During the Vietnam era, although the Court provided significant First Amendment protection to anti–Vietnam War demonstrators, protection did not extend to young men who burned their draft cards in public to express opposition to a war that Congress had never explicitly authorized. They went to prison as convicted felons.94 A unanimous Supreme Court that included Earl Warren, William O. Douglas,95 and William Brennan Jr. held that because burning a draft card to make a political point was communicative conduct, not pure speech, it was not entitled to first-class speech protection. Of course, that didn’t stop the justices eight years later from ruling that spending unlimited amounts of money to influence an election is pure speech, not communicative conduct.96 Nor did it stop five members of the Court in Citizens United from ruling that large for-profit corporations are engaged in pure speech when they pour unlimited treasury funds into an election campaign. Five members of the Supreme Court have even held that providing matching subsidies to underfunded candidates, enabling them to respond to privately funded campaign speech, unconstitutionally “burdens” the free-speech rights of rich candidates.97
Today despite the First Amendment’s parchment barriers, we still can’t buy Cuban magazines and newspapers or visit Havana without special permission from the government. Idealistic Americans are forbidden, on pain of prison, from teaching peaceful methods of resolving grievances to foreign groups labeled by the executive as terrorists.98 Students have virtually no free-speech rights to publish uncensored high school newspapers or express unwelcome opinions about drugs or their teachers. The free-speech rights of public employees and labor unions are under siege. And despite the First Amendment right to political anonymity and the Fourth Amendment’s protection of personal privacy, the promise of constitutional protection against universal government surveillance is in shambles.
So much for parchment barriers.
THE DECK CHAIR THEORY OF THE FIRST AMENDMENT
Sometimes, usually just after I’ve lost a case, I succumb to what I call the deck-chair theory of the First Amendment. I grumble that when the weather is sunny, we unfold an elegant deck chair that we call the First Amendment. As we lounge in our chair, we extol its comfort and sophisticated design, congratulating ourselves for owning such a useful and stylish piece of furniture. At the first sign of rain, though, we fold up our beautiful deck chair and put it away until the sun comes out again. Could it be, I ask myself, that the real reason the First Amendment has flourished for more than two hundred years is that it’s never gotten wet? When I emerge from my funk, though, I remember that the historical record is much more complex. I remember that the story of our past is not just a cynical tale. Courageous popular support for freedom can—and has—made a difference. I remember that in each period of crisis, brave voices have rallied to the Bill of Rights. John Adams jailed his critics, but the people rejected the Alien and Sedition Acts in the election of 1800. Congress declined to renew the Acts in 1802, and President Jefferson pardoned the victims. I remember that President Lincoln tolerated a huge amount of dissent and criticism during the Civil War, presiding fairly over a hard-fought 1864 presidential election in which he was vigorously challenged by George McClellan, one of his ex-generals. Clement Vallandingham came out of hiding and actually served as McClellan’s shadow secretary of war during the election. I remember that, responding to public concern, Lincoln tempered his initial resort to military rule by granting an amnesty to all political prisoners in 1862. And I remember that once the Civil War was over, the Supreme Court repudiated Lincoln’s effort at unilateral military rule, establishing important precedents that protect us today. I remember that the World War I prosecutions of war resisters, including Schenck and Debs, eventually impelled justices Holmes and Brandeis to issue the dissent in Abrams and the concurrence in Whitney that lit the way to the modern First Amendment. I remember that on the very day the Supreme Court upheld the Japanese internment camps in Korematsu, it ruled that every detainee must be given a prompt individual hearing on dangerousness,99 dooming the camps as a practical matter and leading to their closing three months later. I remember that in 1968, Congress apologized to the surviving Japanese detainees and awarded them $10,000 each—too little too late, but something. I remember that the Supreme Court eventually blunted some of the worst excesses of the McCarthy years and that it was Joe McCarthy who was eventually censured by the Senate. I remember that it was the Supreme Court that kept the civil rights movement in the South from being smothered by hostile police. I remember that the Supreme Court refused to permit the president to block publication of the Pentagon Papers, and that popular opposition to the Vietnam War drove a sitting president from office, hastening the end of the carnage. I remember that despite occasional slipups, the scope and intensity of our current First Amendment freedoms are remarkably broad.
Finally, I remember that the real lesson of our First Amendment history is that a Bill of Rights without popular support really is a toothless parchment barrier but that a rights-bearing document backed by popular support can move mountains.
That’s where the loss of Madison’s music hurts most deeply. The aesthetic force of Madison’s lost poetry could be of incalculable value in rallying the level of public support needed to sustain the practical vitality of the Bill of Rights, especially the First Amendment, in storm-tossed times. It’s possible, of course, to attempt to rally popular support for fragments of the Bill of Rights displayed as isolated slogans. But if the isolated slogans were understood by the people as threads in a harmonious tapestry, interacting with and reinforcing each other as the elements of a magnificent poem to human freedom and political democracy, it would be much easier to rally “We the People” to defend the Bill of Rights, for it would speak to them in the coherent voice of poetry. Would that prevent us from giving in to fear in time of crisis? Of course it wouldn’t. Human beings are not machines. Fear and emotion will always be part of the equation. But precisely because fear and emotion can erode the protections of the Constitution and Bill of Rights, it is doubly important to couch First Amendment protections in their strongest, most persuasive form—as an integrated, lapidary poem to democracy and freedom with not a word or idea out of place.
