Madison's Music (33 page)

. . . the equal rights of conscience, the freedom of speech, or the press, and the right to trial by jury in criminal cases, shall not be infringed by any State.

On Tuesday, August 18, the House ended its consideration of the Committee of Eleven's edit of Madison's June 8 proposals by approving his separation-of-powers clause and slightly modifying his federalism clause, which had read:

The powers not delegated by the Constitution, nor prohibited by it to the States, are reserved to the States respectively.

The House added “or to the people” at its close. So, after a week of debate, the only significant change imposed by the committee
of the whole on the Committee of Eleven's proposals was a minor redraft of Madison's religious-freedom amendment. But surviving the committee of the whole was just the beginning. Madison had to do it all over again before the same House of Representatives in its formal parliamentary dress.

Poetry struck late on August 19. After the House rejected what was left of Madison's effort to amend the preamble, the indefatigable Roger Sherman moved for a third time to reorganize Madison's separate clauses into a single coherent Bill of Rights. This time, after an unreported debate, Sherman won. Madison was less than pleased. He did not serve on the three-person Committee on Style charged with rearranging the clauses into a single document. In fact, Sherman did Madison—and us—a huge service by insisting that Madison's music be displayed in a manner that reveals its majestic harmonies. If Madison ever receives royalties from his poetry, he should split them with Roger Sherman.

In fairness to Madison the poet, though, he had already developed the content, order, and structure of the rights sprinkled throughout the larger text. All Sherman did was to lift the rights out one by one in the order that Madison had placed them and list them all in a single place. It took a day. If they do split the royalties, Madison is entitled to the lion's share.

On August 20, Fisher Ames successfully urged yet another rewrite of the religious-freedom clause, reinstating an explicit protection for free exercise, retaining the right of conscience, and continuing to place establishment before free exercise:

The Congress shall make no law establishing religion, or to prevent the free exercise thereof, or to infringe the rights of conscience.

The “keep and bear arms” clause was also slightly amended to reinstate Madison's original use of the words “in person” at the close of the conscientious-objection provision, presumably to signal that conscientious objectors could be required to perform alternative
service. Because the conscientious-objection clause did not make it through the Senate, we'll never know exactly what the House had in mind. The rest of the material that became the Bill of Rights sailed through with little debate. Fittingly, on August 21, Roger Sherman had a redundant last word by editing Madison's federalism clause to read:

. . . the powers not delegated to the United States by the Constitution nor prohibited by it to the States, are reserved to the States respectively, or to the people.

That was the way it already read except for the one comma after the word
States
.

August 22 was devoted to unsuccessful efforts by House members to place pet amendments into the text, and to the adoption of the final version of Madison's doomed apportionment clause setting a ceiling of fifty thousand on the number of constituents a House member could represent. The big news on August 22 was the appointment of a three-person Committee on Style, consisting of Roger Sherman, Egbert Benson, and Theodore Sedgwick, to rearrange Madison's separate clauses into a single Bill of Rights. Madison, having lost the argument over whether to interpolate the rights into the body of the Constitution or to list them separately, was sulking in his tent, but he had already done most of the heavy organizational lifting. The order of his June 8 proposals meticulously prefigures the organization of the First, Second, and Third Amendments and closes with material tracking the Ninth and Tenth. The material that evolved into the Fourth through Eighth Amendments was somewhat less meticulously organized. But that left something for Roger Sherman to do. The three members of the Committee on Style closeted themselves for a day or so and quickly presented the House with a document containing seventeen proposed articles on August 24, 1789. The first two articles were the ill-fated apportionment and congressional pay raise provisions, having nothing to do with rights. With the exception of Madison's
separation-of-powers clause, which didn't get through the Senate, the remaining fifteen articles prefigure the remarkable order and structure of the Bill of Rights. The three editors didn't tinker with Madison's placement of the order of the rights that became the First, Second, and Third Amendments, although the First Amendment material is still divided into separate religious and secular clauses. They did, however, bring organizational order to much of the material that became the Fourth, Fifth, Sixth, and Eighth Amendments. The three editors put together a pretty good draft for the Senate's consideration. It was adopted by the House without debate on August 24.

The House Resolution was transmitted to the Senate on August 25 and taken up for debate on September 2. Unfortunately, the Senate met in closed session in those days, so we have even less of a record than in the House. The Senate rejected several important pieces of Madison's handiwork, including the guaranty of conscientious objection to bearing arms and the presence of separate clauses protecting both religious exercise and the rights of secular conscience. The Senate also refused to restrict state efforts to interfere with the crucial rights of religious freedom, free speech, free press, and criminal jury trial and also rejected an explicit separation-of-powers clause. Ironically, every single item that the Senate stripped from the bill of rights ultimately became the law of the land. The Supreme Court has not hesitated to enforce the separation of powers without an explicit textual clause. The right of secular conscience is now constitutionally protected. The states are now bound by the provisions of the Bill of Rights. And Congress has provided for conscientious objection to the military draft.

A blizzard of efforts at other substantive changes failed in the Senate, but the twenty-one senators took their editorial responsibilities very seriously. They carefully edited the language of virtually every House provision, producing the final textual versions of almost everything in the Bill of Rights, except for the final version of the First Amendment and a minor tweak of the Fifth that were
hammered out on September 24 in a House-Senate conference committee that included Sherman, Benson, and Madison.

