Madison's Music

ALSO BY BURT NEUBORNE

Building a Better Democracy: Reflections on Money, Politics and Free Speech: A Collection of Writings by Burt Neuborne

El papel de los juristas y del imperio de la ley en sociedad Americana
(The Role of Judges and the Rule of Law in American Society)

Free Speech, Free Markets, Free Choice: An Essay on Commercial Speech

Emerson, Haber, and Dorsen's Political and Civil Rights in the United States
, volume 1 (with Paul Bender and Norman Dorsen) and volume 2 (with Paul Bender, Norman Dorsen, and Sylvia Law)

The Rights of Candidates and Voters
(with Arthur Eisenberg)

Unquestioning Obedience to the President: The Constitutional Case Against the Vietnam War
(with Leon Friedman)

© 2015 by Burt Neuborne

All rights reserved.

No part of this book may be reproduced, in any form, without written permission from the publisher.

Requests for permission to reproduce selections from this book should be mailed to:

Permissions Department, The New Press, 120 Wall Street, 31st floor, New York, NY 10005.

“The House Was Quiet and the World Was Calm” from
The Collected Poems of Wallace Stevens
by Wallace Stevens, copyright © 1954 by Wallace Stevens and copyright renewed 1982 by Holly Stevens. Used by permission of Alfred A. Knopf, an imprint of the Knopf Doubleday Publishing Group, a division of Random House LLC. All rights reserved.

Published in the United States by The New Press, New York, 2015

Distributed by Perseus Distribution

LIBRARY OF CONGRESS CATALOGING-IN-PUBLICATION DATA

Neuborne, Burt, 1941– author.

Madison's music : on reading the First Amendment / Burt Neuborne.

pages
    
cm

Includes bibliographical references and index.

ISBN 978-1-62097-053-9 (e-book)

1.
  
United States. Constitution. 1st Amendment.
    
2.
  
Civil rights—United States—History.
    
3.
  
Constitutional history—United States.
    
I.
  
Title.

KF45581st .N48
    
2015

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Composition by dix!

This book was set in Electra

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1

Odysseus the Tailor

Odysseus the Tailor's real name was Sam. A gentle, unassuming man who stood all of five five, my father was one of a dozen U.S. Navy frogmen dropped into the English Channel several hours before the Normandy invasion in 1944, with instructions to attach explosives to a wall of underwater steel spikes designed to tear the bottoms out of Allied landing craft. Once the explosives were in place, Pop and his buddies swam to the beach and crouched in the surf until the invasion boats neared the French coast. Then they blew a hole in the steel wall, opening a bloody path to the liberation of Europe. After D-Day, Pop was assigned to “Patton's Navy,” a small combat unit supporting amphibious crossings of French rivers during the Third Army's push toward Paris. From our kitchen in the Greenpoint section of Brooklyn, my mother and I anxiously plotted Odysseus's progress across Europe. My job was to keep Pop up-to-date on his beloved New York Giants. Each letter from me contained baseball box scores laboriously clipped from the
Brooklyn Eagle
. Pop's heavily censored replies promised a glorious future when we would see a baseball game together at the Polo Grounds.

When Odysseus the Tailor finally came home in the summer of 1946, I oiled my baseball glove and waited for the great day. July passed into August—but no baseball. Pop reopened his tailor shop, and we sat comfortably in the warm sunlight while silver needles danced in his thimbled fingers—but no baseball. School began after Labor Day—but no baseball. Finally, in mid-September, I broke down at dinner. “What have I done,” I wailed, “that we can't go to a Giants game.” My father, who had forgotten his wartime promise, was stricken. He hugged me. “I love you, Butchie,” he whispered. “But we can't go to a Giants game yet. . . . They still don't let black people play, and we just don't support things like that.”

Instead, we took the ferry across the Hudson River to see the world champion Newark Eagles play a Negro League game at Ruppert Stadium. I don't remember much about the game, other than the beautifully dressed, multiracial crowd, the noise, the sunlight, and the joy of being my father's son.

Farewell, Odysseus of the silver needles. This book is for you.

CONTENTS

  
1.
  
Reading the First Amendment as a Poem

  
2.
  
Why Reading the First Amendment Isn't Easy

  
3.
  
Madison's Music: Lost and Found

  
4.
  
The First Amendment as a Narrative of Democracy

  
5.
  
Madison's Music Restored: Recovering Madison's Democracy-Friendly First Amendment

  
6.
  
The Democracy-Friendly First Amendment in Action

  
7.
  
Mr. Madison's Neighborhood

  
8.
  
Divine Madness: Hearing Madison's Music in the Religion Clauses

  
9.
  
The Costs of Ignoring Madison's Music: The Enigma of Judicial Review

10.
  
Madison, the Reluctant Poet: How the Great Poem Almost Didn't Get Written

Notes

Index

1

Reading the First Amendment as a Poem

This is not a work of history. I claim no special expertise about James Madison's interior life. Nor do I claim to be describing his subjective purpose. I don't even claim that Madison himself was wholly responsible for his music. As we'll see, Madison's arranger, Roger Sherman, deserves some credit. Rather, it is an effort to read the First Amendment's forty-five words—all of them—as a coherent whole in order to recapture what I call Madison's music.

I rest this book on the phrasing, rhythm, order, and placement of the forty-five words themselves. When we read a great poem, we do not ask whether the poet intended to achieve a particular emotional, aesthetic, or intellectual response. It is enough that the choreography of words triggers a responsive chord in a careful reader. The thesis of this book, dear reader, is that a careful study of the order, placement, meaning, and structure of the forty-five words in Madison's First Amendment will trigger a responsive poetic chord in you that will enable us to recapture the music of democracy in our most important political text.

Today we hear only broken fragments of Madison's music. Instead of seeking harmony and coherence in the First Amendment, we read the First Amendment (indeed, the entire Bill of Rights) as a set of isolated, self-contained commands, as if the Founders had thrown a pot of ink at the wall and allowed the order, placement, and structure of each provision in the Bill of Rights to be randomly
determined by the splatter. The result is an arbitrary constitutional jurisprudence that has left us with a dysfunctional, judge-built “democracy” that is owned lock, stock, and barrel by five thousand wealthy oligarchs, a pseudodemocracy in which district lines have been carefully gerrymandered to rig the outcomes of most legislative elections, only half the population bothers to vote, and cynics erect barriers designed to disenfranchise the weak and the poor.

It doesn't have to be that way. A poetic vision of the interplay between democracy and individual freedom is hiding in plain sight in the brilliantly ordered text and structure of the Bill of Rights, but we have forgotten how to look for it. Recovering our ability to hear Madison's music would pave the way to a democracy-friendly First Amendment aimed at reinforcing Lincoln's hope that “government of the people, by the people, and for the people shall not perish from the earth.”

We honor James Madison as the driving force behind the Bill of Rights. We recognize him as Thomas Jefferson's indispensable political lieutenant. We applaud him as the nation's fourth president. But we'll never do Madison full justice until we revere him as a great poet—not a literary poet like Wallace Stevens, but a political poet like Abraham Lincoln or Ronald Reagan. Madison's poetic genius was structural—a mastery of the contrapuntal interplay between the collective practice of democracy and individual liberty. His poetic voice speaks to us in the harmony of the 462 words, thirty-one ideas, and ten amendments—each in its perfectly chosen place and all interacting to form a coherent whole—that constitute the magnificent poem to democracy and individual freedom called the Bill of Rights.