10
Madison, the Reluctant Poet
How the Great Poem Almost Didn’t Get Written
The story of the textual evolution of the Bill of Rights during that febrile summer of 1789 makes it difficult, if not impossible, to claim that the structure and organization of the Bill of Rights was driven by a single person’s vision.1 Madison didn’t even want to produce a single, coherent Bill of Rights. The Senate’s role remains delphic. Too many other important players, including Roger Sherman and Elbridge Gerry, were involved to claim that Madison’s intentions controlled everything. What should matter today, though, is not what a group of long-dead, slave-owning white men of substantial property may have been thinking about in 1789. Their world is long gone, and a good thing, too. Their evanescent intentions have little or no relevance to a contemporary world that they could not have imagined. It’s the enduring text that matters. As I’ve noted earlier, great poems aren’t beautiful because poets have willed them so. The unique beauty of great poetry is found in the text itself, in the imagery, emotions, and meaning produced by the order, cadence, structure, and content of the words. Madison and his friends, whatever they may have been thinking as summer turned into autumn in that remarkable year, transmitted a text to us that turns out to be a great poem about freedom and democracy, if only we will take the time and effort to read it closely. There is the music of poetry in the order, cadence, structure, and content of the text of the Bill of Rights, especially the First Amendment, if we are wise enough to hear it.
We almost didn’t have a Bill of Rights, though, much less a coherent poetic celebration of democracy and freedom. It’s not as though bills of rights were rare in 1787. Starting in 1215 with the Magna Carta and running through the burst of Revolutionary rights-bearing documents pro
duced from 1765 to 1783, I count at least four English declarations of rights, three major colonial compilations of rights, and eighteen Revolutionary efforts to describe individual rights. In fact, Madison had at least forty-two source documents to choose from, to say nothing of dozens and dozens of proposed amendments suggested by the states. But it all almost came to nothing.
Our first effort at a national charter, the 1781 Articles of Confederation, did not contain a Bill of Rights, perhaps because the national government under the Articles was so weak—it lacked an executive, a judiciary, and the power to tax—that it was deemed unnecessary to list protected rights. When the fifty-five Founders gathered in Philadelphia on May 25, 1787, to discuss amending the Articles of Confederation to strengthen the national government, sentiment quickly turned to scrapping the Articles entirely in favor of a brand-new Constitution, even if that appeared to exceed the delegates’ original mandate. The consensus among the delegates was that it would be a mistake to include a bill of rights in the new Constitution. Some, such as Alexander Hamilton, believed that the proposed new national government was already too weak and should not be further hobbled by declarations of rights. Others, such as James Wilson, feared that a formal enumeration of rights would be dangerous because it would imply a strong central government with power to violate them. Madison himself, accurately predicting a future Antonin Scalia, feared that any written enumeration of rights might accidentally leave some important rights out, making it difficult or impossible for new rights to evolve and be recognized. While several halfhearted efforts were made late in the game to insert provisions protecting rights into the new constitution, they got nowhere. After a formal proposal to add a bill of rights was unanimously rejected, the Constitution was finally signed on September 17, 1787, without a bill of rights.
The closest thing to rights in the original constitutional text was the promise in Article VI that “no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.” Article 1, section 9 contains a promise that Congress would not suspend habeas corpus except in times of war or rebellion, and a promise that bills of attainder and retroactive criminal laws would be prohibited. But those two essentially procedural guaranties, while important, are separation of powers–based protections of the rule of law generally, not protections of particular rights. A potential equality provision in Article IV, section 1 promised that “[t]he Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several states,” but any hint of serious protection of equality was immediately erased by the notorious clause providing for the apprehension and return of fugitive slaves, and the nonamendable guaranty of the right to import slaves for twenty-one more years, until 1808. Four prominent delegates, Elbridge Gerry (Mass.), George Mason (Va.), Luther Martin (Md.), and Edmund Randolph (Va.), refused to sign the proposed new constitution because it lacked a bill of rights. John Lansing and Robert Gates, the delegates from New York, actually walked out of the Constitutional Convention after six weeks in order to begin organizing opposition to the document.
