused of the right to remain silent and the right to a free lawyer. That’s where so-called Miranda warnings come from.22

  The Fifth Amendment closes with a prohibition on the “deprivation of life, liberty, or property without due process of law,” and a ban on “taking” private property for public use without just compensation. The Due Process and Takings clauses are placed between the Fifth and Sixth Amendments to keep the police, once they get their hands on the person they believe to be guilty, from being tempted to impose summary punishment without waiting for the adjudicatory formalities described in the Sixth and Seventh Amendments. As such, they are perfectly positioned as the crucial textual bridge to the Sixth Amendment from the Fourth and Fifth.

  Once an accused has been properly investigated, arrested, charged, and interrogated under the Fourth and Fifth Amendments, Madison’s poem moves logically to the criminal adjudication phase in the Sixth Amendment, which ensures fair notice of criminal charges, the right of a criminal defendant to confront and cross-examine hostile witnesses, the right to summon friendly witnesses, the right to counsel, and the right to a public jury trial in the place where the alleged crime took place. As with the Fourth and Fifth Amendment exclusionary rules, the modern Supreme Court has added nontextual rights to the Sixth Amendment adjudication process, finding an implied requirement that a criminal jury must find guilt beyond a reasonable doubt as to each element of a criminal offense, and that the government provide free counsel in cases threatening loss of liberty.23

  If a Sixth Amendment criminal jury trial (or a Seventh Amendment jury trial in a noncriminal setting) results in a guilty verdict, the Eighth Amendment’s ban on cruel and unusual punishment or excessive fines limits the severity of punishment. No excessive bail at the beginning of the process, for such unfair incarceration is itself a punishment without trial. No death penalty for offenses not resulting in death. No death penalty for juvenile offenders. No death penalty for mentally deficient defendants. Perhaps no death penalty at all. No jail sentence that is grossly disproportionate to the gravity of the crime. No massive punitive damage awards in civil cases that bear little relationship to the actual damages caused by a defendant’s unlawful behavior.

  As with the careful order of democracy-enhancing ideas in the First Amendment and the military-curbing ideas in the Second and Third Amendments, no other similarly organized catalog of risks and safeguards associated with the civilian law enforcement process exists in our rights-bearing heritage. Yet I know of no modern case that asks why the criminal procedure amendments are ordered as they are or seeks to construe the criminal procedure amendments as a structural whole.24 To the contrary, since the 1980s, the Court’s characteristic approach to criminal procedure is to view each clause of each amendment in splendid isolation, leaving white spaces between them that become loopholes for law enforcement abuse. For example, the widespread use of undercover agents to infiltrate Muslim institutions in the United States is not usually deemed a search, so it escapes the Fourth Amendment. Nor is it deemed custodial interrogation, so it escapes the Fifth Amendment, leaving police free to abuse the technique with no judicial oversight. Similarly, massive data-gathering programs carried out in secret are defended as constitutional because they do not fall within a narrow interpretation of search and seizure or because we’ve watered down the warrant clause to virtually nothing.

  Madison would be appalled.

  A MADISONIAN READING LESSON: RECOVERING THE POETRY IN AMENDMENTS IX AND X

  Madison saved the best for last. The key to reading the Bill of Rights as a poem is found in the two closing amendments. Madison understood that without c
areful instructions about how to read the text, the Bill of Rights risked being mired in semantic chaos. As usual, he was right.

  James Madison was a consummate lawyer. He knew that words are slippery things. He knew that from the very beginnings of written language, limits of text and imagination have complicated efforts to use written words to convey important messages to friends and neighbors, to say nothing of conveying complex political instructions to future generations. Witness the current massive disagreement and confusion over how judges should read the Bill of Rights, ranging from Justice Thomas’s strict literalism, through various versions of “originalism” favored by Justice Scalia, to Justice Brennan’s embrace of the “living constitution,” Justice Souter’s thoughtful explorations of how best to advance the Founders’ basic purposes, and Justice Breyer’s invocation of egalitarian democracy as a textual tiebreaker.

  Madison also recognized that the Founders, being human, might leave an important right out of the literal text because they forgot it, overlooked it, or erroneously rejected it. As we’ll see, that’s just what happened when the Senate rejected Madison’s secular conscience clause and his clause applying portions of the Bill of Rights to the states. Madison’s antidote was to close his poem with careful directions in the Ninth and Tenth Amendments about how to read the constitutional text. The Ninth Amendment, acknowledging the possibility of additional rights “retained by the people,” empowers future generations to cope with ambiguous drafting, inadvertent omission, or outright mistakes by: (1) reading the rights-bearing text generously and (2) invoking analogy and structural need, through a process known to the Founders’ generation as “the equity of the statute,” to imply the existence of nontextual rights.25 Conversely, the Tenth Amendment instructs future generations to read the power-granting text narrowly and to refrain from implying new powers through analogy and structural need. Madison rooted his constitutional reading lesson in two venerable British parliamentary approaches to construing text, which guide us more than two hundred years later in reading the Constitution and statutes today. One technique—summarized by the Latin phrase inclusio unis est exclusio alterium, “inclusion of one thing is exclusion of the other”—instructed British judges to read parliamentary statutes in a narrow, literal way. If something was not actually mentioned in the literal text, inclusio unis forbade a British judge from extending the text’s coverage to closely analogous settings. For example, if the British Parliament enacted legislation regulating “betting establishments,” British bookies were free to ignore the regulations as long as the bet was made at the track and not at the “betting establishment.”