The twelve proposed amendments were submitted to the states on October 2, 1789. Acting through the state legislatures, the people were the final editors of the great poem, excising the two structural provisions dealing with the maximum size of a congressional district and regulating congressional pay raises. Only the ten rights-bearing amendments were ratified. Between November 20, 1789, and December 15, 1791, eleven states—New Jersey, Maryland, North Carolina, South Carolina, New Hampshire, Delaware, New York, Pennsylvania, Rhode Island, Vermont, and Virginia—ratified the Bill of Rights. Georgia and Connecticut—Roger Sherman's Connecticut—never got around to voting on the Bill of Rights, perhaps because once eleven states had ratified, additional ratifications had no legal effect. In a spate of delayed patriotism, though, both states symbolically ratified the first ten amendments in 1939. Both houses of the Massachusetts legislature apparently ratified the Bill of Rights in early 1790, but never got around to enacting a formal ratification bill. To make sure, Massachusetts also symbolically reratified in 1939.

I don't suppose that Wallace Stevens or Robert Frost wrote poetry this way. But the result is the remarkable poem to democracy and individual freedom unlike anything the world has ever seen. Thanks to Madison and his friends, where the Bill of Rights is concerned, the house is quiet. The world is calm. And the reader can become the book, if only you'll try.

NOTES

I have sought to keep notes to a minimum. Cases are cited only when necessary to provide an example of the Supreme Court's actions. Historical citations are designed to enrich the narrative, not to document it. For those of you seeking more complete notes, many of the themes in this book have been foreshadowed in my recent academic writings, which include: “The House Was Quiet and the World Was Calm,”
Vanderbilt Law Review
57 (2004); “Democracy and the Poor,” in
Law and Class in America
, ed. Paul Carrington and Trina Jones (2006); “The Gravitational Pull of Race on the Warren Court,”
Supreme Court Review
2010, no. 1: 59–102; “Felix Frankfurter's Revenge: An Accidental Democracy Built by Judges,”
NYU Review of Law & Social Change
35 (2011): 602; “Serving the Syllogism Machine,”
Texas Tech Law Review
44 (2011): 1; “Of Singles without Baseball: Corporations as Frozen Transactional Moments,”
Rutgers Law Review
65 (2012): 745; and “One State/Two Votes: Do Supermajority Voting Rules Violate the Article V Guaranty of Equal State Suffrage?”
Stanford Journal of Civil Rights and Civil Liberties
10 (2014): 27. If you can't find the note you seek in those sources, I'll be glad to visit you at home and deliver it.

I owe a debt to two academics whose writing has stimulated my thinking about reading the Constitution's text. Charles Black's pioneering efforts to read the Constitution functionally opened my eyes to the possibility of viewing the Constitution as a coherent narrative, and Akhil Amar's imaginative approach to constitutional text
stimulated me to look for poetry in the Bill of Rights. I also owe a debt to Justice Antonin Scalia, whose passionate engagement with the Constitution's text challenged me to attempt to find a more coherent way of reading our most cherished political document.

2. Why Reading the First Amendment Isn't Easy

1
. The drama surrounding the election of 1800 is described in John Fering,
Adams v. Jefferson: The Tumultuous Election of 1800
(New York: Oxford University Press, 2004). The best summary of President John Adams's use of the Alien and Sedition Acts to stifle his opponents is Geoffrey Stone,
Perilous Times: Free Speech in Wartime, from the Sedition Act of 1798 to the War on Terror
(New York: Norton, 2004).

2
. The widespread imposition of censorship of criticism of slavery throughout the South is described in Michael T. Gilmore,
The War on Words: Slavery, Race, and Free Speech in America
(Chicago: University of Chicago Press, 2010).

3
.
Vegelhan v. Guntner
, 167 Mass. 92 (1896).

4
.
Abrams v. United States
, 250 U.S. 616 (1919).

5
.
Debs v. United States
, 249 U.S. 211 (1919).

6
.
Dennis v. United States,
341 U.S. 494 (1951).

7
. The classic statement of Justice Holmes's justification for a robust free-speech clause occurs in his dissent in
Abrams
250 U.S at 624–31 (Holmes and Brandeis dissenting). Both Holmes and Brandeis were a little late to the First Amendment party, voting to uphold the convictions and sentences in
Schenck
and
Debs
.

8
. The classic statement of Justice Brandeis's justification for a robust free-speech clause occurs in
Whitney v. California
, 274 U.S. 357, 372–80 (1927) (Brandeis and Holmes concurring).

9
. See Frederick Schauer,
Free Speech: A Philosophical Enquiry
(New York: Cambridge University Press, 1982).

10
.
Texas v. Johnson
, 491 U.S. 397 (1989);
United States v. Eichman
, 496 U.S. 310 (1990): flag burning is protected speech. The voting breakdown was Justices Brennan and Marshall, joined by Justices Scalia, Blackmun, and Kennedy. Chief Justice Rehnquist and Justices White, O'Connor, and Stevens dissented.

11
. E.g.,
Citizens United v. FEC
, 558 U.S. 310 (2010): corporations may spend unlimited funds from their treasuries in support of candidates;
Arizona Free Enterprise Club v. Bennett
, 131 S. Ct. 2806 (2011), invalidating matching subsidies.

12
. Stephen Breyer,
Active Liberty: Interpreting Our Democratic Constitution
(New York: Oxford University Press, 2006).

3. Madison's Music: Lost and Found

1
. It is true, of course, that what we call the First Amendment was originally in third place, preceded by proposed structural amendments setting a limit of fifty thousand on the number of constituents a House member could represent and prohibiting Congress from raising its pay until the next Congress. While both the
constituent limit and pay raise amendments preceded the First Amendment, they were both viewed as structural fixes for errors or omissions in the original text. Neither purported to recognize or protect a fundamental human right. I discuss the two structural provisions in Chapter 10.

2
. The Fourth through Eighth Amendments provide:

AMENDMENT IV

           
The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched or things to be seized.