Ratification was far from a sure thing. Unlike the Articles of Confederation, which had required unanimous consent, the 1787 Constitution required ratification by only nine states to become effective, at least within the territory of the ratifying states. Because two states, Rhode Island and North Carolina, openly opposed the new constitution (Rhode Island refused to call a ratifying convention; North Carolina held a convention and overwhelmingly rejected it), the ratification math was harder than it first appeared; approval by nine of the eleven states in play was needed. The Founders didn’t trust either an up-or-down popular vote on ratification in each state or ratification by the state legislatures. Instead, they insisted on state ratifying conventions with delegates often elected from malapportioned districts. The slice of the population that elected the delegates excluded women, members of racial minorities, and white men who didn’t have enough money to meet each state’s property qualifications for voting. While a few states relaxed property qualifications somewhat to permit broader white male participation in the ratification process, there was no thought of permitting women, African Americans, or Native Americans to vote. The closest thing to a feminist consciousness was Abigail Adams’s plaintive plea to her husband, John, “not to forget the ladies.”
When the proposed new constitution was presented to the Confederation Congress (which served under the Articles of Confederation from 1781 to 1789 and had issued the call for amendments to the Articles in the first place), the Confederation Congress declined to endorse it, in part because many members believed that the delegates had exceeded their authority by drafting an entirely new constitution instead of amending the Articles of Confederation. The best the Founders could do was to obtain unanimous consent from the Congress to submit the new draft constitution to the states for possible ratification, without an endorsement. Opponents of ratification, calling themselves Anti-Federalists, viewed the new constitution as a threat to individual freedom. A strong national government, they feared, would be controlled by men like Alexander Hamilton, who favored industry and manufacture over an Arcadian vision of citizen farmers. The failure to provide for a bill of rights became a rallying point for the Anti-Federalists, who argued that the powers granted to the national government by the new constitution were too dangerous unless they were constrained by a written list of rights.
The new constitution’s supporters, calling themselves Federalists, led by Hamilton, Madison, and John Jay, answered that the twin structural protections of federalism and separation of powers would be much more effective in preserving freedom than any “parchment barriers.” In the end, facing likely defeat in the ratification process, the Federalists promised to amend the new constitution by adding a Bill of Rights as soon as it was ratified.
Even with the promise, it was a close thing. Five states, Delaware (December 7, 1787), Pennsylvania (December 12), New Jersey (December 18), Georgia (January 2, 1788), and Connecticut (January 8), quickly ratified by comfortable margins, although the debate in Pennsylvania, which ratified by a vote of 46–23, was fierce and was marred by resort to mob violence aimed at compelling dissenting members of the state legislature to attend the legislative session calling for a ratifying convention. The dissenters had stayed away hoping to prevent a quorum. The next state up, Massachusetts, was a battleground, eventually ratifying by a vote of 187–168 on February 5, 1788, but only after the Federalists promised to enact a Bill of Rights and submit a series of proposed amendments. On February 13, facing almost certain defeat in New Hampshire, the Federalists engineered a vote of 56–51 to adjourn the ratifying convention to allow the delegates to seek guidance from their constituents. It was a brilliant tactical move that probably saved the Constitution. Ratification by comfortable margins in Maryland (April 28, 1788) and South Carolina (May 23) brought the number of ratifying states to eight. When New Hampshire reconvened and ratified on June 21, 1788, by a vote of 57–47, the new Constitution officially became law in the nine ratifying states.
Without Virginia and New York, though, it would’ve been stillborn. After bitterly contested elections in each state, Virginia ratified on June 26, 1788, by a vote of 89–79, and New York followed suit on July 26 with a razor-thin ratification margin of 30–27. The New York vote was something of a surprise, for the Anti-Federalists appeared to control the convention by a wide margin. Once again, the tactical brilliance of the Federalists in delaying New York’s vote until ten other states had ratified probably snatched victory from almost certain defeat. Virginia narrowly rejected a conditional ratification, expressly contingent on the adoption of a bill of rights. New York’s ratification came with twenty-five proposed rights amendments and thirty-one other assorted suggested changes. North Carolina and Rhode Island refused to ratify until a bill of rights was adopted. North Carolina finally ratified on November 21, 1789, a year after Washington was elected president. Rhode Island held out un
til May 29, 1790, and ratified by a vote of 34–32, but not until the Rhode Island delegates adamantly demanded a bill of rights, despite the fact one had already been adopted by Congress eight months earlier.
The first United States Congress elected under the new Constitution was scheduled to convene on March 4, 1789, but didn’t assemble a quorum until April 1. Actually, it was the nation’s fourth Congress. The first Continental Congress met briefly in 1774 to coordinate economic resistance to Great Britain. The second Continental Congress reconvened in 1775 after Lexington and Concord, issued the Declaration of Independence in 1776, appointed George Washington as commander in chief, and remained in session until 1781 to manage (or mismanage) the Revolutionary War. The third congress, the Confederation Congress, was a unicameral legislature established under the Articles of Confederation. The Confederation Congress was in session from 1781 to 1789. It negotiated the Treaty of Paris, ending the Revolutionary War, enacted the Northwest Ordinance in 1787, set in motion the process of drafting a new constitution, and organized the first elections for president and Congress under the new Constitution in November 1788.
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